HomeMy WebLinkAboutC37380 - Consulting Svcs - Retail-Restaurant Recruitmnt STAFF REPORT
CITY OF PALM DESERT
ECONOMIC DEVELOPMENT DEPARTMENT
MEETING DATE: August 23, 2018
PREPARED BY: Martin Alvarez, Director of Economic Development
REQUEST: Approve a Contract No. c37380 with Buxton in the amount of
$50,000 to provide professional economic development consulting
services including development of a retail and restaurant
recruitment strategy
Recommendation
By Minute Motion:
1. Approve Contract No. c37380 with Buxton in the amount of$50,000 to
provide professional economic development consulting services including
the development of a retail and restaurant recruitment strategy.
Funds are available in the Fiscal Year (FY) 2018/2019 Economic
Development Budget.
Executive Summary
Approval of the staff recommendation would approve a one-year contract with Buxton to
assist the City to achieve its retail and restaurant recruitment goals. Using data and
analytics, Buxton will assist the City to identify its trade area and consumer spending
profile. Buxton will match the customer profile developed for the City of Palm Desert trade
area against the profiles of 5,000 retailers and restaurants currently held in their database.
Staff recommends approval of a one-year contract with Buxton. Buxton's services also
include identifying the top twenty (20) retail and restaurant target along with connections
to their site selectors.
Strategic Plan Objective
The professional economic development consulting services proposed by Buxton aligns
with the City's Envision Palm Desert Strategic Plan, Priority 1: Expand job and business
creation opportunities and Priority 4; Expand and raise awareness of business-friendly
services in order to retain and attract business.
2018 Economic Development Strategic Plan — High Priority Initiative: Economic
Development Marketing - New collateral materials to support focused business attraction.
Staff Report
Buxton Contract No. C3738O
August 23, 2018
Page 2 of 4
City 2018 Goals: Department Level Goal No. 16 — Identify attraction strategy for "Top
5" retail business categories
Background
As part of the approved FY 2018/2018 City Goals, staff was tasked with establishing a
strategy to recruit new businesses to the City and assist in filling our existing retail and
restaurant vacancies. El Paseo vacancies have recently been measured at 11 percent
and other retail and restaurant vacancies currently exist along the Highway 111
commercial core, including, the former Elephant Bar site, the former TGIF restaurant site,
portion of the former Sports Authority building, the former Alley building and a large
portion of the Las Sombras Center (Tilted Kilt site). Although staff routinely works with
brokers and property owners to assist in locating tenants, staff believes additional
resources are required to identify the best and right tenants for the City's existing vacant
spaces.
Discussion
In order to facilitate the implementation of a retail recruitment and retention strategy, staff
has secured a proposal from Buxton, a professional economic development consulting
firm. Buxton is a nationally recognized firm that uses consumer data and analytics to
match community profiles with new and expanding businesses in the market. Buxton's
access to credit card expenditure data in any specific market, allows them to identify
consumer trade areas and community and visitor spending habits. Using this data, Buxton
assists cities to identify specific retailers and restaurants who seek a market with
households purchasing habits like ours. Buxton also provides this type of data analytics
to retail and restaurant clients and thus has a connection with thousands of national and
regional retailers and restaurants.
Buxton services will assist the City with achieving its business recruitment/retention goals
and objectives that include:
1. Understanding the current retail and restaurant economic condition
2. Recruit new retailers and restaurant that fit our community profile
3. Retain existing retailers and restaurants
Specifically, Buxton's professional service contract will consist of the following
components:
• Community Research
o Buxton uses over 250 consumer and business databases that are updated
regularly and compare the City's potential sites to all competing sites
operating in the U.S. Buxton will define our current retail situation and those
in neighboring communities that potentially impact our retail environment
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Staff Report
Buxton Contract No. c3738#0
August 23, 2018
Page 3 of 4
• Define and Evaluate City Trade Area
o Buxton will conduct a custom drive-time analysis to determine our trade
area using their proprietary methodology and knowledge of individual retail
clients' actual trade areas. The trade area will be provided on a map that
accurately depicts the City's consumer shopping patterns.
• Profile Community Trade Area's Residential Customers
o The defined community profile will analyze every household in the City's
drive-time trade area. Based on more than 7,500 categories of lifestyles,
purchase behaviors, and media reading/viewing habits (psychographics),
the households in the City's trade area will be assessed to gain an
understanding of the types of retailers that would be attracted to our City.
• Match Retailers and Restaurants to Market Potential
o Buxton will match the customer profile developed for the City of Palm Desert
trade area against the profiles of 5,000 retailers and restaurants currently
held in their database.
• Create Marketing Packages for Prospective Retails/Restaurant
o Buxton will assemble individualized marketing packages for up to twenty
(20) targeted retailers/restaurants. Buxton will notify each retailer's key real
estate decision maker via correspondence, informing them that they been
qualified by Buxton as a potentially viable fit for sites in the City of Palm
Desert.
• On-going Recruitment Support and Business Retention Tool
o Throughout the course for the contract year, Buxton will periodically meet
with City staff to assist with any follow up generated by the recruitment
marketing packages. The consumer data profile and trade area analytics
can also be used to assist existing businesses and restaurant connect with
resident and visitor consumers.
The proposed agreement with Buxton is a one-year agreement in the amount not to
exceed $50,000. The agreement is renewable annually with City Council approval. Staff
recommends approval of the agreement with Buxton to assist the City to achieve its retail
and restaurant recruitment goals.
Fiscal Analysis
The proposed contract with Buxton is in the amount of $50,000. Funding is available in
the City's FY 2018/2019 Economic Development Department Budget. With the
assistance of Buxton's services and data, staff will be able to target specific retailers and
restaurants looking to open businesses in communities that match the City of Palm
Desert's consumer trade area and spending profile. New businesses will assist in filling
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Staff Report
Buxton Contract No. c37380
August 23, 2018
Page 4 of 4
the City's existing retail and restaurant vacancies that will potentially increase sales tax
revenue to the City's General Fund.
LEGAL REVIEW DEPT. REVIEW FINANCIAL REVIEW CITY MANAGER
N/A (4/0
,c"
Robert W. Hargreaves Martin Alvarez et Moore Lauri Aylaian`
City Attorney Director of Economic Director of Finance City Manager
Development
VENDOR: Buxton
2651 South Polaris Drive
Fort Worth, TX 76137
ATTACHMENTS: Agreement / Exhibit A
G\Econ Developrnent\Manin Alvarez\2018\SR\CVEP contribution.18-19 08-23-18 doc
CITY OF PALM DESERT
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this day of August, 2018, by and between
the City of Palm Desert, a municipal corporation organized under the laws of the State of California
with its principal place of business at 73-510 Fred Waring Drive, Palm Desert, California 92260-
2578, County of Riverside, State of California ("City") and Buxton Company, a Texas corporation,
with its principal place of business at 2651 South Polaris Drive, Fort Worth, TX ("Consultant ).
City and Consultant are sometimes individually referred to herein as "Party" and collectively as
"Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional economic development consulting services required by the City on the terms and
conditions set forth in this Agreement. Consultant represents that it is experienced in providing
professional economic development consulting services to public clients, is licensed in the State
of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such professional economic development
consulting services for the creation of a retail and restaurant recruitment strategy, Contract No.
("Project") as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to
the City all labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately supply the professional economic development consulting
services necessary for the Project ("Services"). The Services are more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference. All Services shall be subject
to, and performed in accordance with, this Agreement, the exhibits attached hereto and
incorporated herein by reference, and all applicable local, state and federal laws, rules and
regulations.
3.1.2 Term. The term of this Agreement shall be from September 2018 to
September 2021, unless earlier terminated as provided herein. The City shall have the unilateral
option, at its sole discretion, to renew this Agreement automatically for no more than two (2)
additional one-year terms. Consultant shall complete the Services within the term of this
Agreement, and shall meet any other established schedules and deadlines.
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3.2 Responsibilities of Consultant.
3.2.1 Independent Contractor: Control and Payment of Subordinates. The
Services shall be performed by Consultant or under its supervision. Consultant will determine the
means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant retains the right to perform similar or different services for others during the term of
this Agreement. Any additional personnel performing the Services under this Agreement on
behalf of Consultant shall also not be employees of City and shall at all times be under
Consultant's exclusive direction and control. Neither City, nor any of its officials, officers,
directors, employees or agents shall have control over the conduct of Consultant or any of
Consultant's officers, employees, or agents, except as set forth in this Agreement. Consultant
shall pay all wages, salaries, and other amounts due such personnel in connection with their
performance of Services under this Agreement and as required by law. Consultant shall be
responsible for all reports and obligations respecting such additional personnel, including, but not
limited to: social security taxes, income tax withholding, unemployment insurance, disability
insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services expeditiously,
within the term of this Agreement, and in accordance with the Schedule of Services set forth in
Exhibit "A" attached hereto and incorporated herein by reference. Consultant represents that it
has the professional and technical personnel required to perform the Services in conformance
with such conditions. In order to facilitate Consultant's conformance with the Schedule, City shall
respond to Consultant's submittals in a timely manner. Upon request of City, Consultant shall
provide a more detailed schedule of anticipated performance to meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that
certain key personnel will perform and coordinate the Services under this Agreement. Should
one or more of such personnel become unavailable, Consultant may substitute other personnel
of at least equal competence upon written approval of City. In the event that City and Consultant
cannot agree as to the substitution of key personnel, City shall be entitled to terminate this
Agreement for cause. As discussed below, any personnel who fail or refuse to perform the
Services in a manner acceptable to the City, or who are determined by the City to be
uncooperative, incompetent, a threat to the adequate or timely completion of the Project or a
threat to the safety of persons or property, shall be promptly removed from the Project by the
Consultant at the request of the City. The key personnel for performance of this Agreement are
as follows: Lisa Hill-McCay, Senior Vice President or designee.
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3.2.5 City's Representative. The City hereby designates Martin Alvarez, Director
of Economic Development, or his/her designee, to act as its representative in all matters
pertaining to the administration and performance of this Agreement ("City's Representative").
City's Representative shall have the power to act on behalf of the City for review and approval of
all products submitted by Consultant but not the authority to enlarge the Scope of Work or change
the total compensation due to Consultant under this Agreement. The City Manager shall be
authorized to act on City's behalf and to execute all necessary documents which enlarge the
Scope of Work or change the Consultant's total compensation subject to the provisions contained
in Section 3.3 of this Agreement. Consultant shall not accept direction or orders from any person
other than the City Manager, City's Representative or his/her designee.
3.2.6 Consultant's Representative. Consultant hereby designates Lisa Hill-
McCay, Senior Vice President, or his/her designee, to act as its representative for the
performance of this Agreement ("Consultant's Representative"). Consultant's Representative
shall have full authority to represent and act on behalf of the Consultant for all purposes under
this Agreement. The Consultant's Representative shall supervise and direct the Services, using
his/her best skill and attention, and shall be responsible for all means, methods, techniques,
sequences, and procedures and for the satisfactory coordination of all portions of the Services
under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff
in the performance of Services and shall be available to City's staff, consultants and other staff at
all reasonable times.
3.2.8 Standard of Care: Performance of Employees. Consultant shall perform all
Services under this Agreement in a skillful and competent manner, consistent with the standards
generally recognized as being employed by professionals in the same discipline in the State of
California. Consultant represents and maintains that it is skilled in the professional calling
necessary to perform the Services. Consultant warrants that all employees and subconsultants
shall have sufficient skill and experience to perform the Services assigned to them. Finally,
Consultant represents that it, its employees and subconsultants have all licenses, permits,
qualifications and approvals of whatever nature that are legally required to perform the Services,
and that such licenses and approvals shall be maintained throughout the term of this Agreement.
As provided for in the indemnification provisions of this Agreement, Consultant shall perform. at
its own cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant's failure to comply with the
standard of care provided for herein. Any employee of the Consultant or its sub-consultants who
is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property, or any employee who fails
or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed
from the Project by the Consultant and shall not be re-employed to perform any of the Services
or to work on the Project.
3.2.9 Period of Performance. Consultant shall perform and complete all Services
under this Agreement within the term set forth in Section 3.1.2 above ("Performance Time").
Consultant shall also perform the Services in strict accordance with any completion schedule or
Project milestones described in Exhibit "A" attached hereto, or which may be separately agreed
upon in writing by the City and Consultant ("Performance Milestones"). Consultant agrees that if
the Services are not completed within the aforementioned Performance Time and/or pursuant to
any such Project Milestones developed pursuant to provisions of this Agreement, it is understood,
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acknowledged and agreed that the City will suffer damage.
3.2.10 Laws and Regulations; Employee/Labor Certification. Consultant shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any manner affecting the performance of the Project or the Services, including all
Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for
all violations of such laws and regulations in connection with Services. If Consultant performs
any work knowing it to be contrary to such laws, rules and regulations, Consultant shall be solely
responsible for all costs arising therefrom. Consultant shall defend, indemnify and hold City, its
officials, directors, officers, employees, agents, and volunteers free and harmless, pursuant to the
indemnification provisions of this Agreement, from any claim or liability arising out of any failure
or alleged failure to comply with such laws, rules or regulations.
3.2.10.1 Employment Eligibility; Consultant. By executing this
Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state
and federal law respecting the employment of undocumented aliens, including, but not limited to,
the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such
requirements and restrictions include, but are not limited to, examination and retention of
documentation confirming the identity and immigration status of each employee of the Consultant.
Consultant also verifies that it has not committed a violation of any such law within the five (5)
years immediately preceding the date of execution of this Agreement, and shall not violate any
such law at any time during the term of the Agreement. Consultant shall avoid any violation of
any such law during the term of this Agreement by participating in an electronic verification of
work authorization program operated by the United States Department of Homeland Security, by
participating in an equivalent federal work authorization program operated by the United States
Department of Homeland Security to verify information of newly hired employees, or by some
other legally acceptable method. Consultant shall maintain records of each such verification, and
shall make them available to the City or its representatives for inspection and copy at any time
during normal business hours. The City shall not be responsible for any costs or expenses related
to Consultant's compliance with the requirements provided for in Section 3.2.10 or any of its sub-
sections.
3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub-
subcontractors and Subconsultants. To the same extent and under the same conditions as
Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and
subconsultants performing any work relating to the Project or this Agreement to make the same
verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1.
3.2.10.3 Employment Eligibility; Failure to Comply. Each person
executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer
of Consultant, and understands that any of the following shall be grounds for the City to terminate
the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-
subcontractors or subconsultants to meet any of the requirements provided for in Sections
3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with
such requirements (including in those verifications provided to the Consultant under Section
3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in
compliance with such requirements.
3.2.10.4 Equal Opportunity Employment. Consultant represents that it is
an equal opportunity employer and it shall not discriminate against any subconsultant, employee
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or applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex or age. Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or
termination. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in
effect or hereinafter enacted.
3.2.10.5 Air Quality. To the extent applicable, Consultant must fully
comply with all applicable laws, rules and regulations in furnishing or using equipment and/or
providing services, including, but not limited to, emissions limits and permitting requirements
imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air
Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more
broad, Consultant shall specifically be aware of their application to "portable equipment", which
definition is considered by SCAQMD and CARB to include any item of equipment with a fuel-
powered engine. Consultant shall indemnify City against any fines or penalties imposed by
SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable
laws, rules and/or regulations by Consultant, its sub-consultants, or others for whom Consultant
is responsible under its indemnity obligations provided for in this Agreement.
3.2.10.6 Safety. Consultant shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees appropriate
to the nature of the work and the conditions under which the work is to be performed. Safety
precautions, where applicable, shall include, but shall not be limited to: (A) adequate life
protection and lifesaving equipment and procedures; (B) instructions in accident prevention for all
employees and subconsultants, such as safe walkways, scaffolds, fall protection ladders, bridges,
gang planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all
safety measures.
3.2.11 Insurance.
3.2.11.1 Minimum Requirements. Without limiting Consultant's
indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and
maintain at its own expense during the term of this Agreement, policies of insurance of the type
and amounts described below and in a form that is satisfactory to City.
(A) General Liability Insurance. Consultant shall maintain
commercial general liability insurance with coverage at least as broad as Insurance Services
Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general
aggregate, for bodily injury, personal injury, and property damage. The policy must include
contractual liability that has not been amended. Any endorsement restricting standard ISO
"insured contract" language will not be accepted.
(B) Automobile Liability Insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering
bodily injury and property damage for all activities of the Consultant arising out of or in connection
with Work to be performed under this Agreement, including coverage for any owned, hired, non-
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owned or rented vehicles, in an amount not less than 51,000,000 combined single limit for each
accident.
(C) Professional Liability (Errors & Omissions) Insurance.
Consultant shall maintain professional liability insurance that covers the Services to be performed
in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the
aggregate. Any policy inception date, continuity date, or retroactive date must be before the
effective date of this agreement and Consultant agrees to maintain continuous coverage through
a period no less than three years after completion of the services required by this agreement.
(D) Workers' Compensation Insurance. Consultant shall
maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least $1,000,000). Consultant shall submit to City, along with the certificate of
insurance, a Waiver of Subrogation endorsement in favor of the City of Palm Desert, its officers,
agents, employees and volunteers.
(E) Umbrella or Excess Liability Insurance. Consultant may opt
to utilize umbrella or excess liability insurance in meeting insurance requirements. In such
circumstances, Consultant shall obtain and maintain an umbrella or excess liability insurance
policy with limits that will provide bodily injury, personal injury and property damage liability
coverage at least as broad as the primary coverages set forth above, including commercial
general liability and employer's liability. Such policy or policies shall include the following terms
and conditions:
(1) A drop down feature requiring the policy to respond if
any primary insurance that would otherwise have
applied proves to be uncollectible in whole or in part for
any reason;
(2) Pay on behalf of wording as opposed to reimbursement;
(3) Concurrency of effective dates with primary policies;
and
(4) Policies shall "follow form" to the underlying primary
policies.
(5) Insureds under primary policies shall also be insureds
under the umbrella or excess policies.
3.2.11.2 Other Provisions or Requirements.
(A) Proof of Insurance. Consultant shall provide certificates of
insurance to City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and endorsements
must be approved by City's Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during the term of this contract.
City reserves the right to require complete, certified copies of all required insurance policies, at
any time.
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(B) Duration of Coverage. Consultant shall procure and
maintain for the duration of the contract insurance against claims for injuries to persons or
damages to property, which may arise from or in connection with the performance of the Work
hereunder by Consultant, his/her agents, representatives, employees or subconsultants.
(C) Primary/Non-Contributing. Coverage provided by
Consultant shall be primary and any insurance or self-insurance procured or maintained by City
shall not be required to contribute with it. The limits of insurance required herein may be satisfied
by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance
shall contain or be endorsed to contain a provision that such coverage shall also apply on a
primary and non-contributory basis for the benefit of City before the City's own insurance or self-
insurance shall be called upon to protect it as a named insured.
(D) City's Rights of Enforcement. In the event any policy of
insurance required under this Agreement does not comply with these specifications, or is
canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant, or City will
withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City
may cancel this Agreement.
(E) Acceptable Insurers. All insurance policies shall be issued
by an insurance company currently authorized by the Insurance Commissioner to transact
business of insurance or is on the List of Approved Surplus Line Insurers in the State of California,
with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
(F) Waiver of Subrogation. All insurance coverage maintained
or procured pursuant to this agreement shall be endorsed to waive subrogation against the City
of Palm Desert, its elected or appointed officers, agents, officials, employees and volunteers, or
shall specifically allow Consultant or others providing insurance evidence in compliance with
these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its
own right of recovery against the City of Palm Desert, its elected or appointed officers, agents,
officials, employees and volunteers, and shall require similar written express waivers and
insurance clauses from each of its sub-contractors.
(G) Enforcement of Contract Provisions (non estoppel).
Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non-compliance with any requirement imposes no additional obligations on
the City nor does it waive any rights hereunder.
(H) Requirements Not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by any insurance.
Specific reference to a given coverage feature is for purposes of clarification only as it pertains to
a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher limits than the
minimums shown above, the City requires and shall be entitled to coverage for the higher limits
maintained by the Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
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(I) Notice of Cancellation. Consultant agrees to oblige its
insurance agent or broker and insurers to provide to City with a thirty (30) day notice of
cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of
coverage for each required coverage.
(J) Additional Insured Status. General liability and automobile
liability policies shall provide or be endorsed to provide that the City of Palm Desert and its officers,
officials, employees, agents, and volunteers shall be additional insureds with regard to liability
and defense of suits or claims arising out of the performance of the Agreement, under such
policies. This provision shall also apply to any excess/umbrella liability policies.
(K) Prohibition of Undisclosed Coverage Limitations. None of
the coverages required herein will be in compliance with these requirements if they include any
limiting endorsement of any kind that has not been first submitted to City and approved of in
writing.
(L) Separation of Insureds. A severability of interests provision
must apply for all additional insureds ensuring that Consultant's insurance shall apply separately
to each insured against whom claim is made or suit is brought, except with respect to the insurer's
limits of liability. The policy(ies) shall not contain any cross-liability exclusions.
(M) Pass Through Clause. Consultant agrees to ensure that its
sub-consultants, sub-contractors, and any other party involved with the project who is brought
onto or involved in the project by Consultant, provide the same minimum insurance coverage and
endorsements required of Consultant. Consultant agrees to monitor and review all such coverage
and assumes all responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Consultant agrees that upon request, all agreements with
consultants, sub-contractors, and others engaged in the project will be submitted to City for
review.
(N) City's Right to Revise Specifications. The City reserves the
right at any time during the term of the contract to change the amounts and types of insurance
required by giving the Consultant ninety (90) days advance written notice of such change. If such
change results in substantial additional cost to the Consultant, the City and Consultant may
renegotiate Consultant's compensation.
(0) Self-Insured Retentions. Any self-insured retentions must
be declared to and approved by City. City reserves the right to require that self-insured retentions
be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to
comply with these specifications unless approved by City.
(P) Timely Notice of Claims. Consultant shall give City prompt
and timely notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve coverage under any of the
required liability policies.
(Q) Additional Insurance. Consultant shall also procure and
maintain, at its own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the Services.
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3.2.12 Water Quality Management and Compliance.
3.2.12.1 Storm Water Management. Storm, surface, nuisance, or other
waters may be encountered at various times during the Services. Consultant hereby
acknowledges that it has investigated the risk arising from such waters, and assumes any and all
risks and liabilities arising therefrom.
3.2.12.2 Compliance with Water Quality Laws, Ordinances and
Regulations. Consultant shall keep itself and all subcontractors, staff, and employees fully
informed of and in compliance with all local, state and federal laws, rules and regulations that may
impact, or be implicated by the performance of the Services including, without limitation, all
applicable provisions of the City's ordinances regulating water quality and storm water; the
Federal Water Pollution Control Act (33 U.S.C. § 1251, et seq.); the California Porter-Cologne
Water Quality Control Act (Water Code § 13000 et seq.); and any and all regulations, policies, or
permits issued pursuant to any such authority. Consultant must additionally comply with the lawful
requirements of the City, and any other municipality, drainage district, or other local agency with
jurisdiction over the location where the Services are to be conducted, regulating water quality and
storm water discharges.
3.2.12.3 Standard of Care. Consultant warrants that all employees and
subcontractors shall have sufficient skill and experience to perform the work assigned to them
without impacting water quality in violation of the laws, regulations and policies described in
Section 3.2.12.2 of this Agreement. Consultant further warrants that it, its employees and
subcontractors have or will receive adequate training, as determined by the City, regarding these
requirements as they may relate to the Services.
3.2.12.4 Liability for Non-compliance.
(A) Indemnity: Failure to comply with laws, regulations, and
ordinances listed in Section 3.2.14.2 of this Agreement is a violation of federal and state law.
Notwithstanding any other indemnity contained in this Agreement, Consultant agrees to indemnify
and hold harmless the City, its officials, officers, agents, employees and authorized volunteers
from and against any and all claims, demands, losses or liabilities of any kind or nature which the
City, its officials, officers, agents, employees and authorized volunteers may sustain or incur for
noncompliance with the laws, regulations, and ordinances listed above, arising out of or in
connection with the Services, except for liability resulting from the sole established negligence,
willful misconduct or active negligence of the City, its officials, officers, agents, employees or
authorized volunteers.
(B) Defense: City reserves the right to defend any enforcement
action or civil action brought against the City for Consultant's failure to comply with any applicable
water quality law, regulation, or policy. Consultant hereby agrees to be bound by, and to
reimburse the City for the costs associated with, any settlement reached between the City and
the relevant enforcement entity.
(C) Damages: City may seek damages from Consultant for
delay in completing the Services caused by Consultant's failure to comply with the laws,
regulations and policies described in Section 3.2.12.2 of this Agreement, or any other relevant
water quality law, regulation, or policy.
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3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit "A" attached hereto and incorporated herein by reference. The total compensation shall
not exceed one hundred fifty thousand dollars ($150,000.00) without written approval of the City
Council or City Manager as applicable. Extra Work may be authorized, as described below, and
if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City annual invoices
per the schedule set forth in Exhibit "A" attached hereto and incorporated herein by reference.
City shall, within 30 days of receiving such invoice, review the invoice and pay all non-disputed
and approved charges thereon. If the City disputes any of Consultant's fees, the City shall give
written notice to Consultant within thirty (30) days of receipt of an invoice of any disputed fees set
forth therein. Consultant shall submit its final invoice to City within thirty (30) days from the last
date of provided Services or termination in accordance with section 3.6.1 and failure by the
Consultant to submit a timely invoice may constitute a waiver of its right to final payment.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City, or included in Exhibit "A" of this Agreement.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which
is determined by City to be necessary for the proper completion of the Project, but which the
Parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization
from the City.
3.3.5 Rate Increases. In the event that this Agreement is renewed pursuant to
Section 3.1.2, the rate set forth in Exhibit "A" may be adjusted each year at the time of renewal
as set forth in Exhibit "A."
3.4 Labor Code Requirements.
3.4.1 Prevailing Wages. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations,
Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing
wage rates and the performance of other requirements on "public works" and "maintenance"
projects. If the Services are being performed as part of an applicable "public works" or
"maintenance" project, as defined by the Prevailing Wage Laws, Consultant agrees to fully comply
with such Prevailing Wage Laws. City shall provide Consultant with a copy of the prevailing rates
of per diem wages in effect at the commencement of this Agreement. Consultant shall make
copies of the prevailing rates of per diem wages for each craft, classification or type of worker
needed to execute the Services available to interested parties upon request, and shall post copies
at the Consultant's principal place of business and at the project site. It is the intent of the parties
to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the
Labor Code within this Agreement, and Consultant shall therefore comply with such Labor Code
sections to the fullest extent required by law. Consultant shall defend, indemnify and hold the
City, its officials, officers, employees, agents, and volunteers free and harmless from any claim
or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws.
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3.4.2 Registration/DIR Compliance. If the Services are being performed on a
public works project of over $25,000 when the project is for construction, alteration, demolition,
installation, or repair work, or a public works project of over $15,000 when the project is for
maintenance work, in addition to the foregoing, then pursuant to Labor Code sections 1725.5 and
1771.1, the Consultant and all subconsultants must be registered with the Department of
Industrial Relations ("DIR"). Consultant shall maintain registration for the duration of the project
and require the same of any subconsultants. This project may also be subject to compliance
monitoring and enforcement by the DIR. It shall be Consultant's sole responsibility to comply with
all applicable registration and labor compliance requirements, including the submission of payroll
records directly to the DIR. Any stop orders issued by the Department of Industrial Relations
against Consultant or any subconsultant that affect Consultant's performance of services.
including any delay, shall be Consultant's sole responsibility. Any delay arising out of or resulting
from such stop orders shall be considered Consultant caused delay and shall not be compensable
by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees
and agents free and harmless from any claim or liability arising out of stop orders issued by the
Department of Industrial Relations against Consultant or any subconsultant.
3.4.3 Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker's Compensation or to undertake self-insurance
in accordance with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
3.5 Accounting Records.
3.5.1 Maintenance and Inspection. Consultant shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement. All such
records shall be clearly identifiable. Consultant shall allow a representative of City during normal
business hours to examine, audit, and make transcripts or copies of such records and any other
documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data.
documents, proceedings, and activities related to the Agreement for a period of three (3) years
from the date of final payment under this Agreement.
3.6 General Provisions.
3.6.1 Termination of Agreement.
3.6.1.1 Grounds for Termination. The initial term of this agreement is
for three (3) years with services invoiced annually. City may, by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by giving written
notice to Consultant of such termination, and specifying the effective date thereof, at least sixty
(60) days in advance of a yearly renewal. If the City cancels services prior to the expiration of the
initial term, the City will be invoiced 10% of the total remaining balance. Consultant may not
terminate this Agreement except for cause.
3.6.1.2 Effect of Termination. If this Agreement is terminated as
provided herein, City may require Consultant to provide all finished or unfinished Documents and
Data and other information of any kind prepared by Consultant in connection with the performance
of Services under this Agreement. Consultant shall be required to provide such document and
other information within fifteen (15) days of the request.
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3.6.1.3 Additional Services. In the event this Agreement is terminated
in whole or in part as provided herein, City may procure, upon such terms and in such manner as
it may determine appropriate, services similar to those terminated.
3.6.2 Delivery of Notices. All notices permitted or required under this Agreement
shall be given to the respective parties at the following address, or at such other address as the
respective parties may provide in writing for this purpose:
Consultant: Buxton Company
2651 South Polaris Drive
Fort Worth, TX 76137
ATTN: David Glover, Chief Financial Officer
City: City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
ATTN: Martin Alvarez, Director of Economic Development
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48)
hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its
applicable address. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
3.6.3 Ownership of Materials and Confidentiality.
3.6.3.1 Documents & Data Licensing of Intellectual Property. This
Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse: or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement("Documents& Data"). All Documents & Data shall
be and remain the property of City, and shall not be used in whole or in substantial part by
Consultant on other projects without the City's express written permission. Within thirty (30) days
following the completion, suspension, abandonment or termination of this Agreement, Consultant
shall provide to City reproducible copies of all Documents & Data, in a form and amount required
by City. City reserves the right to select the method of document reproduction and to establish
where the reproduction will be accomplished. The reproduction expense shall be borne by City
at the actual cost of duplication. In the event of a dispute regarding the amount of compensation
to which the Consultant is entitled under the termination provisions of this Agreement, Consultant
shall provide all Documents & Data to City upon payment of the undisputed amount. Consultant
shall have no right to retain or fail to provide to City any such documents pending resolution of
the dispute. In addition, Consultant shall retain copies of all Documents & Data on file for a
minimum of fifteen (15) years following completion of the Project, and shall make copies available
to City upon the payment of actual reasonable duplication costs. Before destroying the
Documents & Data following this retention period, Consultant shall make a reasonable effort to
notify City and provide City with the opportunity to obtain the documents.
3.6.3.2 Subconsultants. Consultant shall require all subconsultants to
agree in writing that City is granted a non-exclusive and perpetual license for any Documents &
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72500.00001\30613664.2 -12-
Data the subconsultant prepares under this Agreement. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents & Data. Consultant makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or its subconsultants, or those provided to Consultant by the
City.
3.6.3.3 Right to Use. City shall not be limited in any way in its use or
reuse of the Documents and Data or any part of them at any time for purposes of this Project or
another project, provided that any such use not within the purposes intended by this Agreement
or on a project other than this Project without employing the services of Consultant shall be at
City's sole risk. If City uses or reuses the Documents & Data on any project other than this Project,
it shall remove the Consultant's seal from the Documents& Data and indemnify and hold harmless
Consultant and its officers, directors, agents and employees from claims arising out of the
negligent use or re-use of the Documents & Data on such other project. Consultant shall be
responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only
with respect to the condition of the Documents & Data at the time they are provided to the City
upon completion, suspension, abandonment or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a
party for whom the Consultant is legally responsible or liable, or anyone approved by the
Consultant.
3.6.3.4 Indemnification — Proprietary Information. Consultant shall
defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and
agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any
alleged infringement of any patent, copyright, trade secret, trade name, trademark, or any other
proprietary right of any person or entity in consequence of the use on the Project by City of the
Documents & Data, including any method, process, product, or concept specified or depicted
3.6.3.5 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents & Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by Consultant. Such
materials shall not, without the prior written consent of City, be used by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the Services or the Project. Nothing
furnished to Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.6.3.6 Confidential Information. The City shall refrain from releasing
Consultant's proprietary information ("Proprietary Information") unless the City's legal counsel
determines that the release of the Proprietary Information is required by the California Public
Records Act or other applicable state or federal law, or order of a court of competent jurisdiction,
in which case the City shall notify Consultant of its intention to release Proprietary Information.
Consultant shall have five (5) working days after receipt of the Release Notice to give City written
notice of Consultant's objection to the City's release of Proprietary Information. Consultant shall
indemnify, defend and hold harmless the City, and its officers, directors, employees, and agents
from and against all liability, loss, cost or expense (including attorney's fees) arising out of a legal
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72500.00001\30613664.2 -13-
action brought to compel the release of Proprietary Information. City shall not release the
Proprietary Information after receipt of the Objection Notice unless either: (1) Consultant fails to
fully indemnify, defend (with City's choice of legal counsel), and hold City harmless from any legal
action brought to compel such release; and/or (2) a final and non-appealable order by a court of
competent jurisdiction requires that City release such information.
3.6.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.6.5 [Reserved]
3.6.6 Indemnification.
3.6.6.1 To the fullest extent permitted by law, Consultant shall defend
(with counsel of City's choosing), indemnify and hold the City, its officials, officers, employees,
volunteers, and agents free and harmless from any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any
acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees.
subconsultants or agents in connection with the performance of the Consultant's Services, the
Project or this Agreement, including without limitation the payment of all damages, expert witness
fees and attorney's fees and other related costs and expenses. Consultant's obligation to
indemnify shall survive expiration or termination of this Agreement and shall not be restricted to
insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees,
agents, or volunteers.
3.6.6.2 If Consultant's obligation to defend, indemnify, and/or hold
harmless arises out of Consultant's performance as a "design professional" (as that term is
defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code
section 2782.8, which is fully incorporated herein, Consultant's indemnification obligation shall be
limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the Consultant, and, upon Consultant obtaining a final adjudication by a court of
competent jurisdiction, Consultant's liability for such claim, including the cost to defend, shall not
exceed the Consultant's proportionate percentage of fault.
3.6.7 Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by both
parties.
3.6.8 Governing Law; Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Riverside County. In
addition to any and all contract requirements pertaining to notices of and requests for
compensation or payment for extra work, disputed work, claims and/or changed conditions,
Consultant must comply with the claim procedures set forth in Government Code sections 900 et
seq. prior to filing any lawsuit against the City. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to those matters
that remain unresolved after all procedures pertaining to extra work, disputed work, claims, and/or
changed conditions have been followed by Consultant. If no such Government Code claim is
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72500.00001\30613664.2 -14-
submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified
herein, Consultant shall be barred from bringing and maintaining a valid lawsuit against the City.
3.6.9 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.6.10 City's Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.6.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.6.12 Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any assignees,
hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
3.6.13 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any term
referencing time, days or period for performance shall be deemed calendar days and not work
days. All references to Consultant include all personnel, employees, agents, and subconsultants
of Consultant, except as otherwise specified in this Agreement. All references to City include its
elected officials, officers, employees, agents, and volunteers except as otherwise specified in this
Agreement. The captions of the various articles and paragraphs are for convenience and ease
of reference only, and do not define, limit, augment, or describe the scope, content, or intent of
this Agreement.
3.6.14 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.15 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.6.16 No Third-Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.6.17 Invalidity; Severability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in full force and effect.
3.6.18 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
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72500.00001\30613664.2 -15-
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or violation
of this warranty, City shall have the right to rescind this Agreement without liability. For the term
of this Agreement, no member, officer or employee of City, during the term of his or her service
with City, shall have any direct interest in this Agreement, or obtain any present or anticipated
material benefit arising therefrom.
3.6.19 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.6.20 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.7 Subcontracting.
3.7.1 Prior Approval Required. Consultant shall not subcontract any portion of
the work required by this Agreement, except as expressly stated herein, without prior written
approval of City. Subcontracts, if any, shall contain a provision making them subject to all
provisions stipulated in this Agreement.
[SIGNATURES ON NEXT PAGE]
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72500.00001\30613664.2 -16-
SIGNATURE PAGE TO
PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN THE CITY OF PALM DESERT AND BUXTON
CITY OF PALM DESERT BUXTON COMPANY
By: By:
Lauri Aylaian Name: David Glover
City Manager Title: Chief Financial Officer
Attest:
Rachelle D. Klassen
City Clerk
Approved as to Form:
Robert Hargreaves
Best Best & Krieger LLP
City Attorney
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72500.00001\30613664 2 -17-
EXHIBIT "A"
SCOPE OF SERVICES
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72500.00001\30613664.2
EXHIBIT "A"
•
` 44. ci>
Proposal
RETAIL RECRUITMENT &
RETENTION SOLUTION
Prepared by: Lisa McCoy
BuNdon
OUR VALUE PROPOSITION
Page 2 of 12
Since our founding in 1994, Buxton has been a leading force in retail site selection and
development. We are recognized for creating solutions that provide results. Buxton began as a
service to help retailers make informed site selection decisions by understanding their customers
and precisely determining their markets. Buxton soon realized that the company's expertise in
retail site and market analysis could also be leveraged to benefit communities desiring retail
expansion.
BUXTON'S AWARDS & HONORS
RFr�arionia� EY Entrepreneur
RETAILr FAST@MPANY '� or The Year
Named to"The List of People Most Innovative Customer Service
Shaping Retail's Future" Company of the Year #2 on the Fast SCE Department of the Year
More than simply providing data, Buxton supplies custom marketing materials and strategies
targeting the unique site requirements of retailers. developers, and commercial real estate
brokers. Buxton clients achieve outstanding success using our tools for retail identification,
selection, and recruitment. Clients benefit from Buxton's unique understanding of site selection
from the retailer's point of view.
• Grow Your Community.Create new, permanent jobs that will satisfy your citizens' desire to
shop at home; retain dollars currently spent outside of your community and maximize
revenue growth to fund city services
• Leverage Buxton's Retail Industry Expertise. Establish credibility with decision makers by
providing factual evidence to support your site and gain a competitive position by
leveraging our experience:
• 4,000+ total clients from the retail, restaurant, healthcare, and public sector
industries
• 800+ public sector clients nationwide
• 40+ million square feet of retail space recruited
• 500+ cumulative years of retail management and economic development
experience
• Access Your Buxton Solution with Ease. Utilize your best-in-class retail recruitment solution
via SCOUT" with the touch of a button from any mobile device:gain answers to your retail
recruitment and site analysis questions and have the big picture in the palm of your hand
• Develop a Long-Term Partnership. Receive personal guidance and ongoing insight into
key industry topics
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com BU" tOfl
Page 3 of 12
BUXTON DIFFERENTIATORS
Buxton Strategic Relationships
Buxton is engaged in an agreement with one of the largest credit card companies in the world.
Buxton's customer analytics have the ability to incorporate aggregated and de-identified data
to help you enhance your location and customer intelligence. We also partner with LSMx to
provide our public sector clients with complimentary, monthly subscriptions to distribute to local
retailers, restaurants and service providers to assist with local store marketing efforts and
strengthen the business climate in their communities.
Best-in-Class Capabilities
Buxton relies on its best-in-class data and technology to provide the best possible experience for
all of our clients. Buxton manages ninety (90) terabytes of data with more than 250 national
databases.Our data sources allow us to solve the most complex questions in the retail,healthcare,
and economic development industries today. Our continual advances in technology, data, and
methodology, including our SCOUT platform, have allowed us to outpace and out-think our
competition and have kept us at the leading edge of big data analytics. Our best-in-class data
and technology also provide us with unparalleled ability to scale our business and solutions to
meet our clients' ever-changing needs and to answer their most challenging business questions.
DATA SET INCLUDES:
• 250 databases • 7,500 data • Lifestyle
■ Granularity to the elements characteristics
household-level • 90 terabytes of • 14 million business
with 115 million transactional data records
households • Demographics • 70+ business data
• Up to 8 individuals • Psychographics elements
per household
SCOUT
The most technologically advanced, simple-to-use, data visualization tool in the market, SCOUT,
is used by executives to execute real estate, marketing,operational, and economic development
strategies and to answer complex business questions.SCOUT is web-based, extremely easy-to-use,
and is accessible on any computer or iPad/tablet with an Internet connection. SCOUT provides
your team with access to your unique deliverables, both in the field and in the office, to conduct
demographic reporting with the click of a mouse or a touch of a finger on an iPadltablet.
Customer Service
There are a number of things that differentiate Buxton from its competition, but we are most proud
of our service to our clients. We are committed to exceeding your expectations and helping you
optimize your organization. As a Buxton client you will constantly be impressed by our attention to
detail, our responsiveness, and our never-ending drive to assist you. Our number one goal is to
ensure you are beyond satisfied with our solutions and that we are able to solve your most pressing
and important business questions. First and foremost, at the heart of our company's culture resides
a spirit of unparalleled service to our clients.We take pride in our "whatever it takes" attitude and
in making you,our client,successful.We go the extra mile to take care of our clients and to ensure
their business needs are proactively met.
Multiple Data-Driven Solutions
Buxton's household-level data can be used to support local government decisions in a variety of
areas. Key examples include city services analysis (such as library and fire services) and hotel
feasibility studies. These analyses may be conducted under a separate scope of work as part of
Buxton's ongoing partnership with the City of Palm Desert.
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com Btrao 1
Page 4 of 12
Benefits of Partnership
Buxton confirms its ability to provide the following firm differentiators:
• Personalized Content - Advance the City of Palm Desert's business recruitment program
by providing personal guidance from professional staff and ongoing insight into key
industry topics via a variety of channels
• Long-term Partnership-Unlimited access to consultant staff throughout the duration of the
agreement
• Exclusive Access-Ability to utilize Buxton's data relationships to access data and develop
an actionable program to recruit retail
• Web-based Deliverable - Access to a best-in-class online web-mapping platform with the
touch of a button. This application allows screen shots, mobility, and ease of use to assist
in business growth objectives.See full description of SCOUT Touch under the Scope of Work.
Insight into Retail/Restaurant Concepts
One of the elements that sets Buxton apart in the retail recruitment service industry is this: we are
a company that was founded by retailers. After nearly a decade of helping retailers and
restaurants understand their customers and select sites, we used our inside knowledge of the site
selection process to develop a service for city governments.
Today,we continue to be the leading customer analytics firm for retailers and restaurants.Our city
government clients benefit from using the same type of analytics technology and research that
our retail clients depend on to make critical location investment decisions, and our site reports are
known and trusted throughout the retail industry.
While we do have thousands of unique and regional retailers in our portfolio;some nationally
named retail and restaurant clients include, but are not limited to, the following:
• Trader Joe's • Edible Arrangements
• BJ's Restaurants&Brewhouse • Wingstop
• Sally Beauty • Avenue
• California Pizza Kitchen • Firehouse Subs
• Anthropologie • O'Reilly Auto Parts
• Bed, Bath & Beyond • Honeybaked Ham
• Zaxby's • Restoration Hardware
• Tuesday Morning • Lowe's
• Which Wich • McAlister's Deli
• Pier 1 Imports • At Home
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com BU" _tOfl
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SCOPE OF SERVICES
Buxton is pleased to present this proposal to the City of Palm Desert, CA. The purpose of this
proposal is to outline and review your community development objectives and how Buxton's
solutions will enhance your ability to effectively meet those objectives.
City of Palm Desert's Objectives:
1. Understand current retail and restaurant economic condition
2. Recruit new retailers and restaurants
3. Retain existing retailers and restaurants
Retail Recruitment and Retention Solution: Your Community Profile
Our solution is a total marketing strategy that enables community leaders to understand the
consumer profile of their residents and to identify specific retailers and restaurants who seek a
market with household purchasing habits just like yours. This solution provides you with the ability
to actively pursue identified retailers, making a compelling case for their expansion to the City of
Palm Desert by utilizing custom marketing packages that Buxton will create for you. You will have
access to the same analytical information and insights retailers depend on today to make site
selection decisions. This knowledge will provide you with instant credibility and the ability to
differentiate your community.
Step 1 - Research Your Community
Buxton uses over 250 consumer and business databases that are updated regularly and compares
your potential sites to the universe of all competing sites operating in the U.S. We define your
current retail situation and those in any neighboring communities that impact your retail
environment.
Step 2 - Define and Evaluate Your Trade Area
Customers shop by convenience, measuring distance based on time, not mileage. We will
conduct a custom drive-time analysis to determine your trade area using our proprietary
methodology and knowledge of individual retail clients' actual trade areas.Your drive-time trade
area will be provided to you as a map that accurately depicts your consumer shopping patterns.
Step 3- Profile Your Trade Area's Residential Customers
Your community profile will analyze every household in your drive-time trade area. Based on more
than 7,500 categories of lifestyles, purchase behaviors, and media reading and viewing habits
(psychographics), the households in your trade area are assessed to gain an understanding of the
types of retailers that would be attracted to your site.
Step 4- We Match Retailers and Restaurants to Market Potential
Buxton will match the consumer profile of your community's trade area against the customer
profiles of 5.000+ retailers in our proprietary database. We will identify the similarity between the
two profiles analyzed using Buxton's proprietary retail matching algorithm to determine if your site
presents an attractive opportunity for each retailer. We then qualify the list of matched results to
verify that a retailer is currently operating or expanding, that they operate in similar sites, and that
your site affords adequate buffer from competition and cannibalization to be realistically
considered.
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www,buxtonco,com BU1Ofl
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Step 5-We Create Marketing Packages
Buxton will assemble individualized marketing packages for up to twenty (20) targeted retailers.
We will notify each retailer's key real estate decision maker by letter, informing them that they
have been qualified by Buxton as a potential viable fit for your site and should expect to be
contacted by a representative of the city. Your marketing packages will be delivered to you in
SCOUT and include a:
1. Map of the retail site and trade area
2. Map of the retailer's potential customers
3. Retailer match report that compares the site's trade area characteristics and consumer
profile with the retailer's sites in similar trade areas
Step 6-We Provide Ongoing Recruitment Support
The Buxton account management team is dedicated to your success and a world-class client
experience and partnership. Their sole purpose is to help you drive success in your community's
retail economic development efforts. In addition to preparing custom reports and introductory
letters to inform retailers on your match list of the opportunities in your community, Buxton will
expand and sharpen your business development focus by incorporating best practices we have
discovered through daily work with local governments across the nation. Items to bolster the
recruitment strategy will include:
• Provision of updated contacts for retailers
• Cross reference the ICSC attendee list with Palm Desert's match list to help with
appointment setting. Also, provide use of booth space during the event.
• Issuance of warm-up letters on your behalf to "break the ice" with retailers
• Attendance to conference calls with community and retailers/brokers, when available
• Support in recruiting potential opportunities including recommending methods of contact
and assisting with prospect calls to matched retailers
• Continued monitoring of progress with retail outreach and advice on how to enhance
marketability to retailers
Step 7-We Provide Business Retention Tools
Buxton will provide reports through SCOUT that can be used to support business retention efforts
by helping local business owners to make better business decisions. In addition, Buxton is pleased
to offer the City of Palm Desert access to LSMx. LSMx, which stands for Local Store Marketing
powered by Buxton, is a customer acquisition solution designed specifically for small business
owners and franchisees. The City of Palm Desert can also leverage this tool to support local
businesses and entrepreneurs, foster an environment that encourages private-public partnerships,
and strengthen the business climate in their community. Upon execution of the LSMx Addendum,
the City of Palm Desert will have access to up to 25 complimentary "LSMx monthly
subscriptions/license codes to distribute to local retailers, restaurants and service providers.
Solution Deliverables:
• SCOUT Touch access
• Drive time trade area maps
• Retail site assessment
• Retailer specific marketing packages(for up to twenty(20)retailers)
• Mobile tablet device at completion with pre-loaded findings
• Recruitment support
• *LSMx subscriptions(for up to twenty-five(25)monthly license codes)
Multi Year Deliverables:
Years 2 and 3 of this agreement will include a Retail Recruitment model refresh, retail marketing
packages, ongoing account management support, *LSMx subscriptions,and full access to SCOUT
and SCOUT Touch.
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www,buxtonco.com BU\tOfl
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'LSMx deliverables are subject to the City of Palm Desert executing the LSMx Addendum and the terms and conditions
described therein.
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com BU' tOfl
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Access and Use Your Retail Recruitment and Retention Solution via SCOUT Touch
Buxton's Retail Recruitment and Retention solution will allow you to actively recruit retailers to your
community and support existing businesses with the push of a button in SCOUT Touch, providing
you with crucial information about your community, your trade areas, your residents, and much
more. SCOUT is a web-based platform that is accessible on any Windows or IOS enabled device
with an Internet connection. It is designed to give decision-makers in your community access to
the data and solutions that will assist them in making better business decisions. The Retail
Recruitment and Retention solution includes one (1)mobile tablet device that will be provided at
completion and pre-loaded with all key findings. This mobile tablet device, possession of the City
of Palm Desert, enables four (4) SCOUT users with the ability to run demographic and trade area
profile reports, and view maps and other data elements.
In Buxton's SCOUT Touch you will be able to:
• Identify retail matches • See aerial view
• Run variable reports • View physician intelligence
• View city limit maps • Run comparable reports
• Run healthcare reports • Run demographic reports
Support local business retention and expansion efforts with reports contained in the SCOUT
reporting suite, including but not limited to:
Consumer Propensity Report Create Profiles Report
Quantifies likelihood of consumers of a given Profiles a specific trade area to determine the
trade area to consume various goods and likes/dislikes, spending behavior, and marketing
services or possess certain attitudes and opinions. preferences of the households and workers
This report can help local entrepreneurs, business within that geography. This report can help local
owners and store managers better optimize their businesses evaluate a market's retail potential or
merchandise/product offerings or their local enhance marketing efforts.
marketing strategies.
Retail Leakage and Surplus Report Count Base Daytime Population Report
Quantifies the potential surplus or leakage in a Examines the workforce in the study area and
trade area. This guide can help businesses provides a count of the workforce population by
understand how well the retail needs of residents industry. This report allows retail and restaurant
are being met, uncover unmet demand and owners to gain insights about how the population
opportunities, and measure the difference in the trade area differs during work hours so local
between actual and potential retail sales. businesses can cater to different types of workers.
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2551 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com U. tO1l
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SUPPORT
SCOUT Technical Requirements
SCOUT can be accessed at the following URL: www.buxtonco.com
SCOUT is a web-based application accessible on any desktop, laptop, or mobile tablet device
that has an Internet connection. When operating SCOUT, Buxton's recommended hardware
configuration is 4-core CPU, 4 GB RAM (or higher). Examples include most modern-day laptops or
desktops purchased within the last 3 years, iPad Pro 2017 or newer, Microsoft Surface Pro 2 or
newer, or Samsung Galaxy Tab S3. The recommended browser for accessing SCOUT is the latest
version of Chrome.
Buxton's Helpdesk
(1-817-332-3681)is available during normal office hours(8:00 AM-5:30 PM CST,excluding weekends
and public holidays). Buxton's Helpdesk team will be available to support all educational,
functional, and technical inquiries and will respond to all requests within twenty-four (24)hours of
submission.
Buxton's Helpdesk
Monday-Friday: 8:00 am - 5:30 pm CST
2651 South Polaris Drive Fort Worth, TX 76137 1 888 28UXTON www.buxtonco.com BU' iOfl
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Preparatory Steps for Project Kick-off
To effectively initiate this project, we request that you provide the following:
1. Project Liaisons
Please designate a primary point of contact from your community to coordinate with the
Buxton team.The Buxton project team will serve as your day-to-day point of contact to ensure
you are educated and informed as we are moving through the analytics process to determine
which retailers are the best fit for your community.
2. Community Information and Reports
• Logo (vector file-request from your ad agency and/or printer)
• Addresses and descriptive information for the specified sites that will be evaluated
• List of planned retail, commercial or mixed use developments (either proposed or in
development)
• List of major, national or regional retailers that have closed, left or moved from the
community
3. Project Launch
A conference call with your representatives and the Buxton project team will officially launch
the project. The project launch will occur when:
1. An agreement is executed
2. The initial payment is received, and
3. The Community Information and Reports are received
To ensure we deliver our analysis to you within the promised timeline, our account manager will
be working directly with a dedicated project manager who oversees the smooth and timely
development of all public sector client projects in our internal analytics departments.
2651 South Polaris Drive Fort Worth, TX 76137 1 888 2BUXTON www.buxtonco.com BU'\COn
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TERM, FEES, AND DELIVERY
Annual Fee $50,000
Agreement Term
Year 1 Fee(50%invoiced upon execution of this agreement; S50,000
50%invoiced upon targeted retailer identification)
Year 2 Fee(Invoiced 1 v anniversary of this agreement) $50,000
Year 3 Fee(Invoiced end anniversary of this agreement) $50,000
Delivery The City of Palm Desert will have access to retail match lists and marketing
packages within sixty (60) business days of execution.
Your SCOUT access will be enabled within ten(10)business days of the execution of this agreement.The City of Palm
Desert will have access to retail match lists and marketing packages within Sixty(60)business days of execution.The initial
term of this agreement is for three(3)years with services invoiced annually.However,at any time during this initial 3-year
term, the City of Palm Desert may cancel services for the following year by providing written notice to Buxton at least
sixty(60)days in advance of a yearly renewal.If the City of Palm Desert cancels services prior to the expiration of the
initial term,the City of Palm Desert will be invoiced 10%of the total remaining balance.All service fees associated with
this agreement are due in net ten(10)days of the date of the invoice.Execution of this agreement will act as full consent
that Buxton may include the City of Palm Desert on its client list and in presentations and public relations efforts.
Additionally,Buxton may issue a press release announcing the City of Palm Desert as a client.When doing so,Buxton will
not reveal information that is confidential and proprietary to the City of Palm Desert.
Buxton City of Palm Desert, CA
Signature Signature
Printed Name Printed Name
Title Date Title Date
Please provide us with a primary point of contact Please provide us with a primary point of
for invoice receipt. contact.
Name: Name:
Phone: Phone:
Email: Email:
Preferred Method of Receipt: Email OR U.S.Mail
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BU)(TON www.buxtonco.com BU\_tOfl
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PROJECT TIMELINE
•Acquire retail location areas from the City of Palm
Desert
Within sea o)
business days of •SCOUT access
executed J
agreeement
• Research and verify the City of Palm Desert's retail
trade area
• Define drive-time trade areas
I
010 • Evaluate the City of Palm Desert's retail potential
•Analyze retail leakage/surplus
• Examine local business retention and expansion
•Determine customer profile
J
•Assess retail sites
•Determine matching retailers and restaurants
market potential
• Deliver marketing packages and begin
Within sixty(60) communication with retailers
business days
post data _}
acquisition
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com BU" tOfl
LSMx Addendum
Business Retention
Supplement
Bu ton
LSM , �
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City of Palm Desert, CA
This Addendum is entered into between the City of Palm Desert, CA ("Palm Desert"), Buxton
Company ("Buxton"), and LSMx, Inc. ("LSMx") (each a "Party" and collectively the "Parties").This
Addendum is attached to and made part of the Agreement between Buxton and Palm Desert,
dated ("Buxton Agreement").
The purpose of this Addendum is to provide Palm Desert with access to LSMx software subscriptions
for the Term of the Buxton Agreement, unless terminated earlier as set forth in the Buxton
Agreement, The Parties acknowledge that this Addendum and each of its provisions is expressly
contingent upon the Buxton Agreement and associated fees remaining in full force and effect,
Background
LSMx, which stands for Local Store Marketing powered by Buxton, is a proprietary customer
acquisition solution designed specifically for small business owners and franchisees. Local
governments and economic development agencies can also leverage this tool to support local
businesses and entrepreneurs, foster an environment that encourages private-public partnerships,
and strengthen the business climate in their community. For each month of the Term of the Buxton
Agreement, Palm Desert will have access to up to 25 complimentary LSMx monthly subscriptions.
Deliverables and Terms
• Up to 25 LSMx subscriptions will be provided at no additional charge to Palm Desert for
designation of access at Palm Desert's sole discretion to local retail, restaurant and service
provider subscribers(each a "subscriber")during the Term of the Buxton Agreement.
• Any default or termination under the Buxton Agreement will also constitute a default and
termination under this Addendum. In the event that the Buxton Agreement is terminated,
the 25 monthly subscriptions will be canceled,at which time, each Subscriber will have the
option of continuing their subscription at standard rates. Standard rates will be the
prevailing rate at the time of concelation.
• All fees associated with advertising campaigns executed via the LSMx software by the
subscriber are at an additional cost to the subscriber. Each subscriber executing
advertising campaigns within the LSMx software are responsible for such costs via the
credit card information they provide in the LSMx software.
• If Palm Desert requests services not specified in this Addendum, the parties shall enter into
an additional Addendum setting forth the additional services, fees, and other mutually
agreed upon terms.
• The Parties to this Addendum expressly agree to the following terms and conditions:
❑ Each subscriber will be subject to the applicable terms and conditions contained
in the LSMx software license agreement accessed via the LSMx software.
a The LSMx software is provided to each subscriber under a non-exclusive, non-
transferable, limited, non-sublicensable, revocable license to access and use the
LSMx software.
❑ The LSMx software is not being sold to Palm Desert or a subscriber and it is not
available for resell.
o The LSMx software license does not convey any rights in or to the LSMx software or
any patent, copyright, trademark or any other intellectual property rights of LSMx.
LSMx retains all right, title, and interest in and to the LSMx software (including any
upgrades, improvements, modifications, derivatives, and refinements to the LSMx
software).
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON www.buxtonco.com Bu% CO
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The parties hereby agree to and accept the terms of this Addendum as of the date written below.
Buxton Company City of Palm Desert, CA
By: By:
Name: David Glover Name:
Title: Chief Financial Officer Title:
Date: Date:
LSMx, Inc.
By:
Name: David Glover
Title: Chief Financial Officer
Date:
2651 South Polaris Drive Fort Worth, TX 76137 1-858-2BUXTON www,buxtonco.com BU" tOfl
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LSM
1Benefits
Powered by Bu wn
LSMx, Local Store Marketing powered by Buxton, is a simple, but powerful, customer acquisition
solution, that allows local business owners to easily see and understand:
• Who and where their best potential customers are coming from
• How far their most valuable customers are willing to drive to their location
• How many potential customers are near or around them
LSMx:
• Alerts users about upcoming local events that could be driving business
• Shows where specific competitors are in relation to potential customers
• Highlights traffic congestion that might interfere with performance
Key Differentiator
LSMx completely executes marketing campaigns to the potential customers users see right from
their mobile device in just minutes. Local businesses can target the potential customers that LSMx
identifies with any or all the following marketing channels:
• Direct Mail
• Email
• Facebook
• Google
• Mobile Banner Ads
Benefits to the City of Palm Desert
• Encourages private-public partnerships
• Supports local businesses
• Provides local businesses with resources (analytics, application, marketing automation,
marketing execution) normally reserved for much larger entities
• Supports business retention
• Supports localization efforts
• Supports increase in local tax income because businesses can be more successful
2651 South Polaris Drive Fort Worth, TX 76137 1-888-2BUXTON I www.buxtonco.com Btraon