HomeMy WebLinkAbout04987 - BRANDSTRATEGY INC AIRORT TENANT STRATEGY BRANDPROMISE DEVELOPMENT CULTURALIZATION DUANE KNAPP MO7518 DOCUMENT TRACKING
Report: Detailed Transactions Detail Page: 1
Condition: Document Number a4987, March 1, 2006
Document# Description
A4987 Brand Advisory Services To P.s.Airport Experience Audit For Tenants Approval Date Expiration Date Closed Date
11/03/2004 03/01/2005
Company Name: BrandStrategy Incorporated
Address: 2415 T Avenue, Suite 210, Anacortes, WA 98221
Service: In File
xRef: CITY MANAGER
Ins. Status: No Certificate on file.
Document Tracking Items,
Code Item Description Due Completed Tracking Amount
Amount
reedDate Date from CM signed Date Added Paid
11/03/2004
* * * * * * END OF REPORT" " "
Jv' 9
= �
BrandStrategy Inc
Airport Brand Advisory & Tenant
CITY OF PALM SPRINGS Strategy Services
AGREEMENT#4987
CM signed on 11-03-04
CONTRACT SERVICE AGREEMENT
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement'), is made and
entered into this 25t1i day of October, 2004, by and between the City of Palm Springs, a
municipal corporation, (herein "City") and BrandStrategy, Incorporated, a Washington
Corporation, (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 circumstanceso-r&dl Co"T"14--1-6-�ta e�l�csnQ.F .
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. Contractorshall 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 forthe 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
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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 $24,500; 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
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the maximum contract amount of Twenty Four Thousand Five Hundred Dollars
($24,500) (herein "Contract Sum"), except as provided in Section 1.8. The method of
compensation may include (i) a lump sum payment upon completion, (ii) payment in
accordance with the percentage of completion of the services, (iii) payment for time and
materials based upon the Contractor's rates as specified in the Schedule of Compensation,
but not exceeding the Contract Sum or(iv)such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual and
necessary expenditures for reproduction costs,telephone expense,transportation expense
approved by the Contract Officer in advance,and no other expenses and only if specified in
the Schedule of Compensation. The Contract Sum shall include the attendance of
Contractor at all project meetings reasonably deemed necessary by the City; Contractor
shall not be entitled to any additional compensation for attending said meetings.
2.2 Method of Pavment. 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 s) 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 Majeure. The time period(s) specified in the Schedule of
Performance for performance of the services rendered pursuant to this Agreement shall be
extended because of any delays due to unforeseeable causes beyond the control and
without the fault or negligence of the Contractor, including, but not restricted to, acts of God
or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics,
quarantine restrictions, riots,strikes,freight embargoes,wars, litigation,and/or acts of any
governmental agency, including the City, if the Contractor shall within ten (10) days of the
commencement of such delay notify the Contract Officer in writing of the causes of the
delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend
the time for performing the services for the period of the enforced delay when and if in the
judgment of the Contract Officer such delay is justified. The Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement. In no event
shall Contractor be entitled to recover damages against the City for any delay in the
performance of this Agreement, however caused,Contractor's sole remedy being extension
of the Agreement pursuant to this Section.
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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 principal 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:
Duane Knapp
It is expressly understood that the experience, knowledge, capability and
reputation of the foregoing principal was a substantial inducement for City to enter into this
Agreement. Therefore, the foregoing principal 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 principal
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 Subcontractinq or Assiqnment. 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 transferto 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
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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 Liabilitv 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(1185) or equivalent language.
(b) Worker's Come ationnb[Mu ance. A policy of worker's
compensation insurance in aA amount which fully complies with the statutory
requirements of the Stal0f A 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.
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(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
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. -,M�L
5.2 ndemnification. Contracto/heen
es to indemni the City, its officers,
agents and employee against, and will hold an them, and ach of them, harmless
from any and all actin , suits, claims, damagpersons property, losses, costs,
penalties,obligations,err s,omissions or liabilitirein"cl ' s or liabilities")that maybe
asserted or claimed by an person, firm or enting o t of or in connection with the
negligent pertormance oft work, operationcti ties of Contractor, its agents,
employees,subcontractors,or i vitees, provided ' ,or arising from the negligent acts
or omissions of Contractor hereu der,or arising ontractor's negligent performance of
or failure to perform any term, prow ion, covenandition of this Agreement,whether or
not there is concurrent passive or act anegligenhe part of the City,its officers, agents
or employees but excluding such claim or liabil'#ies arising from the sole negligence or willful
misconduct of the City, its officers, agen or mployees,who are directly responsible to the
City, and in connection therewith:
(a) Contractor ill de d any action or actions filed in connection
with any of said lams or lia ilities and will pay all costs and expenses,
including le I costs and orneys' fees incurred in connection
therewith;
(b) ontractor will promptly pay judgment rendered against the
City, ' s officers, agents or employees r any such claims or liabilities
ari ' g out of or in connection with the egligent performance of or
f ure to perform such work, operations r activities of Contractor
ereunder; and Contractor agrees to save an old the City, its officers,
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l
agents, and emplXnegl:iguperformance
armless erefrom;
(c) In the even , its icers, agents or employees are made
a parry to any p ceeding filed or prosecuted against
Contractor for sma s or other claims arising out of or in
connection with tig performance of or failure to perform the
work, operation o of ontractor hereunder, Contractor agrees
to pay to the Citycers, a ents or employees, any and all costs
and expenses incy the Ci itsofficers, agents or employees in
such action orprg, includi but not limited to, legal costs and
attorneys' fees.
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5.3 Performance Bon . /entir
tly with execution of this Agreement,
Contractor shall deliver to City a perfond in the sum of the amount of this
Agreement, in the form provided by the Cecures the faithful performance of this
Agreement, unless such requirement is the Contract Officer. The bond shall
contain the original, notarized signature rized officer of the surety and affixed
thereto shall be a certified and current cower of attorney. The bond shall be
unconditional and remain in force duringrm of the Agreement and shall be null
and void only if the Contractor promptly nd faithfully erforms all terms and conditions of this
Agreement.
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5.4 Sufficiencv of surer or Sure . Insurance or bonds required by this
Agreement shall be satisfactory on if issued b companies qualified to do business in
California, rated "A" or better in them t recent dition of Best's Key Rating Guide or in the
Federal Register, unless such requirem tsar waived by the City Manager or designee of
the City Manager due to unique circumst c . In the event the City Manager determines
that the work or services to be performed rider this Agreement create an increased or
decreased risk of loss to the City, the C nt ctor agrees that the minimum limits of the
insurance policies and the performance and quired by this Section 5 may be changed
accordingly upon receipt of written not' e from th City Manager or designee; provided that
the Contractor shall have the right t appeal a det mination of increased coverage by the
City Manager to the City Council of ity within ten (10)days of receipt of notice from the City
Manager.
6.0 REPORTS AND RECORDS
6.1 Reports. Contractor shall periodically prepare and submit to the
Contract Officer such reports concerning the performance of the services required by this
Agreement as the Contract Officer shall require. Contractor hereby acknowledges that the
City is greatly concerned about the cost of work and services to be performed pursuant to
this Agreement. For this reason, Contractor agrees that if Contractor becomes aware of any
facts, circumstances, techniques, or events that may or will materially increase or decrease
the cost of the work or services contemplated herein or, if Contractor is providing design
services,the cost of the project being designed, Contractor shall promptly notify the Contract
Officer of said fact, circumstance, technique or event and the estimated increased or
decreased cost related thereto and, if Contractor is providing design services,the estimated
increased or decreased cost estimate for the project being designed.
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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 reports, records,documents,techniques,
processes 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.0
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 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
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dhHLL�LtCT " wQ CTV-f (\0 11 1��t a`Q ,
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
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 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,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
10/26/2004 -9-
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 onlyforthe 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.
7.8 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.
7.9 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 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 orthe
financial interest of any corporation, partnership or association in which he is, directly or
indirectly, interested, in violation of any State statute or regulation. The Contractor warrants
that it has not paid or given and will not pay or give any third party any money or other
consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Contractor covenants that, by and for
itself, its heirs,executors,assigns,and all persons claiming under or through them,that there
shall be no discrimination against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Agreement. Contractor shall take affirmative action to insure that
applicants are employed and that employees are treated during employment without regard
to their race, color, creed, religion, sex, marital status, national origin, or ancestry.
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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 parry 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 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 parry, (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 otherAgreement to which
said party is bound.
[SIGNATURE BLOCK ON NEXT PAGE]
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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:
City Clerk City Manage
10 Hr; or"D DT T",E C115, ., j<?�1✓add 2. l2
CONTRACTOR: Check one:_Individual_Partnership_Corpordiion
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y Signat(u�re rued) y. Signature(notarized)
Namelike ,2, a t4' Name:
Title: 1�'-Y-tstcA.cr��/ ��� ��J Title:
(This Agreement must be signed in the above space by This Agreement must be signed in the above space by
one of the following:Chairman of the Board,President or one of the following:Secretary,Chief Financial Officer or
any Vice President) any Assistant Treasurer)
Stateof C,9Ll Feplulio State of :1
County of 1blJEk511D6 Dss County of ❑ss
On 10--A-6 before me, On before me,
" ,
-TAXIe M. uCK- personafy appeared
personally appeared U %15 E. KAJOP personally Known to me (or proved to me on the basis of
pweeaaOf-knawn-tc-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(�whose name(y)is/are subscribed to the within instrument and acknowledged to me that
su scn to
a within instrument and acknowledged to methat he/she/they executed the same in his/her/their authorized
he/s).reltttcy executed the same in his/hef/thair authorized capacity(ies), and that by his/her/their signature(s) on the
capacity(ige), and that by his/hef/tIor signature(e) 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 the instrument.
person(S)-acted,executed the instrument. WITNESS my hand and official seal.
WITNESS my hand and official seal.
Notary Signature, ///. ��"!V Notary Signature:
Notary Seal: Notary Seal:
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EXHIBIT"A"
SCOPE OF SERVICES
Contractor proposes to provide Brand Advisory services to the Palm Springs International
Airport. In performing this work, Contractor agrees to the following scope of services.
Task I Tenant Strategy— BrandStrategy, Inc., in partnership with the Palm Springs
International Airport, will develop an "experience' audit for all airport tenants
(airlines, retail, and food service organizations)to deliver exceptional
products and services for all visitors.
Task 11 BrandPromise Development—BrandStrategy, Inc., in partnership with the
Palm Springs International Airport, will define and develop a promise that
will deliver a "One of a Kind" Experience.
Task III Culturalization— Creates a customized Culturalization training guide for
Palm Springs International Airport employees and associates on how to
deliver a "One of a Kind" Experience.
The City acknowledges that Contractor and its President, Duane Knapp are acting in the
capacity of an advisor and as such; our ideas, thoughts and recommendations are offered
to the Palm Springs International Airport to accept or decline.
Contractor will be utilizing our intellectual property as well as proprietary and confidential
materials, methodologies, reports, techniques, processes, terminology, trademarks, etc. It
is understood that nothing herein shall in any way limit, modify or restrict Contractor
rights, title and interest in the above mentioned intellectual property, and methodologies
that may be utilized in this project.
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EXHIBIT'B"
SPECIAL REQUIREMENTS
1. Paragraph 5.1 (b)regarding Worker's Compensation Insurance is hereby waived in its
entirety.
2. Paragraph 5.2 Indemnification is hereby amended to read;
"5.2 Indemnification. City acknowledges that Contractor is serving in the capacity
of advisor. As such, recommendations are made for City officers and employees
to accept or decline and City understands that Contractor is not acting as an
officer, director, either explicity or implicity. If and to the extent that proceeds of
insurance are inadequate, Contractor agrees to protect, indemnify and save
harmless City and its officers,officials,employees and volunteers from and against
all claims, demands and causes of action by contractor's employees or third
parties on account of personal injuries or death or on account of property damages
arising out of the work to be performed by contractor hereunder and resulting from
the negligent act or omissions of contractor, contractor's agents, employees or
subcontractors."
3. Paragraph 5.2 (a) is hereby deleted in its entirety.
4. Paragraph 5.2 (b) is hereby deleted in its entirety.
5. Paragraph 5.2 (c) is hereby deleted in its entirety.
6. Paragraph 5.3 Performance Bond is hereby waived in its entirety.
7. Paragraph 5.4 Sufficiency of Insurer or Surety is hereby deleted in its entirety.
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EXHIBIT"C"
SCHEDULE OF COMPENSATION
Professional Fees
Task I. Tenant Strategy $1,950
(Total fee$6,500—30%due now,30%due Jan.20"and 40%due upon completion)
Task II. Development of a BrandPromise $1,800
(Total fee$6,000—30%due now,30%due Jan.20"and 40%due upon completion)
Task III. Culturalization yt2�� $6,000
(Total fee$12,000—30%due now,30%due on Jan.20"'and % due upon completion)
Amount Due Now $7,350
Amount Due on Jan. 20.,2005 $7,350
Amount Due Upon Completion $9.800
Total $24,500
Please FedEx payments using our FedEx# 157306065 to:
BrandStrategy, Inc.
2415 T Avenue, Suite 210
Anacortes, WA 98221
360-293-8810
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EXHIBIT"D"
SCHEDULE OF PERFORMANCE
Time is of the essence of this agreement. Contractor shall perform all services hereunder
as expeditiously as is consistent with professional skill and care, as well as the orderly
progress of the Project work so as not to be the cause, in whole or in part, of delays in the
completion of the Project or in the achievement of any Project milestones, as provided
herein, Specifically, Contractor shall perform its Services so as to allow for the full and
adequate completion of the Project within One Hundred and Twenty (120) days of receipt
of a notice to proceed. If at any time it appears that the project cannot be completed by
the date specified, Contractor shall notify City of that fact and provide an estimate of the
time when the project will be completed. If Contractor has been the sole source of delay,
and if completion of the project would be expedited by use of other or additional
consulting services, City may use the retained amounts for the purpose and shall be
relieved of paying such retention to Contractor. If the Contractor's work is not
satisfactory, City has the right to take appropriate action, including but not limited to: (1)
meeting with the Contractor to review the quality of the work and resolve matters of
concern; (2) requiring the Contractor to perform the work at no additional fee until it is
satisfactory; (3) suspending the delivery of further work to the Contractor for an indefinite
time; (4)withholding payment; or (5) terminating the Agreement as set forth in Section
7.8.
The project is expected to take about sixteen weeks to complete. The anticipated completion
date is March 2005
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