HomeMy WebLinkAboutC-519(I) - West Coast Highway, 1221 (Balboa Bay Resort) - Consultant Agreement 1994CONSULTANT AGREEMENT
THIS AGREEMENT, entered into this /5day of
1921
7 , by and between CITY OF NEWPORT BEACH , a Municipal
Corporation (hereinafter referred to as "City"), and William R.
Hansen & Associates, whose address is 567 San Nicolas Drive, Suite
203, Newport Beach, CA, 92660-6510 (hereinafter referred to as
"Consultant"), is made with reference to the following:
RECITALS
A. City is a Municipal Corporation duly organized and
validly existing under the laws of the State of California with the
power to carry on its business as it is now being conducted under
the statutes of the State of California and the Charter of the
City.
Hansen.
B. The principal member of Consultant is William R.
C. City desires to engage Consultant to perform
appraisal services relating to a proposed extension of the lease
for the Balboa Bay Club upon the terms and conditions contained in
this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
1. TERM
The Term of this Agreement shall commence when fully executed
and the appraisal services shall be completed by October, 1994,
unless otherwise agreed by the parties.
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2. SERVICES TO BE PERFORMED
Consultant shall perform the tasks set forth in Exhibit "A",
attached hereto and incorporated herein by this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed
pursuant to this Agreement in the amount and manner set forth in
Exhibit "B", attached hereto and incorporated herein by this
reference.
4. STANDARD OF CARE
All of the work shall be performed by Consultant or under
Consultant's supervision. Consultant represents that he possesses
the professional and technical personnel required to perform the
services required by this Agreement and that he will perform all
services in a manner commensurate with the community professional
standards. The Consultant shall be responsible to City for any
errors or omissions in the execution of this Agreement. Consultant
represents and warrants to City that he has or shall obtain all
licenses, permits, qualifications and approvals required of his
profession. Consultant further represents and warrants that he
shall keep in effect all such licenses, permits and other approvals
during the term of this Agreement.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and
Consultant is not an employee of the City. Deductions shall not be
made for any state or federal taxes, FICA payments, PERS payments
or other purposes normally associated with an employer-employee
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relationship from any fees due Consultant. Payments of the above
items, if required, are the responsibility of Consultant.
6. COOPERATION
Consultant agrees to work closely and cooperate fully with
City's designated Project Administrator, and any other consultants.
City agrees to cooperate with the Consultant on the project.
7. PROGRESS
Consultant is responsible to keep the Project Administrator
and his duly authorized designee informed on a regular basis
regarding the status and progress of the work, activities performed
and planned, and any meetings that have been scheduled.
8. HOLD HARMLESS
Consultant agrees to indemnify, defend, save and hold harmless
City, its City Council, boards and commissions, officers and
employees from and against any and all loss, damages, liability,
claims, suits, costs and expenses for damages of any nature
whatsoever, including, but not limited to, bodily injury, death,
personal injury, property damages, attorneys fees and court costs
arising from any and all negligent actions of Consultant, its
employees, agents or subcontracts in the performance of services or
work conducted or performed pursuant to this Agreement.
9. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer
this Agreement or any interest in this Agreement, directly or
indirectly, by operation of law or otherwise without prior written
consent of City.
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10. REPORTS
Each and every report, draft, work product, map, record and
other document reproduced, prepared or caused to be prepared by
Consultant pursuant to or in connection with this Agreement shall
be the exclusive property of City.
No report, information or other data given to or prepared or
assembled by Consultant pursuant to this Agreement shall be made
available to any individual or organization by Consultant without
prior approval by City.
Consultant shall, at such time and in such forms as City may
require, furnish reports concerning the status of services required
under this Agreement.
11. CONFIDENTIALITY
The information which results from the services in this
Agreement is to be kept confidential unless the release of
information is authorized by the City.
12. CITY'S RESPONSIBILITIES
City shall furnish to Consultant base maps, existing studies,
ordinances, data and other existing information as shall be
requested by Consultant and materials in City's possession
necessary for Consultant to complete the work contemplated by this
Agreement. City further agrees to provide all such materials in a
timely manner so as not to cause delays in Consultant's work
schedule.
13. ADMINISTRATION
The City Manager or his designees shall be considered the
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Project Administrator and shall have the authority act for the City
under this Agreement.
14. EXTRA WORK
Consultant shall receive compensation for extra work
authorized by City in accordance with the schedule of billing rates
set forth in Exhibit "B." All extra work must be authorized in
writing by the Project Administrator and Consultant shall not be
entitled to extra compensation without authorization.
15. RECORDS
Consultant shall keep records and invoices in connection with
its work to be performed under this Agreement. Consultant shall
maintain complete and accurate records with respect to the costs
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. 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.
16. REIMBURSEMENT FOR EXPENSES
Consultant shall not be reimbursed for any expenses unless
authorized in writing by City.
17. MONTHLY INVOICES
Consultant shall submit invoices to the City on a monthly
basis in accordance with Consultant's schedule of fees contained in
Exhibit "B" hereof. Each invoice will be itemized. Each invoice
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shall show the number of hours worked per person/ consultant and the
nature of the work performed.
18. PAYMENT OF COMPENSATION
City shall make payments to Consultant within thirty (30) days
of receiving a monthly invoice unless City disputes the amount
Consultant claims is owned under this Agreement.
19. WITHHOLDINGS
City may withhold payment of any disputed sums until
satisfaction of the dispute with respect to such payment. Such
withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not
discontinue its work for a period of thirty (30) days from the date
of withholding as a result of such withholding. Consultant shall
have an immediate right to appeal to the City Manager with respect
to such disputed sums. The determination of the City Manager with
respect to such matter shall be final. Consultant shall be
entitled to receive interest on any withheld sums at the rate of
seven percent (7%) per annum from the date of withholding of any
amounts found to have been improperly withheld.
20. NONDISCRIMINATION BY CONSULTANT
Consultant represents and agrees that Consultant, its
affiliates, subsidiaries or holding companies do not and will not
discriminate against any subcontractor, consultant, employee or
applicant for employment because of race, religion, color, sex,
handicap or national origin. Such nondiscrimination shall include,
but not be limited to, the following: employment, upgrading,
demotion, transfers, recruitment, recruitment advertising, layoff,
termination, rates of pay or other forms of compensation and
selection for training, including apprenticeship.
21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in
connection with this project.
22. CONFLICTS OF INTEREST
A. The Consultant or its employees may be subject to
the provisions of the California Political Reform Act of 1974 (the
"Act"), which (1) requires such persons to disclose financial
interest that may foreseeably be materially affected by the work
performed under this Agreement, and (2) prohibits such persons from
making, or participating in making, decisions that will foreseeably
financially affect such interest.
B. If subject to the Act, Consultant shall conform to
all requirements of the Act. Failure to do so constitutes a
material breach and is grounds for termination of this Agreement by
the City. The Consultant shall indemnify and hold harmless the
City for any claims for damages resulting from the Consultant's
violation of this Section.
23. SUBCONTRACTING
A. Consultant shall not subcontract any portion of the
work required by this Agreement, except as expressly stated herein,
without prior approval of City.
B. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
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24. NOTICES
All notices, demands, requests or approvals to be given under
this Agreement shall be given in writing and shall be deemed served
when delivered personally or on the second business day after the
deposit thereof in the United States mail, postage prepaid,
registered or certified, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to
City shall be addressed to City at:
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92659-1768
Attention: Kevin Murphy
All notices, demands, requests or approvals from City to
Consultant shall be addressed to Consultant at:
William R. Hansen & Associates
567 San Nicolas Drive, Suite 203
Newport Beach, CA 92660-6510
Attention: William R. Hansen
25. TERMINATION
In the event Consultant hereto fails or refuses to perform any
of the provisions hereof at the time and in the manner required
hereunder, Consultant shall be deemed in default in the performance
of this Agreement. If such default is not cured within a period of
two (2) days, or if more than two (2) days are reasonably required
to cure the default and Consultant fails to give adequate assurance
of due performance within two (2) days after receipt by Consultant
from City of written notice of default, specifying the nature of
such default and the steps necessary to cure such default, City may
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terminate the Agreement forthwith by giving to the Consultant
written notice thereof.
City shall have the option, at its sole discretion and without
cause, of terminating this Agreement by giving seven (7) days'
prior written notice to Consultant as provided herein. Upon
termination of this Agreement, each party shall pay to the other
party that portion of compensation specified in this Agreement that
is earned and unpaid prior to the effective date of termination.
26. COST OF LITIGATION
If any legal action is necessary to enforce any provision
hereof or for damages by reason for an alleged breach of any
provisions of this Agreement, the prevailing party shall be
entitled to receive from the losing party all costs and expenses
and attorneys' fees in such amount as the court may adjudge to be
reasonable.
27. COMPLIANCES
Consultant shall comply with all laws, state or federal and
all ordinances, rules and regulations enacted or issued by City.
28. WAIVER
A waiver by City of any breach of any term, covenant or
condition contained herein shall not be deemed to be a waiver of
any subsequent breach of the same or any other term, covenant or
condition contained herein whether of the same or a different
character.
29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding
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of every kind or nature whatsoever between the parties hereto and
all preliminary negotiations and agreements of whatsoever kind or
nature are merged herein. No verbal agreement or implied covenant
shall be held to vary the provisions hereof. Any modification of
this Agreement will be effective only by written execution signed
by both City and Consultant.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed on the day and year first written above.
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
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CIr ATTO EY
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CITY OF NEWPORT BEACH
A Municipal Corporation
By:
91
CONSULTANT
By:
EXHIBIT A
SCOPE OF APPRAISAL SERVICES:
1. Consultant shall perform an analysis of the existing
Balboa Bay Club lease agreement and operation, including
a review of historical contract rent and project rent
based upon continuation of current operations and prepare
an estimate of fair market rental reflecting terms and
conditions of the current lease (i.e., existing lease,
but excluding contract rent provisions).
2. Consultant shall perform a highest and best use analysis
considering property to be unencumbered by lease, highest
and best use under existing lease contract, and highest
and best use considering the proposed lease and proposed
redevelopment. The four basic components of highest and
best use to be analyzed include 1) legal permissibility
(reflecting all governmental restrictions); 2) physical
possibility; 3) financial feasibility; and 4) maximum
profitability.
3. Consultant shall estimate fair market rental value based
upon the lease agreement and proposed redevelopment plans
of the Balboa Bay Club.
4. Consultant shall prepare fair rental value estimates for
each lease and use scenario, based upon market, income,
and cost analysis or other appropriate appraisal
techniques.
5. For each estimate of fair rental value, Consultant shall
provide an estimate of fee site value based upon the
corresponding highest and best use, compute the indicated
"return" to the City and compare the returns with other
competitive projects and investment alternatives.
6. Consultant shall cooperate with other financial
consultants selected by the City to determine financial
feasibility of the proposed project and the appropriate
length of a lease extension, the terms of the lease, and
to maintain consistency between consultants in their
analyses.
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EXHIBIT B
COMPENSATION:
For appraisal services, the City agrees to pay and Consultant
agrees to accept compensation on an hourly basis according to the
following fee schedule.
William R. Hansen $150.00
Research Assistant $ 75.00
All appraisal services shall be prepared in accordance with
the Code of Professional Ethics and the standards of Professional
Appraisal Practice of the Appraisal Institute.
MAXIMUM COMPENSATION:
The total compensation of all services performed pursuant to
the Agreement shall not exceed the sum of Thirty-five Thousand
Dollars ($35,000), without prior approval of the City.
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