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HomeMy WebLinkAboutBRUCE W. HULL & ASSOCIATES - 2005 .-~.~ - -"__-.A lit ~ 8& AGREEMENT TERMINATION - Please complete this form when the attached agreement is no 10nllllJina-c:<G M ~ U6 Return form to the Sr. Deputy Clerk of the Council (M-30). Cal~SOf8$fy..iliA.aAolCAy questions. CLERK OF COUNCIL ------------~---------------------------------------------------- The agreement wit~ cfhj!j c/-- fh;so~ . No.A-0l0D5-~4 "vas completed on PSe.! $~ ...20/:J(p ~ and final payment has been made. Department: =AP~e' ~~~~~ ~,~ S,gnature: 3:~~ , __------'--\._D Date: ~Pe< ~ .:?t7t77 -(t1-' Revised 8-7-03 City of Santa Ana Clerk ofthe Council INSl,n,",;" II,C( '1'.\1 :..i,' i{\n:i ,..;L ,>\) , '~l . WOR~i iV1AY i"JO P~<UCE.EU ": F'Ru l',1' {'()':i",'I: \IL~i n ,r ',j. ,-.,j ,I.. DAn SEP 2 9 2005 A-2005-224 CONSULTANT AGREEMENT 0: PIvlS cr fuxti~l THIS AGREEMENT, made and entered into this I ~. day of SEKJf.e.nt.hev- , 2005 by and between Bruce W, Hull & Associates (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"), RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of appraisal services in connection with the formation of a Community Facilities District B. Consultant represents that Consultant is able and willing to provide such services to the City, C. In undertaking the performance of this Agreement, Consultant represents that it is knowledgeable in its field and that any services performed by Consultant under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field, NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES Consultant shall perform those services as set forth in Exhibit A to this Agreement 2. COMPENSA nON a, City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Exhibit A. The total sum to be expended under this Agreement shall not exceed $45,000,00 during the term of this Agreement b, Payment by City shall be made within thirty (30) days following receipt of proper invoice evidencing work performed, subject to City accounting procedures, Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by City, 3. TERM This Agreement shall commence on the date first written above and terminate on June 30, 2006, unless terminated earlier in accordance with Section 12, below, The term of this Agreement may be extended upon a writing executed by the Executive Director of Finance and Management Services and the City Attorney, 4. INDEPENDENT CONTRACTOR Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. WORK PRODUCT Consultant shall deliver to City all work product resulting from the services provided. Said work product shall be submitted in a hard copy and produced in a form compatible with City's computer system, as agreed between the Project Manager and Consultant. City may utilize those reports in any manner deemed appropriate by City. 6. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Reserved b. Reserved. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 2 e. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. f. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not effect Consultant's right to be paid for its time and materials expended prior to notification of termination. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 7. INDEMNIFICATION Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the acts, errors or omissions of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section I of this Agreement. The Consultant further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure 3 shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 10. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 telefacsimile (714) 647-6956 With courtesy copies to: Deputy City Manager for Development Services City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6954 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Consultant: Bruce W. Hull & Associates, Inc. 115 E. Second Street, Suite 100 Tustin, California 92780 telefacsimile (714) 544-9985 4 A party may change its address by giving notice in writing to the other party. Thereafter, communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 11. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant nor the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 12. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other consultants retained by City. 13. TERMINATION This Agreement may be terminated by the either party upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant compensation for all services performed by Consultant prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require Consultant to deliver to the City all work product completed as of such date, and in such case such work product shall be the property of the City unless prohibited by law, and Consultant consents to the City's use thereof for such purposes as the City deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. 5 14. DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 15. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 16. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations ofthe United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 17. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. II II II II II 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: . /~, '. 'd / . .." / '-... F '/l,J~iA' {HEAL y -~ f Clerk of the Council CITY OF SA-NT A ANA ./ tf~ /f; v2~..__- DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney \ / By: / Launi Sheedy Assistant City Attorney , d (., , \ / / ( CONSULTANT BRUCE W. HULL & ASSOCIATES, INe. DQ-~ President TaxID# C]:-:;-:S37 'Cf ICp 7 .' BRUCE W. HULL & ASSOCIATES, INC. REAL ESTATE APPRAISERS & CONSULTANTS July 27, 2005 Mr. Steve Harding Deputy City Manager for Development Services City of Santa Ana 20 Civic Center Plaza M-20 P.O. Box 1988 Santa Ana, California 92701 Reference: APPRAISALfCONSUL TA TION AGREEMENT Property/Location: Community Facilities District No. 2005-01 (MacArthur Place South) Santa Ana, California At your request, Bruce W. Hull & Associates, Inc. ("APPRAISER") hereby submits to the City of Santa Ana ("CLIENT") this proposal for an appraisal of the above referenced property. It is our understanding that the appraisal is to be used to determine the feasability of issuing the bonds. APPRAISER is prepared to undertake this assignment and provide CLIENT with Two (2) copies of the completed appraisal report within an estimated time period consistent with the sale of bonds subject to APPRAISER'S receipt of CLIENT'S signed authoriza- tion and submission of all requested data. The time period is this best estimate of the APPRAISER and is not a guarantee, although the APPRAISER agrees to use his best efforts to complete the assignment within the given time period. CLIENT agrees to pay APPRAISER, as fee for this report Forty-Five Thousand Dollars ($45,000); with the full balance due upon delivery of the completed report. Report revisions or amendments, other than those required due to APPRAISER'S error, shall be prepared at an hourly rate of $125.00. Technical studies, as are jointly determined to be necessary, shall by paid by CLIENT. Any additional copies of the completed report, other than the two (2) copies currently agreed upon, shall be made available at an additional cost to the CLIENT of $1 00.00 per copy. 1056 E. Meta Street, Suite 202, Ventura, California 93001 - (805) 641-3275 _ Facsimile (805) 641-3278 115 E. Second Street, Suite 100, Tustin, California 92780 - (714) 544~9978 _ Facsimile (714) 544-9985 EXHIBIT A APPRAISAL/CONSULTATION AGREEMENT Mr. Steve Harding City of Santa Ana July 27, 2005 Page Two In the event that CLIENT desires to cancel this authorization, written notice thereof shall be delivered to APPRAISER, and it is agreed at that the APPRAISER shall receive compensation from CLIENT for all services rendered at the rate of $125.00 per hourfor the time actually spent prior to receipt of such written cancellation notice, plus all costs advanced in connection with the appraisal. It is agreed that the fee charged for services performed by the APPRAISER is guaranteed by the CLIENT. All payments due the APPRAISER, under this agreement, shall bear interest at the published prime lending rate from Wells Fargo Bank, commencing sixty (60) days after such payments are due, but not in excess of the maximum rate permitted under California law. In the event that any payment is not paid when due, CLIENT shall pay all expenses of collection, including, but not limited to, court costs and attorney's fees. It is agreed that the APPRAISER is not a necessary party in any inquiry or judicial proceeding, unless agreed upon this Agreement. He will not be called upon for any litigation or other proceeding arising out of his duties in this matter. If he is compelled to incur court costs, attorney's fees, or other out-of-pocket expenses in connection with court proceedings, such costs or expenses, together with APPRAISER'S hourly rate of $200.00 per hour, applicable for his professional services for study, preparation, testimony or travel, will be paid by the party (or parties) who acts to bring any suit requiring a judicial proceeding. The report will be prepared in a Summary Appraisal Report - Complete Appraisal which is intended to comply with the reporting requirements set forth under Standards Rule 2-2(b) of the Uniform Standards of Professional Appraisal Practice (USPAP) effective January 1, 2005 for a Summary Appraisal Report. As such, it presents only summary discussions of the data, reasoning, and analyses that were used in the appraisal process to develop the APPRAISER'S opinion of value. Supporting documentation concerning the data, reasoning, and analyses is retained in the APPRAISER'S file. The depth of discussion contained in this report is specific to the needs of the CLIENT. The APPRAISER is not responsible for unauthorized uses of this report. The report will be consistent with the format and limiting conditions as detailed on the following pages. .' APPRAISAL/CONSULTATION AGREEMENT Mr. Steve Harding City of Santa Ana July 27, 2005 Page Three A. The appraisal will provide an estimate of fair market value, which is defined as follows: The highest price on the date of valuation that would be agreed to by a seller, being willing to sell, but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer being ready, willing and able to buy, but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available. The fair market value of the property shall not include any increase or decrease in the value of the property that is attributable to any of the following: a) Project for which property is taken. b) Eminent domain proceedings in which the property is taken. c) Any preliminary actions of the plaintiff related to the taking of the property. .. Source: Title 7, Page 3, C.C.P., Article 4, Paragraphs 1263.32 and 1263.33 B. The value estimate will reflect the fee simple interest of the subject property, as of the date of value, subject to the special tax lien. C. The value estimate will reflect actual conditions of the property taking into consideration the improvements/benefits of the proposed bond issue. 0' APPRAISAL/CONSULTATION AGREEMENT Mr. Steve Harding City of Santa July 27, 2005 Page Four D. The following limiting conditions will be included in the appraisal report: 1. No responsibility is assumed for matters legal in nature; 2. No opinion as to title is herewith rendered, and the property is appraised as though free and clear of all encumbrances and the title marketable; 3. The factual data utilized in our report will be obtained from sources deemed to be reliable; however, no guarantee can be made as to their accuracy; 4. No survey of the boundaries of the property will be prepared. All legal descriptions, areas, and dimensions furnished the APPRAISER are assumed to be correct; 5. The distribution of the total valuation between land and improvements (if any), applies only in the matter of utilization stated in this report. Our reported market value is for the total property as appraised, and no attempt has been made to evaluate any fractional interest, should they exist; 6. The report shall be utilized by the CLIENT to determine the feasibility of issuing bonds. The CLIENT may utilize this report in bond documents, if such a bond issue is determined feasible. The APPRAISER or firm assumes no obligation, liability or accountability to any third party; 7. The submission of this report does not obligate us to give testimony, or to attend any court or governmental or other agency hearing, without prior arrangements having been made for such additional employment; and 8. If all data requested of the CLIENT is not provided, we shall include an additional limiting condition requiring our subsequent review of the items lacking. " APPRAISAUCONSUL TATION AGREEMENT Mr. Steve Harding City of Santa Ana July 27,2005 Page Five E. In order for APPRAISER to proceed with the appraisal assignment, it is required that CLIENT provide APPRAISER with the following items: 1. Legal Description and recent Title or Preliminary Title Report; 2. Name and telephone number of contact for property inspection. This proposal, or acceptance of this proposal, is not contingent upon, or related to, any anticipated value conclusions. APPRAISER'S fee will have been earned in full upon delivery of the completed report. This APPRAISAUCONSULTATION AGREEMENT represents the entire Agreement between CLIENT and APPRAISER, and supersedes all prior negotiations or agree- ments, either written or oral. It shall be binding on the heirs, successors, and assigns of CLIENT and APPRAISER. This APPRAISAUCONSUL T A TION AGREEMENT shall be governed by the laws of the State of California. In the event any provision of this Agreement shall be determined to be void or unenforceable by any court of competent jurisdiction, such determination shall not affect any other provision of this Agreement and all such other provisions shall remain in full force and effect. We thank you for the opportunity of presenting this proposal for your consideration. The terms and conditions of this Agreement shall remain valid for a 10-day period. If the proposal meets with your approval, please execute and return a signed original, together with the requested data. The assignment will be commenced upon receipt in or office of the complete package. Please feel free to contact our office if you have any questions. Respectfully submitted, BRUCE ~'I ~ULL & ASSOCIATES, INC. ~~ Bruce W. Hull, MAl BWH:dh Attachment