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HomeMy WebLinkAboutDESMOND, MARCELLO & AMSTER 1 - 2006 ,~ '" G -4..: '." ': i"''1f", ., ..', ,"~ " .... f' ~ .- !'-., .. .'"'" .. city ot Santa Ana Clerk of the Council AGREEMENT TEftMlNA TION ~', ~ ~ "', Please complete this form when the attached agreement is no longer in effed..p !,!!y 12 A-j 9: "')9 Return form to the Clerk of the Council Office (M-30). lUlJ IA n:J Call 647-5237 if you have any questions. ell' A.t~A =========================================================€*3~F========~~~eTC============== The agreement with Desmond, Marcello & Amster DBA: DM&A No. A-2006-099 was completed on Closed - Had wrong scope per CAO See A -~CO~ -OQ9':A '\ and final payment has been made. .-. Phone/Ext. : Design Engineering - ROW 5067 - Kent Jorgensen/Cindy Gomez Department: Signature: ~aM~ Date: 4/29/08 Revised 07 -23'{)7 INSURANCE.llill ON FILE WORK MAY !'JOT PROCEED CLERK OF COUNCIL DATE: JUL 11 2006 A-2006-099 CONSULTANT AGREEMENT . IfrU)') D. fW. ct;i1.5-(1l) THIS AGREEMENT, made and entered into this 1st day of May, 2006 by and between ()(. :Jcfj Desmond, Marcello & Amster, a California limited liability company (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 goodwill appraisal services. 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 goodwill appraisal services, on an as-needed basis, as requested, in writing, by the Santa Ana Public Works Agency. Said appraisal services shall be performed in accordance with a written proposal submitted by Consultant, which shall set forth the services to be provided, the schedule and the fee for each appraisal. 2. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Attachment A. The total sum to be expended under this Agreement shall not exceed $175,000.00 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. DELIVERY OF WORK PRODUCT Consultant shall deliver to City all work product resulting from the services provided. City shall own all rights to said Work Product. In regard to any copyrightable material produced as a deliverable under thise Agreement, including but not limited to books, reports, plans, photographs and drawings, the Consultant understands and shall ensure that all of Consultant's affected officers, employees, agents, contractors, and volunteer workers also understand that (a) other such material may not be copyrighted without prior review from the City: (b) the authors of all such material, whether copyrighted or not, award to the City, and to its officers, agents and employees acting within the scope of their official duties, as a condition of payment to the Consultant, a royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 4. TERM This Agreement shall commence on the date first written above and terminate upon expenditure of allocated funds, unless terminated earlier in accordance with Section 12, below. 5. 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, ajoint 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. 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. Commercial General Liability 1nsurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Consultant's operations in the performance ofthis Agreement, including without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. 2 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 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. 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: (I) 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 frorn the direct or indirect operations 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 ofthis 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 3 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 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: Public Works Agency - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 4 telefacsimile (714) 647-5635 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: Desmond, Marcello & Amster 6060 Center Drive, Suite 825 Los Angeles, California 90045 telefacsimile (310) 216-0800 Attn: Aaron D. Amster, President 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 5 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 City 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. 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 ofthis 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 of the 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. 6 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 ofthis 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 iffully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA () 1;(2 ~ City Manager ~ PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney c B y:,;;:n:;~, \ ( ,,,-N.,,, l C / '/ Lallra Sheedy I Assistant City Attorney AMSTER 7 DM~ Desmond, Marcello & Amster Valuation and Litigation Consultants 6060 Center Drive, Suite 825 Los Angeles, CA 90045 Tel: (310) 216-1400 Fax: (310) 216-0800 Toll Free: (888) 240-5184 February 2, 2006 225 Bush SI., 16'" Floor San Francisco, California 94104 Tel: (415) 439-8390 Fax: (415) 439-8391 Mr. James G. Ross Executive Director City of Santa Ana Public Works Agency 20 Civic Center Plaza M-36, 1" Floor Santa Ana, California 92701 Attention: Souri Amirani www.dmavalue.com Re: Response to Requestfor Qualifications For Goodwill Loss Appraisal Services Dear Mr. Ross: Enclosed herein is Desmond, Marcello & Amster's ("DM&A") response to the City of Santa Ana's ("City") Request for Qualifications for goodwill loss appraisal services pertaining to the Bristol Street Widening Project'between McFadden and Pine Streets. DM&A proposes to offer goodwill loss appraisal services to the City. DM&A has provided appraisal services to a wide range of public agencies, including the City. More detail regarding DM&A's experience and qualifications is enclosed. I am thoroughly familiar with the Scope of Work as described in the RFQ. The undersigned declares that the only person, persons, company or parties interested in the proposal as principals are named herein. This proposal was made without collusion with any other person, persons, company or parties submitting a proposal. This proposal is in all respects fair and in good faith without collusion or fraud. The undersigned has full authority to bind DM&A to this proposal. Thank you for your consideration of DM&A for this assignment. Please contact me with any questions you may have. Very truly yours, DES;~~RCELL Aark;; ~:2s President MMJdkp Enclosures g;\users\rfp packets\santa ana public works ~ gw.doc EXHn:!IT ~ -, "....'1:1 .! 4 IF ] 11 Statement of Project Approach II DM&A's approach to the appraisal process is thorough, coliaborative, and professional. Our appraisers recognize the importance of a detailed approach to any assignment, and are cognizant of our role as representing our clients. Our professionals have extensive experience in interviewing business owners, and make efforts to address their concerns and needs in these meetings. DM&A has bilingual professionals to interface with Spanish-speaking business owners. We work closely with agency staff and their attorneys in order to keep all parties apprised of the status of our appraisal projects. In addition, DM&A is proactive in coordinating the goodwill loss appraisal process with other professionals, including real estate appraisers and relocation consultants. JI II II DM&A's appraisal process mirrors the discussion found in Proposed Scope of Services in the RFQ. At this time, we do not anticipate any unusual or special concerns with respect to the project referenced in the RFQ. Ii Ii If II Ii II II II II II 11 ]1 Ii 2 ATTACHMENT "A" CONSULTANT RATE COMPARISON FOR.iVI Based on the information given on Attachment "A", the Consultant shall complete this form and include it along with the comprehensive fee schedule in the sealed fee envelope. Description of Appraisal Services Parcel I Gas Station Estimated Cost: Estimated Hours: $5.000 - $7.500 25 - 40 This fee range is typical based on our experience. The scope of the assignment is subject to the nature of the station's operations i. e." whether it operates a convenience store, auto repair bays, and/or a car wash). Parcel 2 Medical Clinic Estimated Cost: Estimated Hours: $5.000 - $7.500 25 to 40 Fees for medical clinics tend to vary depending upon the physician's practice, number of locations, and the quality of the financial statements provided Parcel 3 Food Restaurant Estimated Cost: Estimated Hours: $4.000 - $6.000 20 to 35 We have assumed that this lvfexican Restaurant is typical in size and is a stand-a/one operation. Please note: We understand that the above estimates are non-binding and informational only. They are based on our experience with a wide range of circumstances surrounding all three types of businesses. '. .;. FEE SCHEDULE GOODWILL LOSS APPRAISAL Depo/Court Title Standard Rate/Hour Appearance President, Principal $250 - $275 $300 - $350 Senior Manager $200 - $225 $250 - $300 Manager $]50-$200 $200 - $225 Appraiser $100-$150 N/A DM&A acknowledges that the hourly fees listed above are reflective of all costs, including overhead. This rate schedule will remain valid for the contract duration to a maximum of two years. EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: I. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant ifnot so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 9270 I. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effecti ve Policy # Issued to , this endorsement form as a part of Named Insured Countersigned by Authorized Representative 8 . - ~D(o- 0 , -;Loo&, -oq q A . I DATE lMMIDDNVYY) ACORQ, CERTIFICATE OF LIABILITY INSURANCE 04/15/2008 PROOUCER (714) 569-2700 FAX (714)569-3099 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Pridemark-Everest Insurance Services, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR A Leavitt Group Co #OF13098 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 1820 E. First Street, Ste 500 Santa Ana, CA 92705 INSURERS AFFORDING COVERAGE NAIC# INSURED Desmond, Marcello & Amster, LLC INSURER A. Indian Harbor Insurance Compan 36940 6060 Center Drive, Suite #825 INSURER B: Los Angeles, CA 90045 INSURER C INSURER D INSURER E: A '1'1 A COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TOAlL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR 00' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPlRAT10N L.IMITS GENERAL LIABILITY EACH OCCURRENCE . - DAMAGE TO RENTED COMMERCIAL GENERAL LIABILITY . - =:J ClA.lMS MADE D OCCUR MED EXP (Anyone person) . - PERSONAL & ADV INJURY . GENERAL AGGREGATE . GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COM~OPAGG . I POLICY n ~8T n LaC AUTOMOBILE L1ABIL.ITY COMBINED SINGLE LIMIT - . ANY AUTO (EaaCCidenl) - - ALL OWNED AUTOS BODILY INJURY (Per person) . SCHEDULED AUTOS - HIREDAUTOS BODILY INJURY - $ NON-OWNED AUTOS (Pefaccident) - PROPERTY DAMAGE $ (Per accident) l":GE LIABILITY AUTO ONLY - EAACCIDENT . ANY AUTO , OTHER THAN EAACC . AUTO ONLY. AGG . ~~UMBRELLA LIABILITY , . flY/' EACH OCCURRENCE . OCCUR D CLAIMS MADE AGGREGATE . $ =1 ~EDUCTIBLE .- . $ , RETENTION S $ WORKERS COMPENSATION AND I ,~~Tt.::g, I IOJ~' EMPLOYERS'L.IABILlTY ANY PROPRIETOR/PARTNER/EXECUTIVE E L EACH ACCIDENT . OFFICER/MEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYE . g~rCi~tS~~~J1~~NS below EL DISEASE - POLICY LIMIT . .?!HER MPPOO1841103 04/16/2008 04/16/2009 Per Occur Limit $2,000,000 A ~rrors & Omissions Aggregate Limit $2,000,000 Retro Date: 04/01/1991 Each Claim Deductible $15,000 DESCRIPTION OF OPERATIONS I LOCATIONS J VEHICLES I EXCL.USIONS ADDED BY ENDORSEMENT I SPECIAL. PROVISIONS 10-Day Notice of Cancellation for Non-payment of Premium. ICATE H LDE C SHOUL.D ANY OF THE ABOVE DESCRIBED POLICIES BE CANCElL.ED BEFORE THE City of Santa Ana Community Development Agency Attn: Sandra Gottlieb 20 Civic center Plaza, M-36 Santa Ana, CA 92702 EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TOTHE lEFT, BUT FAilURE TO MAil SUCH NOT1CE SHAll IMPOSE NO OBLIGATION OR LIABILITY OFANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTAT1VES. AUTHORIZED REPRESENTAT1VE Gar Wells/JEMUEL c;f!? d Jvfh ACORD 25 (2001/08) @ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08)