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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. -1- 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 -2- 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. -3- 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 -4- 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 -5- 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. -7- 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 -8- 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 cm 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: �L -#ji'UM114 CIr ATTO EY wb/agr/hansen.agt -10- 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. -11- 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. ub\agr\hansen.agt -12-