HomeMy WebLinkAbout6/1/2005 - STAFF REPORTS (5) u N
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Cg41FORNN Redvelopment Agency Staff Report
DATE: JUNE 1, 2005 NEW BUSINESS
SUBJECT: APPROVAL OF A CONTRACT FOR THE CONTINUATION OF THE
DIRECTOR OF THE CITY OF PALM SPRINGS DEVELOPMENT
CENTER
FROM: David H. Ready, City Manager/Executive Director
BY: Office of the City Manager
SUMMARY
The Community Redevelopment Agency will consider renewal of the contract for
continuation of the City of Palm Springs Development Center contractor services.
RECOMMENDATION:
1. Approve an agreement with Jerry Ogburn in the amount of $160,000. per year for
Palm Springs Downtown Development Center contractor services, subject to final
approval as to form by the City Attorney.
2. Authorize the City Manager to execute all necessary documents.
STAFF ANALYSIS:
Jerry Ogburn has served as the Director of the Development Center since December,
1990, within the terms and conditions of an annual "Agreement for Contract Services."
The initial annual "Contract Sum" relative to total compensation for these services was
$135,000. Approximately a year later, this was decreased to $128,000 per year in
response to a comprehensive City Council effort to reduce upper management staff
compensation. Subsequently, staff compensation reductions were restored, but no
compensation adjustments were made to this contract until June, 1998, when the initial
annual "Contract Sum" of $135,000 was restored within the Fiscal Year 1998-99
Agreement. The FY 1999-2000 Agreement provided for a "Contract Sum" of $140,000,
and this amount was continued for the FY 2000-01 Agreement. In anticipation of
. projected increases in Development Center operating costs and direct expenses for FY
2001-02, a "Contract Sum" of $144,000 was approved by City Council. For Fiscal Year
ITEM NQ 1Q A z
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2002-03, as well as 2003-04 and 2004-05, a "Contract Sum" of $150,000 has been
budgeted by the Community Redevelopment Agency. This is only $15,000 more per
i year than the initial contract amount of$135,000 in 1991-92.
For the current renewal, the contractor has requested a $10,000 increase in
compensation as he has not received an increase over the past three fiscal years.
Additionally, the contractor has requested a five year extension in the alternative to
annual renewals which have occurred since the contract's inception in 1990.
Mr. Ogburn works out of the Development Center located at 109 South Indian Canyon
Drive. His primary responsibilities during the past year have been to: supervise the
implementation of ongoing improvement projects throughout the Downtown and Uptown
areas; provide technical assistance to property owners in Downtown and Uptown in
renovating properties, as well as working toward securing tenants to fill vacancies;
manage CRA-owned properties, including buildings and parking facilities; act as
Manager of MainStreet-Palm Springs and the Uptown Palm Springs Association;
coordinate with VillageFest; and serve as Project Manager for Merged Project Area
Number one in Palm Springs.
Several projects and initiatives that the contractor, Mr. Ogburn has been involved with
over his tenure in Palm Springs include the following:
Retail Shops
Heusso Gallery
Peppertree Book Store (relocation and expansion)
Madison Jewelry (relocation and expansion)
Henninger's Fudge
Desert Art Center
Mitchell Gold + Bob Williams
Design Within Reach
Don Vincent Men's Wear (relocation)
Avalon Bay (relocation)
Clockworks
Mosaic Women's Wear (relocation) •
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Jerry Ogburn Agreement
The Springs Resort Shops
Palm Springs Wine and Art
Crazy Shirts
McCormick's Classic Car Showroom
Restaurants/ Food Service
LG's Prime Steak House
Village Pub
Kaiser Grille
Blue Coyote Grille
Palm Springs Chop House and Deck
Look Bistro
Las Casuelas Terraza (expansion)
Peabody's Coffee and Jazz
Koffi
Fisherman's Market and Grille
Starbucks Coffee
Coffee Bean and Tea Leaf
Ruby's Diner
At Dente Pasta
Lala Java
Edgardo's Cafe Vera Cruz
Cafe 285
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Jerry Ogburn Agreement
Tony's Pasta Mia
Lotza Mozza/ Pizza and Pasta
International House of Pancakes
Attractions
Palm Canyon Theatre
The Fabulous Palm Springs Follies/ Plaza Theatre (property manager)
The Village Green (property manager)
New Development/ Redevelopment Projects
Mercado Plaza
The Vineyard
Cornerstone Center
The Corridor
Terrace Eateries/ Fresh Food Court
Telephone Building/ Palm Springs Brewery/ Lobster Company
The Palm Canyon Mixed Use Development (submitted to City)
North Gateway Mixed Use Development (in design)
Desert Fashion Plaza Mixed Use Development (in design)
i Oasis Plaza Mixed Use Development (in design)
I Andreas/ Tahquitz Corridor Mixed Use Development (in conceptual planning)
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Jerry Ogburn Agreement
Public Improvement Projects
Palm Canyon Drive Streetscape and Decorative Lighting Improvements
Arenas Road Streetscape and Decorative Lighting Improvements
City of Palm Springs Downtown Parking Structure (property acquisition and design
concept)
City Parking Lot Upgrades (6)
Frances Stevens Park Festival Center Upgrades
Uptown/ Heritage District Decorative Lighting Program
Heritage Trail
East Tahquitz Canyon Way Decorative Lighting Program
FISCAL IMPACT:
The cost of this program for Fiscal Year 2004-05 is $160,000, in addition to any
reimbursable expenses as determined by the City Manager (e.g. travel, training, cell
phone, etc.). These funds will be appropriated in the Redevelopment Project Funds of
the Annual Budget for the Redevelopment Agency, 811 and 812 capital.
ALTERNATIVES:
Alternatives to approval of this five year contract would be: Approval of a One (1) year
contract; re-bid the service; or perform the service in-house" with a City employee.
<77
David H. Ready, City � ger
Attachments:
1. Draft Agreement
D R A F T
CONSULTANT SERVICES AGREEMENT
for the
Village of Palm Springs
Downtown Development Center
THIS CONSULTANT SERVICES AGREEMENT (the "Agreement") is made and
entered into, to be effective the 1st day of July, 2005, by and between the PALM SPRINGS
COMMUNITY REDEVELOPMENT AGENCY, a municipal corporation duly organized and
existing under the laws of the State of California, hereinafter referred to as the "Agency" and
JERRY ALLEN OGBURN, dba Real Estate Development and Consulting Corporation,
hereinafter referred to as the "Consultant". Agency and Consultant are sometimes hereinafter
individually referred to as "party" and hereinafter collectively referred to as the "parties".
RECITALS
WHEREAS, Agency has determined that there is a need for economic development
coordination, strategic planning and project management services to support and strengthen the
economic viability of the downtown Village of Palm Springs; and
WHEREAS, Agency desires to retain Consultant to provide economic development
coordination, strategic plamring and project management services, as defined herein, to support
acid strengthen the economic viability of the downtown Village of Palm Springs ; and
WHEREAS, Consultant is qualified by virtue of his experience, training, education and
expertise to provide economic development coordination, strategic planning and project
management services for the downtown Village of Palm Springs and has agreed to provide such
services as specified herein.
NOW, THEREFORE, in consideration of the promises and mutual agreements contained
herein, Agency agrees to employ and does hereby employ Consultant and Consultant agrees to
provide consulting services as follows:
AGREEMENT
1.0 SERVICES OF CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Consultant shall provide those economic development coordination, strategic
planning, and project management services specified in the Scope of Services, which is attached
hereto as Exhibit "B" and is incorporated herein by reference (the "services" or the "work"), to
support and strengthen the economic viability of the downtown Village of Palm Springs (the
"Project Area"), as depicted in Exhibit "A" attached hereto and incorporated herein by reference.
Consultant hereby agrees and warrants that all services under this Agreement will be perforned
in a competent, professional and satisfactory manner in accordance with all customary and usual
practices and standards prevalent in Consultant's industry.
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1.2 Project Office. Consultant shall perform the services set forth in the Scope of
Services within the offices provided to it, through the sponsorship of Agency, located at 109
South Indian Canyon Drive, Palm Springs, California (the "Project Office"). Consultant shall
perform the services required under this Agreement and shall operate out of the Project Office as
the "Village of Palm Springs Development Center". In perfonning the services set forth in the
Scope of Services, Consultant shall work directly with Agency staff and in cooperation with the
Agency's Executive Directive and shall regularly consult with Mainstreet-Palm Springs, the
Uptown Pahn Springs Association, the property owners and the merchants located within the
Project Area.
1.3 Compliance with Law. All services rendered hereunder shall be provided in
accordance with all Federal and State laws and the ordinances, resolutions, statutes, rules and
regulations of the City of Palm Springs and the Palm Springs Community Redevelopment
Agency.
1.4 Familiarity with Scope of Services. By executing this Agreement, Consultant
agrees and warrants that Consultant: (a) has thoroughly investigated and considered the services
and work to be performed hereunder; (b)has generally acquainted itself with the site of the work,
the Project Area, and the conditions existing there; (c) has carefully considered the means and
methods for performance; and (d) fully understands the conditions, businesses, facilities,
difficulties, and restrictions attending performance of the services and work under this
Agreement. Should Consultant discover any latent or previously unknown conditions or facts
materially differing from those inherent in the services or work or as represented by Agency,
Consultant shall immediately inform Agency's Executive Director of such fact(s) and shall not
proceed with any work except at Consultant's risk until written instructions are received from the
Executive Director.
1.5 Care of Work. Consultant shall adopt reasonable methods during the term of the
Agreement to furnish continuous protection to materials, equipment, papers, research, data,
documents, records,plans, studies and/or other components thereof to prevent loss or damage.
1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Consultant shall perform services in addition to those specified in the Scope of
jServices when directed to do so in writing by the Executive Director, provided that Consultant
shall not be required to perform any additional services without additional, reasonable
I compensation. Any additional compensation not exceeding five percent (5%) of the Original
Contract Sum may be approved in writing by the Executive Director. Any greater increase must
be approved by the Agency's Board of Directors.
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
' fully cooperate with one another and to act in good faith to execute all instruments, prepare all
documents and to take all actions as may be reasonably necessary to carry out the purpose and
intent of this Agreement. Unless hereafter specified,'neither party shall be responsible for the
service of the other.
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2.0 COMPENSATION
• 2.1 Total Compensation. For the services rendered pursuant to this Agreement,
Agency shall compensate Consultant in a total amount not to exceed $160,000 per year, which
amount shall be divided and paid in twelve equal monthly payments per year throughout the term
of this Agreement (hereafter "Original Contract Sum"). The Original Contract Sum shall serve
as the entire compensation amount for the consultant services rendered under this Agreement,
with no additional amounts or benefits.
2.2 Method of Payment. In any month in which Consultant wishes to receive
payment, Consultant shall, no later than the first (1st) working day of the month, submit to
Agency, in a form approved by the Executive Director, an invoice for services rendered prior to
the date of the invoice. Agency will pay Consultant the monthly payment amount owing, as
approved pursuant to this Agreement, no later than the last working day of said month.
2.3 Expenses. It is expressly understood and agreed by the parties that the Original
Contract Sum includes payment for regular and customary expenses incurred by Consultant in
connection its performance of services under this Agreement. However, except as provided
otherwise herein, the Executive Director may approve payment for other expenses incurred by
Consultant in connection with providing services under this Agreement provided Consultant
requests in writing, in advance of incurring such expenses, reimbursement for such other
expenses (e.g., special travel and conferences).
2.4 Changes. In the event of any change or changes in the Scope of Work requested
by Agency, the parties shall execute an addendum to this Agreement, setting forth with
particularity all terns of the Addendum, including but not limited to any additional
compensation owed to Consultant.
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. The services to be performed by Consultant under the
terms of this Agreement shall commence on July 1, 2005 and shall terminate on June 30, 2010,
unless terminated earlier pursuant to the provisions of this Agreement. The schedule for
performance established by Consultant to achieve the purpose and intent of this Agreement shall
be reported to the Agency in accordance with section 6.0 below.
3.3 Force Majeure. The time for performance of services to be rendered pursuant to
this Agreement may be extended because of any delays due to unforeseeable causes beyond the
control and without the fault or negligence of the Consultant, including, but not restricted to, acts
of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic,
quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if the
Consultant shall within ten (10) days of the commencement of such condition notify the
Executive Director who shall thereupon ascertain the facts and the extent of any necessary delay,
• and extend the time for performing the services for the period of the enforced delay when and if
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in the Executive Director's judgment such delay is justified, and the Executive Director's
determination shall be final and conclusive upon the parties to this Agreement.
3.4 Tenn. The term of this Agreement shall be for five (5) years, commencing July 1,
2005 and ending June 30; 2010, unless tenninated earlier pursuant to the provisions of this
Agreement.
4.0 COORDINATION OF WORK
4.1 Representative of Consultant. The following Principal of Consultant is hereby
designated as being the principal and representative of Consultant authorized to act on its behalf
with respect to the services and work specified herein and make all decisions in comiection
therewith: Jerry Allen Ogbum. It is expressly understood that the experience, knowledge,
capability and reputation of the foregoing Principal is a substantial inducement for Agency to
enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the
term of this Agreement for directing all activities of Consultant and devoting sufficient time to
personally administer and supervise the services hereunder. For purposes of this Agreement, the
foregoing Principal may not be changed or replaced by Consultant without the express written
approval of Agency.
4.2 Contract Officer. This Agreement shall be administered and enforced by the
Agency's designated contract officer, which shall be the Agency's Executive Director, or his
designee. It shall be Consultant's responsibility to keep the Executive Director fully apprised and
informed of Consultant's progress and performance of the services throughout the term of this
Agreement, and Consultant shall refer, in a timely manner, any decisions which must be made by
Agency to the Executive Director. Unless otherwise specified herein, any approval of Agency
required hereunder shall mean the approval of the Executive Director. The Executive Director
shall have authority to sign all documents on behalf of Agency required hereunder to carry out
the terns and conditions of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge,
capability and reputation of Consultant were a substantial inducement for the Agency to enter
into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in
whole or in part the services required hereunder without the express written approval of Agency.
In addition, neither this Agreement nor any interest herein may be assigned or transferred,
voluntarily or by operation of law, without the prior written approval of Agency. 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 Consultant,
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 Consultant or any surety of Consultant of any liability hereunder without
the express written consent of Agency.
4.4 Exclusivity of Contract with Agency. The parties contemplate that the services
and work program set forth herein shall be for approximately 2,000 hours per year; the parties
further contemplate that Consultant shall provide such services and work on a full-time basis. As
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• such, Agency is concerned that Consultant not take on additional clients or projects with
significant time demands, nor that Consultant take on work which would conflict with the
purpose and intent of this Agreement. Accordingly, Consultant shall not accept other contracts
involving more than 10 hours of work per month without the prior review and written approval
of the Executive Director.
4.5 Independent Contractor. Neither the Agency nor any of its employees shall
have any control over the manner, mode or means by which Consultant, its agents or employees,
perform the services required herein, except as otherwise set forth herein. Agency shall have no
voice in the selection, discharge, supervision or control of Consultant's employees, servants,
representatives or agents, or in fixing their number, compensation or hours of service.
Consultant shall perform all services required herein as an independent contractor of Agency and
shall remain at all times as to Agency a wholly independent contractor with only such
obligations as are consistent with that role. Consultant shall not at any time or in any manner
represent that it or any of its agents or employees are agents or employees of the City of Palm
Springs or the Palm Springs Community Redevelopment Agency. Agency shall not in any way
or for any purpose become or be deemed to be a partner of Consultant in its business or
otherwise or a joint venturer or member of any joint enterprise with Consultant.
5.0 INSURANCE, INDEMNIFICATION
5.1 Insurance. Consultant shall procure and maintain, at its sole cost and expense, in
a form and content satisfactory to Agency, during the entire tern of this Agreement, including
any extension thereof, the following policies of insurance:
(a) Comprehensive General Liability Insurance. A policy of comprehensive general
liability insurance written on a per occurrence basis in an amount not less than $1,000,000.00
combined single limit.
(b) Automotive insurance. A policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less than either(i)bodily injury liability limits
of$250,000.00 per person and $500,000.00 per occurrence and property damage liability limits
of $100,000.00 per occurrence and $250,000.00 in the aggregate or (ii) combined single limit
liability of$500,000.00. Said policy shall include coverage for owned, non-owned, leased and
hired cars.
All of the above policies of insurance shall be primary insurance and shall name the
Agency, its officers, employees and agents as additional insureds. The insurer shall waive all
rights of subrogation and contribution it may have against the Agency, its officers, employees
and agents and their respective insurers. All of said policies of insurance shall provide that said
insurance may not be amended or canceled without providing thirty (30) days prior written
notice by registered mail to Agency. In the event any of said policies of insurance are canceled,
Consultant shall, prior to the cancellation date, submit new evidence of insurance in
conformance with this Section 5.0 to the Executive Director. No work or services under this
Agreement shall commence until Consultant has provided Agency with Certificates of Insurance
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and endorsements, or appropriate insurance binders, evidencing the above insurance coverage •
and said Certificates of Insurance and endorsements, or binders, are approved by Agency.
In the event Consultant subcontracts any portion of the work in compliance with Section
4.3, Consultant agrees that the provisions of this Section 5.0 shall not be construed as limiting in
any way the extent to which Consultant may be held responsible for damages to any persons or
property resulting from the Consultant's activities or the activities of any person or persons for
which Consultant is otherwise responsible.
5.2 Indemnification. Consultant agrees to indemnify Agency, 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 Consultant, its agents, employees, subcontractors, or invitees, provided
for herein, or arising from the 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 Agency, its officers, agents or employees, but excluding such claims or
liabilities arising from the sole negligence or willful misconduct of Agency, its officers, agents or
employees, who are directly responsible to Agency, and in connection therewith.
(a) Consultant shall defend any action or actions filed in connection with any of said
claims or liabilities and shall pay all costs and expenses, including legal costs and attorneys' fees
incurred in connection therewith;
(b) Consultant shall promptly pay any judgment rendered against Agency, 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 Consultant
hereunder; and Consultant agrees to save and hold Agency, its officers, agents, and employees
harmless therefrom;
(c) In the event Agency, its officers, agents or employees, is made a pity to any
action or proceeding filed or prosecuted against Consultant 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 Consultant hereunder, Consultant agrees to pay to Agency, its officers,
agents or employees, any and all costs and expenses incurred by Agency, its officers, agents or
employees, in such action or proceeding, including but not limited to, legal costs and attorneys'
fees.
5.3 Sufficienev of Insurer. The policies of insurance required by this Agreement shall
be satisfactory only if issued by companies qualified to do business in the State of California,
rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in
the Federal Register, and only if they are of a financial category Class VII or better, unless such
requirements are waived by the Risk Manager of Agency due to unique circumstances. In the
event the Risk Manager of Agency ("Risk Manager") determines that the work or services to be
performed under this Agreement creates an increased or decreased risk of loss to Agency,
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Consultant agrees that the minimum limits of the insurance policies may be changed accordingly
• upon receipt of written notice from the Risk Manager, provided that Consultant shall have the
right to appeal a determination of increased coverage by the Risk Manager to Agency within 10
days of receipt of notice from the Risk Manager.
6.0 RECORDS AND REPORTS
6.1 Reports. Every six (6) months, during the term of this Agreement,
Consultant shall prepare and submit to the Palm Springs Community Redevelopment Agency a
report concerning the status of Consultant's performance of services under this Agreement, or as
otherwise required by the Executive Director. At the pleasure of Palm Springs Community
Redevelopment Agency, Consultant shall also be required to make presentations concerning its
progress reports to the Agency during an agendized public meeting or study session conducted
by the Agency's Board of Directors, or as otherwise requested by Agency. Consultant shall also
provide written progress reports concerning the services and work performed under this
Agreement, including a summary of Consultant's efforts to achieve the purpose and intent of this
Agreement, to the Agency at other times as directed by the Executive Director.
6.2 Records. Consultant shall keep such books and records as shall be necessary
to properly perform the services required by this Agreement and enable the Executive Director
and the Agency's Board of Directors to evaluate the perfonmance of such services. The
Executive Director shall have frill and free access to such books and records at all reasonable
times, including the right to inspect, copy, audit and make records and transcripts from such
records, throughout the term of this Agreement. Such records shall be maintained by Consultant
for a period of three (3) years following completion of the services hereunder, and Agency shall
have prompt access to such records in the event any audit is either requested or required.
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Consultant in connection with the performance of
this Agreement shall be the property of Agency and shall be promptly delivered to Agency upon
request of the Executive Director or upon the termination of this Agreement, and Consultant
shall have no claim for further employment or additional compensation as a result of the exercise -
by Agency of its full rights or ownership of the documents and materials hereunder. Consultant
may retain copies of such documents for its own use, and shall have an unrestricted right to use
the concepts embodied therein.
6.4 Release of Documents. All drawings, specifications, reports, records, docuunents
and other materials prepared by Consultant in the performance of services under this Agreement
shall not be released publicly without the prior written approval of the Executive Director.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as to
validity and as 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
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California, or any other appropriate court in such county, and Consultant 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 therefore.
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 Agency's right to terminate this Agreement without
cause pursuant to Section 7.6.
7.3 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.
7.4 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.
7.5 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.
7.6 Termination Prior to Expiration of Tenn. Agency reserves the right to terminate
this Agreement at any time, with or without cause, upon ninety (90) days written notice to
Consultant. In addition, Consultant reserves the right to terminate this Agreement at any time
upon, with or without cause, upon thirty(30) days written notice to Agency. Upon receipt of any
notice of termination, Consultant shall immediately cease all services hereunder except such as
may be specifically approved by the Executive Director thereafter in accordance with Section 1.6
above or such as may be approved by the Executive Director. In the event of termination without
cause pursuant to this Section, the terminating party need not provide non-terminating party with
the opportunity to cure pursuant to Section 7.2.
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7.7 Attorneys' Fees. If either party connnences an action against the other party
arising out of or in connection with this Agreement or its subject matter, the prevailing party
shall be entitled to recover reasonable attorneys' fees and costs of suit fi-om the losing party.
Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled to
attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking
depositions and discovery mad all other necessary costs the court allows which are incurred in
such litigation. All such fees shall be deemed to have accrued on cornmencement of such action
and shall be enforceable whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
8.1 Non-Liability of City Officers and Employees. No officer or employee of
Agency shall be personally liable to Consultant, or any successor-irr-interest, in the event of any
default or breach by Agency or for any amount which may become due to Consultant or its
successor, or for breach of any obligation of the terns of this Agreement.
8.2 Conflict of Interest. No officer or employee of the Agency 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/her financial interest or
the financial interest of any corporation, partnership or association in which he/she is, directly or
indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has
not paid or given and will not pay or give any third party any money or other consideration for
obtaining this Agreement.
8.3 Covenant Against Discrimination. Consultant covenants that, by and for itself,
its heirs, executors, assigns, and all persons claiming under or through them, that there shall be
no discrimination or segregation in the performance of or in connection with this Agreement
regarding any person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry. Consultant shall take affirmative action to insure that
applicants and employees are treated 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, 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 pre-paid, first-class mail to the address set forth below. 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 fiom the time of mailing if mailed as provided in this Section.
203533.1 9
Village of Palm Springs Downtown Development Center
Jerry A.Ogburn—Consulting Services Agreement
June 2005203533
D R A F T
To Agency:
City of Palm Springs
Palm Springs Community Redevelopment Agency
3200 East Tahquitz Canyon Way
P.O. Box 2743
Palm Springs, California 92263-2743
Attn.: Executive Director
To Consultant:
Mr. Jerry Allen Ogburn
109 South Indian Canyon Drive
Palm Springs, California 92262
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 constriction which might
otherwise apply.
9.3 Hite apr tion. 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 hound 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.
HI
HI
203533 1 10
Village of Palm Springs Downtown Development Center
Jerry A. Ogburn—Consulting Services Agreement
June 2005203533
D R A F T
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
• of the date first written above.
"AGENCY"
PALM SPRINGS COMMUNITY
REDEVELOPMENT AGENCY
By:
Ron Oden, Chairman
ATTEST:
By:
James Thompson,
Agency Secretary
APPROVED AS TO FORM:
By:
• Douglas C. Holland,
Agency Counsel
"CONSULTANT"
JERRY ALLEN OGBURN dba
REAL ESTATE DEVELOPMENT CENTER
By:
Jerry Allen Ogburn
•
203533.1 11
Village of Palm Springs Downtown Development Center
Jerry A. Ogburn—Consulting Services Agreement
June 2005203533
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D R A F T
EXHIBIT "B" •
SCOPE OF SERVICES
FY 2005-06
The purpose of the services and work under this Agreement is to provide a cohesive
economic development strategy and direction for specific areas within the "Project Area"
in the City of Palm Springs, as depicted in Exhibit "A" to the Agreement. This area is
formed by the combination of a north-south corridor centered on Palm Canyon Drive
and Indian Canyon Drive, between Tachevah Drive on the north and Ramon Road on
the south as well as the western portion of Section 14, between Alejo Road on the north
and Ramon Road on the south and extending east to Avenida Caballeros. The Mission
Statement which is to guide this overall effort is stated as follows:
"Provide a cohesive, consensus building partnership among project area and
community interest groups in order to implement specific programs and projects
which will strengthen the economic base of the community in a timely and
efficient manner,"
Economic development activities will focus upon marketing and patron awareness,
business retention and expansion, and special events and attractions. Physical
development emphasis will be placed on property maintenance and upgrades,
redevelopment and new construction. In addition, Consultant shall be responsible for
coordinating and assisting Agency staff with all code enforcement activities within the .
Project Area.
With this overview, the specific Task Descriptions included within this Scope of Services
for Fiscal Year 2005-06 are presented as follows:
Task 01: Manager for Delineated "Project Area"
Within this task, the Consultant will provide ongoing overall planning, programming and
management services for the "Project Area" as identified in Exhibit "A" of this
Agreement. This is to include monitoring and updating of the Redevelopment Plans for
this area. Close coordination will also be maintained with the Agency staff, the
Executive Director and consultants in regard to low and moderate income housing
issues and projects in the Project Area.
Task 02: Manager of MainStreetlHeritage District Association (Reorganization)
The Consultant is to provide the ongoing necessary technical and administrative
services to the Mainstreet Board of Directors and Heritage District Business
Association, or subsequent combined entity which reorganizes these existing
stakeholder groups within the Project Area. This includes, but is not limited to, the
following: preparation of an annual work program; preparation and distribution of
Agendas for monthly Board meetings; preparation of draft minutes of all meetings and
circulation for review by the Board Secretary; supervision of all marketing efforts (e.g.,
203533.1 14
Village of Palm Springs Downtown Development Center
Jerry A. Ogburn—Consulting Services Agreement
June 2005203533
D R A F T
"Share the Legend" Campaign) and special events sponsored by Mainstreet;
recruitment of Mainstreet Corporate Sponsors and the provision of office administration
services, equipment and supplies to support the Mainstreet organization. The results of
this work task will be documented in the minutes of each monthly meeting of the
Mainstreet Board of Directors.
Task 03: Business Development & Expansion Program
Within this task, the Consultant will provide ongoing technical assistance and direction
in order to facilitate the retention and expansion of existing businesses, as well as the
attraction of new businesses, to the Project Area. Active contact and response
emphasis will be placed upon business retention and expansion, as well as the
recruitment of specific target businesses to Palm Springs. Technical services are to
include: creation of marketing materials; creation and updating of available
sites/building space inventory; site and building selection assistance; expediting of
processing for City approvals; design and site planning assistance; and preliminary
marketing programs for new businesses.
Property owners and/or their designated agents within the area will be included within
an ongoing networking program to fill vacancies with viable tenants, and coordinating
this program with a property upgrade program. Emphasis will be upon preparing and
implementing a retail attraction and expansion program focused upon anchor tenants
("Share the Legend" campaign). Also, implementation of the recommendations of the
"Buxton Community ID" analysis for the Downtown Site will be emphasized.
Task 04: Management of Agency and City Owned Properties
In cooperation with the Executive Director, the Consultant shall manage all City and
Agency owned properties within the Project Area, most notably the Plaza Theatre and
the "Fabulous Palm Springs Follies", including supervision of tenant leases,
management of property maintenance and approved renovation activates, as well as
the disposition of CRA-designated properties. This will-also include supervision of City
owned properties, such as Francis Stevens Park, related to Palm Canyon Theatre and
Desert Art Center, and to the Village Green, including the 1930s General Store Museum
and Heminger's Fudge.
Task 05: Targeted Economic Development Projects
Within this task, the Consultant will work to implement the following Catalyst Projects in
the Project Area within the context of this overall work effort. Initially defined Catalyst
Projects include, but are not limited to:
• Desert Fashion Plaza CBD Mixed Use Redevelopment (Wessman);
• North Gateway CBD Mixed Use Redevelopment Project (Rael);
• The Palm Canyon/South Gateway CBD Mixed Use Redevelopment
Project (South Palm Canyon LLC);
203533.1 15
Village of Palm Springs Downtown Development Center
Jerry A.Ogburn-Consulting Services Agreement
June 2005203533
D R A F T
• Oasis Plaza Mixed Use Redevelopment (Brandenburg/Lyle);
• Palm Springs Pavilion Theater Development (Taylor); •
• Movie Colony Traffic Calming Project Implementation;
• La Sierra University Parcel Development; and
• Tahquitz Canyon Way/Amado Road Corridor in Section 14.
Implementation of these and other redevelopment projects as identified within the
Downtown Urban Design Element of the Palm Springs General Plan will be addressed
as agreed upon throughout the year.
Task 06: VillageFest Liaison
The Consultant shall provide ongoing advisory and coordination services for
VillageFest. Within this task, the Consultant will attend all VillageFest Board meetings
as a non-voting member of the Board. In addition, the Consultant shall serve as a
liaison between the Director of Parks and Recreation and all other event staff assigned
by the City.
dr
203533.1 16
Village of Palm Springs Downtown Development Center
Jerry A. Ogburn—Consulting Services Agreement
June 2005203533