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HomeMy WebLinkAbout7/7/2004 - STAFF REPORTS (15) DATE: JULY 7, 2004 TO: CITY COUNCIL FROM: DIRECTOR OF COMMUNITY& ECONOMIC DEVELOPMENT APPROVAL OF AN AGREEMENT WITH BUXTON COMPANY OF FORT WORTH,TEXAS FOR A RETAIL POTENTIAL STUDY FOR PALM SPRINGS IN AN AMOUNT NOT TO EXCEED $75,000 RECOMMENDATION: It is recommended that the Agency approve a Contractual Services Agreement with Buxton Company of Fort Worth, Texas, to conduct a comprehensive retail potential study for Palm Springs, specifically the downtown area, encompassing demographic and psychographic analyses. BACKGROUND: Over the past several year, the City and Community Redevelopment Agency have been working with various owners of the Desert Fashion Plaza, as well as other developers interested in the downtown, and redevelopment plans for the area. The Downtown Development Center Director and a Council subcommittee, as well as other staff, are working with the current owner on a promising new concept plan for the mall. All parties agree that the success of the Fashion Plaza, as well as the downtown, lie in the ability to attract and retain "upscale" retail in the downtown. Palm Springs has many advantages over other cities of its size and type in terms of downtown retail, including having over 2,500 hotel rooms within walking distance, the Desert Museum, the Convention Center, the Spa Resort, and a healthy arts/entertainment economy that draws evening traffic nearly every night year-round. The challenge has been to demonstrate that numerically to retail prospects. Most retailers rely of conventional drive-time models which plot the number of households (and their income) within specified radii. Downtown Palm Springs has suffered in this type of analysis for a few reasons: (1) nearly half the radius in truncated because of the mountain, lowering the potential number of households, and (2) Palm Springs has suffered in comparison to more centrally-located, affluent communities like Palm Desert and Rancho Mirage because its household income is lower, as well as the density of full-time households. The city is, however, undergoing a demographic shift with higher-income households buying in new-and existing communities in the City. Buxton's product uses a variety of household purchasing data to come up with consumer spending preferences household by household(with up to six individual profiles per household)and then aggregates them to come up with community purchasing preferences. Because they working with the retailers as clients,as well as communities,they can provide a match between the profile of the community and the desires of the retailer. Buxton's proposal has three parts. Phase I is the Retail Trade Area Determination,which identifies potential retail zones in the city and analyzes the vialbility for retail development in each zone; geocode and analyzes all households in the community by psychographics, and then segments and profiles all households in each of the zones identified; determines the average annual household purchase by product (approximately 400 products) and then indexes these purchases to measure demand against national averages; and then produces a map of the drive time trade area for each selected zone, household profiles based on psychographics, a product demand analysis for the drive time area, and conclusions and recommendations. Phase II is more site-specific. Buxton would be asked to analyze the Desert Fashion Plaza location and develop a drive-time trade area, a demographic and psychographic of households, identify dominant segment households, and determine the population density of these segments. The second part of Phase II is the identification of retailers with customer profiles similarto the household profiles within the Drive Time Trade Area, an analysis of the effect of sales transfer(cannibalization)by stores of the same retailer in nearby communities, if applicable; and, for each targeted retailer, determine the density of the retailer's dominant segment households in the trade areas around the other locations throughout the state and compare them to Palm Springs' dominant segment household density. It also includes an analysis of existing similar retail centers. The final part of Phase II is the production of a marketing binder and a retailer-specific marketing package for each retailer determined to be a good match for the site. Phase III is optional and a service the City of Palm Springs asked Buxton to investigate because of the elusiveness of data on visitors as well as seasonal or part-time residents (which may not show up in the primary data). For$1,000 each, Buxton will "drill into" databases the City may be able to produce, including seasonal residents, hotel/resort/timeshares guests, convention center groups, patrons of the attractions in downtown, airport visitors, and others. Funds are available in the Econ inic Development Fund, 001-1220. JOHN RA ND it or o Mf C unity& Economic Development APPROVED City Manager ATTACHMENTS: 1. Minute Order 2. Proposal/Agreement I Proposal Presented to: City of Palm Springs 1 June 2004 Prepared by: Matthew Montgomery Expiration Date: 1 July 2004 I f TABLE OF CONTENTS Executive Overview 2 Scope of Services Phase I Retail Trade Area Determination 3 Phase II Retail Site Selection Tenant Analysis 4 Retail Recruiting Package 6 Fee and Delivery Schedule 7 Sponsor Requirements 8 Signature Page 9 i EXECUTIVE OVERVIEW Buxton is pleased to present this proposal to the City of Palm Springs. The objective of this proposal is to outline the scope of the research that will produce critical fact-based information and marketing packages that can be used by the City of Palm Springs to proceed with the attraction and expansion of the retail sector. In this proposal, the term "retail' also shall include restaurants. In Phase I, we will complete an assessment of the retail trade in the City of Palm Springs. This assessment will identify distinct geographic zones of customers and retail potential. An analysis of the existing retail product demand along with demographic and psychographic analyses of the households in the community will determine the opportunities for additional retail trade. In Phase 11, based on the initial Phase I analysis, the City of Palm Springs will select a specific site for further analysis. A drive time trade area will be developed from the site and the households profiled. This profile will be compared with the trade area profiles of locations targeted by specific retailers. Approximately twenty (20) specific retailers will be identified. The existing locations of these retailers in the region will also be analyzed to measure the household density needed by the retailer to establish a successful store. A distance study will also be conducted for each of these target retailers so that they will not negatively affect their existing stores in the same trade area. This research will be used to create retail recruitment packages to be used to attract potential tenants. The marketing package will show the retailer that the households in the trade area match the retailer's target location household profile. The marketing package will also include comparisons to existing retail centers with household profiles similar to the new center, reinforcing the new center as an opportunity for opening a successful unit. These materials address specific retailers and can also be used to attract developers to this project. Buxton provides market research services and economic development consultation and does not provide engineering services to determine the suitability of the environment, topography or infrastructure requirements. We are pleased to present the following outline of the scope of this project for your consideration. We look forward to your response. �r 2 SCOPE OF SERVICES PHASE I - RETAIL TRADE AREA DETERMINATION A. Analysis of potential retail zones to include: ■ Identification of potential retail zones ■ Analysis of the viability for retail development in each identified zone B. Analysis of households • Geocode all households in the zones identified above ■ Determine and analyze psychographics of these households • Segment and profile all households in each of the zones identified C. Product Demand Analysis • Determine average annual household purchases by product (approximately 400 products) ■ Index these purchases to measure product demand compared to national averages D. Deliverables • A written presentation to include: • Map of the drive time trade area for each selected zone ■ Household profiles based on psychographics ■ Product demand analysis for the drive time trade area • Conclusions and recommendations 3 SCOPE OF SERVICES PHASE II - RETAIL SITE SELECTION AND TENANT ANALYSIS A. Analysis of a potential retail center within one of the zones analyzed in Phase I, which consists of the following: • Develop Drive Time Trade Area ■ Demographic and Psychographic Profile of Households • Identification of Dominant Segment Households ■ Population Density of these segments B. Tenant Selection and Analysis ■ Identification of retailers with customer profiles similar to the household profiles within the Drive Time Trade Area determined in Section A above. ■ Analyze the effect of sales transfer (cannibalization) by stores of the same retailer in nearby communities, if applicable. ■ For each targeted retailer, determine the density of the retailer's dominant segment households in the trade areas around the retailer's other locations throughout the state and compare them to the community's dominant segment household density. 4 SCOPE OF SERVICES PHASE II - RETAIL SITE SELECTION AND TENANT ANALYSIS (continued) C. Analysis of Existing Similar Retail Centers These retail centers may or may not be in neighboring communities and will be selected based on the similarity of the households surrounding these centers as compared to the households profiled surrounding the proposed site. This will better identify retailers that can be successful at this site and will supplement the profile information when marketing to these retailers. D. Deliverables Research report to include: ■ Trade Area polygons overlaid on map • Household profile by Trade Area ■ Household profile comparisons to specific retailer's target area profiles • Dominant Segment Household densities 5 SCOPE OF SERVICES PHASE II — RETAIL RECRUITING PACKAGE A. Marketing Binder We will prepare a marketing binder that can be used by the city to market to potential tenants. This binder will indicate the retail potential that is determined in the analysis. Marketing binders are intended to identify the best tenant mix for the proposed retail center based on the population contained in the established Trade Area. The binder will identify the top retail businesses and will include information to enable the retailer to determine the suitability of this retail center for their retail concept. The marketing binder will include: ■ Property Description and Trade Area Map • Trade Area Description ■ Psychographic Trade Area household profile and summaries ■ Demographic summaries and graphs illustrating the trade area ■ Recommended retailers with operating names, addresses, telephone numbers, key executives to contact and retail classification B. Retailer Specific Marketing Package These packages will be used to market the community to the prospective retail tenant or a retail developer and will include items from the marketing binder in Section A above. Each package will address a specific retailer and set forth the research results illustrating to the retailer the opportunity for opening a successful unit at this site. C. Deliverables • One (1) copy -- Marketing Binder ■ Additional copies of the Marketing Binder @ $200 each ■ One (1) copy -- Retailer Specific Marketing Packages (approximately 20) • Additional copies of the retailer specific package @ $100 each 6 FEE SCHEDULE FEE FOR SERVICES Fees associated with the Community/Do program and its related processes are as below: Phase Retail Trade Area Determination $20,000.00 Phase II Retail Site Selection and Tenant Analysis And Retailer Specific Recruitment Package $40,000.00 Additional Market Segment Analysis (15 @ $1,000) $15,000.00 Market Segments: Year Round Residents Seasonal Residents Hotel/Resort Guests Timeshare Guests Long Term Rentals (monthly) Short Term Rentals (weekly) Convention Center Groups Desert Museum Patrons Palm Springs Follies Patrons Spa Casino Patrons VillageFest Patrons Palm Springs International Airport Visitors Palm Springs Aerial Tramway Visitors Major Special Event Visitors High Growth Niche Markets Total Cost $75,000.00 A 50% deposit is due upon commencement of Phase I. The remaining balance will be due upon delivery of the results of this proposal. Estimated time of completion: Phase 1-30 business days from the execution of this agreement. Phase ll-45 business days after Phase I is completed. SPONSOR REQUIREMENTS PROJECT REQUIREMENTS FOR SPONSOR In order to complete the Community/Do project in the time schedule presented, the following must be provided by the City of Palm Springs. A. Project Liaison • Designate a local Project Manager who will interface with Buxton during the course of the project. B. Provide the following materials or reports (all materials will be returned at the completion of the project) ■ Economic planning analysis, community visioning or future studies. ■ Current zoning map, electronic format preferred. ■ Current electronic file of street network, if available. When using Mapinfo, AutoCAD, or ESRI shape files, please indicate what coordinate and datum systems were used. ■ Maps or plans for any major highway or roadway upgrade or construction planned in the next five years, electronic format preferred. ■ Most current traffic count reports, electronic format preferred. ■ List and locate on map, up to three sites or areas to be analyzed for desirability for retail or shopping center development after the completion of Phase I. ■ List and locate on map all shopping centers or malls in the city. • List and locate on map all major national retailers in the city. ■ List of any shopping center or national retailers that have purchased property, but not opened. Indicate if project is under construction. • Economic development marketing materials currently used by the community. ■ Provide the names and addresses, including city, state, and zip code, of the consumers in each of the fifteen (15) additional market segments, preferably in a pipe delimited text file. C. Meeting room to accommodate final report session. The sponsor is responsible for extending invitations to participants. Buxton will provide all briefing/presentation materials. 11 � 1 SIGNATURE PAGE v909 w E. This agreement is between the City of Palm Springs and Buxton ("the Parties") for the performance of services described in this proposal. The Parties further agree that an independent contractor/employer relationship is created as a result of this agreement. Buxton will not be considered an agent or employee of the City of Palm Springs for any purpose. The term of this agreement is one (1) year. This agreement may be terminated by either party at any time upon written notice of 30 days. If this agreement is terminated, Buxton will be paid for services performed up to the date the written notice is received. This agreement shall be administered and interpreted under the laws of the State of Texas. In order to avoid paying State of Texas Sales and Use Tax, the City of Palm Springs may be required to provide Buxton with a certificate from the State Comptroller indicating that it is a non-profit corporation and not subject to State of Texas Sales and Use Tax. Agreed and accepted this day of 2004. Mr. David Ready Mr. David Glover City Manager Chief Financial Officer City of Palm Springs Buxton 3200 E. Tahquitz Canyon Way 2651 S. Polaris Drive Palm Springs, CA 92263-2743 Fort Worth, TX 76137 Phone: 760-323-8201 Phone: 817-332-3681 Fax: 760-323-8207 Fax: 817-332-3686 (Signature) (Signature) 9 - - CONTRACT SERVICES AGREEMENT FOR RETAIL TRADE AREA DETERMINATION AND RETAIL SITE SELECTION AND TENANT ANALYSIS FOR DOWNTOWN PALM SPRINGS THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is made and entered into this _ day of 2004, by and between the CITY OF PALM SPRINGS, (herein "City," a municipal corporation) and the Buxton Company, a Texas corporation (herein "Contractor"), 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. Contractor warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry, and all materials will be of good quality, fit for the purpose intended. 1.2 Contractor's Proposal. The Scope of Services 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 City 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, 1 ac+ld • / � j 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 five percent (5%)or less of the Contract Sum, or in the time to perform of one hundred eighty (180) days or less may be approved by the Contract Officer. Any greater increases, taken either separately or cumulatively must be approved by the City. 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 Seventy Five Thousand Dollars ($75,000.00) (herein "Contract Sum"), plus reimbursable expenses, 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, and performance bond, 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 one meeting reasonably deemed necessary by the City; Contractor shall not be entitled to additional compensation for attending additional meetings as required by the City. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation (Exhibit C), in any month in which Contractor wishes to receive payment, no later than the first (1st) working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the 2 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 City, 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 eighteen (18) months from the date hereof, except as otherwise provided in the Schedule of Performance. 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: Kathleen H. Head, Principal 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. 3 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the Executive Director 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. 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 anyway 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) Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis. If the Contract Sum is $25,000.00 or less, the policy of insurance shall be written in an amount not less than either (i) a combined single limit of $500,000.00 or (ii) bodily injury limits of $250,000.00 per person, $500,000.00 per occurrence and $500,000.00 products and completed operations and property damage limits of $100,000.00 per occurrence and $100,000.00 in the aggregate. If the Contract Sum is greater than $25,000.00 but less than or equal to $100,000.00, the policy of insurance shall be in an amount not less than either (i) a combined single limit of $1,000,000.00 for bodily injury, death and property damage or (ii) bodily injury limits of $500,000.00 per person, $1,000,000.00 per occurrence and $1,000,000.00 products and completed operations and property damage limits of $500,000.00 per occurrence and $500,000.00 in the aggregate. If the Contract Sum is greater than $100,000.00, the 4 policy of insurance shall be in an amount not less than $5,000,000.00 combined single limit. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both the Contractor and the City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. (c) 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. (d) Additional Insurance. Policies of such other insurance, including professional liability insurance, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the City, its officers, employees and agents as additional insureds. 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. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are cancelled, 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 or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance 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 persons 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 policies of insurance that the Contractor is required to maintain pursuant to this Section 5.1. 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 5 responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys' fees incurred in connection therewith; (b) Contractor will promptly pay 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 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 Assistant Secretary, 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, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City due to unique circumstances. In the event the Risk Manager of City ("Risk 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 Risk Manager; provided that the Contractor shall have the right to appeal a determination of increased coverage by the Risk Manager to the City board within 10 days of receipt of notice from the Risk Manager. 6_0 RECORDS AND REPORTS 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. 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 6 City, including the right to inspect, copy, audit and make records and transcripts from such records. Such records shall be maintained for a period of three (3) years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Contractor, its employees, subcontractors and agents in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Contractor in the performance of services under this Agreement shall not be released 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 parry 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 parry'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 7 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 parry's consent to or approval of any act by the other parry requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other parry'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 parry. 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 ($0.00) dollars_ 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. 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 (Exhibit "C") or such as may be approved by the Contract Officer, except as provided in Section 7.3. 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. 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 8 shall use reasonable efforts to mitigate such damages), and City may withhold any payments to the Contractor for the purpose of setoff 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 Against Discrimination. Contractor covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. Contractor shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, document, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City, to the City Manager and to the attention of the Contract Officer, THE COMMUNITY REDEVELOPMENT City OF THE 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 9 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 effect 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. 10 IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: THE CITY OF PALM SPRINGS, CALIFORNIA, a municipal corporation By: By: City Clerk Executive Director APPROVED AS TO FORM: ALESHIRE &WYNDER, LLP City Attorney CONTRACTOR: By: Name: Title: Address: ATTACHMENTS: EXHIBIT"A" SCOPE OF SERVICES EXHIBIT"B" SPECIAL REQUIREMENTS EXHIBIT"C" SCHEDULE OF COMPENSATION EXHIBIT"D" SCHEDULE OF PERFORMANCE 11 EXHIBIT"A" SCOPE OF SERVICES The services performed by Contractor under this agreement are described in the attached proposal dated June 1, 2004. Said agreement shall contain a specific scope of services to be performed by Contractor for a particular project. 12 EXHIBIT "B" SPECIAL REQUIREMENTS Section 5.3, "Performance Bond," is waived. 13 EXHIBIT "C" SCHEDULE OF COMPENSATION Contractor shall be compensated for the services to be performed by Contractor pursuant to this Agreement pursuant to the terms described in the June 1, 2004 proposal. EXHIBIT "C" TO CONTRACT SERVICES AGREEMENT EXHIBIT "D" SCHEDULE OF PERFORMANCE The Contractor estimates that the work in Phase I shall be completed within 30 business days after the execution of the Agreement. Phase II shall be completed within 45 days of the completion of Phase I. Delays in the City producing materials requested in the proposal shall delay the completion of the project. MINUTE ORDER NO. OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING A CONTRACT WITH BUXTON COMPANY OF FORTH WORTH,TEXAS IN AN AMOUNT NOT TO EXCEED $75,000 FOR THE RETAIL POTENTIAL ANALYSIS OF PALM SPRINGS AND THE DOWNTOWN AREA I HEREBY CERTIFY that this Minute Order, approving a Contract with Buxton Company of Fort Worth, Texas, in an amount not to exceed $75,000 for the retail potential analysis of Palm Springs and the downtown area, in a form acceptable to the City Attorney, was approved by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 7th day of July 2004. PATRICIA A. SANDERS City Clerk