07-0730_GARY L. VOGT & ASSOCIATES_Personal Services Agreement0
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PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 3Aday of July, 2007, by and
between the City of San Juan Capistrano, (hereinafter referred to as the "City") and
Gary L. Vogt and Associates (hereinafter referred to as "Consultant").
RECITALS:
Whereas, City is a municipal corporation duly organized and validly existing under
the laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California; and,
Whereas, City is planning to retain professional consulting services for
conducting a fair market value appraisal of 31053 Avenida De La Vista, San Juan
Capistrano, California; Assessor's Parcel No. 121-070-63; and,
Whereas, City desires to engage Consultant to provide said services for conducting
the land appraisal; and,
Whereas, Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement; and,
Whereas, City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant, and desires to retain
Consultant to render professional services under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
Section 1. Scope of Work.
The scope of work to be performed by Consultant shall consist of the preparation of
a summary appraisal report under Section 2-2(b) of the Uniform Standards of Professional
Appraisal Practice (USPAP) for determining the "as is" market value of the fee simple
interest in 31053 Avenida De La Vista, San Juan Capistrano, California; Assessor's Parcel
No. 121-070-63.
The consultant agrees the report shall be made in compliance with guidelines set
forth by USPAP and the Code of Ethics and Standards of Professional Practice of the
Appraisal Institute. The Consultant further warrants that all of its services shall be
performed in a competent, professional and satisfactory manner and in accordance with
the general standards of its profession.
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Section 2. Term and Termination.
This Agreement shall commence on the effective date of is Agreement and
services required hereunder shall be completed by no later than 2007.
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default in
the performance of this Agreement. If such default is not cured within a period of two (2)
calendar days, or if more than two (2) calendar days are reasonably required to cure the
default and the defaulting party fails to give adequate assurance of due performance within
two (2) calendar days after receipt of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, the non -defaulting party may
terminate the Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole discretion
and without cause, of terminating this Agreement at any time by giving seven (7) calendar
days prior written notice to Consultant. In the event of termination under this Section, City
shall pay Consultant for services satisfactorily performed and costs incurred up to the
effective date of termination for which Consultant has not been previously paid. On the
effective date of termination, Consultant shall deliver to City all reports, Documents and
other information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
Section 3. Compensation.
3.1 Amount.
J�tal compensation for the scope of services for this Project shall not exceed
Dollars ($ ).
3.2 Rate Schedule.
The services shall be billed to the City in lump sum upon submission of
approved deliverables. Included within the compensation are all the Consultant's ordinary
office and overhead expenses incurred by it, its agents and employees, including meetings
with the City representatives and incidental costs to perform the stipulated services.
3.3 Method of Payment.
Consultant shall submit an invoice based on total services which have been
satisfactorily completed. For extra work not part of this Agreement, a written authorization
from City is required prior to Consultant undertaking any extra work.
3.4 Records of Expenses.
Consultant shall keep complete and accurate records of all costs and
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expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to City.
Section 4. Standard of Care
4.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform all services in a manner commensurate with community
professional standards. All services shall be performed by qualified and experienced
personnel who are not employed by City, nor have any relationship with City.
4.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant further represents and
warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain
at all times during the term of this Agreement, any and all licenses, permits, insurance and
other approvals that are legally required of Consultant to practice its profession. Consultant
shall maintain a City of San Juan Capistrano business license during the term of this
Agreement.
4.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's work promptly, or delay or faulty performance by City,
contractors, or governmental agencies.
Section 5. Independent Contractor.
It is agreed that Consultant shall act and be an independent contractor and not an
agent or employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 6. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for City to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required without
written approval of the City. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the City. If Consultant is permitted to
subcontract any part of this Agreement by City, Consultant shall be responsible to City for
the acts and omissions of its subcontractor as it is for persons directly employed. Nothing
contained in this Agreement shall create any contractual relationships between any
subcontractor and City. All persons engaged in the work will be considered employees of
Consultant. City will deal directly with and will make all payments to Consultant.
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Section 7. Changes to Scope of Work.
In the event of a change in the Scope of Work provided for in the contract
documents as requested by the City, the Parties hereto shall execute an addendum to this
Agreement setting forth with particularity all terms of the new agreement, including but not
limited to any additional Consultant's fees.
Section 8. Familiarity with Work and Project Area.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) it has investigated the proposed project area and is aware of all
conditions there; and (3) it understands the facilities, difficulties and restrictions of the work
under this Agreement. Should Consultant discover any latent or unknown conditions
materially differing from those inherent in the work or as represented by City, it shall
immediately inform City of this and shall not proceed with further work under this
Agreement until written instructions are received from the City.
Section 9. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 10. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government, whether now in force or hereinafter enacted. In
addition, all work prepared by Consultant shall conform to applicable City, county, state
and federal laws, rules, regulations and permit requirements and be subject to approval of
the Project Administrator and City.
Section 11. Conflicts of Interest.
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any
financial interest that may foreseeably be materially affected by the work performed under
this Agreement, and (2) prohibits such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act. Failure
to do so constitutes a material breach and is grounds for immediate termination of this
Agreement by City. Consultant shall indemnify and hold harmless City for any and all
claims for damages resulting from Consultant's violation of this Section.
Consultant agrees that neither Consultant nor Consultant's Project Manager will for
the term of this Agreement enter into a contract with any person for services concerning
development of any real property within 1000 feet of City property.
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Section 12. Copies of Work Product.
All services to be rendered hereunder shall be subject to the direction and approval
of the City. At the completion of the contract period, Consultant shall have delivered to City
at least one (3) hard copy and one (1) electronic digital copy of the final appraisal reports
containing Consultant's findings, conclusions, and recommendations with any supporting
documentation. All reports submitted to the City shall be in reproducible 8.5" X 11"format.
12.1 Ownership of Documents
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its
officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Consultant shall, at Consultant's expense, provide such Documents to City
upon prior written request.
Further, any and all liability arising out of changes made to Consultant's deliverables
under this Agreement by City or persons other than Consultant is waived against
Consultant and City assumes full responsibility for such changes unless City has given
Consultant prior notice and has received from Consultant written consent for such
changes.
12.2 Computer Deliverables
All written documents shall be transmitted to City in the City's latest adopted version
of Microsoft Word and Excel.
Section 13. General Indemnity.
Consultant agrees to protect, defend and hold harmless City, its elected and
appointed officials and employees from any and all claims, liabilities, expenses or damages
of any nature, including attorneys' fees, for injury or death of any person or damage to
property or interference with use of property arising out of the negligent acts errors and
omissions committed by Consultant in connection with the work, operation or activities of
Consultant, its agents, employees and subcontractors in carrying out its obligations under
this Agreement.
Section 14. Insurance.
Insurance required herein shall be provided by Admitted Insurers in good standing
with the State of California and having a minimum Best's Guide Rating of A- Class VII or
better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive General Liability coverage in the following minimum amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to contractual
period;
$1,000,000 injury to more than one person/any one occurrence/not limited to
contractual period.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Consultant shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and non -
owned vehicles in the following minimum amounts:
$500,000 property damage;
$500,000 injury to one person/any one occurrence/not limited to contractual
period;
$1,000,000 injury to more than one person/any one occurrence/not limited to
contractual period
14.3 Worker's Compensation.
If Consultant intends to employ employees to perform services under this
Agreement, Consultant shall obtain and maintain, during the term of this Agreement,
Worker's Compensation Employer's Liability Insurance in the statutory amount as required
by state law.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Consultant shall submit
the insurance certificates, including the deductible or self -retention amount, and an
additional insured endorsement to the Consultant's general liability and umbrella liability
policies to the City's General Counsel for certification that the insurance requirements of
this Agreement have been satisfied.
14.5 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be canceled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, except that
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ten (10) days notice shall be given if there is a cancellation due to failure to pay a premium.
14.6 Terms of Compensation.
Consultant shall not receive any compensation until all insurance provisions
have been satisfied.
14.7 Notice to Proceed.
Consultant shall not proceed with any work under this Agreement until the
City has issued a written "Notice to Proceed" verifying that Consultant has complied with all
insurance requirements of this Agreement.
Section 15. Termination.
City and Consultant shall have the right to terminate this Agreement without cause
by giving thirty (30) days advance written notice of termination to the other party
In addition, this Agreement may be terminated for cause by providing ten (10) days'
notice to the other party of a material breach of contract. If the other party does not cure
the breach of contract, then the agreement may be terminated subsequent to the ten (10)
day cure period.
Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or
to such other addresses as may be designated by written notice. These addresses shall
be used for delivery of service of process:
To City: City of San Juan Capistrano
Attn: Cindy Russell, Assistant City Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To Consultant: Gary L. Vogt, Principal
Gary L. Vogt and Associates
33191 Paseo Blanco
San Juan Capistrano, CA 92675
Section 17. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and
necessary disbursements in addition to any other relief to which he may be entitled.
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Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Confidentiality.
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept confidential
unless City authorizes in writing the release of information.
Section 20. Waiver
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant or condition contained herein, whether of the same or a different
character.
Section 21. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
(Signatures on next page}
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APPROVED AS TO FORM:
John R. Sh w, City Attorney
CITY OF SAN JUAN CAPISTRANO
Dave Adams, City Manager
CONSULTANT
Gary E. Vort,42y'rir�cipal
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32400 PASEO AOELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 4931171
(949) 493-1053 FAX
www. sanj uancapistrano. org
TRANSMITTAL
Gary L. Vogt
Gary L. Vogt & Associates
33191 Paseo Blanco
San Juan Capistrano, CA 92675
DATE: July 30, 2007
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FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
SAMALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
RE: Professional Services Agreement — Fair Market Value Appraisal — 31053 Avenida de la
Vista
Thank you for providing documentation confirming compliance with the terms of the agreement
related to insurance:
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please call me at
(949)443-6309.
If you have questions concerning the agreement, please contact Cindy Russell, Assistant City
Manager(949)443-6301.
An original agreement is enclosed for your records.
Cc: Cindy Russell, Assistant City Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493-1053 FAX
www.sanjuancapistrano. org
July 23, 2007
Gary L. Vogt
Gary L. Vogt and Associates
33191 Paseo Blanco
San Juan Capistrano, CA 92675
Dear Mr. Vogt:
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MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
An agreement to conduct a fair market value appraisal of 31053 Avenida de la Vista,
San Juan Capistrano is in the process of being executed. It will be issued upon receipt
of required documentation related to contract terms under
Section 14 Insurance.
Insurance evidence may be faxed to (949) 493-1053 — ATTENTION CITY CLERK --
followed by original signed documents. I have enclosed a copy of the agreement terms
for your reference in supplying this documentation.
If you have questions specific to the contact, please contact Cindy Russell, Assistant
Cit Manag$r (949) 443-6309. Please call me at (949) 443-6309 if you have questions
r aar ina the forms of insurance needed.
cc: Cindy Russell, Assistant City Manager
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