HomeMy WebLinkAboutC-3388 - Appraisal of Harbor Uses - PSAPROFESSIONAL SERVICES AGREEMENT
FOR APPRAISAL OF COMMERCIAL HARBOR USES
BY GEORGE HAMILTON JONES, INC.
THIS AGREEMENT, entered into this —61 day of N , ;. , 2000, by and
between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as
"City "), and George Hamilton Jones, Inc., whose address is 717 Lido Park Drive, Newport
Beach, California, 92663, (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 City.
B. City desires to engage Consultant to prepare an appraisal of commercial
harbor uses for the purposes of establishing an annual permit fee or lease
fee, upon the terms and conditions contained in this Agreement.
C. The principal members of Consultant for purpose of Project are George
Hamilton Jones, Kent Harvey, Stuart Du Vale, and Casey Jones.
D. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to contract with Consultant under the terms and conditions provided
in this Agreement.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the 15th day of November, 2000,
and shall terminate on the 15th day of March, 2001, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the duties set forth in the scope of services,
attached hereto as Exhibit "A" and incorporated herein by reference.
3. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of this
Section and the scheduled billing rates set forth in Exhibit "B" attached hereto and
incorporated herein by reference. No rate changes shall be made during the term of this
Agreement without prior written approval of City. Consultant's compensation for all work
performed in accordance with this Agreement shall not exceed the total contract price of
fifty -five thousand and 00/100 Dollars ($55,000).
3.1 Consultant shall maintain accounting records of its billings which includes
the name of the employee, type of work performed, times and dates of all work which is
billed on an hourly basis and all approved incidental expenses including reproductions,
computer printing, postage and mileage.
3.2 Consultant shall submit monthly invoices to City payable by City within thirty
(30) days of receipt of invoice subject to the approval of City.
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3.3 Consultant shall not receive any compensation for extra work without prior
written authorization of City. Any authorized compensation shall be paid in accordance with
the schedule of the billing rates as set forth in Exhibit "B ".
3.4 City shall reimburse Consultant only for those costs or expenses which have
been specifically approved in this Agreement, or specifically approved in advance by City.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement and that it will
perform all services in a manner commensurate with the community professional
standards. All services shall be performed by qualified and experienced personnel who are
not employed by City nor have any contractual relationship with City. Consultant
represents and warrants to City that it has or shall obtain all licenses, permits, qualifications
and approvals required of its profession. Consultant further represents and warrants that it
shall keep in effect all such licenses, permits and other approvals during the term of this
Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's work promptly, or delay or faulty performance by City,
contractors, or governmental agencies, or any other delays beyond Consultant's control or
without Consultant's fault.
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5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be deemed to
constitute Consultant or any of Consultant's employees or agents to be the agents or
employees of City. Consultant shall have the responsibility for and control over the details
in means of performing the work provided that Consultant is in compliance with the terms of
this Agreement. Anything in this Agreement which may appear to give City the right to
direct Consultant as to the details of the performance of the services or to exercise a
measure of control over Consultant shall mean that Consultant shall follow the desires of
City only in the results of the services.
6. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies which may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with Consultant on Project.
7. PROJECT MANAGER
Consultant shall assign Project to a Project Manager, who shall coordinate all
phases of Project. This Project Manager shall be available to City at all reasonable times
during term of Project. Consultant has designated George Jones to be its Project
Manager.
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8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement
and the services shall be completed by Consultant in 120 days from the date this
agreement is signed by Consultant.
8.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's
control.
8.2 For all time periods not specifically set forth herein, Consultant shall respond
in the most expedient and appropriate manner under the circumstances by telephone, fax,
hand delivery or mail.
9. CITY POLICY
Consultant will discuss and review all matters relating to policy and project direction
with the Project Administrator in advance of all critical decision points in order to ensure that
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City Council.
11. PROGRESS
Consultant is responsible to keep the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of the
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work, activities performed and planned, and any meetings that have been scheduled or are
desired.
12. HOLD HARMLESS
Consultant shall 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, allegations of liability, suits, costs and expenses for damages of
any nature whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damages, or any other claims arising from any and all negligent acts or omissions
of Consultant, its employees, agents or subcontractors in the performance of services or
work conducted or performed pursuant to this Agreement, excepting only the active
negligence or willful misconduct of City, its officers or employees, and shall include
attorneys' fees and all other costs incurred in defending any such claim. Nothing in this
indemnity shall be construed as authorizing, any award of attorneys' fees in any action on
or to enforce the terms of this Agreement.
13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain and provide and maintain at its own expense during the term
of this Agreement policy or policies of liability insurance of the type and amounts described
below and satisfactory to City. Certification of all required policies shall be signed by a
person authorized by that insurer to bind coverage on its behalf and must be filed with City
prior to exercising any right or performing any work pursuant to this Agreement. Except
workers compensation and errors and omissions, all insurance policies shall add City, its
elected officials, officers, agents, representatives and employees as additional insured for
all liability arising from Consultant's services as described herein.
Insurance policies with original endorsements indemnifying Project for the following
coverages shall be issued by companies admitted to do business in the State of California
and assigned Best's A- VII or better rating:
A. Worker's compensation insurance covering all employees and principals of
Consultant, per the laws of the State of California.
B. Commercial general liability insurance covering third party liability risks,
including without limitation, contractual liability, in a minimum amount of $1
million combined single limit per occurrence for bodily injury, personal injury
and property damage. If commercial general liability insurance or other
form with a general aggregate is used, either the general aggregate shall
apply separately to this Project, or the general aggregate limit shall be twice
the occurrence limit.
C. Commercial auto liability and property insurance covering any owned and
rented vehicles of Consultant in a minimum amount of $1 million combined
single limit per accident for bodily injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty (30) days' prior notice has been given in writing
to City. Consultant shall give City prompt and timely notice of claim made or suit instituted
arising out of Consultant's operation hereunder. 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 work.
Consultant agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance, that
Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City,
on behalf of any insurer providing comprehensive general and automotive liability insurance
to either Consultant or City with respect to the services of Consultant herein, a waiver of
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any right of subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or
any of the services to be performed under this Agreement, directly or indirectly, by
operation of law or otherwise without prior written consent of City. Any attempt to do so
without consent of City shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or
syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. Control means fifty percent (50 %) or more
of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation,
partnership or joint-venture.
15. OWNERSHIP OF DOCUMENTS
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.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by City
or others on any other project. Any use of completed documents for other projects and any
use of incomplete documents without specific written authorization from Consultant will be
at City's sole risk and without liability to Consultant. Further, any and all liability arising out
of changes made to Consultant's deliverables under this Agreement by City or persons
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other than Consultant is waived as against Consultant and City assumes full responsibility
for such changes unless City has given Consultant prior notice and has received from
Consultant written consent for such changes.
Consultant shall, at such time and in such forms as City may require, furnish reports
concerning the status of services required under this Agreement.
16. CONFIDENTIALITY
The information, which results from the services in this Agreement, is to be kept
confidential unless the release of information is authorized by City.
17. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of his responsibilities under this
Agreement, City agrees to provide the following:
A. City will provide access to and upon request of Consultant, provide one
copy of all existing record information on file at City. Consultant shall be
entitled to rely upon the accuracy of data information provided by City or
others without independent review or evaluation. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's work
schedule.
18. ADMINISTRATION
This Agreement will be administered by the Harbor Resources Division. Tony
Melum shall be considered the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or his /her authorized representative
shall represent City in all matters pertaining to the services to be rendered pursuant to this
Agreement.
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19. RECORDS
Consultant shall keep records and invoices in connection with the 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.
20. 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 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 or his designee
with respect to such disputed sums. 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.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than would have resulted
if there were not errors or omissions in the work accomplished by Consultant, the additional
design, construction and /or a restoration expense shall be borne by Consultant. Nothing in
this paragraph is intended to limit City's rights under any other sections of this Agreement.
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22. CONFLICTS OF INTEREST
A. 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 City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation
of this Section.
23. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior
written approval of City.
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All notices, demands, requests or approvals to be given under this Agreement shall
be given in writing and conclusively shall be deemed served when delivered personally or
on the third business day after the deposit thereof in the United States mail, postage
prepaid, first class mail, addressed as hereinafter provided.
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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, 92658 -8915
(949) 644 -3041
Fax (949) 673 -3056
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention:
George Hamilton Jones, Inc.
717 Lido Park Drive
Newport Beach, CA 92663
(949)
25. TERMINATION
In the event either part hereto fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, that party 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
the defaulting party fails to give adequate assurance of due performance within two (2)
days after receipt by defaulting party from the other party of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, the
nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party
written notice thereof.
25.1 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, City shall pay to Consultant that
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portion of compensation specified in this Agreement that is earned and unpaid prior to the
effective date of termination.
26. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
27. WAIVER
A waiver by either parry 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.
28. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding 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 hereon. Any modification of this
Agreement will be effective only by written execution signed by both City and Consultant.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year first written above.
APPROVED AS TO FORM:
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By:
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By: dhlv�
Mayor
City of Newport dach
GEORGE HAMILTON JONES, INC.
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EXHIBIT A
SCOPE OF WORK
The scope of Work reflecting this Appraisal shall include:
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1) Asset Classification. Develop or group harbor uses in Attachment A into asset classes.
2) Valuation of Classifications. The consultant shall appraise each asset class for the
purpose of establishing the fair market rent for an annual permit fee for use and
occupancy of the asset. In addition, the consultant shall analyze factors which would
influence the rental rate if the asset were leased for a term of 20 to 25 years, and
estimate fair market rent of a hypothetical asset under lease for a marina having
more than 30 slips. In conducting this appraisal, the consultant shall consider and
include the following factors:
• The consultant's prior appraisal experience;
• Values and /or rates charged within other comparable harbors (assuming this factor
is used, the consultant shall include an explanatory exhibit showing such rates and
values),
• Availability and ownership of upland amenities — such as parking, other on -shore
facilities, and more — that contribute to or affect the value of the tidelands properties;
• Any other factors identified by the consultant as unique to Newport Harbor; and
• Application of all appropriate appraisal methods and techniques.
3) Appraisal Report. The Appraisal Report shall be concise, descriptive (using examples
where appropriate), and suitable for formal presentation to the City Council of the City
of Newport Beach. This Report shall be addressed to the City Manager, and shall
include ten copies.
4) Council Meeting Attendance. As needed, the consultant shall be available to attend
any City Council meeting where the consultant's Appraisal Report is discussed. During
these meetings, the consultant may be asked to answer questions about the
Consultant's work and /or present the Report itself.
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EXHIBIT B
FEES
We have analyzed the scope of work involved in this assignment to make a judgement
of time required of each phase. From this time estimate, we have applied our
established fee schedule to obtain an indication of the probable total bill for services
rendered.
As we do in most of our assignment involving more complex properties, we would be
willing to establish a "not to exceed" figure and report our charges on a monthly basis.
Billing would be based upon the following established rates:
George H. Jones, MAI $200 per hour
Kent Harvey, MAI $140 per hour
Stuart Du Vall, MAI $130 per hour
Casey Jones, Researcher $ 90 per hour
Our calculations indicate a total "not to exceed" fee of $55,000. We expect to complete
the work in 120 days. At this time we do not expect any "extras" or "add -ons ". We
would appreciate payment of the monthly billing within 30 days after submission. No
retainer would be necessary.
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NEWPORT BEACH CITY COUNCILal\'
November 14, 2000 Regular Meeting
TO: Members of the Newport Beach City Council
FROM: Tony Melum, Division of Harbor Resources
SUBJECT: Professional Services Agreement
with George Hamilton Jones, Inc.
Recommendation:
ITEM i i
C'
gzcc
APPROVLD
Approve a professional service agreement with George Hamilton Jones, Inc. of
Newport Beach, California, for $55,0000.00.
Discussion:
During 1999, the City Council had several discussions about the administration
of the City's tidelands (submerged and tidal lands in and around Newport Bay
and the Pacific Ocean). "Tidelands' refers to land owned by the State of
California but administered by the City pursuant to various legislative grants.
About 1,168 acres of the City's 10,700 acres are tidelands (roughly 10 %).
Tidelands are those lands that, on the date of California's admission to the
United States, were below the line of mean high tide, subject to changes due to
natural processes.
Tidelands are subject to a public trust for navigation, commerce and fishing.
Beginning in 1919, the State granted certain tidelands to the City (tideland
grants). The tideland grants covered only tidelands within our corporate limits
so City tidelands are, with few exceptions, limited to Lower Newport Bay. The
tideland boundaries in Lower Newport Bay were, for the most part, established
by judgments issued in a number of Superior Court lawsuits filed in the late
1920s and early 1930s.
Tidelands may be used for any purposes consistent with the trust. In some cases,
such as portions of Beacon Bay and the Balboa Bay Club property, the
Legislature has removed trust restrictions subject to certain conditions including
a requirement that revenue generated by the property be used for tideland
purposes. Some of the permitted uses are described in the most comprehensive
legislative grant commonly known as "the Beacon Bay Bill."
Newport Beach City Council
•
In March of 1999, the City Council heard an hour -long staff presentation on
several issues relating to the City's administration of tidelands. These issues
included:
1- Administration - is the City's use of the tidelands grant consistent with
the "general statewide interest" of the trust?
2 - Equity - has the City set up a payment system that is equitable for
specific classes of tidelands users, like mooring permittees, those entities
on full tidelands leases, and commercial and residential harbor
permittees?
3 - Monitoring - does the City appropriately monitor its tidelands permits
and leases to ensure that permittees and lessees are complying with the
permit and lease requirements?
4 -- Current Cost Recapture - is the City appropriately recapturing its costs
relating to current tidelands activities?
5 -- Future Cost Recapture - what future costs should the City recapture
through permits and leases?
The Council directed staff to begin work on Issue 2 - Equity - by preparing a
"Request for Proposals" (RFP) for a Comprehensive Tidelands Appraisal that
would classify and assign a market rental rate to the various tidelands uses. The
scope of the initial comprehensive appraisal included an analysis of the fair
market value of:
• Public and private marinas that lease slip spaces to tenants.
• Marinas that rent space to commercial harbor operations.
• Piers that abut residences.
• Commercial boat service operations, including gas docks, boat repair
facilities, and boat retail operations.
• Boat moorings, including shore moorings and offshore moorings.
After issuing an RFP that asked for this comprehensive appraisal of each of the
above uses, cost considerations required us to pare down the Scope of Work to
just focus on the fair market value of the City's nearly 70 commercial harbor uses
that today are regulated under the City's Harbor Permit process (outlined in
Council Policy H -1). At the City Council's October 10, 2000 meeting, the Council
approved staff's selection of George H. Jones, Inc., for this commercial harbor use
appraisal. The October 10, 2000 Agenda Item directed staff to prepare a
Professional Services Agreement with Jones to complete the work. This Item
Newport Beach City Council
f
! •
. authorizes the Mayor to approve the Professional Services Agreement with Jones
in the amount of $55,000.
Parties to the Agreement = City of Newport Beach and George H. Jones, Inc.
Scope of Work = The fair market valuation and classification of the up to 70
commercial harbor uses in Newport Harbor that today are under the Harbor
Permit system.
Term = About 120 days
Start Date = Immediately
Cost - $55,000
Funds for this project are available in the following account:
Harbor Resources, Tidelands - Services, Professional and Technical
Account Number 2371 -8080, Amount $55,000.00
Attachment - Professional Services Agreement
Exhibit A - Scope of Services
• Exhibit B - Fees for Services
Newport Beach City Council
0 0
PROFESSIONAL SERVICES AGREEMENT
FOR APPRAISAL OF COMMERCIAL HARBOR USES
BY GEORGE HAMILTON JONES, INC.
THIS AGREEMENT, entered into this day of , 2000, by and
between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as
"City"), and George Hamilton Jones, Inc., whose address is 717 Lido Park Drive, Newport
Beach, California, 92663, (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 City.
B. City desires to engage Consultant to prepare an appraisal of commercial
harbor uses for the purposes of establishing an annual permit fee or lease
fee, upon the terms and conditions contained in this Agreement.
C. The principal members of Consultant for purpose of Project are George
Hamilton Jones, Kent Harvey, Stuart Du Vale, and Casey Jones.
D. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and
desires to contract with Consultant under the terms and conditions provided
in this Agreement.
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the 15th day of November, 2000,
and shall terminate on the 15th day of March, 2001, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the duties set forth in the scope of services,
attached hereto as Exhibit "A" and incorporated herein by reference.
3. COMPENSATION TO CONSULTANT
. City shall pay Consultant for the services in accordance with the provisions of this
•
Section and the scheduled billing rates set forth in Exhibit "B" attached hereto and
incorporated herein by reference. No rate changes shall be made during the term of this
Agreement without prior written approval of City. Consultant's compensation for all work
performed in accordance with this Agreement shall not exceed the total contract price of
fifty -five thousand and 00 /100 Dollars ($55,000).
3.1 Consultant shall maintain accounting records of its billings which includes
the name of the employee, type of work performed, times and dates of all work which is
billed on an hourly basis and all approved incidental expenses including reproductions,
computer printing, postage and mileage.
3.2 Consultant shall submit monthly invoices to City payable by City within thirty
(30) days of receipt of invoice subject to the approval of City.
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3.3 Consultant shall not receive any compensation for extra work without prior •
written authorization of City. Any authorized compensation shall be paid in accordance with
the schedule of the billing rates as set forth in Exhibit "B ".
3.4 City shall reimburse Consultant only for those costs or expenses which have
been specifically approved in this Agreement, or specifically approved in advance by City.
4. STANDARD OF CARE
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the services required by this Agreement and that it will
perform all services in a manner commensurate with the community professional
standards. All services shall be performed by qualified and experienced personnel who are
not employed by City nor have any contractual relationship with City. Consultant •
represents and warrants to City that it has or shall obtain all licenses, permits, qualifications.
and approvals required of its profession. Consultant further represents and warrants that it
shall keep in effect all such licenses, permits and other approvals during the term of this
Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's work promptly, or delay or faulty performance by City,
contractors, or governmental agencies, or any other delays beyond Consultant's control or
without Consultant's fault.
IXE
0
5. INDEPENDENT PARTIES
0
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the
expressed terms of this Agreement. Nothing in this Agreement shall be deemed to
constitute Consultant or any of Consultant's employees or agents to be the agents or
employees of City. Consultant shall have the responsibility for and control over the details
in means of performing the work provided that Consultant is in compliance with the terms of
this Agreement. Anything in this Agreement which may appear to give City the right to
direct Consultant as to the details of the performance of the services or to exercise a
. measure of control over Consultant shall mean that Consultant shall follow the desires of
City only in the results of the services.
6. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies which may have jurisdiction or interest in the work to
be performed. City agrees to cooperate with Consultant on Project.
7. PROJECT MANAGER
Consultant shall assign Project to a Project Manager, who shall coordinate all
phases of Project. This Project Manager shall be available to City at all reasonable times
during term of Project. Consultant has designated George Jones to be its Project
Manager.
WT
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8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement
and the services shall be completed by Consultant in 120 days from the date this
agreement is signed by Consultant.
8.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's
control.
8.2 For all time periods not specifically set forth herein, Consultant shall respond
in the most expedient and appropriate manner under the circumstances by telephone, fax,
hand delivery or mail.
9. CITY POLICY
Consultant will discuss and review all matters relating to policy and project direction
with the Project Administrator in advance of all critical decision points in order to ensure that
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City Council.
11. PROGRESS
Consultant is responsible to keep the Project Administrator and /or his/her duly
authorized designee informed on a regular basis regarding the status and progress of the
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0 work, activities performed and planned, and any meetings that have been scheduled or are
desired.
12. HOLD HARMLESS
Consultant shall 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, allegations of liability, suits, costs and expenses for damages of
any nature whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damages, or any other claims arising from any and all negligent acts or omissions
of Consultant, its employees, agents or subcontractors in the performance of services or
work conducted or performed pursuant to this Agreement, excepting only the active
negligence or willful misconduct of City, its officers or employees, and shall include
. attorneys' fees and all other costs incurred in defending any such claim. Nothing in this
indemnity shall be construed as authorizing, any award of attorneys' fees in any action on
or to enforce the terms of this Agreement.
13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain and provide and maintain at its own expense during the term
of this Agreement policy or policies of liability insurance of the type and amounts described
below and satisfactory to City. Certification of all required policies shall be signed by a
person authorized by that insurer to bind coverage on its behalf and must be filed with City
prior to exercising any right or performing any work pursuant to this Agreement. Except
workers compensation and errors and omissions, all insurance policies shall add City, its
• elected officials, officers, agents, representatives and employees as additional insured for
all liability arising from Consultant's services as described herein.
Q:2
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Insurance policies with original endorsements indemnifying Project for the following 0
coverages shall be issued by companies admitted to do business in the State of California
and assigned Best's A- VII or better rating:
A. Workers compensation insurance covering all employees and principals of
Consultant, per the laws of the State of California.
B. Commercial general liability insurance covering third party liability risks,
including without limitation, contractual liability, in a minimum amount of $1
million combined single limit per occurrence for bodily injury, personal injury
and property damage. If commercial general liability insurance or other
form with a general aggregate is used, either the general aggregate shall
apply separately to this Project, or the general aggregate limit shall be twice
the occurrence limit.
C. Commercial auto liability and property insurance covering any owned and
rented vehicles of Consultant in a minimum amount of $1 million combined
single limit per accident for bodily injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty (30) days' prior notice has been given in writing
to City. Consultant shall give City prompt and timely notice of claim made or suit instituted
arising out of Consultant's operation hereunder. 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 work.
Consultant agrees that in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general and automotive liability insurance, that
Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City,
on behalf of any insurer providing comprehensive general and automotive liability insurance 10
to either Consultant or City with respect to the services of Consultant herein, a waiver of
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0 any right of subrogation which any such insurer of said Consultant may acquire against City
by virtue of the payment of any loss under such insurance.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or
any of the services to be performed under this Agreement, directly or indirectly, by
operation of law or otherwise without prior written consent of City. Any attempt to do so
without consent of City shall be null and void.
The sale, assignment, transfer or other disposition of any of the issued and
outstanding capital stock of Consultant, or of the interest of any general partner or joint
venturer or syndicate member or co-tenant if Consultant is a partnership or joint- venture or
syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be
construed as an assignment of this Agreement. Control means fifty percent (50 %) or more
of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation,
partnership or joint-venture.
15. OWNERSHIP OF DOCUMENTS
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.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by City
or others on any other project. Any use of completed documents for other projects and any
use of incomplete documents without specific written authorization from Consultant will be
at City's sole risk and without liability to Consultant. Further, any and all liability arising out
of changes made to Consultant's deliverables under this Agreement by City or persons
[a
0
other than Consultant is waived as against Consultant and City assumes full responsibility
for such changes unless City has given Consultant prior notice and has received from
Consultant written consent for such changes.
Consultant shall, at such time and in such forms as City may require, furnish reports
concerning the status of services required under this Agreement.
16. CONFIDENTIALITY
The information, which results from the services in this Agreement, is to be kept
confidential unless the release of information is authorized by City.
17. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of his responsibilities under this
Agreement, City agrees to provide the following: 0
A. City will provide access to and upon request of Consultant, provide one
copy of all existing record information on file at City. Consultant shall be
entitled to rely upon the accuracy of data information provided by City or
others without independent review or evaluation. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's work
schedule.
18. ADMINISTRATION
This Agreement will be administered by the Harbor Resources Division. Tony
Melum shall be considered the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or his /her authorized representative
shall represent City in all matters pertaining to the services to be rendered pursuant to this
Agreement.
93
• •
0 19. RECORDS
Consultant shall keep records and invoices in connection with the 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.
20. 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 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 or his designee
with respect to such disputed sums. 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.
21. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than would have resulted
if there were not errors or omissions in the work accomplished by Consultant, the additional
design, construction and /or a restoration expense shall be borne by Consultant. Nothing in
this paragraph is intended to limit City's rights under any other sections of this Agreement.
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22. CONFLICTS OF INTEREST
u
A. 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 City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation
of this Section.
•
23. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior
written approval of City.
24. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall
be given in writing and conclusively shall be deemed served when delivered personally or
on the third business day after the deposit thereof in the United States mail, postage
prepaid, first class mail, addressed as hereinafter provided.
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• 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, 92658 -8915
(949) 644 -3041
Fax (949) 673 -3056
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention:
George Hamilton Jones, Inc.
717 Lido Park Drive
Newport Beach, CA 92663
(949)
. 25. TERMINATION
In the event either part hereto fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, that party 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
the defaulting party fails to give adequate assurance of due performance within two (2)
days after receipt by defaulting party from the other party of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, the
nondefaulting parry may terminate the Agreement forthwith by giving to the defaulting party
written notice thereof.
25.1 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, City shall pay to Consultant that
Sf'la
0
portion of compensation specified in this Agreement that is earned and unpaid prior to the •
effective date of termination.
26. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
27. WAIVER
A waiver by either party 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.
28. INTEGRATED CONTRACT
E
This Agreement represents the full and complete understanding 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 hereon. Any modification of this
Agreement will be effective only by written execution signed by both City and Consultant.
•
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E
9 0
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the day and year first written above.
APPROVED AS TO FORM:
By: L,r
Robin Clauson
Assistant City Attorney
ATTEST:
LaVonne Harkless
City Clerk
CITY OF NEWPORT BEACH
A Municipal Corporation
By:
Mayor
City of Newport Beach
GEORGE HAMILTON JONES, INC.
0
f: \users \hbr\shared \contracts \george hamilton jones, inc..doc
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EXHIBIT A
SCOPE OF WORK
The scope of Work reflecting this Appraisal shall include:
1) Asset Classification. Develop or group harbor uses in Attachment A into asset classes.
2) Valuation of Classifications. The consultant shall appraise each asset class for the
purpose of establishing the fair market value for an annual fee or rent to lease the
asset for 20 to 25 years. In conducting this appraisal, the consultant shall consider
and include the following factors;
• The consultant's prior appraisal experience;
• Values and /or rates charged within other comparable harbors (assuming this factor
is used, the consultant shall include an explanatory exhibit showing such rates and
values),
• Availability and ownership of upland amenities — such as parking, other on -shore
facilities, and more — that contribute to or affect the value of the tidelands properties;
• Any other factors identified by the consultant as unique to Newport Harbor; and
• Application of all appropriate appraisal methods and techniques.
3) Appraisal Report. The Appraisal Report shall be concise, descriptive (using examples
where appropriate), and suitable for formal presentation to the City Council of the City
of Newport Beach. This Report shall be addressed to the City Manager, and shall
include ten copies.
4) Council Meeting Attendance. As needed, the consultant shall be available to attend
any City Council meeting where the consultant's Appraisal Report is discussed. During
these meetings, the consultant may be asked to answer questions about the
Consultant's work and /or present the Report itself.
•
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• •
EXHIBIT B
FEES
We have analyzed the scope of work involved in this assignment to make a judgement
of time required of each phase. From this time estimate, we have applied our
established fee schedule to obtain an indication of the probable total bill for services
rendered.
As we do in most of our assignment involving more complex properties, we would be
willing to establish a "not to exceed" figure and report our charges on a monthly basis.
Billing would be based upon the following established rates:
George H. Jones, MAI $200 per hour
Kent Harvey, MAI $140 per hour
Stuart Du Vall, MAI $130 per hour
Casey Jones, Researcher $ 90 per hour
Our calculations indicate a total "not to exceed" fee of $55,000. We expect to complete
the work in 120 days. At this time we do not expect any "extras" or "add -ons ". We
would appreciate payment of the monthly billing within 30 days after submission. No
retainer would be necessary.
0
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