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HomeMy WebLinkAboutC-4374 - PSA for Appraisal of 608 E. Balboa BoulevardC PROFESSIONAL SERVICES AGREEMENT WITH RICHARD A. FULLER CONSULTING FOR APPRAISAL OF 608 E. BALBOA BOULEVARD THIS AGREEMENT is made and entered into as of this lAay of September, 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and RICHARD A FULLER CONSULTING, a , whose address is 4910 Campus Drive, Newport Beach, California, 92660 -2119 ( "Consultant "), and 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 an appraisal of the property located at 608 E. Balboa Boulevard. C. City desires to engage Consultant to conduct the above - referenced appraisal ( "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of the Project shall be Richard A. Fuller. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 on the above written date, and shall terminate on the 31st day of December 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the letter proposal attached hereto as Exhibit "A" and incorporated herein by reference. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services by October 15, 2009. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and rates in Exhibit "A ". Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Twelve Thousand and no1100 Dollars ($12,000.00) without prior written authorization from City. Consultant may be requested by City to attend meetings associated with the Services performed under this Agreement. If Consultant attends meetings at City's request, Consultant shall be compensated at the rate of Two Hundred Twenty-Five and no /100 Dollars ($225) per hour, which is in addition to the compensation limit provided in this section. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit an invoice to City describing the work performed. Consultant's bill shall include the name of the person who performed the work, a brief description of the services performed, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing K in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Richard Fuller to be its Project Manager. Consultant shall not remove or reassign the Project Manager or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Sharon Wood shall be 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. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 3 8. STANDARD OF CARE 8.1 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 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this 0 indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. 1*1 A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with 0 respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. 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. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. 7 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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 other than Consultant is waived 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. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and M accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. 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 to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant 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 as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 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 any 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. 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 immediate M 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Sharon Wood, Assistant City Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3222 Fax: 949 - 644 -3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Richard A.Fuller 4910 Campus Drive Newport Beach, CA 92660 -2119 Phone: 949 - 644 -4040 Fax: 949 - 660 -7075 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination 10 for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. 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. 29. 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 herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 11 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: 4p�� C ffc—� City Attorney for the City of Newport Beach ATTEST: By: _O��L- P. Leilani Brown, City Clerk Attachment Cyd-- Lr. top NSP k3._ CITY OF NEWPORT BEACH, A Municipal Corporation anager N for the ity of Newport Beach CONSULT Exhibit "A" — Proposal Letter 12 Ric4hrd A. Fuller, RICHARD A. FULLER. CONSULTING RICHARD A. FULLER, MAI REAL ESTATE • CONSULTATION • VALUATION MEMBER. APPRAISAL INSTITUTE MEMBER. AMERICAN RIGHT OF WAY ASSOCIATION CERTIFIED GENERAL APPRAISER Ms. Sharon Wood Assistant City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Ms. Wood: 4910 CAMPUS DRIVE NEWPORT BEACH, CALIFORNIA 92660 -2119 August 18, 2009 Exhibit A • TELEPHONE: 19491 6414000 • FACSIMILE: (9491 660 -7076 • EMAIL' RFVLLEPGFULLCON,COM RE: Appraisal of the Balboa Market 608 E. Balboa Blvd. Newport Beach, California Based upon your request on August 14, 2009, 1 am submitting this proposal for the appraisal of the above- referenced property by estimating the market value of said property, as of current date. REPORT This appraisal report will be submitted in summary form. All market data, factual data, reasoning, computations, descriptions, analyzes, photographs, and discussions, from which, in part, the valuation conclusion was derived, will be summarized within the report, with the supportive data retained in my files. INTENDED USE AND INTENDED USER It is the understanding of the appraiser that the intended user of this appraisal is the City of Newport Beach and the intended use of this appraisal is to assist the intended user in reporting the market value for valuation purposes. SCOPE OF ASSIGNMENT The scope of work for this appraisal, consistent with the intended use is set out as follows: Solving the problem by expressing an opinion of the market value , of the fee simple estate, in the subject property. 2. Developing credible assignment results by physically inspecting the subject property; completing a market study of the comparable market data; analyzing the physical characteristics of the subject property; completing a highest and best use study; comparing the market data to the subject property; employing the pertinent valuation techniques; and forming an opinion as to the market value of the fee simple estate. • FORENSIC VALUATION • EXPERT WITNESS • ESTATES AND TRUSTS • PROPERTY ACOUISITION • LITIGATION SUPPORT • EMINENT DOMAIN • ARBITRATION • PROPERTY DISPOSITION Ms. Sharon Wood City of Newport Beach August 18, 2009 Page Two FEE The fee for this assignment will be based on the appraisers hourly rate of $225. It is estimated that 40 - 50 hours will be required to complete this assignment. Meetings, conferences and changes, as required by the client, will be billed at an hourly rate of $225 /hour. Testimony, if required, will be billed at an hourly rate of $375 for Mr. Fuller's time. In addition to the fee for this assignment, you agree to the reimbursement of out -of- pocket costs including, but not limited to, necessary and mutually- agreed overnight lodging and related meals, overnight mail, messengers, photocopying and secretarial assistance, environmental hazard reports, aerial photographs, preliminary title reports and market data services. This fee will include two copies of the appraisal report. Additional copies will be provided at a cost of $200 per report. This proposal assumes that written authorization to proceed will be received by August 26, 2009. ASSUMPTION AND LIMITING CONDITIONS The preparation of this appraisal report may include the following assumptions and limiting conditions: 1) That I assume no responsibility for matters legal in character, nor do I render any opinion as to the title which is assumed to be good. All existing liens, and encumbrances, securing payment of money, have been disregarded, and the property is appraised as though free and clear under responsible ownership and competent management. 2) That information obtained for use in this appraisal is believed to be true and correct to the best of my ability. However, no responsibility is assumed for errors or omissions, or for information not disclosed which might otherwise affect the valuation estimate. 3) That disclosure of the contents of this appraisal report is governed by the Code of Professional Ethics and the Standards of Professional Practice of the Appraisal Institute and the Uniform Standards of Professional Appraisal Practice (USPAP). 4) That, neither all, nor any part, of the contents of this report (especially any conclusions as to the value, the identity of the appraiser, or the firm with which he is connected, or any reference to the Appraisal Institute, or the MAI designation) shall be disseminated to the public through advertising media, public relations, news media, sales media, or any other public means of communication without prior written consent and approval of the undersigned. 5) That engineering, architectural, and title company services, if required, will be the responsibility of the client. Ms. Sharon Wood City of Newport Beach August 18, 2009 Page Three 6) That the interest to be appraised is fee simple estate 7) That unless otherwise stated in this report, the existence of hazardous substances, including without limitation, asbestos, urea formaldehyde, foam insulation, polychlorinated biphenyls, petroleum leakage, or agricultural chemicals, which may or may not be present on the property, or other environmental conditions, were notcalled to the attention of nor did the appraiser become aware of such during the appraiser's inspection. The value estimated is predicated on the assumption that there is no such condition on or in the property or in such proximity thereto that it would cause a loss in value. No responsibility is assumed for any such conditions, nor for any expertise or engineering knowledge required to discover them. 8) That all maps and exhibits included within this report are for illustration purposes only and are set out to assist the reader in visualizing the property. However, no survey of the subject site has been made and no liability is assumed in connection with such matters. 9) That the appraiser assumes no responsibility for hidden or unapparent conditions of the property that may render it more or less valuable, or for arranging for engineering studies that may be required to discover them, or for the payment of ordered studies. 10) That if the client has any question regarding the property's conformity to specific governmental requirements, such as fire, building and safety, earthquake or occupancy codes, it is the client's responsibility to arrange for and to pay for specific professional or governmental inspections. 11) That the property is appraised assuming all required licenses, certificates of occupancy, consents, or other legislative or administrative authority from any local, state or federal government or private entity or organization have been or can be obtained or renewed for any use that the value estimate contained in this report is based, unless otherwise stated. 12) That, although the structure was inspected, and no evidence of termites, dry rot, wet rot, or other infestations were observed, no guarantee of same is implied here and this appraisal is subject to an inspection by a licensed pest control inspector. 13) That, as no hydrology studies were available for review, it is assumed that any drainage sheet flow through the subject property would be contained and the property under appraisement would not be subject to inundation. The value conclusion is subject to review by a qualified civil engineer. 14) That any future development of the subject site would be supportable from a detailed engineering report. This study would include an analysis of soils, boundaries, engineering, topography, utilities, grading hydrology, and other factors necessary for the development of the property. Ms. Sharon Wood City of Newport Beach' August 18, 2009 Page Four 15) That a legal description and a current title report will be available for review. If said title report is not available, the property will be appraised as if unencumbered by easements or other conditions of the title, which would restrict the use of the subject property, in accordance with its highest and best use. The value conclusion is subject to review of an independent title report, which reflects the conditions of title, as of the date of value. 16) That, as no soil tests were available to this appraiser, subsoil conditions are considered favorable for development, but no guarantee of same is implied here. The value conclusion is subject to final review by an independent soil engineer. 17) That no warranty is made as to the seismic stability of the subject property. The valuation is subject to final review by an independent seismic engineer. 18) That this valuation estimate is of surface rights only, and the valuation of mineral rights, if any, has been disregarded. 19) That no valuation will be made of furniture or other personal property which existed within the subject property, as of the date of value. 20) That, while it is presumptive to predict what local planning agencies, city councils, and other governmental agencies will and will not approve, it is assumed that the subject site could be developed in accordance with its highest and best use. 21) That this appraisal will not be utilized in making a lending decision in a federally related transaction. TERMS That al is due apprais�s) gre� shall bear arge of on one -half p en /o oft total DNQQcep 2) pp6nie ed fo ore t in 0) days. Ind vent that anot paid when the client s all expe s of c not limitedtwO*`cour_t"c* IqWfees and a s' fees. o That the appraiser, by reason of this appraisal, is not required to give testimony, in any proceeding, or attendance in court, with reference to the property appraised, unless arrangements have been previously made. That the submission of this report constitutes completion of the services authorized. It is submitted upon the condition that the client will provide, in advance, the appraiser's customary compensation relating to any subsequent depositions, conferences, changes, additional preparation, review, travel or testimony. Ms. Sharon Wood City of Newport Beach August 18, 2009 Page Five 4) That, by specific instructions of the client, this report will not be prepared for litigation purposes. If this matter is adjudicated in any manner, the appraiser reserves the right to prepare a comprehensive narrative report, at an additional fee, and to further review and verify the data upon which the estimate of value is based. 5) Further, there is no accountability, obligation or liability to any third party. If this appraisal report is placed in the hands of anyone other than the client, the client shall make such party and /or parties aware of all limiting conditions and assumptions of the assignment and related discussions. Third parties are hereby notified that reliance upon this appraisal report by any third party in any manner constitutes a waiver of the authority, dictates and provisions of Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 52 Cal. Rptr.2d 635. Notwithstanding the holding and rationale of said case, any third party who relies upon this appraisal report does so at his, her, or its own risk. 7) That the appraiser is not a necessary party in any inquiry orjudicial proceedings. He will not be called upon to testify in any litigation or other proceeding arising out of his duties in this matter. nqgq'fA aQ ng 94 r 8) That this report will not be prepared for condemnation purposes and, as such, notification of the property owner, by the appraiser, will not be required. If these terms a acceptable, yo ay authorize me to proceed by returning the signed copy of this proposal. I ok forward to being service to you and the City of Newport Beach on this appraisal assign nt. 'ully submitted, Richa A. Fuller, MAI d General eal Estate Appraiser License Nurfiber AG003210 li?:1a171 APPROVED: Date: Responsible Party