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HomeMy WebLinkAbout6/1/2005 - STAFF REPORTS (15) Ix F<fFOR� City Council Staff Report I I I CITY COUNCIL JUNE 1, 2005 CONSENT CALENDAR i SUBJECT: CONTRACT SERVICES AGREEMENTS WITH ALBERT A. WEBB i ASSOCIATES AND HARRIS REALTY APPRAISAL FOR PROFESSIONAL SERVICES RELATED TO THE FORMATION OF i COMMUNITY FACILITIES DISTRICT NO. 1 i • FROM: David H. Ready, City Manager BY: Public Works and Engineering Department ' SUMMARY City Council will consider award of contract service agreements with Albert A. Webb Associates for the assessment engineering services, and with Harris Realty Appraisal for the appraisal consultant services for Community Facilities District No. 1. These contracts provide the City with services that are necessary to confirm that the minimum City requirements of the proposed Community Facilities District are satisfied. RECOMMENDATION: 1. Approve Minute Order No. , approving Agreement No. with Albert A. Webb Associates, in the amount of $30,000.00 for Assessment Engineering Services for Community Facilities District No. 1. 2. Approve Minute Order No. , approving Agreement No. with Harris Realty Appraisal, in the amount of $30,000.00 for Appraisal Consultant Services for Community Facilities District No. 1. 3. Authorize the City Manager to execute all necessary documents. rrEM NO. ,� City Council Staff Report June 1, 2005— Page 2 Contract Service Agreements for CFD No. 1 STAFF ANALYSIS: On April 6, 2005, the City Council approved the application for further processing of the formation of Community Facilities District No. 1 ("CFD 1"), submitted by Palm Springs Classic, LLC, in accordance with the City's Policies and Procedures for Special Assessment and Mello-Roos Community Facility District (CFD) Municipal Bond Financing for Public Improvement for Development Projects (the "Policy"); and authorized staff to select and negotiate contracts with consultants for an assessment engineer's report, appraisal, and market absorption study; and to collect necessary deposits from the applicant to fund consultant contracts (see Attachment 1). Following the City Council's action, staff negotiated with Albert A. Webb Associates for a contract services agreement to perform assessment engineering related to CFD 1, as well as with Harris Realty Appraisal for a contract services agreement to perform appraisal services related to CFD 1. Each of these consultants responded with a contract scope and fee of $30,000. Staff also negotiated with Empire Economics, Inc., '• to prepare a market absorption study, however the negotiated scope and fee for that contract was $16,500 and did not require specific City Council approval. Each of these contracts are necessary to provide City staff with vital information to ensure that the minimum requirements specified in the City's Policy regarding the j formation of CFD 1 are satisfied. Once the information is obtained from these consultants, the Special Districts Committee can review the confirmed engineer's report ! which outlines the cost of the improvements and special fees to be funded by CFD 1, and review the final appraisal of the property to ensure that the value to lien ratio of 4 to 1 is satisfied. Further, the City's Financial Advisor will collect all pertinent information, including the Market Absorption Study, to assure City staff that the proposed assessments to be levied against properties within CFD 1 are secured, and will not result in the foreclosure of properties. FISCAL IMPACT: The City has received a deposit of$60,000.00 from the applicant, Palm Springs Classic, LLC, to cover all costs associated with these two contract service agreements. There is no fiscal impact to the City associated with the award of the two proposed contract service agreeme�nt ! David J. Barakian David H. Ready Director of Public Works/City Engineer City Manager i Attachments: 1. April 6, 2005 staff report 2. Contract Service Agreement (2) i 3. Minute Order (2) I I I i i I ' CITY COUNCIL April 6, 2005 LEGISLATIVE ITEM Subject: PALM SPRINGS CLASSIC COMMUNITY FACILITIES DISTRICT NO. 1 Initiated by: Public Works and Engineering Department i SUMMARY: i An application was filed with the City on February 13, 2004, for formation of a Communities Facilities District pursuant to the Mello-Roos Community Facilities Act of i 1982 for the Palm Springs Classic project, previously approved as Case 5.0666B, PD- 231, and Tentative Parcel Map 30928 on July 16, 2003, and subsequently approved as Tentative Tract Map 32233 on November 17, 2004. This development is being constructed by Palm Springs Classic, LLC, Lennar Homes of California, Inc., its ! Manager. The project consists of an 18-hole golf course, hotel, vacation ownership units, single family homes, and multi-family homes (with a maximum total of 1,450 units), office and retail uses, and a fire station site. The City has established Policies and Procedures for Special Assessment and Mello-Roos Community Facility District (CFD) Municipal Bond Financing for Public Improvement for Development Projects that outlines the minimum criteria for Special Assessment or Community Facility Districts formed in ! the City, as well as the guidelines and process for their formation. The Policy established a Special Districts Committee comprised of various staff members, and it is the Committee's responsibility to review the Community Facilities District application and render an opinion regarding the City Council's approval or denial of its formation. RECOMMENDATION: i (1) That the City Council approve the application for further processing of the formation of Community Facilities District No. 1 ("CFD 1"), submitted by Palm Springs Classic, j LLC, in accordance with the City's Policies and Procedures for Special Assessment and Mello-Roos Community Facility District (CFD) Municipal Bond Financing for Public Improvement for Development Projects (the "Policy"); (2) authorize staff to select and negotiate contracts with consultants for an assessment engineer's report, appraisal and market absorption study; and collect necessary deposits from the applicant to fund consultant contracts; and (3) approve, in a form acceptable to the City Attorney, a Memorandum of Understanding with Lennar Homes of California regarding certain developer contributions to be made to the City in conjunction with the formation of the Community Facilities District. STAFF ANALYSIS: i Palm Springs Classic, LLC, by Lennar Homes of California, Inc., its Manager, is the developer of the Palm Springs Classic, now known as "Escena Palm Springs', Tentative Tract Map 32233, located on the east side of Gene Autry Trail south of Vista Chino. This development consists of an 18-hole golf course, hotel, vacation ownership units, single family homes, and multi-family homes (with a maximum total of 1,450 units), office and retail uses, and a fire station site. i Shayne Morgan of David Taussig &Associates, Inc., acting on behalf of Lennar Homes, ' submitted an application for formation of a Community Facilities District pursuant to the Mello-Roos Community Facilities Act of 1982 (the "Act"). In accordance with the Policy, ' a pre-application conference with staff was held and the applicant submitted a $10,000 0 , „ initial application fee. The original application and fee were submitted to the City for. .fat AA ' jO . Palm Springs Classic Community Facilities District No. t • April 6, 2005 ' Page 2 ' initial review on February 13, 2004, with a completed formal submittal received on November 9, 2004. On December 2, 2004, the applicant met with the City's Special Districts Committee to review the proposed application. Subsequent meetings with the ' applicant and the Committee to further refine the application and requested public financing were held on January 20, 2005, and finally on March 4, 2005. The proposed application represents the first Mello-Roos Community Facilities District for the City of Palm Springs. The significant difference with a Mello-Roos CFD and a standard Special Assessment District is that a Mello-Roos CFD has a broader range of items that can be included in the District, and the improvements, fees, and other costs are considered of general benefit to the District, rather than "special benefit" that a o standard Special Assessment District indicates. Further, a Mello-Roos CFD places a special tax on the properties within the District, while a standard Special Assessment ' District places a lien against the properties until the levy (special assessment) is paid. The applicant is proposing that CFD 1 fund public sewer improvements, water improvements, reclaimed waterline improvements, traffic signal improvements, sewer fees, water fees, pay-off of the existing Assessment District 155 assessments (AD 155 was established by the City for construction of the Gene Autry Trail and associated improvements), Quimby Act park fees, Traffic Uniform Mitigation Fees (TUMF), and all district formation and financing costs. The total estimated bond amount for CFD 1 is $15,562,808 (see Attachment 1). The controlling criteria established in the Policy is outlined under Section 4, "Minimum Requirements,' Section 1, "Benefit'. This section indicates that the City should consider ' formation of Special Assessment or Community Facility Districts if the following minimum "benefit" criteria are met: ' 1. The proposed project shall provide major infrastructure improvements that significantly benefit the general public, and/or 2. The project shall provide significant financial benefit to the City. Determining whether the proposed Community Facilities District application meets these two general criteria is somewhat subjective. The Palm Springs Classic will, with or without public financing provided by CFD 1, be constructing significant public improvements along Gene Autry Trail and Vista Chino, including enhanced landscaped parkways, bikepaths, new traffic signals, and other public improvements required of the development. Further, the project, with or without public financing provided by CFD 1, is likely to generate a significant financial benefit to the City through the generation of the sale of up to 1,450 single or multi-family homes, increased property tax revenues, and the associated revenues generated by additional residents of Palm Springs. It is important to note that the Palm Springs Classic development is obligated to provide the City with a dedication for a one acre fire station site, approved by the Fire Chief, that the residential units within the development be equipped with fire sprinklers due to the fact the area is beyond the 5-minute response time, and further, that the project agree to annex into the future Community Services District to be formed by the City to assess a ' special fee to new development for increased police and fire services caused by the development. Following the Special Districts Committee's meeting of March 4, 2005, an opinion was rendered that the proposed application generally meets the controlling criteria as outlined in the Policy. This opinion was possible following the applicant's proposal to provide certain developer contributions in conjunction with the formation of the CFD. 01? = I I i i Palm Springs Classic Community Facilities District No. 1 April 6,2005 Page 3 i The developer's contribution includes a one-time payment to the City of $1,100,000 and an agreement to provide and pay for services necessary to prepare construction drawings for the future fire station site located within the Palm Springs Classic development, at the north end of Bird Center Drive and off of its main entrance on Chia Road. These two contributions, which are outlined in the draft Memorandum of Understanding included as Attachment 2 (subject to further review and approval by the City Attorney), will allow the City to move forward with construction of the much needed fire station within the northeast section of the City. On this basis, the Special Districts Committee determined that the developer's contribution outside of CFD 1 meets the general criteria of the Policy, and recommends that City Council authorize further processing of CFD 1 for Palm Springs Classic, LLC. i I SUBMITTED: Wil DAVID J. BARAKIAN I Director of Public Works, City Engineer I APPROVED:L ---� -f DAVID H. READY City Manager I I ATTACHMENTS: 1. Proposed Community Facilities District Bond Financed Facilities Summary 2. Draft Memorandum of Understanding I I I I )avid Taussig &Associates, Inc. 03/07/2005 i PROPOSED COMMUNITY FACILITIES DISTRICT j CITY OF PALM SPRINGS (ESCENA PALM SPRINGS) BOND FINANCED FACILITIES SUMMARY i Numberof. Fee per 1mo.rovements" Description Units Unit 1 Fees Available Bond Financed Facilities [1] NA NA $15,552,808 City of Palm Springs/ Public Improvements NA NA $1,930,691 West Spine Sewer Improvements[21 NA NA $962,500 East Spine Sewer Improvements NA NA $166,700 Traffic Signalization Improvements NA NA $450,000 Assessment District No. 155 Payoff NA NA $331,491 City of Palm Springs / Fees NA NA $6,847,732 Sewer Connection Fee 1,244 $2,408 $2,995,552 Quimby Park Fees 1,244 $2,440 $3,035,360 TUMF-Detached Units 542 $794 $430,516 TUMF-Attached Units 702 $550 $386,304 Desert Water Agency [3] NA NA $6,772,374 West Spine Water Improvements[21 NA NA $745,800 East Spine Water Improvements NA NA $1,394,634 Reclaimed Water Line Improvements NA NA $1,500,000 Water Connection Fee 1,244 $2,285 $2,842,540 Water Frontage Fee NA NA $289,400 Total CFD Eligible Public Improvements and Fees NA NA $15,550,796 Bond Financed Facilities Surplus (Shortfall) NA NA $2,012 [1]Based on tax spread 6 utilizing a 1,61%total tax rate and a 6.50%average coupon. [2]Project is 100% complete and has not been dedicated to the City of Palm Springs or Desert Water Agency. [3]Requires the execution of a Joint Community Facilities Agreement prior to CFD formation. K:\Clients2\LENNAR\PaimSprings\Budget-030705.123 RESOLUTION NO. 21243 OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE APPLICATION FOR FURTHER PROCESSING OF THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 1, SUBMITTED BY PALM SPRINGS CLASSIC, LLC WHEREAS, the City of Palm Springs adopted Resolution No. 17774 on January 22, 1992, amended by Resolution No. 20304 on April 3, 2002, establishing Policies and Procedures for Special Assessment and Mello-Roos Community Facility District (CFD) Municipal Bond Financing for Public Improvement for Development Projects; and WHEREAS, the City's Policies and Procedures establish minimum criteria for the formation of Special Assessment and CFD municipal bond financing for public improvements for development projects requiring that proposed public facilities to be financed must meet a public need, including the provision of major infrastructure improvements that significantly benefit the general public, and/or the provision for significant financial benefit to the City; and WHEREAS, the City has received an application from Palm Springs Classic, LLC, for formation of a Community Facilities District pursuant to the Mello-Roos Community Facilities Act of 1982 for the "Palm Springs Classic", now known as "Escena Palm Springs" development (Tentative Tract Map 32233), located south of Vista Chino and east of Gene Autry Trail; and WHEREAS, the proposed Community Facilities District will facilitate public improvements for private development, provide for future major infrastructure improvernents that significantly benefit the general public, and provide significant financial benefit to the City. NOW THEREFORE BE IT RESOLVED as follows: Section 1. The City Council does hereby approve the application for further processing of the formation of Community Facilities District No. 1, submitted by Palm Springs Classic, LLC. Section 2. The City Council hereby authorizes staff to select and negotiate contracts with consultants for an assessment engineer's report, appraisal and market absorption study; and to collect necessary deposits from the applicant to fund consultant contracts. ADOPTED this 61" day of April, 2005. AYES: Members McCulloch, Mills, Pougnet and Mayor Oden NOES: None ABSENT: Member Foat ATTEST: CITY OF PALM SPRINGS, CALIFORNIA City Clerk City Manager CONTRACT SERVICES AGREEMENT FOR ASSESSMENT ENGINEERING SERVICES COMMUNITY FACILITIES DISTRICT NO. 1 "PALM SPRINGS CLASSIC", ALSO KNOWN AS "ESCENA PALM SPRINGS", TRACT 32233 THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this day of , 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City') and Albert A. Webb Associates, (herein "Contractor"). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Contractor's performance of the services required by this Agreement, and shall indemnify, defend and hold harmless City against any such fees, assessments,taxes, penalties or interest levied,assessed or imposed against City hereunder. 1.5 Familiarity with Work. By executing this Contract, Contractor warrants that Contractor(a) has thoroughly investigated and considered the scope of services to be 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 ..cr 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 ordamages, 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 anytime 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 one hundred eighty(180) days may be approved by the Contract Officer. 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. 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 and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions in Exhibit "B" shall govern. 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 contract amount of Thirty Thousand Dollars ($30,000.00), (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation, but not exceeding the Contract Sum or(iv)such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, telephone expense, transportation expense approved by the Contract Officer in advance, and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all 2 project meetings reasonably deemed necessary by the City; Contractor shall not be entitled to any additional compensation for attending said meetings. 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") 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 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 Maieure. The time period(s)specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God 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 Contractorshall within ten(10)days of the commencement of such delay notifythe 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 delaywhen 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: Paul Thompson, Director of Assessment/Special Tax Services -3- It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for Cityto enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of the City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,capability and reputation of Contractor, its principals and employees were a substantial inducement for the City to enter into this Agreement. Therefore, Contractor shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a 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 otherwise set forth herein. 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 at 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 additional insured in accordance with standard ISO additional insured endorsement form CG2010(t`115) or equivalent language, (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 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 and issued by companies whose rating satisfies the requirements in Section 5.4 of this agreement. 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, priorto the cancellation date, submit newevidence 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, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractorwill defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay any judgment rendered against the City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers, agents or employees are made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement,Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City, 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. (Not applicable). 5.4 Sufficiencv of Insurer or Suretv. 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 's Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create 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- 6.1 Reports. Contractor shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the City is greatly concerned about the cost of work and services to be performed pursuant to this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the work or services contemplated herein or, if Contractor is providing design services, the cost of the project being designed, Contractor shall promptly notify the Contract Officer of said fact, circumstance, technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services, the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three(3)years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement. 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 any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county. 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 -7- ,. T may be permitted by the injured party; provided that it 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 forwhich City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however; affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non- defaulting 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 Zero Dollars ($0.00) as liquidated damages for each working day of delay in the performance of any service required hereunder,as specified in the Schedule of Performance(Exhibit "D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at anytime,with or without cause, upon thirty (30) days written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time,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 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 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 thatthe Cityshall 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 Attornevs' 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-liabilitvof City Off icers and Emplovees. 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 Aclainst 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 f ,n are treated during employment without regard to their race, color, creed;religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263. In the case of the Contractor, it should be addressed 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 Authoritv. 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 PAGE -10- IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: a municipal corporation By: By: City Clerk City Manager , . . . . . . . . . APPROVED AS TO FORM: By: ALBERT A.WEBB &ASSOCIATES CONTRACTOR: Check one:_Individual_Partnership_Corporation Corporations require two notarized signatures One from each of the fallowing: A. Chairman of Board, President, or any Vice President:AND B�Secreta/yry,,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer). By: �1✓`f/"`�W C. - c, �� � By: Signature(notarized) Signature(notarized) Name: Matthew E. Webb Name: A. Hubert Webb Title: President Title: Chairman of the Board State of Calif. I Stateof Calif. I County of Riverside Ise County of Riverside Iss On5j10t5aforeme, Margaret Ewing OnS/S/nS before me,MarCaret rw-_inz7 personally appeared Matthew E. Webb personally appeared p HnhPrf fniPhh 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 name(s)is/are satisfactory evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the instrument the person(s),or the entity upon behalf of which the person(s)acted,executed ffi 1 instrument. person(s)acted,executed the instrument. WITNESS my hand and offldial seal. WITNESS my hand and official seal. Notary Signature:---- L'� Notary Signature::�/ 7�` Notary Seal:/ Notary Seal: E - f r'`� d arr ns�ion Qt I"rhra 8"�6 I i 4�.pt 4 nrnmi arr, r U P �wT�0 C rA'i hcAr yfr�irdiu -C [¢Pamirs . r F7+ thlahflry r ntahr a rrYeinm�+r nm Er+idarearr MayrZ7, tf�'!� r / l L:c nin�afrasaar f nlin^y r'f 'I �^ ngy °':4�°' Nid ,.,, ilpr U li:ss'•.:11'^x .r ,,y,..,;d�'�M4 `°I, -e �_....'e,.,. EXHIBIT "A" SCOPE OF SERVICES The intent of this contract is to provide Assessment Engineer services for the creation of the City of Palm Springs Community Facilities District No. 1 ("Palm Springs Classic"now known as"Escena Palm Springs," Tract 32233) and shall provide all services and resources necessary therefore. Contractor shall provide "Preliminary' and "Final" Engineers Reports to City to assist in the Resolution of Intention and Municipal Bond Sale. The following scope of services shall be provided: Initial Engineering A. Initial Scoping Meeting Contractor shall meet with City Staff and members of the Financing Team to establish the Community Facilities District's schedule of events, procedural and financial considerations,discuss the proposed improvements, eligibility of those improvements identify the boundaries of the Community Facilities District and establish appropriate land use classifications to meet the goals of the formation. B. Research Property Information Contractorshall conduct a reviewof the specific plan,conditions of approval,tentative subdivisions, assessors parcel maps and information regarding the project's ultimate configuration at build-out. Formation A. Structuring the Rate and Method of Apportionment Based on the information gathered, Contractor shall prepare a proposed Rate and Method of Apportionment that considers the burdens of annual administration as well as the financial overlapping debt. The types of issues considered will be clarity of language in the definition of terms, ability of the property to be assigned to different tax classifications, presence of a mechanism to provide for the levy of a back up tax. B. Projected Special Tax Analysis Based on the proposed structure of the Special Taxformula, anticipated improved property values, and bond assumptions, Contractor shall project the Special Tax revenue for the Community Facilities District. The purpose of this analysis will be to determine if the Special Tax formula will generate sufficient monies to pay estimated principal and interest on the bonds and cover annual administration. We will also review the assumptions used with respect to estimating annual debt services, interest earnings, and administration expenses to ascertain if the Special Tax rates will support the proposed debt. C. Boundary Map Contractor's team of engineers will prepare the Boundary Map including the boundaries of territory -12- proposed for inclusion in the district including the entirety of any parcel subject to taxation by the proposed district. The map shall meet the requirements of the Mello-Roos Act and the Riverside County Recorder's office. D. Meetings Contractor shall be available to attend City Council meetings for the adoption of the resolution of intention, assist with the election proceedings, and answer questions during the public hearing. Issuance of Bonds A. Document Preparation Contractor shall assist with the preparation of information as it relates to the Rate of Method of Apportionment for inclusion in all documents of the financing. We shall review the documents for compliance with City policies, implementation, and administration concerns as it relates to continuing disclosure requirements. B. Special Tax Consultant Certificate Contractor shall sign the Special Tax Consultant Certificate confirming the adequacy of special taxes to meet debt service requirements. F . ,. , -13- EXHIBIT °C" SCHEDULE OF COMPENSATION Full compensation for required services included in this contract shall be made on a lump sum basis at$30,000. Contractor shall submit invoices, no more than once monthly, providing the City with a summary of services provided, the percentage provided, total percentage provided to date, and the total invoice amount. Contractor shall not invoice for more than 75% of the contract amount prior to completing the services required hereunder. Compensation for services, including reimbursable expenses, shall not exceed the total contract amount of$30,000.00. -15- EXHIBIT "D" SCHEDULE OF PERFORMANCE Contractor shall complete the"Preliminary Engineers Report"within 30 calendar days of Notice to Proceed from City and prior to the submittal of the Resolution of Intention to City Council to form Community Facilities District No. 1. Contractor shall submit"Final Engineers Report" to City upon completion of Final Reports from the Real Estate Appraiser and Market Absorption Analyst and prior to Municipal Bond Sale. Specific dates for submittal of required reports shall be determined once the Community Facilities District's schedule of events is established. -16- CITY OF PALM SPRINGS CONTRACT SERVICES AGREEMENT FOR APPRAISAL CONSULTANT SERVICES COMMUNITY FACILITIES DISTRICT NO. 1 "PALM SPRINGS CLASSIC", ALSO KNOWN AS "ESCENA PALM SPRINGS", TRACT 32233 THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this day of , 2005, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and Harris Realty Appraisal, (herein "Contractor"). (The term Contractor includes professionals performing in a consulting capacity.) The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, which services may be referred to herein as the "services" or "work" hereunder. As a material inducement to the City entering into this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and services and Contractor is experienced in performing the work and services contemplated herein-and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the work and services required hereunder and that all materials will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractor's Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully setforth 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 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 one hundred eighty(180) days may be approved by the Contract Officer. 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. 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 and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the "Special Requirements" attached hereto as Exhibit "B" and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" and any other provisions of this Agreement, the provisions of Exhibit "B" shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, the Contractor shall be compensated in accordance with the "Schedule of Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference, but not exceeding the maximum contract amount of Thirty Thousand Dollars, ($30,000.00) (herein "Contract Sum"), except as provided in Section 1.8. The method of compensation may include: (i)a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (ii!) 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. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation, in any month in which Contractor wishes to receive payment, no later than the first (1 st)working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 2 L � 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 Maleure. The time period(s)specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God or of the public enemy, unusually severe weather,fires, earthquakes,floods, epidemics, quarantine restrictions, riots, strikes,freight embargoes, wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten(10)days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused,Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1)year from the date hereof, except as otherwise provided in the Schedule of Performance (Exhibit "D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: James B. Harris, MAI 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 Aqainst 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 3 .. r any other entity to perform in whole or in part the services required hereunder without the express written approval of the City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available, to persons or entities with offices located in the Coachella Valley ("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor, the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 4.4 Independent Contractor. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Contractor, its agents or employees, perform the services required herein,except as otherwise set forth herein. 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 Contractorshall 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 Liabilitv 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 indemnifythe 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 oromissions of Contractor hereunder,orarising from Contractor's negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees, who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractorwill promptly pay anyjudgment rendered againstthe City, its officers, agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work, operations or activities of Contractor hereunder; and Contractor agrees to save and hold the City, its officers, agents, and employees harmless therefrom; (c) In the event the City, its officers,agents or employees is made a party to any action or proceeding filed or prosecuted against Contractor for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform the work, operation or activities of Contractor hereunder, Contractor agrees to pay to the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees in such action or proceeding, including but not limited to, legal costs and attorneys' fees. 5.3 Performance Bond. Concurrently with execution of this Agreement, Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City Clerk, which secures the faithful performance of this Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the original notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A"or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, unless such requirements arewaived bythe 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 Citywithin 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 notifythe Contract Officer of said fact,circumstance,technique or event and the estimated increased or decreased cost related thereto and, if Contractor is providing design services,the estimated increased or decreased cost estimate for the project being designed. 6.2 Records. Contractor shall keep, and require subcontractors to keep, such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City. upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without, liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6 ` .. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7.0 ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contractor covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party; provided that if the default is an immediate danger to the health, safety and general welfare,such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor(whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts for which City may be liable to third parties, by reason of Contractor's acts or omissions in performing or failing to perform Contractor's obligation under this Agreement. In the event that any claim is made by a third party, the amount or validity of which is disputed by Contractor, or any indebtedness shall exist which shall appear to be the basis for a claim of lien, City may withhold from any payment due, without liability for interest because of such withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to deduct or to withhold shall not, however, affect the obligations of the Contractor to insure, indemnify, and protect City as elsewhere provided herein. 7.4 Waiver. No delay or omission in the exercise of any right or remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damaqes. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in 7 C, °T i J i� 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 Zero Dollars ($0.00) as liquidated damages for each working day of delay in the performance of any service required hereunder, as specified in the Schedule of Performance(Exhibit"D"). The City may withhold from any monies payable on account of services performed by the Contractor any accrued liquidated damages. 7.8 Termination Prior to Expiration Of Term. This Section shall govern any termination of this Agreement except as specifically provided in the following Section for termination for cause. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Contractor, except that where termination is due to the fault of the Contractor, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, the Contractor reserves the right to terminate this Agreement at any time upon, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section,the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over the work and prosecute the same to completion by contract or otherwise, and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action,taking depositions and discovery and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on 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 Aqainst Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid,first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and in the case of the Contractor, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two(72)hours from the time of mailing if mailed as provided in this Section. 9.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 9.3 Integration;Amendment. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid 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 PAGE 9 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. CITY OF PALM SPRINGS ATTEST: a municipal corporation By: By:_ City Clerk City Manager APPROVED A T FORM: By. HARRIS REALTY APPRAISAL CONTRACTOR: Check one:_Individual_Partnership_Corporation Corporations require two notarized signatures: One from each of the following, A. Chairman of Board, President, or rly Vice President:AND B.Secretary,, By. Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer). By. Signate(noa/ ere Signature(notarized) N e: l p nA- y 19 (`�Jl�l-� Name: Title: ©e-UAL eA Title: State of7�1 State of County o L9�erJF�f lss County of )as O4� Ibeforeme, l D�,'E /�/!Con1p V On before me, personally appeared c)w96-5 ,/�(�nrA)S / personally appeared personally known to me (or prove o me on the basis of personally known to me (or pro d to me on the basis of satisfactory evidence)to be the person(s)whose name(s)is/are satisfactory evidence)to be the p son(s)whose name(s)is/are subscribed to the within instrument and acknowledged to me subscribed to the within instrum nt and acknowledged to me that he/she/they executed the same in his/her/their authorized that he/she/they executed the me in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the capacity(ies), and that by h /her/their signature(s) on the instrument the person(s),or the entity upon behalf of which the instrument the person(s),or f e entity upon behalf of which the person(s)acted, executed the instrument. person(s)acted,executed t e instrument. WITNESS my han an official eal. WITNESS my hand and fFlcial seal. Notary Signature: / I/ Notary Signature: Notary Seal: Notary Seal: LOTT'IE NO CAR y CGmultuWan NI 370063 s Nowry Publls-Oallawnte CLAW CCU* iCitt". 15,2006 It �5a!Ci'mof :� ♦ i 10 (?`'l EXHIBIT "A" SCOPE OF SERVICES Contractor shall prepare an appraisal for City of Palm Springs Community Facilities District No. 1, "Palm Springs Classic," also known as "Escena Palm Springs," Tract 32233, and shall provide all services and resources necessary therefor. The Contractor will derive the "as is" bulk sale market value of the taxable property identified as Tract Map 32233, a 372.52 acre 1,244 detached and attached dwelling units within a gated community also known as "Palm Springs Classic" or"Escena Palm Springs", "Subject Property". The Subject Property is considered undeveloped at this time and is in a raw to partially graded condition. The undeveloped proposed parcels will be valued by a Developmental Analysis. A discounted cash flow, utilizing absorption estimates provided by an independent absorption consultant,will be completed.The estimated value will reflect the bulk value of the"As Is"condition of the land, giving consideration to the proposed development to be partially funded by the Community Facilities District No. 1 ("District"). The Market Value of the properties will consider the various individual ownerships, if any, merchant builder ownerships and the master developer ownership. The aggregate of the bulk values will represent the "As Is" Market Value for all the property within the proposed District. The scope of work will be to arrive at the aggregate "As Is" Market Value of the land within the boundaries of the District. The merchant builder land will be valued by Direct Comparison. A cursory review of the market to test the reasonableness of the absorption estimates provided for use in the Development Analysis. The Contractor will include in the scope of work the preparation of a full appraisal and a detailed summary appraisal to be included in the offering document for the District's bonds. The format, substance and quality of the appraisal and summary will be of a type used in connection with land secured financings, and will include as part of the closing documents for the bonds, a certificate that the City is authorized to use the appraisal in the Bond Official Statement, that the information regarding the appraisal is properly presented in the Official Statement, and that the appraisal summary is complete and accurate. The Contractor will also participate in conference calls and a maximum of two meetings with the Finance Team in the weeks/months preceding distribution of the draft appraisal and may be asked to provide insight on the probable value of the property at various stages of development. The Contractor shall provide three copies of the final report. EXHIBIT "B" SPECIAL REQUIREMENTS Section 5.3 The requirements of Section 5.3 for a Performance Bond are hereby waived. Section 5.1(b) Worker's Compensation Insurance. The Contractor does not have employees and therefore does not carry worker's compensation insurance. The Contractor will write a letter to the City stating that if at any time during the course of this engagement the Contractor gets an employee, the Contractor will obtain 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 of employer's liability. Section 5.1(d) A policy of Professional Errors and Omissions insurance in the amount of $1,000,000 is required. 12 EXHIBIT "C" SCHEDULE OF COMPENSATION Total compensation for the work to be performed by Contractor shall be a lump sum amount of $30,000, including all reimbursables, upon completion of all services and delivery of the Appraisal Report to the City. 13 EXHIBIT "D" SCHEDULE OF PERFORMANCE Unless otherwise modified by the City and/or its financial advisor to dates later than dates shown below, the schedule of performance is as such: Immediately upon execution of this Agreement: Begin assembling information of the "Palm Springs Classic", now known as "Escena Palm Springs", Community Facilities District No. 1 project; • When scheduled: Attend disclosure meeting with City's financial advisor, underwriter and developer; Prepare and submit a Preliminary Draft Appraisal within 15 days following the date of value; Prepare and submit the complete self-contained narrative report within one to two weeks following the review process for the draft appraisal report. 14 MINUTE ORDER NO. APPROVING AGREEMENT NO. WITH ALBERT A. WEBB ASSOCIATES, IN THE AMOUNT OF $30,000.00 FOR ASSESSMENT ENGINEERING SERVICES FOR COMMUNITY FACILITIES DISTRICT NO. 1 I, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this Minute Order approving Agreement No. with Albert A. Webb Associates, in the amount of $30,000.00 for Assessment Engineering Services for Community Facilities District No. 1, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 1st day of June, 2005. James Thompson, City Clerk MINUTE ORDER NO. APPROVING AGREEMENT NO. WITH HARRIS REALTY APPRAISAL, IN THE AMOUNT OF $30,000.00 FOR APPRAISAL CONSULTANT SERVICES FOR COMMUNITY FACILITIES DISTRICT NO. 1 1, James Thompson, City Clerk of the City of Palm Springs, hereby certify that this Minute Order approving Agreement No. with Harris Realty Appraisal, in the amount of $30,000.00 for Appraisal Consultant Services for Community Facilities District No. 1, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 1st day of June, 2005. James Thompson, City Clerk