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HomeMy WebLinkAbout25C - AGMT - RIGHT-OF-WAY APPRAISAL SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AGREEMENT FOR RIGHT-OF-WAY APPRAISAL SERVICES FOR CIP PROJECTS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1' Reading ? Ordinance on 2n° Reading ? Implementing Resolution ? Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached right-of-way agreements for real property, furniture/fixtures and equipment, and business goodwill appraisal services, subject to nonsubstantive changes approved by the City Manager and City Attorney with: • Kiley & Company for real property appraisal services in the amount of $150,000. • Desmond Marcello & Amster LLC and Donna Desmond Associates for furniture, fixtures, and equipment, and business goodwill appraisal services for an aggregate amount not to exceed $300,000. DISCUSSION On October 18, 2010, the City Council authorized the Public Works Agency to release a Request for Proposals (RFP) to qualified consulting firms to provide right-of-way related services for Capital Improvement Projects (CIPs). These services will be utilized for the current CIP, including Phases II & III of the Bristol Street widening and the Grand Avenue widening projects. In addition, these firms will augment City staff in the day-to-day oversight of right-of-way tasks such as City-owned properties, disposal of surplus properties, deed research, and cost estimates for all Public Works projects. The RFP for the appraisal services was sent to 15 firms who specialized in this field. A special effort was made to reach out to Santa Ana firms. Nine proposals were received. Proposals were evaluated by personnel from the Public Works Agency, Community Development Agency, and the City Attorney's Office. Each firm was rated according to its qualifications, experience, and capacity to perform the required work. Following is the list of the firms and their respective scores: 25C-1 Agreement for Right-of-Way Appraisal Services for CIP Projects March 21, 2011 Page 2 Real Property Appraisal Services Overland Pacific Cutler 77 Hennessey & Hennessy 87 Lidgard and Associates 89 Kiley & Company 91 FF&E Appraisal Services Crocket 80 Hodges & Lacy 82 DMA 87 Business Goodwill Appraisal Services Donna Desmond 87 DMA 89 Based on the ratings and their experience with the City, staff recommends that the firms of Kiley & Company, DMA, and Donna Desmond be retained for appraisal services. All of these firms have been assisting the City with right-of-way services of CIP projects in the past, and they have good track records. The agreement with the firms will be for a period of one fiscal year or until the funds are exhausted, whichever comes first. The City has an option to renew the agreements for an additional year if the firm is responsive to the City's needs. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT These services are on-call and will be used when funds are available in the various CIP projects. APPROVED AS TO FUNDS AND ACCOUNTS: Raul Godinez II Executive Director Public Works Agency RG/SA Francisco Gutierrez Executive Director Finance & Management Services Agency 25C-2 Agreement for Right-of-Way Appraisal Services for CIP Projects March 21, 2011 Page 3 Exhibit 1: Agreements 25C-3 25C-4 Exhibit 1 Agreements 25C-5 25C-6 PROPERTY APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21St day of March, 2011, by and between KILEY COMPANY, 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"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of real property appraisal services. B. Consultant represents that it is able and willing to provide such services for Santa Ana. 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 provide services, as set forth in City's Request for Proposals-Right of Way Consulting and Related Services, dated November 15, 2010, attached hereto as Exhibit A, and as more specifically described in Consultant's Proposal, attached hereto as Exhibit A-1, and both exhibits incorporated by reference. 2. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the City's Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (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. 25C-7 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Consultant's Fee Schedule, attached hereto as Exhibit B. The total sum to be expended under this Agreement shall not exceed $150,000, 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. The invoice shall include a detailed breakdown of the services provided, the project title, the tasks, the hours, and hourly rates. 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. 4. TERM This Agreement shall commence on March 1, 2011 and terminate on the later of February 28, 2012, or the expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. The City shall have the option to extend the term for an additional one-year period. 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, 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. 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 Insurance. Consultant shall maintain commercial general liability insurance which 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 of this 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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 25C-8 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 combined single limit. 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, and $2,000,000 in the aggregate. 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: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, 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 1 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 25C-9 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 facsimile 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 facsimile (714) 647-6956 With courtesy copies to: and Public Works - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-5635 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) 25C-10 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Kiley Company 2681 Dow Avenue, Suite E Tustin, California 92780 facsimile 714-665-6514 Attn: Elizabeth M. Kiley A party may change its address by giving notice in writing to the other party. Thereafter, any 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 facsimile, 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 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 25C-11 for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. 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 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 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 her 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. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25C-12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney KILEY COMPANY By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA ELIZABETH M. KILEY President Tax ID# 25C-13 25C-14 EXHIBIT SCOPE OF WORK GENERAL REQUIREMENTS - RIGHT OF WAY SERVICES Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee. The Consultants shall be thoroughly familiar with the Statement of Work prior to submitting a response to this Request for Qualifications (RFQ). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federally funded projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • Real estate appraisers provided by the Consultant must be certified and a Member of the Appraisal Institute. • All acquisition agents and property managers, performing work for the City, must hold a valid California Real Estate License. Salespersons must be registered with California Department of Real Estate (DRE), as working solely under the Consultant's supervising broker of record. • Work may include, but not be limited to, the following: onsite review of the project area; review of existing records; conducting research and performing analysis; information gathering; negotiations; development of strategies. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of Consultant. • The Consultant shall be responsible for coordination and supervision of all work performed by its sub-consultants. The Consultant shall review all work performed by its sub-consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall have a Quality Control Plan in effect during the entire time work is being performed under the Agreement. The Quality Control Plan shall establish a process whereby work products are independently checked, corrected and back checked. All projects related correspondences and documents should be maintained and bound in appropriate project files. 25C-15 • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspections by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract. Upon on such notification, the Consultant will proceed with the services required by the Agreement. • The Consultant shall complete work under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff which will be responsive and maintain excellent working relationships with property owners, tenants, and City staff. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and very familiar with federal, state and local regulations, policies and procedures as pertain to the right of way services provided. Specific Scope of Work for real property appraisal services includes: Consultant will provide appraisal services that include full and part take of residential property; commercial property; industrial property; easements; special use or zoned property; furniture, fixtures and equipment appraisals; review appraisals; and goodwill valuation. Appraisal Services shall be in accordance federal, state, and local regulations, policies, procedures and standards. Appraiser may perform the following tasks: • Real Estate Appraisals (full and partial takes) • Preparation of Appraisal Summary Statements to accompany City's Offer documents • Valuation of Agency's Landscape Setback requirements • Preparation of a detailed appraisal necessary for condemnation • Coordination with Fixtures and Equipment Appraisers • Coordination with Business Goodwill Appraisers • Communication with property owners • Prepare all necessary correspondence, letters and reports • Provide effective communication with engineers, planners, attorneys, and City staff • Comply with federal, state and local regulations • Create files and maintain all records • Provide condemnation consultations • Attend meetings/public hearings and conduct presentations 25C-16 • Provide expert witness testimony • Coordinate and review of Phase I and Phase II Environmental Studies • Obtain appraisals for each acquisition prepared in accordance with the State of California Laws and USPAP. • Review appraisal report and prepare an Appraisal Summary Statement. Review Appraisals (Required For Federally Funded Projects) Coordinate, direct and obtain review appraisals in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) and Caltrans guidelines. Examine all appraisals and corresponding reports Seek any corrections or revisions deemed appropriate. 25C-17 25C-18 EXHIBIT A-1 CONSULTANT'S PROPOSAL 25C-19 •-d Project Organization Elizabeth M. Kiley, MAI PRESIDENT CERTIFIED GENERAL REAL ESTA TEA PPRA ISER Sarah A. Phillips OFFICE MANAGER tw `'" Stephanie L. Kavanaugh ?. CERTIFIED GENERAL REAL ES TA TE A PPRA ISER ra Meredith McDonald CERTIFIED GENERAL REAL ES TA TE A PPRA ISER a? Maria Olson CERTIFIED GENERAL REAL ESTATE'APPRAISER wr Mark A. Demkiw CERTIFIED GENERAL es REAL ES TATEAPPRAISER. ab b'd Steven Botts CERTIFIED RESIDENTIAL a?. REAL ESTATEAPPRAISER e. Christine S. Santolucito REAL ESTATE TRAINEEAPPRAISER ?.. Ki Page 6 m D* a.. Work Plan We have reviewed the RFP and understand that the City of Santa Ana is seeking to establish a team of consultants for various specialty areas related to right of way projects. We would like to be considered for Specialty Area: (A2) Real Property Appraisal Services. We are confident in our ability to deliver complete and accurate appraisals, with individual assignment details being given on an as-needed basis. As outlined in the Scope of Work for Specialty Area (A2), we will be able to perform the following tasks: • Real Estate Appraisals for full and partial takes • Prepare Appraisal Summary Statements • Evaluate Agency's Landscape Setback requirements • Prepare detailed appraisals or consultations for condemnation appraisals • Coordination with Fixtures and Equipment Appraisers • Coordination with Business Goodwill Appraisers • Prepare all necessary correspondence, letters and reports • Provide effective communication with all parties involved in transaction • Comply with federal, state and local regulations • Attend meetings/public hearings and conduct presentations • Provide expert witness testimony • Coordinate and review of Phase I and Phase II Environmental Studies • Review appraisals completed by other appraisers • Coordinate, direct and obtain review appraisals in accordance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Uniform Act) and Caltrans guidelines • Seek any corrections or revisions deemed appropriate 25C-21 Page 7 Each appraisal request is unique, but most require the standard appraisal methodology established bythe Appraisal Institute. Regulations and guidelines for the preparation of appraisal reports will be followed. Each report will be: °•' Written by an appraiser that is licenced and certified as required by the State of California; iv • Made in compliance with Uniform Standards of Professional Appraisal Practice, The Code of Professional Ethics, the Standards .w f,• of Professional Practice of the Appraisal Institute, Eminent Domain Laws, State and Federal Uniform Relocation Assistance and Real Prop erty'Acquisition Policies, Caltrans Right of Way Manual Chapter 7, and any other appropriate regulations as applicable; • Completed with an Appraisal Summary Statement with attachments that conform to the requirements of California Government Code, Section 7267.2; and aw • Completed with a description of all real property items, pertinent property data, date of value, discussions of highest and best use, narrative explanation of approaches to value, summary and r., tabulation of market data, analysis of market data, and conclusions of value, including severance damages and benefits, if applicable. All assignments will be completed under a comprehensive internal project management 4w framework which ensures the highest quality analysis, client communication, and on-time delivery. All assignments are reviewed by the principal throughout the project to ensure vy a appropriate valuation practices. We will maintain work files with all information gathered during °sY the assignment and will submit them to the City on request. "? Ki t2 Page 8 c? low FA fm r.. ZEN -M w 4W 7'H LM OW The generic framework for appraisals is as follows: • Receipt of authorization • Review of scope of work by principal and appraiser • Review of material received by principal and appraiser • Clarification of any questions with client by principal and appraiser • Letter of Intent to Appraise by principal and appraiser • Collection of market data by principal and appraiser Inspection of subject property by principal and appraiser • Inspection of comparable sales data by appraiser • Description of property and project by principal and appraiser • Determination of highest and best use by principal and appraiser • Develop approaches to value by principal and appraiser • Reconciliation of approaches to value by principal and appraiser • Part Takes ° Review of damages and special benefits by principal and appraiser Consideration of existing easements by principal and appraiser ° Appraisal of the after value by principal and appraiser Valuation of any TCE by principal and appraiser Conclusion and compensation by principal and appraiser • Communicate findings to client by principal and appraiser • Attendance of any meetings during project by principal and appraiser KiNeLny Page 9 I All 7T07 7'17 ?1T Project Schedule Although approximate, our schedule usually proceeds as listed below. For appraisals that require completion within a shorter time period; adjustments can be made to complete the appraisal within a shorter time frame. • Receipt of authorization to proceed • First week - market research and preliminary analysis • Second week - site inspections • Third week - analysis and valuation report write-up • Fourth week- report preparation, completion, and deliveryto client Error-Free SLI missions With over 20 years in operation and a team of seven appraisers, The Kiley Company is excellent at meeting deadlines. Additionally, quality control is always a priority and involves a multi level process: • Principal involvement throughout the appraisal process, including: determination of the scope of work, comparable sales selection, meetings, analysis, and conclusions • All reports are sent to outside, professional proof readers • All reports are read and reviewed in detail by principal prior to delivery KU26,Cnp N Page 10 Prpjects Back to Schedule With over 20 years of appraisal project management experience, The Kiley Company operation and format generally prevent delays from our firm. However, general project delays or changes can occur. Our mid-sized organization provides direct communication with the principal who can instantly problem solve and redirect staff if necessary. Additional staff is available to support if time oi- issues require. We have a clear advantage over the single practitioner who may not be able to add staff to fast track or redirect projects. Client service is ?,e always a priority. Strengths as Appraisers ?• As a local business that has been in the Irvine/Tustin area for over 20 years, The Kiley A .a ns Company is extremely familiar with the Southern California area. The Kiley Company team is also able to confidently take on various types of appraisals, ranging from smaller assignments to larger and more complicated assignments due to the level of experience of our principal appraiser, Elizabeth M. Kiley, MAI. She and her team have completed a wide range of valuations for acquisition and right-of-way services and feel comfortable managing multiple assignments concurrently. Our particular strengths include, but are not limited to. • Experience - 20 years of business in Orange County Expertise - MAI, and State Certified General Designations • Quality - Established project management and quality control • Delivery - Licensed appraisal staff to complete projects on time • Communication - Principal is active in all assignments • Cost - Efficiency of organization provides cost savings to client M Ktle?,r-?r?? Page 31 25C-26 EXHIBIT B FEE SCHEDULE 25C-27 ..q VW K? t".%11 bA a+ k10 Go h3 GPI 09 Price Proposal Each appraisal assignment is unique and our fees are on a fixed price basis determined by the complexity of each individual assignment, We will provide a bid for each individual assignment based on the scope of work for that specific project or property at the time of request, Changes to the fixed prices only occur as a result of client initiated changes in the scope of work. To get an idea of our fee schedule, our hourly rates for real property appraisal and consulting services are as follows, with rush requests requiring overtime being billed at one and one-half times our regular rates: Certified General Real Estate Appraiser President Certified General Real Estate Appraiser Certified Residential Real Estate Appraiser Real Estate Trainee Appraiser Office Manager/Administrative Staff Please also see the attached forms included in the RFP. $200 for Appraisal $450 for Expert Witness Testimony and Court Related Meetings $90 for Appraisal Services $90 for Appraisal Services $80 for Appraisal Services $60 for Administrative Duties 25C_28 Page 12 EXHIBIT,B Page 1 of 1 Right of Way Consulting and Related Services PRICE SUMMARY SHEET SCHEDULE I -- HOURLY RATES „r to rte. a,. (j cm t Ca vw e;v A? Name Job Title/ Classification Job Function Fully Burdened Hourly Rate tiZabe?V. M.1?? pres;dev-cc ?1? ? cac?ral evi ?D? Ste lnani? ?avara Y'' C r I -A rcki %O k D v ;k?M? ?d Gev ` ` ?,n?xa{ flp a??Sa? tow arr? 'W C " -ec) 0 vcaraf vat so,\ i> o."t Mon r ed ewa( \ `? a 0 ev ours ?eSiC a \ ?'$0 evw sm-fl t y\'%6a ai er Gt \ YC 1 ??1 i 11? lix M0.v?Q i n i Q U0 Fully ouruu1mu rates mciuue an overneaa, general costs, aaministration costs and profit. Page 36 of 36 25C-29 25C-30 APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21" day of March, 2011, by and between DESMOND, MARCELLO & AMSTER, LLC (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 business goodwill, and furniture, fixtures and equipment appraisal services. B. Consultant represents that it is able and willing to provide such services for Santa Ana. 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 provide services, as set forth in City's Request for Proposals-Right of Way Consulting and Related Services, dated November 15, 2010, attached hereto as Exhibit A, and as more specifically described in Consultant's Proposal - Business Goodwill Appraisal Services, attached hereto as Exhibit A-1, and Consultant's Proposal - Furniture, Fixtures & Equipment Appraisal Services, attached hereto as Exhibit A-2. All exhibits are incorporated by reference. 2. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the City's Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (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 25C-31 royalty-free, nonexclusive, irrevocable license throughout the world for governmental purposes to disclose, publish, translate, reproduce, and use such materials. 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its Goodwill Appraisal services, the rates and charges identified in Consultant's Fee Schedule - Goodwill Appraisals, attached hereto as Exhibit B-1. City shall pay, and Consultant agrees to accept as total payment for Furniture, Fixture and Equipment Appraisal services, the rates and charges set forth in Exhibit B-2, attached hereto. The total sum to be expended among all consultants providing goodwill and/or furniture, fixture and equipment appraisal services shall not exceed an aggregate of $300,000, 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. The invoice shall include a detailed breakdown of the services provided, the project title, the tasks, the hours, and hourly rates. 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. 4. TERM This Agreement shall commence on March 1, 2011 and terminate on the later of February 28, 2012, or the expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. The City shall have the option to extend the term for an additional one-year period. 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, 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. 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 Insurance. Consultant shall maintain commercial general liability insurance which 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 of this Agreement, including, without limitation, acts involving vehicles. The 25C-32 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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 combined single limit. 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, and $2,000,000 in the aggregate. 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: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, 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 1 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, 25C-33 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. 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 facsimile 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 facsimile (714) 647-6956 With courtesy copies to: Public Works - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 25C-34 Santa Ana, California 92702 facsimile (714) 647-5635 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Desmond, Marcello & Amster, LLC 6060 Center Drive, Suite 825 Los Angeles, California 90045 facsimile (310) 216-0800 Attn: Aaron D. Amster A party may change its address by giving notice in writing to the other party. Thereafter, any 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 facsimile, 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 City upon thirty (30) days written notice of termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant 25C-35 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. However, any use of unfinished work product shall be at City's sole risk. 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 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 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 her 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. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25C-36 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney DESMOND, MARCELLO & AMSTER, LLC By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA AARON D. AMSTER Senior Partner Tax ID# 25C-37 25C-38 EXHIBIT SCOPE OF WORK GENERAL REQUIREMENTS - RIGHT OF WAY SERVICES Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee. The Consultants shall be thoroughly familiar with the Statement of Work prior to submitting a response to this Request for Qualifications (RFQ). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federally funded projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • Real estate appraisers provided by the Consultant must be certified and a Member of the Appraisal Institute. • All acquisition agents and property managers, performing work for the City, must hold a valid California Real Estate License. Salespersons must be registered with California Department of Real Estate (DRE), as working solely under the Consultant's supervising broker of record. • Work may include, but not be limited to, the following: onsite review of the project area; review of existing records; conducting research and performing analysis; information gathering; negotiations; development of strategies. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of Consultant. • The Consultant shall be responsible for coordination and supervision of all work performed by its sub-consultants. The Consultant shall review all work performed by its sub-consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall have a Quality Control Plan in effect during the entire time work is being performed under the Agreement. The Quality Control Plan shall establish a process whereby work products are independently checked, corrected and back checked. All projects related correspondences and documents should be maintained and bound in appropriate project files. 25C-39 • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspections by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. • The Consultant will receive written notification of the award of the contract. Upon on such notification, the Consultant will proceed with the services required by the Agreement. • The Consultant shall complete work under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff which will be responsive and maintain excellent working relationships with property owners, tenants, and City staff. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and very familiar with federal, state and local regulations, policies and procedures as pertain to the right of way services provided. Specific Scope of Work for BUSINESS GOODWILL APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Goodwill Loss Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of goodwill loss will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, these estimates will take into consideration Consultant's experience in preparing goodwill loss appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Goodwill Loss Acquisition Appraisals During the early stages of property acquisition, Consultant can provide preliminary estimates of goodwill loss. Acquisition appraisals are based upon data, which may be provided by the business' ownership at its discretion. Such information may include: leases; background on the business provided via owner/management interviews; historical and prospective financial data; and information about proposed relocation sites. In addition, Consultant shall perform basic transactional research in light of our understanding of the business' operations and financial condition. Consultant will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of 25C-40 compensation. Further, Consultant's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. Consultant will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by Consultant, may have an impact on the value conclusion. Specific Scope of Work for FURNITURE, FIXTURES AND EQUIPMENT APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Fixtures and Equipment Values Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of fixtures and equipment values will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, the estimates take into consideration Consultant's experience in preparing fixtures and equipment appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Fixtures and Equipment Appraisals Consultant will provide a fully contained appraisal report, in triplicate, of the improvements pertaining to the realty and major movable equipment of each business appraised. The report will include an estimate of the fair market value in place and liquidation value of all appropriate items and will be prepared in conformance with Article 3 of the California Code of Civil Procedure, Sections 1263.205 and 1263.210. (Compensation for losses in connection with movable personal property is included in the California Code of Regulations, Title 25, Sections 6090 and 6092.) Appraisal procedures will be guided by the Uniform Standards of Professional Appraisal Practice (USPAP). In preparing each comprehensive appraisal, Consultant will: inspect the business' facility; prepare an inventory of the improvements pertaining to the realty and major movable equipment; coordinate appraisal activities with the real estate appraiser to avoid duplication of compensation; interview the business' owner/manager regarding the business' history, operations and tangible assets owned; and utilize generally accepted valuation methodology to determine the fair market value in place and liquidation value of the appropriate items owned by the business. Furniture, Fixtures and Equipment Appraisals tasks may include: • Inspect the business facility. • Prepare separate inventories for the Fixtures & Immovable Equipment and Movable Personal Property. 25C-41 Coordinate appraisal activities with the real estate appraiser to avoid duplication of compensation Interview the business owner regarding the history, operation and tangible assets owned. Prepare report utilizing accepted valuation methodology to estimate the replacement cost new, fair market value in place and salvage value of the appropriate items owned by each business operation. 25C-42 EXHIBIT A-1 CONSULTANT'S PROPOSAL GOODWILL APPRAISAL SERVICES 25C-43 S. Prolect Organization Chart Appraisal Projact Teams Organization Chart Loss of Goodwill Appraisal Aaron Amster Sr. Partner Project Manager Madeleine Mamaux Partner Project Manager Ricardo Goiti Sr. Manager Project Manager Eric Lietzow Sr. Manager 6. Key Personnel Statement Diane Christensen Manager Kevin Blair Sr. Analyst , Key personnel will be available to the extent proposed for the duration of the project. No person designated as "key" to the project shall be removed or replaced without the prior written concurrence of the City. is 25C-44 C. WORK PLAN 1. Approach to Scope of Work DM&A's appraisal specialty, business goodwill valuation, is a vital component of any acquisition project. Our approach to the appraisal process is thorough, collaborative, 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 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. The firm can assist the City with the following key services. Budgetary Estimates DM&A can assist in the planning phase of a project by preparing budgetary goodwill loss estimates. These estimates are based upon limited site inspections of the subject businesses, access to any publicly available data, limited transactional research, and our extensive experience in valuing comparable businesses and in negotiated settlements and jury awards in eminent domain proceedings. This analysis does not include management interviews, review and analysis of historical and prospective financial records, nor in depth industry and market research. Accordingly, the conclusions are highly preliminary and inappropriate for settlement 16 25C-45 negotiations. The preliminary estimates are solely suitable for budgetary purposes. Budgetary estimates can generally be completed within 20 to 30 days. Acquisition Appraisals DM&A's acquisition appraisals are based upon data which may be provided by the business' ownership at its discretion. Such information may include leases, background on the business provided via owner/management interviews, historical and prospective financial data, and information about proposed relocation sites. In addition, DM&A will perform basic transactional research in light of our understanding of the business' operations and financial condition. DM&A will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of compensation. Further, DM&A's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. DM&A will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by DM&A, may have an impact on the value conclusion. Litigation Support DM&A is available to provide litigation support services to the City regarding any business affected by the types of projects outlined above. These services would include, but are not 17 25C-46 limited to, aiding attorneys in the discovery process, reviewing opposing expert appraisals, and testifying at deposition and/or trial. 2. Sequential Outline DM&A's work will encompass steps including, but not limited to, the following; + Review and analysis of financial statements of the subject business, including internal income statements and balance sheets as well as tax returns; • Interviews with the owners and/or managers of the subject business. Such interviews are intended to provide DM&A with a thorough understanding of the business' products, operations, management, employees, marketing, competition, and industry, as well as an understanding of recent financial trends and outlook; • Site and area inspections of both the subject location and the business' relocation site, if applicable; • Review of leases and other contracts pertinent to the business' operations; • Coordination with other professionals, such as fixtures and equipment appraisers, real estate appraisers, and relocation consultants, to avoid duplication of compensation; • Independent research in the business' industry and the economic factors affecting the business; 18 25C-47 • Research into the marketplace for sales of businesses similar to the subject; • Investigation of the impact of the taking and/or of relocation, if applicable, on the business' revenues and profits in the "after" condition; and • Implementation of valuation methods, such as the Income Approach and Market Approach, to determine the value of the business' goodwill in both the before condition and in the after condition. 3. Proiect Schedule The schedule for completion of a business goodwill appraisal can vary widely depending upon the complexity of the business appraised and the degree of cooperation from the business' ownership. It is our experience that, assuming full and timely cooperation from all parties, an appraisal can be completed within 30 days of a client's authorization to proceed. DM&A actively communicates project status with clients via email, conference calls, or any other means preferred by the client. To the extent any data or information necessary for an appraisal is not forthcoming, we will notify City officials in a timely manner such that steps can be taken to obtain the necessary data. Budgetary estimates can generally be completed within 15 to 20 days. 4. Quality, Budget and Schedule Control Our collaborative business approach allows DM&A to have a level of quality control and responsiveness that is unique in our market. DM&A's appraisal review process is thorough and involves oversight by firm partners. Budgets and schedules are closely monitored, and 19 25C-48 appropriate management controls have been implemented to maximize employee productivity. DM&A's delivery record of projects on time and within budget is evidence of the firm's superior quality control. 5. Special Issues DM&A has not identified any special issues at this time. 6. Proposed Enhancements To the extent that DM&A finds any avenues to enhance efficiency, quality and/or responsiveness, we will pass along such ideas to the City during the course of the Project. 2© 25C-49 25C-50 EXHIBIT A-2 CONSULTANT'S PROPOSAL FURNITURE, FIXTURE AND EQUIPMENT APPRAISAL SERVICES 25C-51 5 Project Organization Chart Appraisal Project Team Organization Chart Aaron Amster Madeleine 5lamaux Wesley Nutten Sr. Partner Partner Partner Project Manager Project Manager ProjectNtanager J Ricardo Goili Marcus Pigrom Sr. Manager Sr. Manager Project Manager Project Manager l Eric Lietzow I Diane Christensen f Kevin Blair 111 Sr. Manager Manager III Sr. Analyst 6 Key Personnel Statement Key personnel will be available to the extent proposed for the duration of the project. No person designated as "key" to the project shall be removed or replaced without the prior written concurrence of the City. Is 25C-52 C. WORK PLAN 1 Approach to Scone of Work DM&A's appraisal specialty, furniture, fixtures and equipment valuation, is a vital component of any acquisition project. Our approach to the appraisal process is thorough, collaborative, 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 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. The firm can assist the City with the following key services. Budgetary Estimates DM&A can assist in the project planning phase by preparing budgetary fixtures and equipment estimates. These estimates are based upon limited site inspections and our experience in valuing comparable businesses. This type of analysis does not include detailed inventory of fixtures and equipment or in-depth market and cost research. Accordingly, the conclusions are highly preliminary and inappropriate for settlement negotiations. The preliminary estimates are solely suitable for budgetary purposes. 19 25C-53 Comprehensive Appraisals In providing furniture, fixtures and equipment appraisal services to the City, DM&A will perform the necessary research, investigation, and analysis to provide written appraisal reports in compliance with the-standards of the Uniform Standards of Professional Appraisal Practice (USPAP), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, and Public Law 91-646 (the Uniform Act) as they pertain to fixtures and equipment valuations. The appraisals we provide can be used for settlement negotiations and are appropriate for legal exchange. In addition, DM&A's fixtures and equipment specialist has experience in providing testimony in depositions regarding conclusions of value. DM&A can provide litigation support functions related to fixtures and equipment matters, such as assistance in discovery, reviewing other appraisals, and preparing direct and rebuttal testimony. 2 Sequential Outline DM&A's work will encompass steps including, but not limited to, the following: • Communications with City management to ascertain the scope of the assignment; o Coordination with relocation agents, acquisition agents and attorneys; • Scheduling a site inspection convenient to the business' owners and management; 20 25C-54 • Preparing a complete inventory of the assets at the subject business location. This inventory includes a description of the assets as well as observation of their age, condition, and method of installation, if any; • Review of any documentation pertaining to the assets provided by the business owner and/or manager, such as invoices, depreciation schedules, and construction contracts; • Interviewing business owners and/or managers; • Researching the marketplace for each of the assets identified on-site. Such research includes reference to a variety of publications as well as discussions with individuals knowledgeable about the market for the assets; • Coordinating with other appraisers to avoid duplication of compensation; • Applying valuation methods including the Market Approach and Cost Approach to the subject assets; and • Preparing the appraisal report for submission. 3 Proiect Schedule The schedule for completion of a fixtures and equipment appraisal can vary widely depending upon the complexity of the business appraised and the degree of cooperation from the business' 21 25C-55 ownership. It is our experience that, assuming full and timely cooperation from all parties, an appraisal can be completed within 30 days of a client's authorization to proceed. DM&A actively communicates project status with clients via email; conference calls, or any other means preferred by the client. To the extent any data or information necessary for an appraisal is not forthcoming, we will notify City officials in a timely manner such that steps can be taken to obtain the necessary data. Budgetary estimates can generally be completed within 20 to 30 days. 4 Ouality, Budget and Schedule Control Our collaborative business approach allows DM&A to have a level of quality control and responsiveness that is unique in our market. DM&A's appraisal review process is thorough and involves oversight by firm partners. Budgets and schedules are closely monitored, and appropriate management controls have been implemented to maximize employee productivity. DM&A's delivery record of projects on time and within budget is evidence of the firm's superior quality control. 5. Special Issues DM&A has not identified any special issues at this time. b Proposed Enhancements To the extent that DM&A finds any avenues to enhance efficiency, quality and/or responsiveness, we will pass along such ideas to the City during the course of the Project. n 22 25C-56 EXHIBIT B-1 FEE SCHEDULE GOODWILL APPRAISAL SERVICES 25C-57 - E. COST AND PRICE PROPOSAL Pricin Detail - Business Goodwill Atmraisal DM&A does not analyze individual work tasks separately for proposal pricing. The bulk of the time spent typically involves financial analysis, research, and valuation analysis tasks. The amount of time spent on review also varies by assignment. DM&A's services are very business/tenant specific. Meaningful fee estimates cannot be given without knowing the types of businesses for which our services may be needed. Therefore we have provided business type information in the average cost estimates below and assumed "typical" situations. Summary Report Appraiser Ave. Rate + Projec t Mgr. Ave. Rate = Avera a Cost Estimate Project Manager Average Cost Business T e* Appraiser Average Rate Average Rate Estimate Small Retail & Services 19 hrs. $175 = $3,325.00 8 hrs. $275 = $2,200 $5,525 Restaurants/Bars 21.5 hrs. $175 = $3,762.50 10 hrs. $275 = $2,750 $6,513 Independent Wholesale/Manufacturing 27 hrs. @ $175 = $4,725.00 12 hrs. @ $275 = $3,300 $8,025 Gasoline Stations (may include convenience stores, auto repair, 21.5 hrs. @ $175 = $3,762.50 10 hrs. @ $275 = $2,750 E$6,513 and car wash L. W1 $a irut uci irwiusive OJ possiote ousiness types. DM&A will not submit claims for reimbursement of mileage, overtime, travel costs or ordinary " costs incurred in the appraisal process. However, reimbursable expenses may be incurred during litigation, and may include preparation of trial exhibits. 22 25C-58 EXHIBIT A Page 1 of -1 Right of Way Consulting and Related Services PART I -- LIST OF KEY PERSONNEL Names Functions _ Aaron Amster Madeleine Mamaux Pro'ect Mana er PART l1- LIST OF SUBCONSULTANT/SUBCONTRACTORS E Subcontractor Name/Address Function None Page 35 of 36 25C-59 EXHIBIT B Page 1 of 1 Right of Way Consulting and Related Services PRICE SUMMARY SHEET SCHEDULE I -- HOURLY RATES Court/ Standard Depo Name Job Title/ Job Function Fully Burdened Classification Hourly Rate* Aaron Amster Sr. Partner .Project Manager 295 400 Madeleine Mamaux Partner Project Manager 250 350 runy tsuraenea rates inciuae all overhead, general costs, administration costs and profit. Page 36 of 36 25C-60 EXHIBIT B-2 FEE PROPOSAL FURNITURE, FIXTURE AND EQUIPMENT APPRAISAL SERVICES 25C-61 E. COST AND PRICE PROPOSAL Prieine Detail - Fixtures and Equipment Appraisal DM&A does not analyze individual work tasks separately for proposal pricing. The bulk 6f the time spent typically involves inventorying relevant items and valuation research. The amount of time spent on review also varies by assignment. DM&A's services are very business/tenant specific. Meaningful fee estimates cannot be given without knowing the types of businesses for which our services may be needed. Therefore we have provided business type information in the average cost estimates below and assumed "typical" situations. Summa Report Average Typical Hours Project Manager Cost Business T e* Required Rate Estimate Small Retail & Services 16 $150 $2,400 Restaurants/Bars 25 $150 $3,750 Independent Wholesale/Manufacturing 40 $150 $6,000 Gasoline Stations (may include convenience stores, 36 $150 $5,400 auto repair, and car wash) cast is not au inctusive ojpossrate Dusiness types. DM&A will not submit claims for reimbursement of mileage, overtime, travel costs or ordinary costs incurred in the appraisal process. However, reimbursable expenses may be incurred during litigation, and may include preparation of trial exhibits. 24 25C-62 EXHIBIT A Page 1 of 1 Right of Way Consulting and Related Services PART I - LIST OF KEY PERSONNEL Names . Functions Marcus Pi rom Project Manager Aar Amster Project R view & Coordination Madeleine Mamaux Project Review & Coordination PART 11-- LIST OF SUBCONSULTANT/SUBCONTRACTORS Subcontractor Name/Address Function NAIVE Page 35 of 36 25C-63 EXHIBIT B Page 1 of 1 Right of Way Consulting and Related Services PRICE SUMMARY.SHEET SCHEDULE 1 -- HOURLY RATES Court/ Standard Depo Name Job Title/ Classification Job Function Fully Burdened Hourly Rate Marcus Pi rom Sr. Manager Project M na r 150 200 Aaron Amster Sr. Partner Project Manager 325 950 Madeleine Mamaux Partner Project Manager 295 900 „t ?Uy ouluvlluu rdlub inuMue an overneaa, general costs, administration costs and profit. Page 36 of 36 25C-64 BUSINESS GOODWILL APPRAISAL SERVICES AGREEMENT THIS AGREEMENT, made and entered into this 21" day of March, 2011, by and between DONNA DESMOND ASSOCIATES, 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"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of business goodwill appraisal services. B. Consultant represents that it is able and willing to provide such services for Santa Ana. 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 provide services, as set forth in City's Request for Proposals-Right of Way Consulting and Related Services, dated November 15, 2010, attached hereto as Exhibit A, and as more specifically described in Consultant's Proposal, attached hereto as Exhibit A-1, and both exhibits incorporated by reference. 2. DELIVERY OF WORK PRODUCT - OWNERSHIP Consultant warrants and represents that it has the absolute right to enter into and perform this Agreement and will perform its obligations hereunder in accordance with standards and practices prevailing in the industry. Consultant's contribution to the Project, including works to be produced by Consultant hereunder, will not infringe or misappropriate the proprietary or personal rights of any third person or party. Consultant shall deliver to City any work product which results from the services provided. Said work product shall be submitted in hard copy and produced in a form compatible with City's information systems, as agreed between the City's Project Manager and Consultant. In regard to all material produced as a deliverable under this Agreement, including but not limited to records, papers, drawings, specifications, programs, systems and other materials prepared by Consultant, Consultant agrees, for itself and its affected officers, employees, agents, contractors, and volunteer workers, that (a) other such material shall be the property of the City, and may not be copyrighted without prior review from the City, and (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. 25C-65 3. COMPENSATION a. City agrees to pay, and Consultant agrees to accept as total payment for its services, the rates and charges identified in Consultant's Fee Schedule, attached hereto as Exhibit B. The total sum to be expended on all consultants providing goodwill appraisal services and furniture, fixture and equipment appraisal services shall not exceed an aggregate of $300,000, 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. The invoice shall include a detailed breakdown of the services provided, the project title, the tasks, the hours, and hourly rates. 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. 4. TERM This Agreement shall commence on March 1, 2011 and terminate on the later of February 28, 2012, or the expenditure of allocated funds, unless terminated earlier in accordance with Section 13, below. The City shall have the option to extend the term for an additional one-year period. 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, 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. 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 Insurance. Consultant shall maintain commercial general liability insurance which 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 of this 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. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. 25C-66 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 combined single limit. 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, and $2,000,000 in the aggregate. 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: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, 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 1 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 25C-67 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 facsimile 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 facsimile (714) 647-6956 With courtesy copies to: Public Works - Design Engineering City of Santa Ana 20 Civic Center Plaza (M-36) P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-5635 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) 25C-68 P.O. Box 1988 Santa Ana, California 92702 facsimile (714) 647-6515 To Consultant: Donna Desmond Associates 265 Beverly Glen Blvd. Los Angeles, California 90024 facsimile (310) 475-6266 Attn: Donna Desmond A party may change its address by giving notice in writing to the other party. Thereafter, any 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 facsimile, 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 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 25C-69 for such purposes as the City deems appropriate. However, any use of unfinished work product shall be at City's sole risk. 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 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 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 her 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. Captions and headings in this Agreement, including the title of this Agreement, are for convenience only and are not to be considered in construing this Agreement. c. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. 25C-70 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: DAVID N. REAM City Manager DONNA DESMOND ASSOCIATES JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney DONNA DESMOND President Tax ID# RECOMMENDED FOR APPROVAL: RAUL GODINEZ, II Executive Director - PWA 25C-71 25C-72 EXHIBIT SCOPE OF WORK GENERAL REQUIREMENTS - RIGHT OF WAY SERVICES Consultants under contract with the City of Santa Ana will provide support to City of Santa Ana staff or their designee. The Consultants shall be thoroughly familiar with the Statement of Work prior to submitting a response to this Request for Qualifications (RFQ). • The Consultant shall perform work to produce a high quality, professional and complete work product. • Consultant must have experience with State and Federally funded projects. All work shall be performed in conformance with all applicable regulations, policies, procedures and standards. • Real estate appraisers provided by the Consultant must be certified and a Member of the Appraisal Institute. • All acquisition agents and property managers, performing work for the City, must hold a valid California Real Estate License. Salespersons must be registered with California Department of Real Estate (DRE), as working solely under the Consultant's supervising broker of record. • Work may include, but not be limited to, the following: onsite review of the project area; review of existing records; conducting research and performing analysis; information gathering; negotiations; development of strategies. • The Consultant shall carry out the instructions received from the City and shall cooperate with the City and other agencies. • The Consultant has total responsibility for the accuracy and completeness of the work produced. The work will be reviewed by the City for conformity with the requirements of the Agreement. Reviews by the City may NOT include a detailed review for the accuracy of items submitted. The responsibility for accuracy and completeness of such items remains solely that of Consultant. • The Consultant shall be responsible for coordination and supervision of all work performed by its sub-consultants. The Consultant shall review all work performed by its sub-consultants and the responsibility for accuracy and completeness of work performed remains solely that of Consultant. • The Consultant shall have a Quality Control Plan in effect during the entire time work is being performed under the Agreement. The Quality Control Plan shall establish a process whereby work products are independently checked, corrected and back checked. All projects related correspondences and documents should be maintained and bound in appropriate project files. 25C-73 • The Consultant shall diligently work on each assignment and complete each task in accordance with the schedule and accommodate the City's needs. • The Consultant's work will be subject to inspections by City, County, State and Federal representatives. • Project files including copies of all correspondences, reports, documents, and electronic files shall be submitted to the City when requested. • All work, including reports, analysis, data, and intellectual properties developed during the life of the Agreement shall become the properties of the City. ' • The Consultant will receive written notification of the award of the contract. Upon on such notification, the Consultant will proceed with the services required by the Agreement. • The Consultant shall complete work under the direction of City staff. The Consultant will be expected to provide experienced and knowledgeable professional staff which will be responsive and maintain excellent working relationships with property owners, tenants, and City staff. The Consultant shall be committed to provide adequate staffing levels at all times in order to adhere to established schedules. The Consultant shall be knowledgeable and very familiar with federal, state and local regulations, policies and procedures as pertain to the right of way services provided. Specific Scope of Work for BUSINESS GOODWILL APPRAISAL SERVICES includes: Consultant services will include providing: Budgetary Estimates of Goodwill Loss Budgetary estimates are used by public agencies in planning and preparing a project budget. Consultant's estimates of goodwill loss will be based upon a "drive by" site inspection of the subject businesses, limited market research, and any publicly available data. In addition, these estimates will take into consideration Consultant's experience in preparing goodwill loss appraisals of comparable businesses, as well as our knowledge of relevant statutes and case law, negotiated settlements and jury awards in eminent domain proceedings. Consultant's results will be presented in a brief letter. Goodwill Loss Acquisition Appraisals During the early stages of property acquisition, Consultant can provide preliminary estimates of goodwill loss. Acquisition appraisals are based upon data, which may be provided by the business' ownership at its discretion. Such information may include: leases; background on the business provided via owner/management interviews; historical and prospective financial data; and information about proposed relocation sites. In addition, Consultant shall perform basic transactional research in light of our understanding of the business' operations and financial condition. Consultant will also coordinate with real estate and fixtures and equipment appraisers to avoid duplication of 25C-74 compensation. Further, Consultant's analyses will be guided by relevant statutory and case law pertaining to compensation for loss of goodwill. The result of each acquisition appraisal study is presented in a brief report with attached schedules. Included within this document are the purpose of the assignment, the sources of information utilized, a brief description of the subject business and the valuation methods employed. Consultant will note any assumptions made in performing the analysis, as well as all information requested from the business' ownership, but not received, which, upon review by Consultant, may have an impact on the value conclusion. 25C-75 25C-76 EXHIBIT A-1 CONSULTANT'S PROPOSAL 25C-77 WORK PLAN In providing goodwill loss appraisal services, DDA proposes the following work process for each appraisal assignment: ? Meet with project team to gain an understanding of the project and potential impacts; o Provide preliminary estimates of goodwill for budgetary purposes, if requested; o Inspect the business facility; o Interview the business owner and management to determine history of operations and relocation needs; ? Review business' historical financial statements, tax returns and lease agreements; o Review all parcel appraisal reports and coordinate with real estate and fixtures and equipment appraisers to avoid duplication of compensation; 4 ? Coordinate with agency staff and legal counsel to discuss strategy and approach; ? Coordinate with relocation agents to determine relocation options, feasibility of q relocation, mitigation issues and to avoid duplication of compensation; ? Perform market research to determine the business' marketability and external .% influences; ey Ft, ? Implement valuation methodology, including market based and income approaches, to determine the business' goodwill value in the before condition; ? Inspect potential or actual relocation site(s); n Review all relevant and available documentation from relocation site, including M lease, financial statements and unreimbursed capital expenditures; 15 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C-78 o Implement valuation methodology to determine the loss of goodwill suffered by the business, including giving consideration to betterment, if any; o Prepare a full or summary narrative appraisal report or declaration of value; and o Provide support in negotiations and litigation (as needed). All of the above tasks would be completed by Donna Desmond. All appraisal services provided by Donna Desmond Associates are performed in conformance with the Uniform Standard of Professional Appraisal Practice ("USPAP"). Appraisal reports can be completed within four weeks of receiving all applicable documentation from the business ' owners. Goodwill loss appraisals are often delayed by business owners' reluctance to provide financial documents, including income tax returns. DDA works closely with project staff and the relocation consultants to ensure business owners understand the necessity of providing such documentation. Further, DDA continues to engage the business owners in order to provide a level of comfort with the process. Donna Desmond provides all appraisal services to her clients. Therefore, less experienced staff members are not performing appraisal tasks or billing hours for bringing the responsible appraiser up to speed. As a result, the appraisal process is streamlined, typically resulting in a more cost effective fee structure for appraisal services, quicker tumaround time and a high level of quality. v i>f Q3 16 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES `? 25C-79 PROPOSED STAFFING AND PROJECT ORGANIZATION ^• KEY PERSONNEL Donna Desmond, ASA Donna Desmond, President of Donna Desmond Associates, has specialized in business valuation since 1987. She has completed thousands of goodwill loss appraisal assignments for both public agencies and private parties throughout the State of .. California since 1987. Ms. Desmond has qualified as an expert in goodwill loss and business damages in the Superior Court of California in Los Angeles, Orange, San Diego, Kern, Santa Clara, San Francisco and Contra Costa counties and in the states of Nevada and Texas, and has testified extensively in arbitration and mediation throughout California. Prior to founding DDA in 1997, she was a principal with Desmond, Marcello & Amster, responsible for appraisal management and testimony. Ms. Desmond was employed with Desmond, Marcello & Amster from 1986 through 1997. From September 1986 through December 1990, Ms. Desmond was a financial analyst with the firm. From 1990 through 1994 she was a project manager and from 1994 through 1997 was a principal with the firm. sa Ms. Desmond is a senior member of the American Society of Appraisers in the Business Valuation Discipline. This designation was attained in 1995. She is also a member of the ., Institute of Business Appraisers. Ms. Desmond has written articles for International Right of Way Association newsletters and the California Redevelopment Journal. She is also a contributing author to the 13 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA's RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C-80 x K? A Handbook of Small Business Valuation Formulas, published in 1987 and revised in 1988. " Ms. Desmond regularly gives seminars to public agencies, attorney groups, and redevelopment and right of way organizations relative to issues pertinent to goodwill loss .,A in eminent domain actions and billboard appraisal. .,a Ms. Desmond graduated with a bachelor's degree from the University of California, Los Angeles in 1986 and continues to attend professional education courses in appraisal, y finance and accounting. A Ms. Desmond will be directly responsible for all appraisal services provided to the City of Santa Ana. .q Ms. Desmond will be available to provide goodwill loss appraisal services for the duration of the contract with lite City of Santa Ana. No other person will replace Ms. Desmond. s7 y v1 ?a eA1 as 14 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGHT OF WAY CONSULTING AND RELATED SERVICES 25C-81 25C-82 EXHIBIT B FEE SCHEDULE 25C-83 COST & PRICING DATA , , .0 aC 4d COST & PRICING DATA Donna Desmond Associates bills for appraisal services based upon hourly rates. Tbc 2010/2011 hourly rates areas follows: Appraisal Preparation $265.00 Litigation Support $265.00 - $365.00 Deposition and Court Testimony $365.00 PRICING DETAIL Goodwill loss appraisal fees are based on the relative complexity of the assignment and litigation requirements. Goodwill loss appraisal fees for various types of businesses are as follows: Business Type/Complexity Budgetary Estimate of Goodwill Loss Small Sole Proprietorship (i.e. accountant, hair salon, liquor store) Retail Type Business (i.e. restaurant, gasoline station, 99¢ Store) Larger Industrial/Manufacturing Typical Appraisal Fee $2,000 $3,500 - $4,500 $4,500 - $6,500 $6,500 - $12,000 Actual appraisal fees could vary for individual appraisal assignments, depending on the facts surrounding the matter. No subconsultant costs would be incurred. 18 of 23 DONNA DESMOND ASSOCIATES RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RtGkT OF WAY CONSULTING AND RELATED SERVICES ?` 25C-84 PROPOSED RECMBURSABLES Donna Desmond Associates does not charge for any costs, with the exception of trial exhibits produced by an outside finn. However, these costs are typically paid for by legal counsel. -9 v Jil V r? ut! ..e -a t7 99 of 23 DONNA DESMOND ASSOCIATES a RESPONSE TO THE CITY OF SANTA ANA'S RFP FOR RIGFif OF WAY CONSULTING AND RELATED SERVICES li3 25C-85 25C-86