HomeMy WebLinkAboutLE PALTRIER DEVELOPMENT CONSULTING GROUP, INC. - 2006
INSURANCE NOT RF!J\IIAW
WORK W\Y PROCEED
CL[HK OF COUNCIL
DATE: ie he /(((
CO,\( (I) )
lct'h\lMC,<o.)I/lIi"f THIS AGREEMENT, made and entered into this 30th day of October, 2006 by and
between Le Paltrier Development Consulting Group, Inc., a California corporation (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").
N-2006-108
CONSULTANT AGREEMENT
RECITALS
A. The City desires to retain a consultant having special skill and knowledge in the field of
real estate development financial analysis.
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 development financial analysis as set forth in Exhibit A to this
Agreement.
2. COMPENSATION
a. City agrees to pay, and Consultant agrees to accept as total payment for its services,
the rates and charges identified in Exhibit B. The total sum to be expended under this
Agreement shall not exceed $10,000.00 during the term of this Agreement, including costs
reimbursable expenses. Notwithstanding the provisions of Paragraph 1 of Exhibit B, the
applicable hourly rates shall not be increased without the written consent of the City Manager.
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 on the date first written above and terminate on June 30, 2007,
unless terminated earlier in accordance with Section 12, below. The term of this Agreement may
be extended upon a writing executed by the City Manager 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 mailer 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. WORKERS 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.
6. 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 from 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 of this Agreement; and (2) from any claim that personal injury, damages, just
compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects
arising from this Agreement. This indemnity and hold harmless agreement applies to all claims
for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to
have been suffered, by reason of the events referred to in this Section or by reason of the terms
of, or effects, arising from 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.
7. 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,
2
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.
8. 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.
9. 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
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:
Le Plastrier Consulting Group, Inc.
19800 MacArthur Blvd, Suite I 150
Irvine, CA 92612
Telefacsimile (949) 851-1307
Attn: Geoffrey Le Plastrier, President
3
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.
10. 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.
11. 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 ofthe City Manager 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.
12. TERMINATION
This Agreement may be terminated as provided for in Paragraph 5 of Exhibit B except
that in such event of termination, City shall pay Consultant compensation for all services performed
by Consultant prior to receipt of such notice ofterrnination, 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.
4
13. 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.
14. 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. The provisions of
Paragraph 6 of Exhibit B--"Arbitration" shall not apply to this Agreement.
15. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year
first above written.
[Signatures Provided on Next Page]
5
ATTEST:
R
CITY OF SANTA ANA
/7 /)
(YaUgza~
DAVIDN.REAM
City Manager
CONSULTANT
GEOFFREY LE PLASTRIER
President
Tax ID#
6
1013.
.I
d5 17:52 9498511307
SANTA ANA CITY AllY Fax:714-647-6S15
ATTEST: 1/
------- / / ;
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P AIRlClA E. HEALY
Clerk of the Council
D AS TO FORM:
LE PLASTRIER CO.
Oct 30 2006 16:07
P.O?
CIlY OF SANTA ANA
~~f
City Manager
CONSULTANT
Tax ID# 33- 0905870
6
PAGE 02/02
EXHIBIT A
SCOPE OF WORK
Proiect Performance Review: Consultant will undertake a performance review of the Olson
Company disposition and development agreement with the Santa Ana Redevelopment Agency
structure relative to the feasibility and value of the Phase III portion thereof on Sycamore
Avenue between Third and Second Streets. As part of this review, Consultant will review the
following documents and information:
· Disposition and Development Agreement and related supporting transactional
documents, particularly the "Additional Purchase Price" provisions of the DDA.
. Olson Company development and construction contracts.
· Olson Company project pro formas, budgets, job cost reports, sales reports, profit
statements and any relevant supporting documentation.
Summary and Reoort: Consultant will summarize all findings, relevant facts and opinions in a
formal report for the sole benefit of the City of Santa Ana and the Santa Ana Redevelopment
Agency for its discussions with the Olson Company
7
Exhibit B
Comoensation
[See Attached]
8
10/30/200b_ 12:40
9498511307
LE PLASTRIER CO.
PAGE 02/02
Le flashier Development Consulting
~bedulc ofSmftd.nt Cowtnct Provisions Ind Billing RAte.s
Contract Provisions Me cem:rally im:.ludi:d in Master Services AiTCQmcnts between LDC iUld it" Ctici1.t4 Meil when cxceuted.
e.,ntl'i'lCt pTovi~iol'ls in those e.~reements will prevail. tn the absence of such Bn a.grcemcDt, in the event the agreement
referenCi:S this schooule or in the event that the agreement is siltnt on the l'TovisioD5 w:gcussed herein. the following shilll
.pply:
l. HOURLYRATJi:;AGREEMENTS
For a.t1 hourly-plu:s-expensc:s agucmcnt, the professional services dcs"ribed in the: S~D of Servicc:s :!I~~tjon dhall be PtQ\lid<<1
on Q per hour basis i!t thl! current hourly rates. These rates woe set out in the rate schedule bElow. Hourly rates are subject ro
review 2.t least annually on or about January 1 of each yeiIT and ma)' be adjumd to reflect changes in labor costs at our
discretion m that tlmc.
2. REIMBURSABLE E)(l"ENSES
Out of pocket t:XI'eJ1ses shan be fr:imbursed M. cost and are not included in the hourly fee for proffl$slonal sMYices. Out of
pocket. c.'(peflScs may ifiC;ludcl but not be limited ~ the following eosts::
a) Reproduction of reports. plans IIDd other writtCJ1 ma'crial~ required in oonnection with completing the Scope f)f
Services.
b)telephone, telegraph chargos, facsimile 1rllIlsminols BI S 1.00 per page.
c) Automobile travel3t .50 cents/mile.
d) Airline, 'aI' rental ane! 8,I;O()mmodation co5ts.
c) Reproduction Costs 9.t.04 per page (in-house only).
3. FREQUENCY OF BILLING
Unlt!s otherwise specified in th~ Client Agreement, montJlly invoices !ilhaJl be submitted for proJfess pAyment based on work
completed to date. Reimbursab1e expenses may be billed on the same monthly invoice or on a separate invoice and will bo
identified as a separate item.
4. PAYMENT OF ACCOUNTS
Accounts arc due and payable upon receipt of invoice. Any lltiomey's fees or otfJercos1:8 incurred in collecting any dclinqut:nt
amount shall bo paid by the Client.
S. TERMINATION OF SERVICES
Tho.. serVioos ilI~y be totminilOd ~llOn wn (1Q) days WTi~n nolioe by either pQft)l.ln lllis even\, \lIIYIlIenlfor aU services an<1
expenses incorred prior to the date of 1ermimtion shall be dUI! 31Jd payable upon receipt of final invoice in accordance with
tilt: provisicn.s of the foregoing sections.
G. ARBITRATION
Any dispute or claims arising out of or reimini to thIs contract, or any b...ch thereof, slu.1! be souled by arbitration in Irvine,
California, in aeCQrdance with the ,"1.. ofthe American Arbitration Assoeiation.lltIdjudgcmcnla upon the award rendored by
the arbitrate]'!; may be entered in any court havinejuriidiction thereof. In the event Clie.nt mues Q claim again.S! Le Plll9trier
Consulting GrouP. inc. at law ot' otherwise, for any anc~ error, omission or other act arising oui of the performance olour
professional service$, and ihe Client fails to prove such claim, thcn the CHl:J1t shall pay all oosts, inc:luding &ttomey's fcc:s.
incurred by Lc PIElstri~r Consulting Group: Inc. in derendiDg itself against the claim.
1. HOURLY BILLING RATiS (as ofllJ!lOO6)
lob CI:u;.~ifiCQtio!1
'Pre:sident, consulting services
'Prcfiident, litigation support-trial ~ours
Principal
Direc:rorISr. Project Manager
Sr. Project Analyst
Project ManagerfProject AnalySlt
Field In'pector
Research Analyst
Word ProccssinwAdmin. Support
Hourly Rate
$350.00
$475.00
$175.00
$150.00
st25.00
stOO.OO
$100.00
S85.00
S60.00
1013.517: ~2
,# '~""'''SANT A ANA
9498511307
CITY ATTY Fax:714-647-6515
LE PLASTRIER CO.
Oct 30 2006 16:06
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PAGE 01/02
P.01
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IMF
ClTY OF SANTA ANA
OFF1CE OF THE CITY ATTORNEY
20 CMC CENTER PLAZA. P.O BOX 1988
SANTA ANA, CALIFORNIA 92702
(714) 647-5201 FAX (714) 647-6515
Date: October 30, 2006
FACSThULECOVERSHEET
TO: Fra-..n - LDC
/T)
AT: (949) 851-1307 .... ,J
FROM: Joseph l'Jetcher, City AttoOley~ ':,
R:E: Coo.nltantAgJ"eement .'-'
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Time S"un 4:06 p.m.
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