1 AGREEMENT FOR CONSULTING SERVICES
BETWEEN THE CITY OF REDONDO BEACH
AND CONCORD PROPERTY MANAGEMENT GROUP, LLC
THIS AGREEMENT FOR CONSULTING SERVICES (this "Agreement") is made between the City of Redondo Beach, a Chartered Municipal Corporation ("City") and Concord Property Management Group, LLC, a Delaware limited liability company ("Consultant" or “Contractor”).
The parties hereby agree as follows:
1. Description of Project or Scope of Services. The project description or scope of services to be provided by Consultant, and any corresponding responsibilities of City, or services required to be performed by City are set forth in Exhibit "A."
2. Term and Time of Completion. Consultant shall commence and complete the project or services described in Exhibit "A" in accordance with the schedule set forth in Exhibit "B".
3. Compensation. City agrees to pay Consultant for work performed in accordance with Exhibit "C".
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GENERAL PROVISIONS
1. Independent Contractor. Consultant acknowledges, represents and warrants that Consultant is not a regular or temporary employee, officer, agent, joint venturer or partner of the City, but rather an independent contractor. This Agreement shall not be construed as a contract of employment. Consultant shall have no rights to any benefits which accrue to City employees unless otherwise expressly provided in this Agreement. Due to the independent contractor relationship created by this Agreement, the City shall not withhold state or federal income taxes, the reporting of which shall be Consultant's sole responsibility.
2. Brokers. Brokers. City acknowledges and understands that pursuant to a separate agreement between Consultant and BC Urban, LLC ("BCU"), BCU will provide brokerage services for the Property described in Exhibit “A”, and receive certain brokerage commissions from Consultant. However, in all other cases, Consultant acknowledges, represents and warrants that Consultant has not hired, retained or agreed to pay any entity or person any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement.
2 3. City Property. All plans, drawings, reports, calculations, data, specifications, videos, graphics or other materials prepared for or obtained pursuant to this Agreement shall upon request be delivered to the City within a reasonable time, and the rights thereto shall be deemed assigned to the City. If applicable, Consultant shall prepare check prints upon request. Said plans, drawings, reports, calculations, data, specifications, videos, graphics or other materials, shall be specific for the project herein and shall not be used by the City for any other project without Consultant's consent. Notwithstanding the foregoing, Consultant shall not be obligated to assign any proprietary software or data developed by or at the direction of Consultant for Consultant's own use; provided, however, that Consultant shall, pursuant to Paragraph 14 below, indemnify, defend and hold the City harmless from and against any discovery or Public Records Act request seeking the disclosure of any such proprietary software or data.
4. Inspection. If the services set forth in Exhibit "A" shall be performed on City or other public property, the City shall have the right to inspect such work without notice. If such services shall not be performed on City or other public property, the City shall have the right to inspect such work upon reasonable notice.
Inspections by the City shall not relieve or minimize the responsibility of Consultant to conduct any inspections Consultant has agreed to perform pursuant to the terms of this Agreement. Consultant shall be solely liable for said inspections performed by Consultant. Consultant shall certify in writing to the City as to the completeness and accuracy of each inspection required to be conducted by Consultant hereunder.
5. Services. The project or services set forth in Exhibit "A" shall be performed to the full satisfaction and approval of the City. In the event that the project or services set forth in Exhibit "A" are itemized by price in Exhibit "C", the City in its sole discretion may, upon notice to Consultant, delete certain items or services set forth in Exhibit "A", in which case there shall be a corresponding reduction in the amount of compensation paid to Consultant. City shall furnish Consultant to the extent available, with any City standards, details, specifications and regulations applicable to the Project and necessary for the performance of Consultant's services hereunder. Notwithstanding the foregoing, any and all additional data necessary for design shall be the responsibility of Consultant.
6. Records. Consultant, including any of its subcontractors shall maintain full and complete documents and records, including accounting records, employee time sheets, work papers, and correspondence pertaining to the project or services set forth in Exhibit "A". Consultant, including any of its subcontractors shall make such documents and records available for City review or audit upon request and reasonable notice, and shall keep such documents and records, for at least four (4) years after Consultant's completion of performance of this Agreement.
Copies of all pertinent reports and correspondence shall be furnished to the City for its files.
3 7. Changes and Extra Work. All changes and/or extra work under this Agreement shall be performed and paid for in accordance with the following:
Only the City Council, City Manager, or the Department Head responsible for the administration of, or supervision of the scope of work under, this Agreement may authorize extra and/or changed work. Consultant expressly recognizes that other City personnel are without authorization to either order extra and/or changed work or waive contract requirements. Failure of Consultant to secure the written authorization for such extra and/or changed work shall constitute a waiver of any and all right to adjustment in contract price due to such unauthorized work and Consultant thereafter shall be entitled to no compensation whatsoever for performance of such work.
If Consultant is of the opinion that any work which Consultant has been directed to perform is beyond the scope of this Agreement and constitutes extra work, Consultant shall promptly notify the City of the fact. The City shall make a determination as to whether or not such work is, in fact, beyond the scope of this Agreement and constitutes extra work. In the event that the City determines that such work does constitute extra work, City shall provide extra compensation to Consultant on a fair and equitable basis. A written amendment providing for such compensation for extra work shall be executed by Consultant and the City.
8. Additional Assistance. If this Agreement requires Consultant to prepare plans and specifications, Consultant shall provide assistance as necessary to resolve any questions regarding such plans and specifications that may arise during the period of advertising for bids, and Consultant shall issue any necessary addenda to the plans and specifications as requested. In the event Consultant is of the opinion that City's requests for addenda and assistance is outside the scope of normal services, the parties shall proceed in accordance with the changes and extra work provisions of this Agreement.
9. Professional Ability. Consultant acknowledges, represents and warrants that Consultant is skilled and able to competently provide the services hereunder, and possesses all professional licenses, certifications, and approvals necessary to engage in its occupation. City has relied upon the professional ability and training of Consultant as a material inducement to enter into this Agreement.
Consultant shall perform in accordance with generally accepted professional practices and standards of Consultant's profession.
10. Business License. Consultant shall obtain a Redondo Beach Business License before performing any services required under this Agreement. The failure to so obtain such license shall be a material breach of this Agreement and grounds for immediate termination by City; provided, however, that City may waive the business license requirement in writing under unusual circumstances without necessitating any modification of this Agreement to reflect such waiver. 4 11. Termination Without Default. Notwithstanding any provision herein to the contrary, the City may, in its sole and absolute discretion and without cause, terminate this Agreement at any time prior to completion by Consultant of the project or services hereunder, upon at least thirty (30) days written notice to Consultant. Alternatively, Consultant may terminate this Agreement with at least ninety (90) days prior written notice to City.
In the event of any such termination, Consultant shall be compensated for: (1) all authorized work satisfactorily performed prior to the effective date of termination; and (2) necessary materials or services of others ordered by Consultant for this Agreement, prior to Consultant’s receipt of notice of termination, irrespective of whether such materials or services of others have actually been delivered, and further provided that Consultant is not able to cancel such orders. Compensation for Consultant in such event shall be determined by the City in accordance with the percentage of the project or services completed by Consultant; and all of Consultant's finished or unfinished work product through the time of the City's last payment shall be transferred and assigned to the City. In conjunction with any termination of this Agreement, the City may, at its own expense, make copies or extract information from any notes, sketches, computations, drawings, and specifications or other data, whether complete or not.
12. Termination in the Event of Default. Should Consultant fail to perform any of its obligations hereunder, within the time and in the manner provided or otherwise violate any of the terms of this Agreement, the City may immediately terminate this Agreement by giving written notice of such termination, stating the reasons for such termination. Consultant shall be compensated as provided immediately above, provided, however, there shall be deducted from such amount the amount of damages if any, sustained by the City by virtue of Consultant's breach of this Agreement.
13. Conflict of Interest. Consultant acknowledges, represents and warrants that Consultant shall avoid all conflicts of interest (as defined under any federal, state or local statute, rule or regulation, or at common law) with respect to this Agreement. Consultant further acknowledges, represents and warrants that Consultant has no business relationship or arrangement of any kind with any City official or employee with respect to this Agreement. Consultant acknowledges that in the event that Consultant shall be found by any judicial or administrative body to have any conflict of interest (as defined above) with respect to this Agreement, all consideration received under this Agreement shall be forfeited and returned to City forthwith. This provision shall survive the termination of this Agreement for one (1) year.
14. Indemnity. To the maximum extent permitted by law, Consultant hereby agrees, at its sole cost and expense, to defend protect, indemnify, and hold harmless the City, its elected and appointed officials, officers, employees, volunteers, 5 attorneys, and agents (collectively “Indemnitees”) from and against any and all claims, including, without limitation, claims for bodily injury, death or damage to property, demands, charges, obligations, damages, causes of action, proceedings, suits, losses, stop payment notices, judgments, fines, liens, penalties, liabilities, costs and expenses of every kind and nature whatsoever, in any manner arising out of, incident to, related to, in connection with or arising from any act, failure to act, error or omission of Consultant’s performance or work hereunder (including any of its officers, agents, employees, Subcontractors) or its failure to comply with any of its obligations contained in the Agreement, or its failure to comply with any current or prospective law, except for such loss or damage which was caused by the sole negligence or willful misconduct of the City. Notwithstanding the foregoing, nothing in this Section 14 shall be construed to encompass Indemnitees’ active negligence to the limited extent that this Agreement is subject to Civil Code Section 2782(b). Consultant’s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant or Indemnitees. This indemnification obligation shall survive this Agreement and shall not be limited by any term of any insurance policy required under this Agreement.
a. Nonwaiver of Rights. Indemnitees do not and shall not waive any rights that they may possess against Consultant because the acceptance by City, or the deposit with City, of any insurance policy or certificate required pursuant to this Agreement.
b. Waiver of Right of Subrogation. Consultant, on behalf of itself and all parties claiming under or through it, hereby waives all rights of subrogation and contribution against the Indemnitees.
15. Insurance. Consultant shall comply with the requirements set forth in Exhibit "D." Insurance requirements that are waived by the City's Risk Manager do not require amendments or revisions to this Agreement.
16. Non-Liability of Officials and Employees of the City. No official or employee of the City shall be personally liable for any default or liability under this Agreement.
17. Compliance with Laws. Consultant shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals, with respect to this Agreement, including without limitation all environmental laws, employment laws, and nondiscrimination laws. a. Acknowledgement. Consultant acknowledges that eight (8) hours labor constitutes a legal day’s work. Consultant shall comply with and be bound by Labor Code Section 1810. Consultant shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. Consultant shall, as a penalty to the City, forfeit twenty- 6 five dollars ($25) for each worker employed in the performance of this Agreement by the Consultant or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (40) hours in any one calendar week. Pursuant to Labor Code section 1815, work performed by employees of Consultant in excess of 8 hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 11/2 times the basic rate of pay. For every subcontractor who will perform work on the project, Consultant shall be responsible for such subcontractor’s compliance with Labor Code Sections 1810, 1813 and 1815, and Consultant shall include in the written contract between it and each subcontractor copies of Labor Code Sections 1810, 1813 and 1815 and a requirement that each subcontractor shall comply with these aforementioned sections. Consultant shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor comply with Labor Code Sections 1810, 1813 and 1815, Consultant shall diligently take corrective action to halt or rectify the failure.
b. Prevailing Wages. City and Consultant acknowledge that this project is a public work to which prevailing wages apply. Consultant shall comply with the Agreement to Comply with California Labor Law Requirements set forth in Exhibit “E”, which is attached hereto and incorporated by reference.
18. Limitations upon Subcontracting and Assignment. Consultant acknowledges that the services which Consultant shall provide under this Agreement are unique, personal services which, except as otherwise provided herein, Consultant shall not assign or sublet to any other party without the prior written approval of City, which approval may be withheld in the City's sole and absolute discretion. In the event that the City, in writing, approves any assignment or subletting of this Agreement or the retention of subcontractors by Consultant, Consultant shall provide to the City upon request copies of each and every subcontract prior to the execution thereof by Consultant and subcontractor. Any attempt by Consultant to assign any or all of its rights under this Agreement without first obtaining the City's prior written consent shall constitute a material default under this Agreement.
The sale, assignment, transfer or other disposition, on a cumulative basis, of twenty-five percent (25%) or more of the ownership interest in Consultant or twenty-five percent (25%) or more the voting control of Consultant (whether Consultant is a corporation, limited liability company, partnership, joint venture or otherwise) shall constitute an assignment for purposes of this Agreement.
Further, the involvement of Consultant or its assets in any transaction or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise), whether or not a formal assignment or hypothecation of this Agreement or Consultant’s assets occurs, which reduces Consultant’s assets or 7 net worth by twenty-five percent (25%) or more shall also constitute an assignment for purposes of this Agreement.
19. Subcontractors. Consultant shall provide properly skilled professional and technical personnel to perform any approved subcontracting duties. Consultant shall not engage the services of any person or persons now employed by the City without the prior written approval of City, which approval may be withheld in the City's sole and absolute discretion.
20. Integration. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any previous oral or written agreement; provided, however, that correspondence or documents exchanged between Consultant and City may be used to assist in the interpretation of the exhibits to this Agreement.
21. Amendment. This Agreement may be amended or modified only by a subsequent written amendment executed by both parties.
22. Conflicting Provisions. In the event of a conflict between the terms and conditions of this Agreement and those of any exhibit or attachment hereto, this Agreement proper shall prevail. In the event of a conflict between the terms and conditions of any two or more exhibits or attachments hereto, those prepared by the City shall prevail over those prepared by Consultant.
23. Non-Exclusivity. Notwithstanding any provision herein to the contrary, the services provided by Consultant hereunder shall be non-exclusive, and City reserves the right to employ other contractors in connection with the project.
24. Exhibits. All exhibits hereto are made a part hereof and incorporated herein by reference; provided, however, that any language in Exhibit "A" which does not pertain to the project description, proposal, or scope of services (as applicable) to be provided by Consultant, or any corresponding responsibilities of City, shall be deemed extraneous to, and not a part of, this Agreement.
25. Time of Essence. Time is of the essence of this Agreement.
26. Confidentiality. To the extent permissible under law, Consultant shall keep confidential its obligations hereunder and the information acquired during the performance of the project or services hereunder.
27. Third Parties. Nothing herein shall be interpreted as creating any rights or benefits in any third parties. For purposes hereof, transferees or assignees as permitted under this Agreement shall not be considered "third parties."
28. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of California without regard to principles of conflicts of 8 law. Venue for any litigation or other action arising hereunder shall reside exclusively in the Superior Court of the County of Los Angeles, Southwest Judicial District.
29. Attorneys’ Fees. In the event either party to this Agreement brings any action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys’ fees (including expert witness fees) and costs.
This provision shall survive the termination of this Agreement.
30. Claims. Any claim by Consultant against City hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the City shall be waived if not made within six (6) months after accrual of the cause of action.
31. Interpretation. Consultant acknowledges that it has had ample opportunity to seek legal advice with respect to the negotiation of this Agreement. This Agreement shall be interpreted as if drafted by both parties.
32. Warranty. In the event that any product shall be provided to the City as part of this Agreement, Consultant warrants as follows: Consultant possesses good title to the product and the right to transfer the product to City; the product shall be delivered to the City free from any security interest or other lien; the product meets all specifications contained herein; the product shall be free from material defects in materials and workmanship under normal use for a period of one (1) year from the date of delivery; and the product shall be fit for its intended purpose(s). Notwithstanding the foregoing, consumable and maintenance items (such as light bulbs and batteries) shall be warranted for a period of thirty (30) days from the date of delivery. All repairs during the warranty period shall be promptly performed by Consultant, at Consultant's expense, including shipping.
Consultant shall not be liable under this warranty for an amount greater than the amount set forth in Exhibit "C" hereto.
33. Severance. Any provision of this Agreement that is found invalid or unenforceable shall be deemed severed, and all remaining provisions of this Agreement shall remain enforceable to the fullest extent permitted by law.
34. Authority. City warrants and represents that upon City Council approval, the Mayor of the City of Redondo Beach is duly authorized to enter into and execute this Agreement on behalf of City. The party signing on behalf of Consultant warrants and represents that he or she is duly authorized to enter into and execute this Agreement on behalf of Consultant, and shall be personally liable to City if he or she is not duly authorized to enter into and execute this Agreement on behalf of Consultant.
9 35. Waiver. The waiver by the City of any breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.
SIGNATURES FOLLOW ON NEXT PAGE
10 IN WITNESS WHEREOF, the parties have executed this Agreement in Redondo Beach, California, as of this 15th day of August, 2023.
CITY OF REDONDO BEACH, CONCORD PROPERTY MANAGEMENT
a chartered municipal corporation GROUP, LLC, a Delaware limited liability company
____________________________ By: ________________________ William C. Brand, Mayor Name: ________________________
Title: ________________________
ATTEST: APPROVED:
____________________________ ____________________________ Eleanor Manzano, City Clerk Diane Strickfaden, Risk Manager APPROVED AS TO FORM:
____________________________
Michael W. Webb, City Attorney
11 EXHIBIT “A”
SCOPE OF SERVICES
A. DESCRIPTION OF PROPERTY
Consultant shall provide the services described herein for the following locations, which shall be collectively referred to as the “Property”.
1. Pier Plaza located at 103 to 131 W. Torrance Blvd
2. International Boardwalk spanning from 100 S. to 164 N. International Boardwalk
3. Redondo Beach Marina, encompassing addresses 161 to 245 N. Harbor Drive
4. 200 Fisherman's Wharf Property, covering addresses 200 to 250 Fisherman's Wharf
5. Pier Parking Structure Storage Units
6. Fisherman's Wharf Sanitation District
7. 230 Portofino Way
B. CONSULTANT'S DUTIES
1. Trust Account: As detailed in Section C.1 of Exhibit "A," the City has instituted a Trust Account in which the Consultant will be appointed as the Trustee. Upon City's written approval and Consultant’s adherence to Commissioner’s Regulations 2832 and 2834, Consultant shall designate two individuals as authorized signatories for the Trust Account. In the event Consultant selects an employee who does not possess a broker’s license ("unlicensed employee") as a signatory for the Trust Account, the unlicensed employee must be covered by a fidelity bond in accordance with Commissioner's Regulation 2834. Upon City's written request, Consultant shall disperse funds from the Trust Account to City's designated bank account.
2. Level of Funding in Trust Account: In instances where Consultant projects collections to be insufficient or not received in time to maintain and adequate level of funding, Consultant must provide a written explanation, including the reason and necessity of the requested funds.
3. Income Collection: Consultant shall undertake all necessary measures to collect and enforce the timely collection of all rent and other charges owed to the City from the Property's tenants in accordance with their leases or rental agreements. All proceeds collected shall be deposited into the Trust Account, as 12 detailed in Section C.1 as outlined in this Exhibit “A”. These collection efforts shall include the billing and recovery of late fees in accordance with individual tenant leases or rental agreements.
a. Fisherman Wharf Sanitation District: Consultant shall ensure the collection of rents for the Pier storage lockers and the Fisherman Wharf Sanitation District cleaning fee as detailed in Exhibit “C”.
b. Restricted Funds: Consultant shall deposit all Tenants' security deposits in the Trust Account and earmark as restricted funds. In the event of tenant security deposit forfeiture, Consultant shall inform the City in writing, confirming that the funds are no longer held under restrictions.
4. Payment of Expenses: Upon City's written approval, Consultant shall pay all loan payments, all operating expenses, and all other expenses in connection with management of the Property. These payments shall be made from the Trust Account.
5. Contract Limitations: Except as otherwise provided herein, Consultant shall not unilaterally enter into contracts, agreements, or leases on behalf of the City. All such agreements shall be submitted to the City for approval and execution.
6. Legal Limitations: If Consultant deems legal assistance necessary for any reason, including but not limited to, rent collection or tenant eviction, Consultant shall promptly notify the City and obtain such assistance from legal counsel retained by City. All legal fees, costs and expenses shall be paid from the Trust Account.
7. Property Maintenance and Repairs: Upon City's written approval, Consultant shall negotiate agreements with external entities that furnish electricity, gas, water, steam, telephone, cleaning, vermin exterminators, furnace and airconditioning maintenance, security protection, pest control, utilities, other services and concessions provided in connection with the maintenance and operation of the Property unless otherwise provided herein. Consultant shall use commercially reasonable efforts to negotiate the terms of the agreements to secure labor and materials at the most cost-effective price, while maintaining high standards of quality workmanship and service.
In cases where contractors are engaged for maintenance, repair, or painting on behalf of the City, agreements under $50,000 shall be executed by the Consultant; provided that City gives its written approval.
8. Emergency Repairs: In cases necessitating immediate repair actions to protect the Property's safety, maintain essential services, comply with legal regulations, or avert property damage or endangerment, emergency repairs shall be conducted. Costs for such repairs shall be deducted from the Trust Account.
Consultant shall consult with the City to determine the appropriate actions. 13 9. Tenant Communication: Consultant shall receive and address tenant communications on behalf of City, attending to any tenant concerns, and ensuring compliance with lease terms.
10. Leasing Assistance: Consultant shall assist in the leasing, renewals of leases, expansion, relocation, renewal of space, or any modification of the leases, Consultant shall submit all leases and any amendments to City for approval and execution.
11. Records and Accounting: Consultant shall maintain accurate records of all financial transactions related to Property management. These records shall include, but not be limited to receipts, purchase orders, invoices, bank statements, checks, and deposit slips. Upon City’s request, Consultant shall make these records available for inspection within 24 hours. If Consultant receives City's notice outside of usual business hours, records will be available for the City's inspection by the next business day. Accounting records and reports shall be provided in a mutually agreed-upon format, and where applicable, reports will adhere to Generally Accepted Accounting Principles (GAAP).
a. Itemized Receipt: Upon request by City, Consultant shall prepare and submit to City a complete list of all City books and records, including but not limited to, a list of all service contracts and a complete inventory of all personal property received by Consultant.
b. Reports and Timing: At the first of each month, Consultant shall issue a regular monthly report detailing the Property’s status, including Rent Roll, Property Narrative, Balance Sheet, Income Statement, Cash Flow Statement, Operating Statements for the Current Month and Year-To-Date; Delinquency Report, Check Register, Reconciled Bank Statement, General Ledgers; and tenant Security Deposits list. The report t shall be made in Microsoft Excel and in any other format as requested by the City. If applicable, reports, including, but not limited to Income Statements and Balance Sheets, must adhere to U.S. Generally Accepted Accounting Principles ("GAAP").
c. Sale and Refinancing of Property: Consultant shall assemble, prepare, and/or or consult with prospective purchasers or lenders on any due diligence related activity in connection with a potential sale or refinancing of the Property.
d. Duties with Respect to Auditors: Consultant shall coordinate and interface with City approved auditors in order to generate certified financial statements for a full audit or upon City’s request.
12. Trust Account Management: In the event insufficient funds in the Trust Account arise due to Consultant's mismanagement, Consultant must reimburse the City for said funds, remit 10% interest on said funds, and pay any associated fees 14 and expenses. Consultant shall be considered in default and City may terminate
13. Property Tax Payments: Upon City's written approval, Consultant shall pay property taxes from the Trust Account. Consultant shall maintain sufficient funds in the Trust Account to fulfill tax obligations in a timely manner. If there are insufficient funds in the Trust Account, Consultant shall notify City at least fifteen (15) days PRIOR TO THE DATE ON WHICH SAID TAX INSTALLMENTS ARE DUE. City shall then provide Consultant with the necessary funds prior to the payment date.
14. Accounting Upon Termination: Upon termination of the Agreement, Consultant shall close out the books, prepare a final accounting, and submit outstanding invoices to the City for payment. Any remaining Trust Account funds shall be returned to the City. Except as otherwise provided herein, Consultant's access to the Trust Account shall cease upon termination.
15. Additional Services: Upon City's request, the Consultant shall offer additional services for compensation, as specified in Exhibit C. These services may include preparing specialized reports, coordinating with lenders, attending court hearings, and collaborating with appraisers or City's counsel for property evaluation.
a. Prepare special or uniquely formatted reports. A special or uniquely formatted report shall be any report other than the normal reports agreed upon between City and Consultant at the commencement of this Agreement.
b. Function as an "Asset Consultant" engaging with City's lender and/or mortgage loan servicer to prepare or manage any loan draws or perform cash management duties.
c. Attend and/or prepare for court hearings, arbitrations, and settlement meetings other than evictions.
d. Undertake accounting, reconciliations, or services associated with time periods prior to the commencement of this Agreement. e. Perform accounting and/or reconciliations, or services related to periods of time prior to the commencement of the Agreement. f. Coordinate with appraisers or counsel retained by City to evaluate property or to appeal assessed values. However, Consultant shall not be directly responsible for these undertakings.
g. Prepare and coordinate the execution of tenant estoppels or SNDA documents for a fee of $150 per document.
h. Create a new lease document if deemed necessary by the City, and receive a payment of $1,500.00 if the Consultant is not already receiving a commission.
15 C. CITY'S DUTIES
1. Trust Account: City has established a Trust Account at a FDIC-insured institution within California. The Trust Account shall serve as the repository for income sources, including but not limited to, tenant's rents and late fees, Fisherman Wharf Sanitation District cleaning fees, rents for the Pier Storage Lockers, tenant security deposits. Furthermore, the Trust Account shall also operate as the primary account for disbursing funds to cover the payment of expenses, repairs, property taxes, and the property management fee.
2. Transfer of Existing and Future Documentation to Consultant: City shall promptly furnish Consultant with all documents and records required for the management of Property. This includes leases, amendments, correspondence related to leases, rental payment statuses, mortgage loan particulars, payment guidelines, a two-year income and expense history, active service contracts, and insurance policy details. City's obligation to furnish documentation is contingent upon the availability of such records
3. Level of Funding in Trust Account: City will maintain sufficient funds in the Trust Account to ensure Consultant’s ability to pay all obligations of the Property in a timely manner.
a. Funds Disbursement Process upon Consultant's Request: Upon City's timely receipt of Consultant’s request as outlined in Section B.2 of this Exhibit “A”, City will review and approve the request in its reasonable discretion, and promptly remit sufficient funds to the Trust Account. The funds remitted by the City will be used to pay current and past due obligations, and maintain a Five Thousand Dollar ($5,000) Working Capital Reserve in the Trust Account. Consultant may exercise its reasonable discretion in prioritizing the payment of obligations. b. Trust Account Auditing Rights: City and/or auditors retained by City shall have the right to audit the Trust Account periodically as outlined in Section B.11 of this Exhibit “A”.
4. Payment of Property Management Fee: Upon City’s approval of Consultant’s invoice, Consultant shall be paid from the Trust Account. The Property Management Fee shall be based on the Gross Monthly Collections as defined in Exhibit “C”.
5. Management Office: At City's expense, Consultant shall operate a management and leasing office for the Property. Location of the office shall be made in the City's sole discretion.
6. Capital Improvement: The City retains the right to carry out capital improvements without the Consultant's direct involvement. 16 EXHIBIT “B”
TERM AND TIME OF COMPLETION
TERM: The term of this Agreement shall commence August 15, 2023 and expire August 14, 2024 (“Term”), unless otherwise terminated as herein provided. Thereafter, this Agreement shall automatically renew for consecutive three-month periods, unless otherwise terminated as provided herein. However, in no event shall this Agreement continue beyond August 14, 2029.
17 EXHIBIT "C"
COMPENSATION
Provided Consultant is not in default under this Agreement, Consultant shall be compensated as provided below.
A. AMOUNT: Consultant shall be paid in accordance the attached fee schedule entitled Attachment “C-1”.
B. METHOD OF PAYMENT: Consultant shall submit invoices to the City for approval and payment. Invoices must provide dates of service, description of services performed, equipment and materials purchased, quantity purchased, percentage of collection (if applicable), and corresponding amounts for the work performed (prorated if applicable) during the prior month. Invoices must be itemized, adequately detailed, based on accurate records, and in a form reasonably satisfactory to City. Consultant may be required to provide back-up material upon request.
C. SCHEDULE FOR PAYMENT: City agrees to pay Consultant within thirty (30) days of receipt of monthly invoices from the Trust Account; provided, however, that the work has been completed to the City’s full satisfaction.
D. NOTICES: Written notices to City and Consultant shall be given by registered or certified mail, postage prepaid and addressed to or personally served on the following parties.
Consultant: Concord Property Management Group, LLC
107 W. Torrance Boulevard, Suite #200
Redondo Beach, CA 90277
Attention: Patricia McKinsey, Property Manager
Email: [email protected]
City: City of Redondo Beach
Waterfront and Economic Development Department
415 Diamond Street
Redondo Beach, CA 90277
Attention: Laurie Koike, Support Services Manager
Email: [email protected]
All notices, including notices of address changes, provided under this Agreement are deemed received on the third day after mailing if sent by registered or certified 18 mail. Changes in the respective address set forth above may be made from time to time by any party upon written notice to the other party. 19 ATTACHMENT “C-1”
FEE SCHEDULE
City shall pay Consultant for its management services based on the following:
A. REAL ESTATE MANAGEMENT FEE: The greater of:
1. A fixed monthly minimum of five thousand dollars ($5,000), regardless of the Gross Monthly Collections, or
2. Two and nine-tenths percent (2.9%) of the total Gross Monthly Collections.
3. "Gross Monthly Collections" is defined as for any month, the entire amount of all revenues, income and proceeds of every kind (determined on a cash basis) resulting or received from (directly or indirectly) the management of the Property and all of the facilities therein (determined on a cash basis), including (a) tenant rentals collected pursuant to tenant leases or occupancies for such period; (b) 50% of late fees calculated pursuant to the individual tenant leases and/or rental agreements; (c) parking; (d) janitorial income; (e) security deposits forfeited by tenants during the period, but excluding security deposits of tenants held in accordance with their respective leases; (f) laundry and vending machine income, if applicable, received during such period; (g) proceeds from rental interruption insurance received during such period; (h) CAM charges; and (i) rents for the Pier storage lockers, and the Fisherman Wharf Sanitation District cleaning fees.
B. LATE FEES: 50% of late fees pursuant to individual tenant leases and/or rental agreements.
C. ONE TIME INSTALLATION FEE: $50.00 per tenant.
D. ADDITIONAL CONSIDERATION: To the extent City enters into non automatic lease renewals, modifications, expansions or extensions that result in an increased lease rate to the City OR a NET extension of rental payments to the City beyond the existing lease termination date during the term of this Agreement, Consultant shall receive three percent (3.0%) of the new gross lease consideration ("Additional Consideration"). The Additional Consideration, however, shall not be payable to Consultant until City is paid the new gross lease consideration. The payment of the Consultant's compensation is subject to the Pay Schedule referenced below.
Consultant shall not receive any commissions or payments from existing leases that terminate and have existing lease provisions that automatically convert into Monthto-month agreements, or existing leases that continuously roll over on a month-to- 20 month basis with no termination date.
E. NEW TENANT LEASES
1. Upon closing of each new tenant lease agreement, Consultant and the Tenant's Broker shall each receive three percent (3%) of the gross lease consideration for a total of six percent (6.0%) of gross lease consideration. If Tenant has not engaged a broker under a separate agreement, Consultant shall receive only three percent (3%) of the gross lease consideration. The payment of the Consultant's compensation is subject to the pay schedule referenced below.
2. In the event Consultant is terminated while performing services under Section D of the Fee Schedule, Consultant and City shall submit a list of such persons or entities to City ("Participant List") no later than five (5) business days from termination of this Agreement. Such Participant List is subject to City's approval ("Approved Participant List"). If a lease, renewal transaction, or any other approved transaction is completed with a party on the Approved Participant List within sixty (60) days of Consultant's termination ("Tail Period"), Consultant shall be entitled to payment under Sections D, E and F of the Fee Schedule.
F. PAY SCHEDULE
1. Month to Month Leases: Consultant shall receive 3% of the gross lease consideration. The Additional Consideration, however, shall not be payable to Consultant until Consultant collects Tenant's rent and invoices City.
2. Non-Automatic Renewal Multi Year Leases: Consultant shall receive 50% of the Compensation due within 30 days of the leases' execution. Such compensation shall not exceed the Tenant's first month's rent. City, thereafter, shall pay 25% of the Tenant's monthly rent ("Amount"). The Amount, however, shall not be payable to Consultant until Consultant collects rent and invoices City.
G. HOURLY RATES FOR ADDITIONAL REQUESTS PER SECTION B.15 OF EXHIBIT “A”
1. Principal rates @ $250.00 per hour
2. Staff rates@ $175.00 per hour
H. PIER STORAGE FEES
1. Rental for Storage Units: $0.70 per square foot for each month
2. Electricity Usage Fee: $35 per month for each appliance utilizing electricity 21 I. FISHERMAN WHARF SANITATION DISTRICT CLEANING FEES:
Consultant shall be paid in accordance with the fees as outlined in the following resolutions, which was attached and incorporated herein.
1. Resolution No. 6213: A Resolution of the Council of the City of Redondo Beach California Establishing a Fee Schedule for the Fisherman Wharf Sanitation District
2. Resolution No. 7818: A Resolution of the Mayor and City Council of the City of Redondo Beach California Amending the Fisherman Wharf Sanitation District Special Cleaning Fees.
RESOLUTION NO. 6213
A RESOLUTION OF THE COUNCIL OF THE CITY OF REDONDO
BEACH, C~LIFORNIA, ' ESTABLISHING A FEE SCHEDULE FOR
THE FISHERMAN'S WHARF SANITATION DISTRICT
WHEREAS, it is incumbent upon the City to establish a fee schedule for the Fisherman'sWharf Sanitation District in order to assure that adequate funds are available fo~ the financing of the special cleaning services required within the Redondo Pier Area; and WHEREAS, Section 5- 303, 2.Ar~ticle 3, Chapter 2, Title 5 of the Redondo Beach Municipal Code, provides that the City Council shall fix and establish such a fee schedule by resolution;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Redondo Beach as follows:
SECTION 1. Pursuant to Redondo Beach Municipal Code Title 5, Article 3, the following special cleaning fee assessments are hereby imposed upon the following individuals, 'group of individuals or firms required to obtain a business license under the provisions of Chapter 1 of Title 6 of the Redondo Beach Municipal Code and who operate in the Redondo Pier Area:
Commercial Businesses
Monthly Rates
a. Retail Shops $ 50.00
Plus $1.00 for each $10,000 of
gross annual sales in excess of
5O,OO0.
b. Food Handout Stands $ 52.00
includes restaurants With Plus $1.02 for each $800 of
gross sales of less than gross annual sales in excess
125,000) of $25,000.
c. Restaurants and/or Cocktalil $ 152.00
Lounges Plus $1.02 for each $7,000 of
gross annual sales in excass
of $200,000.
d. Fish Markets $ 252.00
Plus $t.02 for each $4,000 of
gross annual sales in excess
of $300,000.
Other Businesses Monthly Rates
a. Amusement Arcades $ 80.00
Plus $1.00 for each $4,500 of
gross annual sales in excess
of $100,000.
b. Offices and Service Oriented $ 25.00
Establishments
or $0.0t per square foot
whichever is greater.
c. Peddlers $ 25.00
Commercial Businesses Monthly Rates
d. Master Lessees within the area
defined as the Redondo Pier
Area
Basic Fee 60% of the amount due from
sublessees or business entitles within the leasehold
Table Cleaning Fee $ 2. seat 50/
if servicing is
required by the City's
cleaning contractor)
Additional Services
a. Removal of Trash Bins $ 5. bin00/
containing unbroken boxes
SECTION 2. The gross sales upon which the special cleaning assessments shall be calculated for each individual, group of individuals or firms in the Redondo Pier Area shall be the gross sales of each business licensee for the previous calendar year as reported and verified by the City's
Harbor Department. The special cleaning assessment shall be adjusted annually in accordance with the gross sales calculation, wit~ the adjusted rates taking effect on July 1 of each year and continuing until June 30 of the following Year.
SECTION 3. For fiscal year 1983-84 only, the effective
date of the revised fee schedule shall be October t, 1983.
SECTION ~4. .The City Cllerk shall certify to the passage and adoption of this resolution, shall enter the same in the Book of Resolutions of said City, and shall cause the action of the City Council in adopting the same to be entered in the Official minutes of said City Council.
Passed, approved and adopted.this' -.J9th da~ of ~September, 19:
j~ Mayor
U"~ i
ty Clerk
APPROVED AS TO FORM:
GORDON C. PHILLIPS
tuart B. S-dudder
Assistant City Attorney
2 -
STATB OF CALIFORNIA )
COUNTY OF LOS ANGELES ) ss
CITY OF R~DONDO BEACH )
I, JOHN OLIVER, City Clerk of the City of Redondo Beach, California, do hereby certify that the foregoing resolution, being Resolution No. 6213 was passed and adopted by the City Council at a regular meeting of said Council held on the 19th day of September, 1983 ; thereafter signed and approved by the Mayor and attested by the City Clerk of said city, and that said resolution was adopted by the following vote:
AYBS: Councilmen..Goddard, Amys, Martin,
Snow, and Cawdrey;
NOES: Councilmen. None;
ABSENT: Councilmen N o n e.
SEAL) ~ of
k._. ndoge~Beach, California
22 EXHIBIT “D”
INSURANCE REQUIREMENTS FOR CONTRACTORS
Without limiting Contractor’s indemnification obligations under this Agreement, Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, or employees.
Minimum Scope of Insurance
Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto).
Workers’ Compensation insurance as required by the State of California.
Employer’s Liability Insurance.
Minimum Limits of Insurance
Contractor shall maintain limits no less than:
General Liability: $5,000,000 per occurrence for bodily injury, personal injury and property damage. The general aggregate limit shall apply separately to this project.
Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Employer’s Liability: $1,000,000 per accident for bodily injury or disease.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers or (2) the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration and defense expenses.
23 Other Insurance Provisions
The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Endorsement:
General Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of work performed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance, or as a separate owner’s policy.
Automobile Liability: The City, its officers, elected and appointed officials, employees, and volunteers shall be covered as insureds with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor.
For any claims related to this project, the Contractor’s insurance coverage shall be primary insurance as respects the City, its officers, elected and appointed officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
Each insurance policy shall be endorsed to state that the inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverages afforded shall apply as though separate policies had been issued to each insured.
Each insurance policy shall be in effect prior to awarding the contract and each insurance policy or a successor policy shall be in effect for the duration of the project.
The maintenance of proper insurance coverage is a material element of the contract and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of contract on the Contractor’s part.
Acceptability of Insurers
Insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A:VII and which are authorized to transact insurance business in the State of California by the Department of Insurance.
24 Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on the City authorized forms provided with the contract specifications. Standard ISO forms which shall be subject to City approval and amended to conform to the City’s requirements may be acceptable in lieu of City authorized forms. All certificates and endorsements shall be received and approved by the City before the contract is awarded. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time.
Subcontractors
Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.
Risk Management
Contractor acknowledges that insurance underwriting standards and practices are subject to change, and the City reserves the right to make changes to these provisions in the reasonable discretion of its Risk Manager.
25 EXHIBIT "E"
AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS
1. Contractor acknowledges that the project as defined in this Agreement between Contractor and the City, to which this Agreement to Comply with California Labor Law Requirements is attached and incorporated by reference, is a “public work” as defined in Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code (“Chapter 1”), and that this Agreement is subject to (a) Chapter 1, including without limitation Labor Code Section 1771 and (b) the rules and regulations established by the Director of Industrial Relations (“DIR”) implementing such statutes. Contractor shall perform all work on the project as a public work. Contractor shall comply with and be bound by all the terms, rules and regulations described in 1(a) and 1(b) as though set forth in full herein.
2. California law requires the inclusion of specific Labor Code provisions in certain contracts. The inclusion of such specific provisions below, whether or not required by California law, does not alter the meaning or scope of Section 1 above.
3. Pursuant to Labor Code Section 1771.4, Contractor shall post job site notices, as prescribed by regulation.
4. Pursuant to Labor Code Section 1773.2, copies of the prevailing rate of per diem wages for each craft, classification, or type of worker needed to perform the Agreement are on file at City Hall and will be made available to any interested party on request. Contractor acknowledges receipt of a copy of the DIR determination of such prevailing rate of per diem wages, and Contractor shall post such rates at each job site covered by this Agreement.
5. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the City, forfeit the maximum amount allowable by law for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the DIR for the work or craft in which the worker is employed for any public work done pursuant to this Agreement by Contractor or by any subcontractor.
6. Contractor shall comply with and be bound by the provisions of Labor Code Section 1776, which requires Contractor and each subcontractor to (1) keep accurate payroll records and verify such records in writing under penalty of perjury, as specified in Section 1776, (2) certify and make such payroll records available for inspection as provided by Section 1776, and (3) inform the City of the location of the records.
7. Contractor shall comply with and be bound by the provisions of Labor Code Sections 1777.5, 1777.6 and 1777.7 and California Administrative Code title 8, section 200 et seq. concerning the employment of apprentices on public works projects.
Contractor shall be responsible for compliance with these aforementioned Sections for all apprenticeable occupations. Prior to commencing work under this Agreement, Contractor shall provide City with a copy of the information submitted to any applicable apprenticeship program. Within sixty (60) days after concluding work pursuant to this Agreement, Contractor and each of its subcontractors shall submit to the City a verified statement of the journeyman and apprentice hours performed under this Agreement. 26 8. Contractor acknowledges that eight (8) hours labor constitutes a legal day’s work. Contractor shall comply with and be bound by Labor Code Section 1810.
Contractor shall comply with and be bound by the provisions of Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the City, forfeit twenty-five dollars ($25) for each worker employed in the performance of this Agreement by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than eight (8) hours in any one (1) calendar day and forty (40) hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the Labor Code.
Pursuant to Labor Code section 1815, work performed by employees of Contractor in excess of 8 hours per day, and 40 hours during any one week shall be permitted upon public work upon compensation for all hours worked in excess of 8 hours per day at not less than 1 and 1/2 times the basic rate of pay.
9. California Labor Code Sections 1860 and 3700 provide that every employer will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
10. For every subcontractor who will perform work on the project, Contractor shall be responsible for such subcontractor’s compliance with Chapter 1 and Labor Code Sections 1860 and 3700, and Contractor shall include in the written contract between it and each subcontractor a copy of those statutory provisions and a requirement that each subcontractor shall comply with those statutory provisions. Contractor shall be required to take all actions necessary to enforce such contractual provisions and ensure subcontractor’s compliance, including without limitation, conducting a periodic review of the certified payroll records of the subcontractor and upon becoming aware of the failure of the subcontractor to pay his or her workers the specified prevailing rate of wages.
Contractor shall diligently take corrective action to halt or rectify any failure.
11. To the maximum extent permitted by law, Contractor shall indemnify, hold harmless and defend (at Contractor’s expense with counsel acceptable to the City) the City, its officials, officers, employees, agents, independent contractors, and volunteers from and against any demand or claim for damages, compensation, fines, penalties or other amounts arising out of or incidental to any acts or omissions listed above by any person or entity (including Contractor, its subcontractors, and each of their officials, officers, employees and agents) in connection with any work undertaken or in connection with the Agreement, including without limitation the payment of all consequential damages, attorneys’ fees, and other related costs and expenses. All duties of Contractor under this Section shall survive termination of the Agreement.