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HomeMy WebLinkAboutC31500 Program to Establish Homeowners not In Compliance - Section 3.24 Transient Occupancy TaxCITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: APPROVAL OF CONTRACT NO. C31500 , A PROFESSIONAL SERVICES AGREEMENT IN THE AMOUNT OF $15,600 WITH CYNTHIA LEE GOSSELIN FOR A CONTRACTED PROGRAM TO ESTABLISH AN ON -GOING METHOD OF IDENTIFYING AND BRINGING INTO COMPLIANCE PALM DESERT HOMEOWNERS NOT CURRENTLY COMPLYING WITH SECTION 3.24 TRANSIENT OCCUPANCY TAX (TOT) OF THE PALM DESERT MUNICIPAL CODE. SUBMITTED BY: Tony Bagato CITYC0UNCMACM?( Principal Planner APPROVED DENIED RECEIVED OTHER APPLICANT: City of Palm Desert ME ETING nATZ DATE: January 26, 2012 AYES: L'e_15M tMf{ NOES: CONTENTS: Proposed Professional Services Agrgg(Contract No. C315UU VERIFIED BY:1� � RECOMMENDATION Original on File with City erk's Office That the City Council, by Minute Motion: Approve Professional Services Contract No. C31500 with Cynthia Lee Gosselin for Short-term Rental Compliance; and 2. Appropriate $15,600 from the unobligated General Fund Reserves to Account No. 110-4470-412-3090, General Fund Community Development / Planning Professional Services. BACKGROUND On December 8, 2011, staff was directed to prepare a Short -Term Rental Ordinance and a professional services agreement for an independent contractor to provide the City with services to identify and bring into compliance unlicensed short-term rentals. Staff is currently drafting the Short-term Rental Ordinance, and has contacted Cynthia Lee Gosselin, a specialty consultant who can assist the City with a new program to establish an on -going method of identifying and bringing into compliance Palm Desert homeowners not currently complying with Section 3.24 transient occupancy tax (TOT) of the Palm Desert Municipal Code. By approving the contract before the new ordinance, staff can work with the consultant to identify unlicensed short-term rentals while the ordinance is being prepared. This process will take 6-8 weeks of research and documentation. During that research period, staff will also Staff Report Cynthia Lee Gosselin Professional Services Agreement January 26, 2012 Page 2 of 2 present the new short-term rental ordinance for consideration, and will be able to inform the public and unlicensed rental owners of the new ordinance immediately upon adoption. The proposed agreement stipulates that the consultant will work with City staff no more than 10 hours per week for $60.00 per hour, and for no more than 26 weeks. The consultant will assist staff by • Investigating on -going short-term rental activity on various websites to identify unregistered short-term rental properties, • Designing a monitoring and licensing program for City requirements that will be part of the new Short-term Rental Ordinance, • Contacting unregistered short-term rental property owners, • Educating the community about the new Short-term Rental Ordinance when it is adopted. Fiscal Impact The proposed professional services contract and new program were not anticipated during the 2011-2012 budget process. The total cost for the contract will not exceed $15,600. These funds are available in the unobligated General Fund Reserve, but need to be appropriated to the Community Development / Planning Professional Services Account. Previously, staff reported that there are hundreds of unregistered short-term rental property owners not paying Transient Occupancy Tax (TOT). This new program with this professional services contract will assist staff with bringing the unregistered short-term rentals into compliance with Section 3.24 Transient Occupancy Tax, which will augment that revenue stream. According to the City of Rancho Mirage, who is using the same consultant in this capacity, during the first month of licensing and TOT compliance services, the City collected $13,700 in revenue to the General Fund. Based on their experience, it is safe to say that bringing in the new TOT and short-term rental licenses will provide a financial benefit to the City that will more than offset the cost of this professional services agreement contract. Submitted by: Tony Bagato Principal Planner Approval: Paul 6i6son Director of Finance Lauri Aylaian Director of Community Development i M. Wohlmuth Manager GAPlanning\Tony Bagato\Staff Reports\Short-term Rental Ordinance\Short•term_Rentals_PS_Cynthia_CC_SR.doc Contract No. C31500 PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN CITY OF PALM DESERT AND CYNTHIA LEE GOSSELIN This Professional Services Agreement ("Agreement") is made and entered into this day of , 2012, ("Effective Date") by and between the City of Palm Desert ("City"), a municipal corporation, in the County of Riverside, State of California, and Cynthia Lee Gosselin, an individual ("Consultant"). RECITIALS WHEREAS, the City desires to utilize the services of Consultant, as an independent contractor, to provide the City with services that will establish an on -going method of identifying and bringing into compliance Palm Desert homeowners who are not currently complying with the City's Transient Occupancy Tax (TOT) ordinance, ("Services"), as more particularly described in the "Scope of Services" incorporated herein by this reference as Exhibit "A; WHEREAS, Consultant represents that she is fully qualified to perform such services by virtue of experience and the training, education and expertise of her principals and employees. NOW, THEREFORE, in consideration of performance by the Parties of the mutual promises, covenants, and conditions herein contained, the Parties hereto agree as follows: Section 1. RECITALS The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth in full herein. Section 2. SCOPE OF SERVICES Consultant shall provide to the City those services as set forth in the Scope of Services, as specified therein, in a manner satisfactory to the City and consistent with that level of care and skill ordinarily exercised by the members of the profession currently practicing in the same locality under similar conditions. In the event any conflict exists between the Agreement minus the Scope of Services, on the one hand, and the Scope of Services on the other hand, the former shall supersede. CONTRACT NO. C31500 Section 3. COMPLETION DATE Consultant shall perform the services described in the Scope of Services during the term of this Agreement. The Agreement shall commence on Wednesday February 1, 2012 and ending on Wednesday August 1, 2012. Section 4. COMPENSATION The City agrees to pay Consultant for and in consideration of the faithful performance of the consulting services and duties set forth in this Agreement, and Consultant agrees to accept from the City, as and for compensation for the faithful performance of said services and duties, an amount not to exceed Sixty Dollars ($60.00) per hour and total compensation not to exceed Fifteen Thousand Six Hundred Dollars and No Cents ($15,600). Section 5. METHOD OF PAYMENT a. Consultant shall submit invoices to the City on a monthly basis describing the work performed. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. The City shall pay Consultant no later than thirty (30) days after approval of the invoice by City staff provided that the services reflected in the invoice were performed to the reasonable satisfaction of the City in accordance with the terms of this Agreements, that the number of hours of services set forth in the invoice reflect the amount of time ordinarily expended for such services by members of the profession currently practicing in the same locality under similar conditions, that all expenses, rates and other information set forth in the invoice are consistent with the terms and conditions of this Agreement, and that amounts are consistent with the project budget. b. The Consultant shall submit invoices under this Agreement to: Tony Bagato, Principal Planner City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Telephone: (760) 346-0611 ext. 480 Facsimile: (760) 776-6417 Email: tbagato[a)cityofpalmdesert.org Section 6. EXTRA WORK At any time during the term of this Agreement, the City may request that the Consultant perform Extra Work. As used herein, "Extra Work" means any work that is 2 CONTRACT NO. C31500 determined by the City to be necessary for the proper completion of the Services, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform Extra Work without written authorization from the City. Section 7. TERMINATION This Agreement may be terminated by the City immediately for cause. The City may terminate this Agreement without cause upon thirty (30) days' written notice of termination. Upon termination, Consultant shall be entitled to compensation for services provided up to the effective date of termination. Section 8. OWNERSHIP OF DOCUMENTS All plans, studies, documents, and other writings prepared by and for Consultants, its officers, employees and agents and subcontractors in the course of implementing this Agreement, except working notices and internal documents, shall become the property of the City upon payment to Consultant for such work, and the City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at its expense, provide such reports, plans, studies, documents and other writings to the City upon written request. Section 9. CONFIDENTIALITY a. All ideas, memoranda, specifications, plans, procedures, drawings, photographs, descriptions, computer program data, input record data, written information, and other documents and 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 prior written consent to the City, be used by Consultant for any purpose other than the performance of the service under this Agreement, nor shall such materials be disclosed to any person or entity not connected with the performance of the service under this Agreement. 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 the City's insignia or photographs relating to the project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the City. Section 10. CONSULTANT'S BOOKS AND RECORDS a. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a CONTRACT NO. C31500 minimum period of three years, or for any longer period required by law, from the date of final payment to Consultant pursuant to this Agreement. b. Consultant shall maintain all documents and records that demonstrate performance under this Agreement for a minimum of three years, or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at the City's address indicated for receipt of notices in this Agreement when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant's address indicated for receipt of notices in this Agreement. d. Where the City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant's business, the City may, by written request of any of the above -named officers, require that custody of the records be given to the City and that the records and documents be maintained at the City's address indicated for receipt of notices in this Agreement. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant's representatives, or Consultant's successor -in -interest. Section 11. INDEPENDENT CONTRACTOR'S STATUS: NOT AGENT OF THE CITY Consultant shall at all times during the term of this Agreement remain, as to the City, a wholly independent contractor and shall perform the services described in this Agreement as an independent contractor and, further, hereby waives any claims for any compensation or benefits afforded to City employees and not to independent contractors. Neither the City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as herein set forth. Nothing contained in this Agreement shall be deemed, construed or represented by the City or Consultant or by any third person to create the relationship of principal and agent and Consultant shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. Consultant shall have no authority, expressed or implied, to act on behalf of the City in any capacity whatsoever as an agent, nor shall Consultant have any authority, expressed or implied, to bind the City to any obligation whatsoever. Section 12. REPRESENTATIONS AND ACKNOWLEDGMENTS REGARDING INDEPENDENT CONTRACTOR'S STATUS OF CONSULTANT a. Consultant represents and acknowledges the following: 4 CONTRACT NO. C31500 (1) The City is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement. (2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the City. (3) Nothing in this Agreement shall be interpreted to imply that the City must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement. (4) The City will not be requested or demanded to assume any liability for the direct payment of any salary, wage or other such compensation to any person employed by Consultant to perform the services described in this Agreement. (5) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the City. b. The City represents and acknowledges the following: (1) Consultant is not required to comply with daily instructions from City staff with respect to when, where or how Consultant must perform the services set forth in this Agreement. (2) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement. (3) The City will not hire, supervise or pay any assistants working for Consultant pursuant to this Agreement. (4) Nothing in this Agreement shall be interpreted to imply that the Consultant must maintain any contractual relationship with the City on a continuing basis after termination of this Agreement. (5) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement, so long as those hours fall within the time City Hall is open for business. (6) Consultant is not required to devote full time to the business operations of the City in order to perform the services set forth in this Agreement. (7) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City -owned property. 5 CONTRACT NO. C31500 (8) Consultant is not required to perform the services set forth in the Agreement in any particular order or sequence. (9) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest. Section 13. CIVIL CODE SECTION 1542 WAIVER Consultant expressly waives any and all rights and benefits conferred upon it by the provisions of section 1542 of the California Civil Code which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." This waiver shall be effective as a bar to any and all actions, fees, damages, losses, claims, liabilities and demands of whatsoever character, nature and kind, that are known or unknown, or suspected or unsuspected, including, without limitation, claims of entitlements under the California Public Employees' Retirement System (CaIPERS) that are only afforded to employees and not independent contractors. Consultant further represents and warrants that it understands this waiver and that if it does not understand this waiver, it shall seek the advice of a qualified attorney before executing this Agreement. Initials Section 14. CONFLICTS OF INTEREST a. Consultant (including principals, associates and professional employees) covenants and represents that it does not have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source or income, interest in real property or investment that would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. b. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant: (1) Does not make or participate in: (i) The making or any governmental decisions regarding approval of a rate, rule, or regulation, the adoption or enforcement of laws; C.1 CONTRACT NO. C31500 (ii) The issuance, denial, suspension or revocation of permits, licenses, applications, certificates, approvals, orders, or similar authorization or entitlement; (iii) Authorizing the City to enter into, modify, or renew a contract; (iv) Granting the City approval to a contract that requires City approval and to which the City is a party, or to the specifications for such a contract; (v) Granting the City approval to a plan, design, report, study, or similar item; or (vi) Adopting, or granting City approval of, policies, standards, or guidelines for the City or for any subdivision thereof. (2) Does not serve in a staff capacity with the City and in that capacity participate in making a governmental decision or otherwise perform the same or substantially all the same duties for the City that would otherwise be performed by an individual holding a position specified in the City's Conflict of Interest Code under Government Code Section 87302. C. In the event the City officially determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file the subject Form 700 with the City Clerk's Office of the City of Palm Desert pursuant to the written instructions provided by the Office of the City Clerk. Section 15. PROFESSIONAL ABILITY OF CONSULTANT; WARRANTY; FAMILIARITY WITH WORK; PERMITS AND LICENSES a. Consultant warrants that all services will be performed in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services. b. By executing this Agreement, Consultant warrants that: (1) It has thoroughly investigated and considered the work to be performed; (2) It has investigated the issues, regarding the scope of services to be provided; (3) It has carefully considered how the work should be performed; and (4) It fully understands the facilities, difficulties and restrictions attending 7 CONTRACT NO. C31500 performance of the work under this Agreement. C. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the City, it shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City Manager or appropriate City representative. d. Consultant represents that it has obtained and will maintain at all times during the term of this Agreement all professional and/or business licenses, certifications and/or permits necessary for performing the services described in this Agreement, including a City of Palm Desert business license. Section 16. COMPLIANCE WITH LAWS Consultant shall comply with all local, state and federal laws and regulations applicable to the services required hereunder. Section 17. INDEMNIFICATION a. Consultant shall defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damage, injuries, and liability, direct or indirect, (including any and all costs and expenses in connection therewith), arising out of the performance of this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. b. The City does not, and shall not, waive any rights that it may have against Consultant under this Section because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless, indemnification and duty to defend provisions of this Section shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, action, damage, liability, loss, cost or expense described herein. C. Notwithstanding the provisions of subsections a. and b. of this section, Consultant shall not be responsible for damages or be in default or deemed to be in default by reason of delay caused by strikes, lockouts, accidents, or acts of God, or the failure of the City to furnish timely information or to approve or disapprove Consultant's work promptly, or by reason of delay or faulty performance by the City, construction contractors, or governmental agencies, or by reason of any other delays beyond Consultant's control, or for which Consultant is without fault. Section 18. INSURANCE REQUIREMENTS a. Policies. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of this Agreement, the following insurance policies; (1) Worker's Compensation Coverage. Consultant shall maintain Worker's Compensation Insurance and Employer's Liability Insurance for its employees in L CONTRACT NO. C31500 accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Worker's Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. If any class of employees employed by Consultant pursuant to this Agreement is not protected by the California State Worker's Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the City. This provision shall not apply if Consultant has no employees performing work under this Agreement. If the Consultant has no employees for the purposes of this Agreement, Consultant shall sign and attach the Certificate of Exemption from Worker's Compensation Insurance, attached hereto and incorporated herein by this reference as Exhibit "B." Consultant agrees to waive its statutory immunity under any worker's compensation or similar statute, as respecting the City, and to require any and all subcontractors and any other person or entity involved in the Services to do the same. (2) Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury, personal injury and property damage for all activities of the Consultant arising out or of in connection with the work to be performed under this Agreement, including coverage for owned, hired and non -owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. b. Endorsements. Unless otherwise specified hereunder, each insurance policy required herein shall be with insurers possessing a Best's rating of no less than A:VII and shall be endorsed with the following specific language: (1) Except for worker's compensation coverage, the City, its elected or appointed officers, employees, agents and volunteers are to be covered as additional insured's with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations. (2) This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self -insured retention the City may have shall be considered excess insurance only and shall not contribute with it. (3) This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. (4) The insurer waives all rights of subrogation against the City, its elected or appointed officials, officers, employees or agents. (5) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers. CONTRACT NO. c3 i goo (6) The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty days written notice has been received by the City. C. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self -insured retentions. d. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. e. Imposition of Insurance Requirements. Provided the City gives its written consent for any persons other than Consultant to perform any part of the Services, Consultant agrees to require that all parties, including but not limited to subcontractors, architects, engineers or others with whom Consultant enters into contracts or whom Consultant hires or retains pursuant to or in any way related to the performance of this Agreement, provide the insurance coverage required herein, at minimum, and name as additional insureds the parties to this Agreement consistent with Section 17.b hereof. 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. f. Maintain Coverage. In the event this Agreement is terminated for any reason prior to the completion of all obligations and requirements of this Agreement, Consultant agrees to maintain all coverage required herein until the City provides written authorization to terminate the coverage following the City's review and determination that all liability posed under this Agreement as to the party providing insurance has been eliminated. g. Failure to Obtain Coverage. Consultant agrees and acknowledges that if it fails to obtain all of the insurance required in this Agreement in accordance with the requirements herein, or to obtain and ensure that the coverage required herein is maintained by any subcontractors or others involved in any way with the performance of Services, to the extent such is permissible under this Agreement, Consultant shall be responsible for any losses, claims, suits, damages, defense obligations, or liability of any kind or nature attributable to the City or its officers, employees, servants, volunteers, agents and independent contractors. Section 19. NOTICES a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed 10 CONTRACT NO. C31500 to the parties as follows: To the City: Tony Bagato, Principal Planner City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Telephone: (760) 346-0611 ext. 480 Facsimile: (760) 776-6417 Email: tbagato _cityofpalmdesert.org To Consultant: Cynthia Lee Gosselin 5 Trafalgar Square Rancho Mirage, CA. 92270 Telephone: (760) 328-1195 Facsimile: (760) 668-5963 Email: cgosselin@dc.rr.com b. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail. Section 20. , ENTIRE AGREEMENT a. This Agreement supersedes any and all other agreements, either oral or written, between the City and Consultant with respect to the subject matter of this Agreement. b. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement. C. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. Section 21. MODIFICATIONS AND AMENDMENTS This Agreement may be modified or amended only by a written instrument signed by both parties. Section 22. ASSIGNMENT AND SUBCONTRACTING a. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the City to enter into this Agreement. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the written consent of the City. 11 CONTRACT NO. C31500 b. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written consent of the City. If the City consents to such subcontract, Consultant shall be fully responsible to the City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between the City and subcontractor nor shall it create any obligation on the part of the City to payor to see to the payment of any monies due to any such subcontractor other than as required bylaw. Section 23. WAIVER a. No waiver shall be binding, unless executed in writing by the party making the waiver. b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. C. Failure of either party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. Section 24. SEVERABILITY If anyone or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or sections contained herein. Section 25. VENUE All proceedings involving disputes over the terms, provisions, covenants or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in Riverside County, California. Section 26. LITIGATION EXPENSES AND ATTORNEYS' FEES In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof. 12 CONTRACT NO. c315oo Section 27. EXECUTION IN COUNTERPARTS This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least a copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. Section 28. 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 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, the City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of the City, during the term of his or her service with the City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. Section 29. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and shall not discriminate against any subcontractor, employee, or applicant ("person") for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation. Unless otherwise permitted under the law, Consultant shall not refuse to hire or employ any such person or refuse to select any such person for a training program leading to employment, or bar or discharge any such person from employment or from a training program leading to employment, or otherwise discriminate against any such person in compensation or in terms, conditions, or privileges of employment. Section 30. TIME OF THE ESSENCE Time is of the essence in the performance of this Agreement. Section 31. PRINCIPAL REPRESENTATIVES Cynthia Lee Gosselin is designated as Consultant's Principal Representative and is the person responsible for undertaking, managing and supervising the performance of all of the services set forth in the Scope of Services for this Agreement. Consultant's designated Principal Representative's experience, knowledge, capability and reputation were a substantial inducement for the City to enter into this Agreement, and as such, for the purposes of performing the Scope of Services of this Agreement, the duties of Consultant's designated Principal Representative shall not be reassigned, without the 13 CONTRACT NO. C31500 express written consent of both parties. The Principal Planner, Tony Bagato shall be the Principal Representative of the City for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement. Section 32. NON -LIABILITY OF CITY'S OFFICERS AND EMPLOYEES No officer or employee of the City shall be personally liable to Consultant, 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 Consultant or to its successor, or for any breach of any obligation of the terms of this Agreement. Section 33. INTERPRETATION This Agreement shall not be interpreted against either party on the grounds that one of the parties was solely responsible for preparing it or caused it to be prepared as both parties were involved in drafting it. Section 34. PROTECTION AND CORRECTION OF WORK a. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, and the equipment, materials, papers and other components thereof to prevent losses or damages. b. The performance of services by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate or defective work at no further cost to the City, when such inaccuracies are due to the fault of Consultant. Section 35. CAPTIONS AND HEADINGS The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading. Section 36. GOVERNING LAW The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. Section 37. CUMULATIVE REMEDIES 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. 14 CONTRACT NO. C31500 Section 38. NO THIRD PARTY BENEFICIARIES The parties do not intend the benefits of this Agreement to inure to any third party, nor shall any provision of this Agreement be so construed. Section 39. COUNTERPARTS This Agreement may be executed in counterparts, each of which shall be deemed to be an original. Section 40. REPRESENTATIONS OF PARTIES AND PERSONS EXECUTING AGREEMENT Each of the parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the parties hereto. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the parties each purports to represent. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 15 CONTRACT NO. C31500 IN WITNESS WHEREOF, said parties have executed this Agreement effective as of the Effective Date above. CONSULTANT CYNTHIA LEE GOSSELIN CITY OF PALM DESERT ROBERT A. SPEIGAL, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK APPROVED AS TO FORM DAVID J. ERWIN, CITY ATTORNEY 16 CONTRACT NO. C31500 EXHIBIT "A" SCOPE OF SERVICES Program's Objective: A contracted pilot program to establish an on -going method of identifying and bringing into compliance Palm Desert homeowners not currently complying with Section 3.24 Transient Occupancy Tax (TOT) of the Palm Desert Municipal Code. Program Duration and Dates: 26 weeks commencing on Wednesday February 1, 2012 and ending on Wednesday August 1, 2012. Hours per Week and Remuneration: Consultant shall work a maximum of ten hours per week, and shall be compensated at a rate of $60 per hour. The time necessary for one weekly meeting with the City representative shall be included in the ten hours. Program Phases and Deliverables: Launch: • Design - work with staff to design program to the City requirements; (e.g., new registration program and reports. • Investigation - investigate various websites to identify unregistered vacation rental properties. • Compliance - after identifying as much information as possible on the web - advertised property, begin the compliance efforts. • Communication - provide assistance in any mailings. Implement telephone "tip line". • Reporting - provide master list of all properties in Palm Desert that are currently registered as short term rentals (including all properties with rental agencies). Provide monthly written report, on the first Monday of each contracted month, indicating progress of program. • Schedule - provide 10 hours a week of service not exceeding 10 hours without written approval from the City. 17 CONTRACT NO. C31500 Implementation: • Investigation - on -going due to new homes/rental sites. • Compliance - on -going due to new homes/rental sites. • Reporting - continue to update the master list of properties and the progress of the program on a monthly basis. • Communication - continued Ordinance education to the public. 18 CONTRACT NO. C31500 EXHIBIT "B" CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I certify that, in the performance of the work to be performed by Cynthia Lee Gosselin for the City of Palm Desert, I shall not employ any person in any manner so as to become subject to the workers' compensation laws of California, and agree that if I should become subject to the workers' compensation provisions of the California Labor Code, I shall forthwith comply with those provisions. Name Signature Date: 19