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HomeMy WebLinkAbout04775 - HARRIS REALTY APPRAISAL MOUNTAIN GATE AD 161 PROPERTY Page j of 1 Cindy Berardi From: Carrie Rovney Sent: Friday, May 02, 2008 11:29 AM To: Cindy Berardi Subject: RE: Harris Realty Appraisal I spoke with Marcus regarding these contracts. Marcus has instructed me to close all of these agreements. Then`:i L,grnie <ovney '51bo From: Cindy Berardi Sent: Tuesday, April 29, 2008 2:09 PM To: Carrie Rovney Subject: Harris Realty Appraisal Which contract(s) did you just close out for the above company? I have the following contracts open: A4775 re Mountain Gate A4913 re The Villas in Old Palm Springs and 48 @ Baristo A4944 re AD 164 Mountain Gate II A5111 re CFD No 1 Palm Springs Classic A5309 re CFD No 2005-2 Escena Thanks. Cindc9 g)erardi D,pijty City Clcrk ogice of Che Clry Cleric City of Palm Springs P-O box,743 calm 5pring+5,CA 92262 (760) 322-3355 Cind G rardiC elms rin s-ca.caov 5/2/2008 Harris Realty Appraisal • •Mountain Gate AD 161 AGREEMENT #4775 CITY OF PALM SPRINGS CM signed 9-18-03 CONTRACT SERVICES AGREEMENT - - .)("a�.r{- �s THIS CONTRACT SERVICES AGREEMENT(herein"Agreement"),is made and entered into this /�5 t� day of rJul};2003, by and between the CITY OF PALM SPRINGS, a municipal corporation, (herein"City") and Harris Realty Appraisal, (herein"Contractor"). The term Contractor includes professionals performing in a consulting capacity. The parties hereto agree as follows: 1.0 SERVICES OF CONTRACTOR 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, the Contractor shall provide those services specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference,which services maybe 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 forthe purpose intended. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first-class firms performing similar work under similar circumstances. 1.2 Contractors Proposal. The Scope of Service shall include the Contractor's proposal or bid which shall be incorporated herein by this reference as though fully set forth herein. In the event of any inconsistency between the terms of such proposal and this Agreement, the terms of this Agreement shall govern. 1.3 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any Federal, State or local governmental agency having jurisdiction in effect at the time service is rendered. 1.4 Licenses, Permits, Fees and Assessments. Contractor shall obtain at its sole cost and expense such licenses,permits and approvals as may be required by law for the performance of the services required by this Agreement. Contractor shall have the sole obligation to pay for any fees,assessments and taxes, plus applicable penalties and interest,which may be imposed by law and arise from or are necessary 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 Contractor has,or will,investigate the site and is orwill 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. f1.' 1003/001/25316 v4 l �=Y'9(-N 1ML �c" 0 Unless hereafter specified, neither party shall be responsible for the service of the other. 1.8 Additional Services. City shall have the right at any time during the performance of the services, without invalidating this Agreement,to order extra work beyond that specified in the Scope of Services or make changes by altering,adding to or deducting from said work. No such extra work may be undertaken unless a written order is first given by the Contract Officer to the Contractor,incorporating therein any adjustment in(i)the Contract Sum,and/or(ii)the time to perform this Agreement, which said adjustments are subject to the written approval of the Contractor. Any increase in compensation of up to five percent(5%)of the Contract Sum or$25,000;whichever is less,or in the time to perform of up to one hundred eighty(180)days may be approved by the Contract Officer. Any greater increases,taken either separately or cumulatively must be approved by the City Council. It is expressly understood by Contractor that the provisions of this Section shall not apply to services specifically set forth in the Scope of Services or reasonably contemplated therein. Contractor hereby acknowledges that it accepts the risk that the services to be provided pursuant to the Scope of Services may be more costly or time consuming than Contractor anticipates and that Contractor shall not be entitled to additional compensation therefore. 1.9 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in the"Special Requirements"attached hereto as Exhibit"B"and incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit"B"and any other provisions of this Agreement, the provisions in Exhibit"B"shall govern. 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement,the Contractor shall be compensated in accordance with the"Schedule of Compensation'attached hereto as Exhibit"C"and incorporated herein by this reference,but not exceeding the maximum contract amount of twenty thousand dollars($20,000)(herein"Contract Sum"), except as provided in Section 1.8. The method of compensation may include (i) a lump sum payment upon completion, (ii) payment in accordance with the percentage of completion of the services, (iii) payment for time and materials based upon the Contractor's rates as specified in the Schedule of Compensation,but not exceeding the Contract Sum or (iv) such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs,telephone expense,transportation expense approved by the Contract Officer in advance,and no other expenses and only if specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contractor at all project meetings reasonably deemed necessary bythe City; Contractor shall not be entitled to any additional compensation for attending said meetings. 2.2 Method of Payment. Unless some other method of payment is specified in the Schedule of Compensation,in any month in which Contractor wishes to receive payment,no later than the first(1st)working day of such month, Contractor shall submit to the City in the form approved by the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Contractor for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. Contractor 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 ForceMajeure. 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 1003/001/25316 0 2 public enemy,unusually severe weather,fires,earthquakes,floods,epidemics,quarantine restrictions,riots,strikes,freight embargoes,wars, litigation, and/or acts of any governmental agency, including the City, if the Contractor shall within ten (10)days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay,and extend the time for performing the services for the period of the enforced delay when and if in the judgment of the Contract Officer such delay is justified. The Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. In no event shall Contractor be entitled to recover damages against the City for any delay in the performance of this Agreement,however caused,Contractor's sole remedy being extension of the Agreement pursuant to this Section. 3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one(1)year from the date hereof,except as otherwise provided in the Schedule of Performance(Exhibit"D"). 4.0 COORDINATION OF WORK 4.1 Representative of Contractor. The following principals of Contractor are hereby designated as being the principals and representatives of Contractor authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Jim Harris It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore,the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Contractor and devoting sufficient time to personally supervise the services hereunder. For purposes of this Agreement, the foregoing principals may not be replaced nor may their responsibilities be substantially reduced by Contractor without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City. It shall be the Contractor's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the services and the Contractor shall refer any decisions which must be made by Cityto 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 orAssignment. 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,whetherfor the benefit of creditors or otherwise,without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent(25%) of the present ownership and/or control of Contractor, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release the Contractor or any surety of Contractor of any liability hereunder without the express consent of City. The City's policy is to encourage the awarding of subcontracts to persons or entities with offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are available,to persons or entities with offices located in the Coachella Valley("Local Subcontractors"). Contractor hereby agrees to use good faith efforts to award subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work required. In requesting for the City to consent to a subcontract with a person or entity that is not a Local Subcontractor,the Contractor shall submit evidence to the City that such good faith efforts have been made or that no Local Subcontractors are qualified to perform the work. Said good faith efforts may be evidenced by placing advertisements inviting proposals or by sending requests for proposals to selected Local Subcontractors. The City may consider Contractor's efforts in determining whether it will consent to a particular subcontractor. Contractor shall keep evidence of such good faith efforts and copies of all contracts and subcontracts hereunder for the period specified in Section 6.2. 1003/001/25316 A 3 0 0 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 anytime or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contractor in its business or otherwise or a joint venturer or a member of any joint enterprise with Contractor. 5.0 INSURANCE, INDEMNIFICATION AND BONDS 5.1 Insurance. The Contractor shall procure and maintain,at its sole cost and expense,in a form and content satisfactory to City,during the entire term of this Agreement including any extension thereof,the following policies of insurance: (a) Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least$1,000,000 bodily injury and property damage including coverages for contractual liability,personal injury,independent contractors,broad form property damage,products and completed operations.The Commercial General Liability Policy shall name the City of Palm Springs as additional insured in accordance with standard ISO additional insured endorsement form CG2010(1185) or equivalent language. (b) Worker's Compensation Insurance. A policy of worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes $1,000,000 employer's liability. (c)Business Automobile Insurance.A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily and property damage. Said policy shall include coverage for owned, non-owned, leased and hired cars. (d)Additional Insurance.Additional limits and coverages,which may include professional liability insurance, will be specified in Exhibit"B" All of the above policies of insurance shall be primary insurance and issued by companies whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents, and their respective insurers. In the event any of said policies of insurance are canceled,the Contractor shall,priorto the cancellation date,submit 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 subcontractorto maintain the same polices of insurance that the Contractor is required to maintain pursuant to this Section. 5.2 Indemnification. Contractor agrees to indemnify the City, its officers, agents and employees against, and will hold and save them, and each of them, harmless from any and all actions, suits, claims, damages to 1003/001125316 v4 4 0 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 orfailure to perform any term,provision,covenant or condition of this Agreement,whether or not there is concurrent passive or active negligence on the part of the City,its officers,agents or employees but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City,its officers,agents or employees,who are directly responsible to the City, and in connection therewith: (a) Contractor will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, including legal costs and attorneys'fees incurred in connection therewith; (b) Contractor will promptly pay anyjudgment rendered against the City,its officers,agents or employees for any such claims or liabilities arising out of or in connection with the negligent performance of or failure to perform such work,operations or activities of Contractor hereunder;and Contractor agrees to save and hold the City, its officers, agents,and employees harmless therefrom; (c) In the event the City,its officers,agents or employees are made a partyto any action or proceeding filed or prosecuted against Contractorfor 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 oremployees in such action or proceeding,including but not limited to,legal costs and attorneys'fees. 5.3 Performance Bond. Concurrently with execution of this Agreement,Contractor shall deliver to City a performance bond in the sum of the amount of this Agreement, in the form provided by the City,which secures the faithful performance of this Agreement,unless such requirement is waived by the Contract Officer. The bond shall contain the original, notarized signature of an authorized officer of the surety and affixed thereto shall be a certified and current copy of his power of attorney. The bond shall be unconditional and remain in force during the entire term of the Agreement and shall be null and void only if the Contractor promptly and faithfully performs all terms and conditions of this Agreement. 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 's Key Rating Guide or in the Federal Register, unless such requirements are waived by the City Manager or designee of the City Manager due to unique circumstances. In the event the City Manager determines that the work or services to be performed under this Agreement create an increased or decreased risk of loss to the City,the Contractor agrees that the minimum limits of the insurance policies and the performance bond required by this Section 5 may be changed accordingly upon receipt of written notice from the City Manager or designee; provided that the Contractor shall have the right to appeal a determination of increased coverage by the City Manager to the City Council of City within ten (10)days of receipt of notice from the City Manager, 6.0 REPORTS AND RECORDS 6.1 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. 1003/001/25316 v4 5 0 0 6.2 Records. Contractor shall keep,and require subcontractors to keep,such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all times during normal business hours of City,including the right to inspect,copy,audit and make records and transcripts from such records. Such records shall be maintained for a period of three(3)years following completion of the services hereunder, and the City shall have access to such records in the event any audit is required 6.3 Ownership of Documents. All drawings,specifications,reports,records,documents and other materials prepared by Contractor,its employees,subcontractors and agents in the performance of this Agreementshall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement.Contractor shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Any use of such completed documents for other projects and/or use of uncompleted documents without specific written authorization by the Contractor will be at the City's sole risk and without liability to Contractor, and the City shall indemnify the Contractor for all damages resulting therefrom. Contractor may retain copies of such documents for its own use. Contractor shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City any documents or materials prepared by them, and in the event Contractor fails to secure such assignment, Contractor shall indemnify City for all damages resulting therefrom. 6.4 Release of Documents. The drawings,specifications, reports, records,documents and other materials prepared by Contractor in the performance of services underthis Agreement shall not be released publiclywithout 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 therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten(10)days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the injured party;provided that if the default is an immediate dangerto the health,safety and general welfare, such immediate action may be necessary. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action,and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the Contractor's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. Contractor hereby authorizes City to deduct from any amount payable to Contractor (whether or not arising out of this Agreement) (i) any amounts the payment of which may be in dispute hereunder or which are necessary to compensate City for any losses,costs,liabilities,or damages suffered by City,and(ii) all amounts for which City may be liable to third parties,by reason of Contractor's acts or omissions in performing orfailing 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 1003/001/25316 v4 • s any default shall impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party's consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement,the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times,of any other rights or remedies for the same default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies,either party may take legal action, in law or in equity,to cure,correct or remedy any default,to recover damages for any default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Liquidated Damages. Since the determination of actual damages for any delay in performance of this Agreement would be extremely difficult or impractical to determine in the event of a breach of this Agreement,the Contractor and its sureties shall be liable for and shall pay to the City the sum of ($0) 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, with or without cause, upon sixty(60)days written notice to City,except that where termination is due to the fault of the City,the period of notice may be such shorter time as the Contractor may determine. Upon receipt of any notice of termination, Contractor shall immediately cease all services hereunder except as may be specifically approved by the Contract Officer. Except where the Contractor has initiated termination, the Contractor shall be entitled to compensation for all services rendered prior to the effective date of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract Officer,except as provided in Section 7.3. In the event the Contractor has initiated termination, the Contractor shall be entitled to compensation only for the reasonable value of the work product actually produced hereunder. In the event of termination without cause pursuant to this Section,the terminating party need not provide the non-terminating party with the opportunity to cure pursuant to Section 7.2. 7.9 Termination for Default of Contractor. If termination is due to the failure of the Contractor to fulfill its obligations under this Agreement,City may,after compliance with the provisions of Section 7.2,takeover the work and prosecute the same to completion by contractor otherwise,and the Contractor shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated(provided that the City shall use reasonable efforts to mitigate such damages),and City may withhold any payments to the Contractor for the purpose of set-off or partial payment of the amounts owed the City as previously stated. 7.10 Attorneys'Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in anyway connected with this Agreement,the prevailing party in such action or proceeding,in addition to any other relief which maybe 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. 10031001/25316 A 7 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, 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 deliverthis Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement,and(iv)the entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date first written above 1003/001/25316 v4 8 CITY OF PALM SPRINGS EST: a municipal corporation City Clerk City Mani APPROVED AS TO FORM: By: , city .tf fpE}r pal`,'-INIIIiC',S''',J''>„i% ' 'i.'il'v+�"'..��ei i� "��A,;z.';':�✓'i��_`;�... r CONTRACTOR: Check one:Alndividual—Partnership—Corporation � By: 8 t ba By I t y Si nature noarizedt g ( ) Signature(notarized) Na7ne;..ogk°M.r."'�, �� 'Li���ir Name: Title:_ 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 one of the following:Secretary,Chief Financial Officer or or any Vice President) any Assistant Treasurer) /� ri State of Oazll yrnl held.' State of } County of_�qt ass County of }ss On '^ 1 ) before me, On before r v personaly_ d a 1� �J , _ appeared personally appeared � ' personally personally known to me (or proved to me on the basis of satisfactory known to me (or proved to me on the basis of satisfactory evidence)to be the person(s)whose name(syis/lare subscribed to evidence)to be the person(s)whose name(s)is/are subscribed to the within instrument and acknowledged tome thatfe,/sihe/they the within instrument and acknowledged to me that he/she/they executed the same in 15is)her/their authorized capacit Ues),and executed the same in his/her/their authorized capacity(ies),and that b3difa her/their signatures)on the instrument the person(s), that byhis/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted,executed the or the entity upon behalf of which the person(s)acted,executed the instrument. instrument. WITNESS my hand ani official seal. G WITNESS my hand and official seal. Notary �Signature AAANotary � ''�f� (21 - a S✓'kJ Signature: Notary Sea QUDY PARKS Notary Seal: ZF' Commi—on#1251511 £ Notary Public-Colifattia s Orange Couniy MyCanm.ftinas r-eb23,2nn4 1003/001/25316 v4 9 EXHIBIT"A" SCOPE OF SERVICES The Contractor will derive the"as is"bulk sale market value of the proposed Mountain Gate development"Subject Property" assuming the completion of infrastructure to be financed by the City of Palm Springs Assessment District 161 ("District"). The "date of value" will be September 1, 2003. The scope of work will include the preparation of a full appraisal and a detailed summary appraisal to be included in the offering document for the District's bonds. The format, substance and quality of the appraisal and summary will be of a type used in connection with land secured financings,and will include as part of the closing documents for the bonds,a certificate that the City is authorized to use the appraisal in the Bond Official Statement, that the information regarding the appraisal is properly presented in the Official Statement, and that the appraisal summary is complete and accurate. The Contractor will also participate in conference calls and/or meetings in the weeks/months preceding distribution of the draft appraisal and may be asked to provide insight on the probable value of the property at various stages of development. 1003/001/25316 v4 10 EXHIBIT"B" SPECIAL REQUIREMENTS Section 5.1(b) Worker's Compensation Insurance. The Contractor does not have employees and therefore does not carry worker's compensation insurance. The Contractor will write a letter to the City stating that if at any time during the course of this engagement the Contractor gets an employee,the Contractorwill obtain worker's compensation insurance in an amount which fully complies with the statutory requirements of the State of California and which includes$1,000,000 of employers liability. Section5.3 Performance Bond. The City will waive the requirement that the Contractor deliver a performance bond in the sum of the amount of this Agreement. 1003/001/25316 0 EXHIBIT"C" SCHEDULE OF COMPENSATION The Contractor will submit an invoice and will get paid upon delivery of its Final Appraisal. Such invoice shall be all inclusive of the Scope of Services described in EXHIBIT B, including the delivery of a certificate stating that the City is authorized to use the appraisal in the Bond Official Statement, that the information regarding the appraisal is properly presented in the Official Statement, and that the appraisal summary is complete and accurate even if such certificate is delivered after delivery of the Final Appraisal. 1003/001125316 v3 EXHIBIT"D" SCHEDULE OF PERFORMANCE Unless otherwise modified by the City and/or its financial advisor to dates later than dates shown below,the schedule of performance is as such: Immediately upon execution of this Agreement:Begin assembling information of the Mountain Gate AD 161 project; July 7,2003:Attend disclosure meeting with City's financial advisor, underwriter and developer; September 10, 2003: Circulate first draft of Appraisal with September 1, 2003 date of value; Week of September 15, 2003: Participate in working group conference call/meeting reviewing draft Appraisal; Week of September 22, 2003: Finalize Appraisal. 1003/001/25316 v3 INSURANCE APPROVAL FORM COMPANY NAME: HARRIS REALTY APPRAISAL TYPE OF INSURANCE General Liability NAME OF INSURANCE State Farm Insurance RATING B+ EXPLANATION FOR 're WAIVER Ed p 'G F' SUE MILLS, I-14 Director of Human Resources 0»I20 2n03 i1: b3 9498512055 PAGE 04 ® 21stCENTURYINORANCE ** INSUREDWISPY X* 21St.COIYI 800 211 SAVE RENEWAL DECLARATION OFFER 03 AUT 0 E OLCY EO OM61L P / VLAFtATl0'M PAGE EFFECTIVE 05/O1/NO WHEN ATTACHED TO THE PEPSONAL AUTO POLICY,THESF DECLARATIONS COMPLETE THE POLICY AND REPRESENT IN THE EVENT PAYMENT 15 NOT RECEIVED THE CURRENT STATUS Or YOUR COVERAGES AND LIMITS Or LIABILITY ACCORDING TO OUR REDORDS.BY THE DUE DATE NOTED BELOW IN THE Iz pl n.n+smrvpnpnnme STATEMENT OF ACCOUNT, YOUR POLICY BECOMES NULL AND VOID. AP 326223E FROM 05/01/03 TID 11/O1/03 NAMF•R INSURED AND ADDRUS LOSS PAYEE AND ADDRESS [SEE REVERSE SI➢E) ** EVIDENCE OF„INSURANCE ** CNTY OF ORANGE/CEO PURCHASING JAMES B HARRIS 1300 S GRAND AVE #A Y BERRI J HARRIS SANTA ANA CA 92705 5100 BIRCH ST STE 200 NEWPORT PEACH CA 92660 ** EVIDENCE OF INSURANCE ** CITY OF LA/DEBT MANAGEMENT GRP 200 N MAIN ST RM# 1500 LOS ANGELES CA. 90012 DESCRIPTION OF THE ALMEOMOBILE(S) 771 MARE INFINum qu CI3020�D� 758020 O .:-..-e.�:'3606224421 cD➢D DRTVER ➢isc➢uNT3911221321 BNB➢ ➢RIVER DISCOUNT C--,;"ACF5 LIMIT OF utankmvy PREMIUM(IN •a COVERAGE IS PROVIDED WHERE A PREMIUM AND A LIMIT OF OAR1�,;,1,! .. JDAii'q '. ' AR3' - CAq A A BODILY INJURY ••RIOI,IIDE5 VM PER VEHICLE FRAUD rEE 9 10 O.MO EACH PERSON ® 30 Ox.EACH ACCIDENT 11'6, I5 'a E PROPFRITYDAMI i 50.RDD EACH ACCIDENT ::. '1;13 D,❑N NSURCD MOTORIST F I O D�Dpp EACH PERSDry F O D ADD EACH ACCIDENT " M F U C CAN CARD CAP3 CARA ',L •' ACnVC� ECOMPREHENSIVE 5 250 DES.F 2550STiT.9 SEER DED oE0.CRSE P,=U)SICN 5DO DES o BODED.m DES,a RED DI.UNINSURED MOTORIST-PO ' J ADDMONAL EQUIPMENT , �,L 9 ,1�000TOTAI,..$ ,DDO TOTAL 5 TOTAL x TOTAL WR4Tfi1M1�C-n NCI -DR COLLI'olONo T DINDL. i D INCL 3 INCL, R INDL, ADOMUNAllL CWERAEE IS OPTIMAL F BAD01 fl Q Apryl. 5 ADp'L S ADD'L 1 I O.TOWINC AIJ.ROq 5 Q EACH DISIER-EMENT Automataoa 1 Included INCL '' INCL 4 H RENTALREIMRLIRECMENT - MU -CAR OXSCUUNT .':.- I II • Elm=m3csE 986.00 i TCE-78 01/99 04/06/03 � PRESIDENT DATE I IMPORTANT NOTICE YOUR POLICY MAY BE SUBJECT TO THE FULLOWIN5 FEES Late Payment: ^r5.00 Check Returned UnPaid:510.00 Policy Cancellation: 150.00 j FOR CUSTOMER CARE CALL 1-B0D-443-310.0 OR VISIT OUR WER SITE AT 23nt.rnM 09/17/2003 07:20 FAX 202 CERTIFICATE OF INSURANCE 0 This certifies that ❑ STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois ® STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois ❑ STATE FARM FIRE AND CASUALTY COMPANY, Scarborough, Ontario ❑ STATE FARM FLORIDA INSURANCE COMPANY,Winter Haven, Florida ❑ STATE FARM LLOYDS, Dallas,Texas insures the following policyholder for the coverages indicated below: Name of policyholder Harris Realty Advisiors Address of policyholder 4100 Birch sr, suite 200, Newport Beach, CA 92660 Location of operations Description of operations Real estate appraiser The policies listed below have been issued to the policyholder for the policy periods shown. The insurance described in these policies is subject to all the terms exclusions, and conditions of those policies.The limits of liability shown may have been reduced by any paid claims. POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date Expiration Date (at beginning of policy period) 92-BH-4079-9 G Comprehensive 6/23/03 6/23/04 BODILY INJURY AND Business Liability PROPERTY DAMAGE - --- - -is insurance includes: Products-Completed Operations Contractual Liability ❑ Underground Hazard Coverage Each Occurrence $ 2,000,000 ® Personal Injury ❑Advertising Injury General Aggregate $4,000,000 ❑ Explosion Hazard Coverage ❑ Collapse Hazard Coverage Products-Completed $4,000,000 ❑ Operations Aggregate El EXCESS LIABILITY POLICY PERIOD BODILY INJURY AND PROPERTY DAMAGE Effective Date ; Expiration Date (Combined Single Limit) ❑ Umbrella Each Occurrence $ Cl Other Aggregate $ Part 1 STATUTORY Part 2 BODILY INJURY Workers' Compensation and Employers Liability Each Accident $ Disease Each Employee S Disease- Policy Limit $ POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date i Expiration Date (at beginning of policy period) THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY AMENDS, EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DESCRIBED HEREIN. If any of the described policies are canceled before its expiration date, State Farm will try to mail a written notice to the cenlfioate holder to days before Name and Address of Certificate Holder cancellation. If however, we fail to mail such notice, no obligation of-'ability will be imposed on State city of Palm springs a Or its ge s or representatives. 164 Sign ut ture of A onzed Representative ago L 9/16/03 ..---- . _.- ate st.*r fA¢M JUDY SEMLFA,LUTC,AIIIam Lic.k517252 1111 Town&County Rd.,Ste.48 Orangge,CA 92868 INSYMNCe � (714)547-1G69Fatc(714)547--1807 55&994 a,3 0a.1999 Footed in U.S.A. °° ❑ semler.com 08112712003 11:53 9498512055 PAGE 03 STATE FARM INSURANCE *ANIES RENEWAL C IFICATE QState Farm General Inauranoe Company POLICY NUMSFR 92-BR-4079.9 31303 Agoura Road BUSINESS-OFFICE Weaddke Vinage,OA 91363.0001 JUN 23 2003 to JUN 23 2004 D-8251-r41B FU 3 DATE DUE PLEASE PAY THIS AMOUNT HARRIS, JAMES B & JUN 232003 CANNON, BERRI J Coverages and Limits DBA HARRIS REALTY ADVISORS & CANNON APPRAISAL SERVICES Sectionl 5100 BIRCH ST STE 200 A Buildings Excluded NEWPORT BEACH CA 92660-2160 B Business Personal Property 31 300 IlrlurrLlJLrdllJlrrrrdInJIdlrJlrrrrlJrlLrrn161 C Loss of Income Actual �Oss Deductibles-Section 1 Basic 250 Other deductibles may apply-refer to policy Location: 510D BIRCH ST STE 200 NEWPORT BEACH CA Section 11 L Business Liability $2,000,000 M Medical Payments 5,000 raen Aggregate (Otherthan PGO) 4,000,000 Add Ins-II: CITY OF FONTANA Products-Completed Operations 4,000,000 (POO Aggregate) I Add Ins-tl: WESTERN SOUTHERN LIFE INS CO Add Ins-II: COUNTY OF ORANGE i Forms, Options,and Endorsements Annual Premium $524.00 ? Special Form 3 FP-6143 Forms,Opts,& Endrsmnt 6.00 , Amendatory Endorsement FE-6205 Bus Liability- Cov L 21 .00 1 Debris Removal Endorsement FE-6451 CA Surcharge 11.02 1 Business Policy Endorsement FE-6464 Amount Due $562.02 Real Estate Agents Endorsement FE-6405.1 Additional Insured Endorsement FE-6494 Glass Deductible -Section I FE-6538.1 Premium Reductions Additional Insured FE-6320 Your premium has already been reduced Blank Endorsement(s) FE-7315.1 by the following: Terrorism Insurance Gov Notice * FE-6999 Renewal Year Discount Policy Endorsement * FE-6506.2 Yrs in Business Discount 'Effeotive: JUN 23 2003 Claim Record Discount Cov. A- Inflation Index: N/A Gov. B-Consumer Price: 183A NOTICE: Information concerning changes in your policy language is included. Please Call your agent if j you have any questions. 1 i D 80 3173 7736 ts �u aS#1�ve r�Q[... See reverse side for important information. Anent UDY 5 LEA Please keep this part for yourrecord. rcispnone (714) 547-1689 Prepared APR 15 2003 08/27/2003 11: 53 5490512055 PAGE 02 pate Issued: 0 Policy Number: Previous Policy Number: 05/06/2003 LIU003120-002 LI0003120-001 REAL ESTATE APPRAISERS PROFESSIONAL LIABILITY Liberty 1,xt�,urancc Underwriters Ina- TRIS IS A CLAIMS MADE AND REPORTED POLICY. 55 Water Street, 18th Floor PLEASE READ IT CAREFULLY. Now York, NY 10041 LIBERTY INSURANCE UNDERWRITERS, INC. (herein called "the Compatty") Item DECLARATIONS I, Customer ID: 101175 Companies writing property and casualty Named Insured: insurance business in California are required to HARRIS REALTY APPRAISAL participate in the California Insurance Guarantee Association. If a company becomes insolvent, James B. Harris, MAT the California Insurance Guarantee Association 5100 Bireb Street, Suite 200 settles unpaid claims and assesses each Newport Beach, CA 92660 insurance company for its fair share. California P law requires all companies to surcharge policies 2. Policy Period: to recover these assessments. If your policy is surcharged, "CA Surcharge" with an amount will From: 05/04/2003 To: 05/04/2004 be displayed on your premium notice. 12:01 A.M, Standard Time at the address stated in Item 1,. 3. Deductible: $1,,000.00 Each Claim 4. Retroactive Date: 05/04/1998 5. Inception Date: 05/04/2002 6. Limits of Liability: The Limit of Liability for Each Claim and in A. S1,000,000.00 Each Claim the Aggregate is reduced by Damages and B. $1,ow,000.00 Aggregate Claims Expenses as defined in the Policy. 7. ,Mail All Notices to Agent: Liability Insurance Administrators 1600 Anacapa Street Santa Barbara, California 93101 (805) 963.6624; Fax: (805)962-0652 S. Annual Premium: $1,015.00 + $20.30 CA Surcharge 9. Number of Appraisers: I 10. Forms attached at issue: LIA002 (07/01) LIA012 (07101) LTA013 (07101) LIA024 (07/01) TRIA Form C (01/03) This Declarations Page together with the completed and signed Policy Application including all attachments and exhibits thereto,and the Roal Estate Appraisers Professional Liability Insurance Policy shall constitute a c ntract between the Named Insured and the Comhanv By c� LIA001 (07/01) Authorized Signature 08/27/2003 11: 53 9499512055 PAGE 05 INSUROOPY * 21stCENTURYINSUROCE RENEWAL, DECLARATION ATION OFFER Eli2l.COM 1-800-211-SAVE EFFECTIVE 02/O2/03 UM 11RELLA POLICY DECLARATION PAGE IN THE EVENT PAYMENT IS NOT RECEIVED WHEN ATTACHED TO THE PERSONAL UMeRRµ,A POLICY,THESE DECLARATIONS COMPLET S POLICY AND REPREAENP THE CURRENT STATUS OF YOUH COVERAGES AND LIMITS OF LIAAILITY ACCORDING TO CUR RECORD& BY THE DUE DATE NOTED BELOW IN THE STAT5MENT OF ACCOUNT, YOUR POLICY PEP 9022892 02/027613'M,STAND*bl 1702/04 12 MO BECOMES NULL AND VOID. FROM T6 JAMES HARRIS BERRI HARRIS 5100 BIRCH ST STE 200 NEWPORT BEACH CA 92660 MAMVIA LIMI S OF LIABILITY POLICY PREMIUMS 1,000,000 U 250.00 192.00 44,64 236.64 YOU AGREE THAT PRIMARY INSURANCE IS IN FORCE AND WILL CONTINUE TO BE IN FORCE FOR ALL EXPOSURES ,. . W SUBJECT FORM T - F PP BLE. AUTOMOBILE LIABILITY BODILY INJURY— 250,000 EACH PERSON OFF,ROAD RECREATIONAL VEHICLE LIABILITY $ 500,DOO EACH OCCURRENCE PROPERTY DAMAGE— $ 50,000 EACH OCCURRENCE COMPREHENSIVE PERSONAL LIABILITY BODILY INJURY AND PROPERTY $ 100,000 EACH OCCURRENCE DAMAGE COMBINED -------- ADDITIONAL CHARGES AUTOMOBILES 2 40.00 RESIDENCES 1 INCLUDED 1-4 FAMILY RENTALS ,00 OFF-ROAD VEHICLES .00 YOUTHFUL OPERATORS .00 CALIFORNIA SURCHARGE 4.64 * REMINDER: ALL PRIMARY LIMITS MUST BE IN FORCE AS NOTED ABOVE mmx- TCE-79 05/02 01/03/03 - rncGloENr ----