HomeMy WebLinkAboutC-5161 - PSA for Commercial Tidelands AppraisalsII PROFESSIONAL SERVICES AGREEMENT WITH
RASMUSON APPRAISAL SERVICES
FOR COMMERCIAL TIDELANDS APPRAISALS
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of June, 2012 by and between the CITY OF
{lam NEWPORT BEACH, a California Municipal Corporation ( "City "), and Gary and Wendy
Rasmuson doing business as ( "DBA ") RASMUSON APPRAISAL SERVICES
( "Consultant'), whose address is 14665 Yukon Street, San Diego, CA 92129 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 to engage Consultant to conduct an appraisal of Commercial
Tidelands in Newport Harbor, Newport Beach, California ('Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. The principal member of Consultant for purposes of Project shall be Gary
Rasmuson, MAI, SRA.
E. 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 November 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Scope of Services and Schedule of Billing Rates attached hereto as
Exhibit A and incorporated herein by reference ( "Work" or "Services "). The City may
elect to delete certain tasks of the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 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.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) 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.
3.3 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
4.1 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 the Scope of
Services and Schedule of Billing Rates attached hereto as Exhibit A. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Seventy Five Thousand
Dollars and no /100 ($75,000.00) without prior written authorization from City. No
billing rate changes shall be made during the term of this Agreement without the prior
written approval of City.
4.2 Consultant shall submit invoices to City upon completion of each phase of
Work. The invoices shall describing the Work performed during the previous phase,
the name(s) of the person(s) who performed the Work, a brief description of the
Services performed and /or the specific task in the Scope of Services to which it relates,
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 invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing in advance
by City. Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
4.3.1 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.
RASMUSON APPRAISAL SERVICES Page 2
4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 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 Gary Rasmuson to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A 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.
5.2 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. Rob Houston, the
Assistant to the City Manager or his designee, shall be the Project Administrator and
shall have the authority to act for City under this Agreement. The Project Administrator
or his authorized representative shall represent City in all matters pertaining to the
Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
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
RASMUSON APPRAISAL SERVICES Page 3
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
9.1 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, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
9.2 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
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.
RASMUSON APPRAISAL SERVICES Page 4
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
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this Agreement. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
14.2.1 Consultant shall procure and maintain for the duration of the
Agreement insurance against claims for injuries to persons or damages to property,
which may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subcontractors. The cost of such
insurance shall be included in Consultant's bid.
14.3 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.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subcontractor's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 Consultant shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
14.5 General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
14.6 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 accident.
14.7 Professional Liability (Errors & Omissions) Coveraqe. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
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14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subcontractors.
14.8.1.2 Enforcement of Agreement Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.8.1.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
14.10 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.
RASMUSON APPRAISAL SERVICES Page 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
17.1 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.
17.2 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. COMPUTER DELIVERABLES
All written documents shall be transmitted to City in the City's latest adopted version of
Microsoft Word and Excel.
19. 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.
20. 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.
21. 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 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.
22. 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.
23. 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.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 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.
25.2 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
termination of this Agreement by City. Consultant shall indemnify and hold harmless
RASMUSON APPRAISAL SERVICES Page 9
City for any and all claims for damages resulting from Consultant's violation of this
Section.
26. NOTICES
26.1 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: Rob Houston
City Manager's Office
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3001
26.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Gary Rasmuson
RASMUSON APPRAISAL SERVICES
14665 Yukon Street
San Diego, CA 92129
Phone: (858) 672 -1796
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, the Consultant shall be required to file any
claim the Consultant may have against the City in strict conformance with the Tort
Claims Act (Government Code sections 900 of seq.).
28. TERMINATION
28.1 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.
RASMUSON APPRAISAL SERVICES Page 10
28.2 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 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.
29. STANDARD PROVISIONS
29.1 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.
29.2 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.
29.3 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.
29.4 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.
29.5 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.
29.6 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.
29.7 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.
29.8 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.
RASMUSON APPRAISAL SERVICES Page 11
29.9 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, age or any other impermissible basis under law.
29.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
29.11 Counterparts, This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
[SIGNATURES NEXT PAGE],
RASMUSON APPRAISAL SERVICES Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:,��-s�i �-
B
Y•
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
6w—
Leilani I. Brown
City Clerk ft&–
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By: G–
Dave Ki
City Manager
CONSULTANT: RASMUSON
APPRAISAL SERVICES
Date:
By:(�l
Gary Rasmuso , MAI, SRA
Principal. ® A
Date: 6 A'71 / zgl
By: UMf?P'r
Wendy R son
Principal
[END OF SIGNATURES]
Attachments: Exhibit A – Scope of Services and Billing Rates
f:\apps\cat\cycom\wpdocs\d025\p004\00009128.doc 5.23.12
RASMUSON APPRAISAL SERVICES Page 13
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SCOPE OF SERVICES AND BILLING RATES
THE APPRAISER agrees to provide: an Appraisal of Commercial Tidelands in Newport
Harbor, Newport Beach California that will include two phases as follows:
o Phase 1 - Commercial Piers that include;
o Commercial Marinas - larger # of slips, and generally with upland support
facilities (restrooms, storage, parking);
o Commercial Marinas — smaller # of slips, generally not necessarily with
upland support; Shipyards;
0 Phase 2 -
o Dock slips held by yacht clubs, HOAs and Non - Profits, and
o Slips associated with short-term stays /tie ups at upland properties (guest
docks, slips reserved for restaurant customer use).
o Commercial Entities @ Fixed Locations (including Gas Docks);
The APPRAISER is directed to provide valuations that include a FMV based on square
feet of tidelands under lease as well as FMV based on a percentage of gross from
(generally) slip rental revenue.
In addition THE APPRAISER will ensure that the appraisal will also include THE
APPRAISER's consideration /study of the following:
Separation between uplands and tidelands ownership. Generally, the City's
leased properties represent water areas only; generally, land -side access to
these leased properties must be provided through adjacent or nearby privately -
owned uplands. Because the City's leased properties represent water areas
only, most marina support uses must be conducted on adjacent privately -owned
uplands. These support uses include, but are not limited to;
• Parking;
• Restrooms;
• Utility connections;
• Storage, service, maintenance; and marina management.
Rates charged in Newport Harbor for existing leases — whether where uplands
and tidelands are held by the same property owner or separated.
o The effect, if any, on FMV of a lessee's obligation to dredge beneath leased
docks, maintain sea walls, etc.
o 'The effect, if any, on FMV of a property being closer to or farther from the Harbor
Entrance (ocean jetties).
RASMUSON APPRAISAL SERVICES Page 14
o The effect, if any, on FMV for tidelands leased when there is a "gap" of privately -
held water (assume useable for docks, support structures, other) between
privately -held uplands and public tidelands?
U Is it typical or atypical that FMV or the resulting rental rate be adjusted downward
when the lessee is responsible for an historic structure (ex. The Balboa
Pavilion)?
o Is it typical or atypical that FMV or the resulting rental rate be adjusted downward
when the lessee is a not - for - profit entity (ex. ExploreOcean)?
The APPRAISER will be required to meet with members of the Harbor Fee Work Group
once (their schedule permitting) early in the process.
The APPRAISER will be required to meet with stakeholders up to two times, also early
in the process. The Stakeholder meetings will be organized and facilitated by THE
CITY.
The report will conform with and be subject to the requirements of the Code of
Professional Ethics and Standards of Professional Practice of the Appraisal Institute.
Attached to this contract is a copy of my standard "Appraisal Certification" and
"Assumptions and Limiting Conditions" which will apply to the analysis.
2. THE APPRAISER understands that the appraisal is being requested by THE CITY
in connection with the following non - litigated matter: Internal Purposes.
THE APPRAISER agrees to deliver three copies of the report as required for the above
referenced matter. The APPRASIER will complete the Phase 1 Appraisal and deliver
the report to the CITY first and then follow with the Phase 2 Appraisal and deliver the
report upon completion.
3. The fee for the assignment will be billed on an hourly basis at an hourly rate of
$160.00 for Gary Rasmuson's time, and $100.00 for associate's time. The total fee for
Phase 1 is not expected to exceed $32,000.00. The total fee for Phase 2 is not
expected to exceed $40,000.00. The fee reflects the estimated time that will be
required to complete the appraisal and is in no way connected with any predetermined
conclusions.
4. THE CITY agrees to pay THE APPRAISER the full appraisal fee per phase, upon
delivery of three copies of the appraisal report.
5. In addition to the "appraisal fee" as quoted in Paragraph #3, additional billing will be
charged at the rate of $160.00 per hour, portal to portal, for additional client meetings or
conferences or those meetings or conferences with the client's attorney or other agent.
6. In the event THE APPRAISER is subpoenaed or otherwise required to give
testimony or to attend any public or private hearing as a result of the having prepared
this report, or attend any conferences pertaining thereto, THE CITY agrees to pay THE
APPRAISER-$300.00 per hour, portal to portal, for attendance or testimony required.
�35b'0 1b
RASMUSON APPRAISAL SERVICES
Page 15
7. In the event that THE CITY desires to cancel this contract, written notice thereof
shall be delivered to THE APPRAISER, and it is agreed that THE APPRAISER shall
receive compensation from THE CITY for all services rendered at the appropriate hourly
rate for time actually spent prior to receipt of written notice to stop work, plus all costs
advanced in connection with said work prior to receipt of such written notice. Any
unused portion of the advance payment shall be refunded to THE CITY.
APPRAISAL CERTIFICATION
To the best of my knowledge and belief, I certify that:
The statements of fact contained in this report are true and correct.
The reported analyses, opinions, and conclusions are limited only by the reported
assumptions and limiting conditions, and are my personal, unbiased professional
analyses, opinions and conclusions.
I have no present or prospective interest in the property that is the subject of this
report, and have no personal interest or bias with respect to the parties involved.
I have performed no services, as an appraiser or in any other capacity, regarding
the property that is the subject of this report within the three -year period
immediately preceding acceptance of this assignment.
I have no bias with respect to the property that is the subject of this report or to
the parties involved in the assignment.
My engagement in this assignment was not contingent upon developing or
reporting predetermined results.
My compensation is not contingent upon the reporting of a predetermined value
or direction in value that favors the cause of the client, the amount of the value
estimate, the attainment of a stipulated result, or the occurrence of a subsequent
event.
The reported analyses, opinions, and conclusions were developed, and this
report has been prepared, in conformity with the Code of Professional Ethics and
Standards of Professional Appraisal Practice of the Appraisal Institute, which
include the Uniform Standards of Professional Appraisal Practice.
The use of this report is subject to the requirements of the Appraisal Institute
relating to review by its duly authorized representatives.
I have made a personal inspection of the property that is the subject of this
report.
No one provided significant professional assistance to the person signing this
report.
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In accordance with the USPAP Competency Provision, I certify that I have the
knowledge and experience to complete this assignment and have appraised this
property type before.
Disclosure of the contents of this appraisal review is governed by the Bylaws and
Regulations of the Appraisal Institute. In furtherance of the aims of the Institute to
develop higher standards of professional performance by its Members, the appraiser
may be required to submit authorized committees of said Institute copies of this report
and any subsequent changes or modifications thereof. .
The Appraisal Institute conducts a voluntary program of continuing education for its
designated members. MAI's who meet the minimum standards of this program are
awarded periodic educational certification. As of the date of this report, — James —B.
— Netzer has completed the requirements under the continuing education program of the
Appraisal Institute.
ASSUMPTIONS AND LIMITING CONDITIONS
The analyses and opinions in this report are subject to the following assumptions and
limiting conditions:
General
No investigation of title to the property has been made, and the premises are assumed
to be free and clear of all encumbrances, leases, use restrictions, easements, cases or
actions pending, except as specifically discussed in this report. Title is assumed to be
good and marketable, and that the property is under responsible ownership, competent
management and available for its highest and best use.
No survey, legal, or engineering analysis of this property has been made by the
appraiser. I assume no responsibility for any condition not readily observable from the
customary inspection of the premises, and that there are no hidden or unapparent
conditions of the property, subsoil or structures that render it more of less valuable,
except as noted herein.
The distribution, if any, of the total valuation in this report between land and
improvements applies only under the stated program of utilization. The separate
allocation for land and buildings must not be used in conjunction with any other
appraisal and are invalid if so used.
The maps, plats, photographs, and exhibits included herein are for illustration only, as
an aid in visualizing matters discussed within the appraisal. They should not be
considered as surveys nor relied upon for any other purpose, nor should they be
removed from, reproduced, or used apart from this report.
I assume no responsibility for economic or physical factors which may affect the
opinions herein stated which may occur at some date after the date of value. I reserve
the right to make such adjustments to the analysis, opinions and conclusions set forth in
this report as may be required by consideration of additional data or more reliable data
that may become available.
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Information contained in this appraisal has been gathered from sources which are
believed to be reliable, and where feasible, has been verified. No responsibility is
assumed for the accuracy of information supplied by others.
No opinion is expressed as to the value of sub - surface oil, gas, or mineral rights, or
whether he property is subject to surface entry for the exploration or removal of such
materials except as expressly stated.
The property is appraised assuming to be in full compliance with all applicable federal,
state, and local environmental regulations and laws, unless otherwise stated.
The property is appraised assuming that all applicable zoning and use regulations and
restrictions have been complied with, unless otherwise stated.
The Americans with Disabilities Act ( "ADA ") became effective January 26, 1992. The
appraiser has not made a specific compliance survey and analysis of this property to
determine whether or not it is in conformity with the various detailed requirements of the
ADA. It is possible that a compliance survey of the property, together with a detailed
analysis of the requirements of the ADA, could reveal that the property is not in
compliance with one or more of the requirements of the Act. If so, this fact could have a
negative effect upon the value of the property. Since the appraiser has no direct
evidence relating to this issue, possible noncompliance with the requirements of the
ADA in estimating the value of the property has not been considered.
Unless otherwise stated in this report, the existence of hazardous material, which may
or may not be present on the property, was not observed by the appraiser. The
appraiser has no knowledge of the existence of such materials on the property. The
appraiser, however, is not qualified to detect such substances. The presence of
substances such as asbestos, urea formaldehyde foam insulation, or other potentially
hazardous materials may affect the value of the property. The value estimate is
predicated on the assumption that there is no material on or in the property that would
cause a loss in value. No responsibility is assumed for any such condition, or for any
expertise or engineering knowledge required to discover them. The client is urged to
retain an expert in this field, if desired. If the client is aware or becomes aware of any
conditions, the appraiser should be consulted immediately to assess the impact, if any,
upon the market value.
The property is appraised assuming that all required licenses, certificates of occupancy,
consents, or other legislative administrative authority from any local, state, or national
government or private entity or organization have been or can be obtained or renewed
for any use on which the value estimate contained in this report is based, unless
otherwise stated.
The appraiser reserves the right to make such adjustments to the valuation herein
reported, as may be required by consideration of additional data or more reliable data
that may become available.
That no opinion is intended to be expressed for matters which require legal expertise or
specialized investigation or knowledge beyond that customarily employed by real estate
appraisers.
RASMUSON APPRAISAL SERVICES Page 18
I shall not be required, by reason of this appraisal, to give testimony or to be in
attendance in court or any governmental or other hearing with reference to the property
without prior arrangements having first been made with me relative to such additional
employment.
Possession of this report, or a copy thereof, does not carry with it the right of
publication. It may not be used for any purpose by any person other than the party to
whom it is addressed without the written consent of the appraiser. I do not authorize out
of context quoting, nor partial reprinting of the report. In the event the report is placed in
the hands of a third party, it is requested that such party be made cognizant of any and
all limiting conditions resulting in the basis of my employment and the discussions
thereto, as well as those set forth herein.
The submission of this report constitutes the completion of the service authorized. It is
submitted upon the condition that the client will provide the appraiser customary
compensation relative to any subsequent required deposition, conferences, additional
preparation or testimony.
The appraiser respectfully requests that neither all nor part of the contents of this report
shall be disseminated to the public through advertisement, public relations, news, sales,
or other media, without written consent and approval of the author, particularly the
valuation conclusions, the identity of the appraiser, or any reference to the Appraisal
Institute or the MAI designation.
In the event the appraiser is subpoenaed for a deposition, judicial or administrative
proceeding, and is ordered to produce his appraisal report and file, the appraiser will
immediately notify the City.
It is the responsibility of the City to obtain a protective order.
The signatory of this appraisal report is a member of the Appraisal Institute. The
Bylaws and Regulations of the Institute require each member to control the use and
distribution of each appraisal report signed by such member. Therefore, except as
hereinafter provided, the party for whom this appraisal report was prepared may not
distribute copies of this appraisal report, in its entirety, without the written consent of the
signatory of this report. The report and parts thereof and any additional material
submitted, may not be used in any prospectus or printed material used in conjunction
with the sale of securities or participation interests in any Public Offering as defined
under US Security laws. Further, neither all nor any part of this appraisal report shall be
disseminated to the general public by the use of advertising media, public relations
media, news media, sales media, or other media for public communication without the
prior written consent of the signatory of this appraisal report.
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