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CITY COUNCIL AGENDA ITEM NO. 18
Meeting Date: May 27, 2003
Subject/Title: Approve an agreement authorizing the City Manager to execute a Professional Service Agreement with PKF Consulting firm to perform a study of the potential Market and Economic Feasibility of a proposed hotel to be located at the proposed project Vineyard by Marsh Creek
Submitted by: Howard Sword
Approved by: John Stevenson, City Manager
PROFESSIONAL SERVICES AGREEMENT, made this 27th day of May 2003, between the CITY OF BRENTWOOD (“CITY”), a municipal corporation, and PKF Consulting, Inc. ("CONSULTANT").
The CITY and CONSULTANT agree to the following:
SECTION 1. PURPOSE OF AGREEMENT. The CITY desires to engage a CONSULTANT to provide specific skills and technical expertise for temporary contract services within the Community Development Department.
SECTION 2. PERFORMANCE BY
CONSULTANT. The CONSULTANT shall undertake and prosecute the work diligently
to conclusion, using that standard of care, skill and diligence normally
provided by a professional person in the performance of such contract
services in respect to work similar to that hereunder as follows:
SECTION 4. SUB-CONTRACTORS. None of the services covered by this Agreement shall be subcontracted without the prior written consent of the Community Development Director or his designee. The CONSULTANT shall be as fully responsible to the CITY for the acts and omissions of his sub-contractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of himself and persons directly employed by him. The CONSULTANT shall incorporate this Agreement into all subcontractor agreements so as to bind the subcontractor to the same type of level of performance as is required herein of the CONSULTANT.
SECTION 5. ASSIGNMENT. CITY or CONSULTANT may not assign this Agreement without prior, written consent of the other.
SECTION 6. INDEPENDENT CONTRACTOR. CONSULTANT shall in all respects be an independent contractor and not an employee of the CITY. In particular, CONSULTANT shall receive no premium or enhanced pay for work normally understood as overtime; nor shall CONSULTANT receive holiday pay, sick leave, administrative leave or pay for any other time not actually worked. Specifically, the CITY's rules, regulations, ordinances and memoranda of understanding relating to employee organizations shall not apply to any CONSULTANT. It is intended by the parties that CONSULTANT shall not be eligible for benefits and shall receive no compensation from the CITY, except as expressly set forth in this Agreement.
CONSULTANT is an independent contractor pursuant to Labor Code §3353. CONSULTANT shall be responsible for the means, equipment and resources necessary to perform the consultant services. CITY has no obligation to withhold or pay income taxes, unemployment and disability taxes, FICA or FUTA contributions, or PERS contributions. CITY shall file a Form 1099, where applicable, reflecting compensation paid to CONSULTANT. CONSULTANT shall be responsible for all employment taxes for all CONSULTANT’S employees.
SECTION 7. ADDITIONAL SERVICES. In addition to the ongoing services described herein, the CITY and CONSULTANT may agree in writing during the terms of this Agreement, that the CONSULTANT shall perform additional services found to be necessary. Such additional services shall not be undertaken by the CONSULTANT until there is an Agreement between the CITY and the CONSULTANT as to the scope of the services and the cost to perform said services and the CONSULTANT has received written authorization to proceed from the CITY.
SECTION 8. CONFIDENTIALITY. Any report, information, exhibits, data, materials or other work given to or prepared or assembled by the CONSULTANT under this Agreement shall be confidential and shall not be made available to any third person or organization by the CONSULTANT without prior written approval of the City Attorney. CONSULTANT is considered part of the City for purposes of protecting communications between CONSULTANT and City’s legal counsel under the attorney-client privilege.
SECTION 9. OWNERSHIP OF INFORMATION. All reports, exhibits, data, materials, or other work prepared by the CONSULTANT in compliance with this Agreement shall become the property of the CITY. The CONSULTANT shall deliver these items to the CITY, within thirty (30) days after the completion of the work. Materials will not be used for any other purposes without the expressed permission of the CONSULTANT.
SECTION 10. PAYMENT. In consideration
of the CONSULTANT's performance of the work under this Agreement, the
CITY shall pay the CONSULTANT at the rates and for the hours actually
performed by the CONSULTANT in accordance with the rates set forth in
Exhibit "A", attached hereto
The CITY shall have the right to access and audit the records of CONSULTANT for a period of three (3) years after the payment of any invoice. CONSULTANT shall keep records according to the following standards, at a minimum: All invoices shall provide a brief description and date of the work performed, segregated by CONSULTANT and any subcontractors as well as by task and/or deliverable work item. In the event CONSULTANT receives written consent under Section 4 to use subcontractors, CONSULTANT shall identify them by name and address on the invoice and list any and all labor, materials, or equipment charges incurred by subcontractor that are charged to the CITY. CITY shall not pay entertainment expenses of CONSULTANT or subcontractors.
SECTION 12. EXCLUSION OF LIABILITY; LIABILITY INSURANCE AND AGREEMENT TO HOLD HARMLESS. CONSULTANT shall indemnify and hold harmless the CITY and its officers, agents and employees from all claims arising out of the negligent acts, omissions, or misconduct of CONSULTANT, its sub-contractors and persons directly or indirectly employed by them of services under this Agreement. The Consultant shall be required to maintain liability insurance for the coverage and in the amounts as shown on Exhibit “B”.
SECTION 13. JURISDICTION. This Agreement shall be administered and interpreted under the laws of the State of California. Jurisdiction of litigation arising from the Agreement shall be in Contra Costa County. If any part of this Agreement is found in conflict with applicable laws, such part shall be inoperative, null and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect.
SECTION 14. ATTORNEY'S FEES. In the event either party to this Agreement brings an action to enforce or interpret this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, witness fees and legal costs. For purposes of this provision, "prevailing party" shall include a party which dismisses an action for recovery hereunder in exchange for payment of the sum allegedly due, performance of covenants allegedly breached, or consideration substantially equal to the relief sought in the action or proceeding.
SECTION 15. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Before commencing the services required hereunder, CONSULTANT shall disclose any potential conflicts of interest. "Conflicts of interest" include, without limitations, doing business with or investing with any company in the development, brokerage or appraisal industry within the sphere of influence of CITY. During the term of this Agreement, CONSULTANT shall refrain from any such conflicts of interest. CITY reserves its rights to terminate this Agreement based upon the disclosure of conflicts or the existence of conflicts not disclosed by CONSULTANT.
CONSULTANT shall comply with all federal, State and Local laws, statutes, ordinances, rules and regulations affecting the performance of this Agreement, including without limitation laws requiring licensing and non-discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin or other prohibited bases.
Effective date of this Agreement shall the date first above written.
CONSULTANT: PKF Consulting, Inc.
Printed Name: ____________________________
CITY OF BRENTWOOD:
APPROVED TO AS TO FORM:
May 5, 2003
Mr. Courtland Holman
Re: Proposed Hotel - Brentwood, California
Dear Mr. Holman:
Pursuant to our discussions, we are pleased to submit this revised proposal to perform a study of the potential market and economic feasibility of a proposed hotel to be located in Brentwood, California.
As we understand it, representatives of the City of Brentwood (the City) are interested in the development of a hotel within the community. In order to assist you and your associates in assessing whether a hotel is a viable development opportunity for the City, we propose to perform a study that would encompass the following.
· Evaluate the appropriateness of the proposed site within Brentwood for the development of a hotel;
· Analyze the current and future market demand for a lodging facility within Brentwood;
· Based on the foregoing market analysis, develop a recommendation for the optimum type of lodging facility for the subject site, including potential franchise affiliations;
· Provide key planning
criteria as to the sizing, concept, amenities to be provided, and timing
of the development;
The work program for the study will be concerned with the determination of current and potential future demand for lodging accommodations in the Brentwood market area, assessment of the existing and potential future competitive supply, and the share of the market that could reasonably be attained by the subject facility. Our workplan for such a study will be in several phases, as detailed later in this proposal.
B. PKF CONSULTING
As a point of background, we would like to provide you with a brief overview of our firm. PKF Consulting is a real estate consulting and appraisal firm with offices in eight major U.S. cities. As a member of the Pannell Kerr Forster International Association, we have an additional 250 offices in 75 countries.
The professional staff of PKF Consulting consists of approximately 100 consultants and appraisers, including designated Members of the Appraisal Institute (MAI), the American Society of Real Estate Counselors (CRE) and the International Society of Hospitality Consultants (ISHC). In addition, many of our professional staff are certified general real estate appraisers in the states in which we actively perform work.
Since its inception, PKF Consulting has placed a special emphasis on serving the hospitality and real estate industries. This work includes market analyses and feasibility studies in virtually every major domestic market, providing the firm with an unsurpassed body of knowledge regarding past and present market performance. Since 1983, we have also provided market value appraisals for all types of commercial real estate, with a primary focus on hotels, motels, resorts, and golf courses. Additionally, we own a database on U.S. hotel operating results that extends back to 1935.
PKF Consulting serves our United States and international clients from a base of offices in eight major cities: New York, Philadelphia, Washington, D.C., Atlanta, Los Angeles, Houston, Dallas and San Francisco, our headquarters.
In addition to our long-standing expertise in the hotel industry, we would bring to you in this engagement substantial familiarity with the East Bay hotel market in general, and the Contra Costa County hotel market in particular. Within the past several years we have either appraised, evaluated or prepared market feasibility studies for the following hotels located in the East Bay market area.
Holiday Inn ExpressRadisson HotelHilton HotelWoodfin SuitesFour Points by SheratonMarriott CourtyardMarriott HotelLafayette Park HotelCourtyard by MarriottW Suites HotelHilton Garden Inn (Proposed)AmeriSuites (Proposed)Hawthorn SuitesStaybridge Suites (Proposed)Hilton HotelRamada InnHampton InnMarriott City CenterClaremont Hotel & SpaHilton AirportCourtyard by MarriottClarion Lake MerrittJack London Square (Proposed)Hilton HotelResidence InnSheraton InnRamada InnEmbassy SuitesRadisson HotelBest Western Wellex InnHoliday Inn Express Antioch, CABerkeley, CAConcord, CAEmeryville, CAEmeryville, CAEmeryville, CAFremont, CALafayette, CALivermore, CANewark, CANewark, CANewark, CANewark, CANewark, CANewark, CAOakland, CAOakland, CAOakland, CAOakland, CAOakland, CAOakland, CAOakland, CAOakland, CAPleasanton, CAPleasanton, CAPleasanton, CAPleasanton, CAWalnut Creek, CAUnion City, CAUnion City, CAUnion City, CA
In order to give you a further understanding of the depth of our experience, attached for your review is a partial listing of additional existing and proposed hotels, resorts, and other types of properties our office has evaluated during the past several years.
Given the historical role of PKF Consulting in the hospitality industry, our knowledge of the local market, we are of the opinion that there is no firm that can provide the services available through us.
To assist you in evaluating the market support for the proposed project, we intend to conduct a study as discussed in the following text.
C. PHASE I - MARKET DEMAND ANALYSIS
1. Introductory Meeting
The first phase of our engagement will involve meeting with you and your associates for the purpose of understanding your goals and objectives for this project, as well as to review in detail any preliminary development programming you may have for this development.
2. Site Analysis
Since the location of a hotel within its market is of major importance to the success of a project, we will analyze and evaluate the following factors regarding the subject’s location and possible advantages/disadvantages in comparison with potential competitors.
· Accessibility of the
transportation network and demand generators
3. Area Review
We will gather and analyze relevant statistical data regarding the local and regional market area to determine whether the economic environment appears suitable for the project. We will examine possible correlation between key economic factors and the demand for hotel rooms, and will use available forecasts of these indicators in our evaluation of potential future demand.
4. Primary Research
We will perform primary market research within the local market. This will include interviews with key demand generators, inspection and evaluation of competitive and comparable facilities, and discussions with executives knowledgeable about the area’s lodging market. Among those whom we may conduct such interviews are:
· Appropriate city and
5. Supply and Demand Estimates
On the basis of the foregoing analysis, we will estimate potential growth in both the demand for, and the supply of lodging facilities in the competitive market area. We will then evaluate each of the principal segments of demand and describe their characteristics in this particular market and their historical performance. Then we will estimate growth rates in demand for each of these market segments and project the anticipated future demand.
The next step is an estimate of the competitive supply, including historical growth trends and potential additions to the supply. We will evaluate the competitive potential of proposed or rumored projects with respect to your development, and estimate expected performance of the competitive supply over the projection period including the subject property’s first five years of operation.
6. Market Share Estimates and Projected Occupancy And Average Room Rate
As a starting point for our estimate of the proposed hotel’s operating performance, we will relate the property’s size to the competitive supply, both existing and potential. This ratio, called fair share, is then related to projected competitive demand and adjusted to reflect the share of the market which we would reasonably expect the property to capture in its first five years of operation based on identifiable attributes demanded in the market such as: location, price, quality, and amenities. Based on this analysis, we will develop our projection of the potential occupancy and average room rate the lodging facility could achieve over its first five to ten years of operation.
7. Evaluation of Food and Beverage Supply and Demand
During field interviews, we will include questions regarding food and beverage preference, dining habits, and attitudes. One the basis of this research, together with the evaluation of facilities in competitive properties, we will prepare estimates of the expected food and beverage patronage at the proposed hotel, including:
· The percentage of
“in-house” business that would be captured by meal period
8. Facilities Recommendations
Base on or analysis, we will prepare recommendations for facilities that, in our opinion, will best meet demonstrated market demand, including:
· Concept and quality
level of the property.
These recommendations can provide you with background for a design program and will serve as the basis for our estimate of operating results.
9. Interim Summary Report
To provide you with a preliminary indication of our findings regarding the potential for the proposed hotel, we will furnish you with a brief summary report outlying our initial conclusions and opinions concerning the ability of the local market to support the development of a new hotel at the subject site. In addition, this report will also include our estimates of attainable average daily rates and occupancy levels for each of the first five years of operation of the proposed hotel. This letter report is for your internal management use only, and is not to be distributed to an outside third party without our prior consent
At the conclusion of the first
phase of the report, if the initial results are positive and with your
authorization, we would next develop a detailed cash flow forecast for
the proposed hotel.
1. Projected Operating Results and Prospective Value Estimate
Using our market research as a basis, we would estimate occupancy and average daily room rate, total sales, and operating expenses of the proposed hotel for the first ten years of operation. These statements would include all revenues and expenses and result in a “bottom line” of income before depreciation, amortization, interest, and taxes on income. Based on this cash flow forecast, we would then develop a preliminary estimate of the prospective market value of the proposed hotel through the Income Capitalization Approach to value. This valuation will be used to evaluate the overall feasibility of the project.
Since the estimated operating results will be based on estimates and assumptions, which are subject to uncertainty and variation, we will not represent them as results that will actually be achieved.
2. Preliminary Analysis of Economic Feasibility
After we have developed the above cash flow forecast, we will then develop an analysis of the economic viability of the proposed hotel. We will develop an estimate of the total development cost of the proposed hotel, as well as a proposed financing plan. We will compare the prospective value of the property as determined by the Income Capitalization approach discussed above with the projected cost estimates to determine the viability of the development. Should we determine that there would be a shortfall between the development cost and the prospective value, we will highlight the level of difference and discuss with you ways in which it may be mitigated.
3. Economic Benefits to the Community
Each dollar collected by a hotel eventually recycles or multiplies itself, creating many levels of economic activity in the community. As employers, hotels pay wages, these wage earners, in turn, make purchases from local businesses. As taxpayers, hotels add revenue to community coffers. As consumers, hotels buy goods and services from area businesses. In addition to these indirect benefits, direct economic benefits manifest themselves in the form of:
· Transient Occupancy
Our report would analyze and present our estimations of the various economic benefits to the City from the construction and operation of the proposed convention center hotel. We would quantify the dollar amount of these likely benefits both during the construction period of the hotel and also for its first ten years of operation.
Our foregoing findings of Phases I and II of our analysis will be presented to you both verbally, and in a brief summary report. Due to the abbreviated nature of this summary report, it is restricted for your internal management use.
E. PHASE III - FORMAL REPORT PRESENTATION
At the conclusion of Phase II, if you so desire, we will prepare a detailed report outlining our conclusions and recommendations concerning the project. The report will be presented in a format generally acceptable to major sources of debt and equity financing and franchise and management organizations. Though the exact format of the report will evolve as the engagement progresses, the following probable section headings provide an outline of the expected final report.
· Introduction (Project
Concept and Study Methodology)
F. ANTICIPATED DELIVERY DATE
Based on our present scheduling and your timely acceptance, we should be able to commence Phase I of the engagement within approximately two weeks of receiving your authorization to proceed. Barring unforeseen circumstances, we envision completing Phase I of our study within approximately three weeks. Phases II and III would be initiated upon receipt of your authorization, and would require approximately two additional weeks to complete.
H. PROFESSIONAL FEES
Our fees are commensurate with
services rendered and are based on time expended by our professionals,
charged at our normal billing rates as indicated below, and are not in
any way contingent upon the results of our work.
Executive and Senior Vice PresidentsVice PresidentsAssociatesConsultants $250 - $350$175 - $250$120 - $175$100 - $110
Based on our understanding of the scope of this engagement, we estimate our professional fee for various phases of the engagement to be as follows.
Phase I - Market Demand AnalysisPhase II - Analysis of Economic Feasibility and BenefitsPhase III - Formal Report Presentation Total $12,000$5,500$2,500$20,000
As can be noted, the professional fee for Phase I of our study is $12,000, with the total fee for the entire study being $20,000.
In addition to our professional fees, we require reimbursement for any out-of-pocket expenses incurred in the performance of the assignment. Such expenses may include transportation and lodging costs, out-of-pocket expenses incurred by us while in the field, supplies, and report printing costs.
If, at any time during the course of the study, we form an initial opinion that there is insufficient market support for the proposed hotel, we will suspend the assignment at that point and discuss our findings with you. If you desire that we terminate the assignment at this point, we will write you a brief letter summarizing our findings and charge you only for that time actually incurred to date at our regular hourly rates, plus expenses. Again, we will only proceed from one phase to the next upon your authorization.
As it customary in assignments of this nature, we request a retainer of $8,000 to commence Phase I of the assignment. The remaining balance of our fees, plus out-of-pocket expenses, will be billed to you at the end of each phase of the study. The final copies of the reports will be released after receipt of all payments.
I. LIMITATIONS OF THE STUDY
Our report will be subject to the attached standard statement of assumptions and limiting conditions.
J. APPROVAL AND ACCEPTANCE
If this letter correctly states the nature of the work to be undertaken and the arrangements are satisfactory, please sign the enclosed copy of this letter and return it to us, together with the requested retainer, as our authorization to commence the assignment.
We appreciate the opportunity to submit this proposal and we look forward to working with you on this very interesting assignment.
STATEMENT OF ASSUMPTIONS AND LIMITING CONDITIONS
LISTING OF PROJECTS PERFORMED
BY PKF CONSULTING
QUALIFICATIONS OF THE CONSULTANT
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
Fax (925) 516-5441