07-1005_GARY L. VOGT & ASSOCIATES_Professional Services Agreement0 0
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 5`" day of October, 2007, by and
between the San Juan Capistrano Community Redevelopment Agency, (hereinafter
referred to as the "Agency") and Gary L. Vogt and Associates (hereinafter referred to as
"Consultant").
RECITALS:
Whereas, Agency 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, Agency is planning to retain professional consulting services for
conducting a fair market value appraisal of Assessor's Parcel No. 668-211-20; and,
Whereas, Agency 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, Agency 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 Assessor's Parcel No. 668-211-20.
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. The scope of work for Assessor's Parcel No. 668-
211-20 is attached herein as Exhibit A.
Section 2. Term and Termination.
This Agreement shall commence on the effective date of this Agreement and
services required hereunder shall be completed by no later than December 10, 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, Agency 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, Agency 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 Agency 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.
Total compensation for the scope of services for this Project shall not exceed
three thousand five hundred dollars and no cents ($3,500).
3.2 Rate Schedule.
The services shall be billed to the Agency 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 Agency 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 Agency 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
expenses incidental to services covered by this Agreement. These records will be made
available at reasonable times to Agency.
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 Agency, nor have any relationship with Agency.
4.2 Consultant represents and warrants to Agency 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 Agency 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 Agency to furnish timely information or
to approve or disapprove Consultant's work promptly, or delay or faulty performance by
Agency, 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 Agency, and shall obtain no rights to any benefits which accrue to
Agency's employees.
Section 6. Limitations Upon Subcontracting and Assianment.
The experience, knowledge, capability and reputation of Consultant, its principals
and employees were a substantial inducement for Agency to enter into this Agreement.
Consultant shall not contract with any other entity to perform the services required without
written approval of the Agency. This Agreement may not be assigned, voluntarily or by
operation of law, without the prior written approval of the Agency. If Consultant is permitted
to subcontract any part of this Agreement by Agency, Consultant shall be responsible to
Agency 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
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between any subcontractor and Agency. All persons engaged in the work will be
considered employees of Consultant. Agency will deal directly with and will make all
payments to Consultant.
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 Agency, 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 Agency, it shall
immediately inform Agency of this and shall not proceed with further work under this
Agreement until written instructions are received from the Agency.
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 Agency.
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 Agency. Consultant shall indemnify and hold harmless Agency for any and
all claims for damages resulting from Consultant's violation of this Section.
Consultant agrees that neither Consultant nor Consultant's Project Managerwill 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 Agency property.
Section 12. Copies of Work Product.
All services to be rendered hereunder shall be subject to the direction and approval
of the Agency. At the completion of the contract period, Consultant shall have delivered to
Agency at least three (3) hard copies 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 Agency 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 Agency, and Agency 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
Agency upon prior written request.
Further, any and all liability arising out of changes made to Consultant's deliverables
under this Agreement by Agency or persons other than Consultant is waived against
Consultant and Agency assumes full responsibility for such changes unless Agency 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 Agency in the Agency's latest adopted
version of Microsoft Word and Excel.
Section 13. General Indemnity.
Consultant agrees to protect, defend and hold harmless Agency, 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
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policies to the Agency'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 Agency, except
that 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
Agency has issued a written "Notice to Proceed" verifying that Consultant has complied
with all insurance requirements of this Agreement.
Section 15. Termination.
Agency 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 Agency: San Juan Capistrano Community Redevelopment Agency
Attn: Douglas D. Dumhart, Economic Development 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.
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 Agency 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}
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APP OVED AS TO FORM:
T k—= —
John Rfllaw, City Attorney
CITY OF SAN JUAN CAPISTRANO
Dave Adams, City Manager
CONSULTANT
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Gary L. Vog , Principp
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APN: 668-211-20
San Juan Creek Channel
(Watkins Parcel)
Proiect Background
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APPRAISAL SCOPE OF WORK
The San Juan Capistrano Redevelopment Agency (Agency) is considering the purchase of a t1.3 -
acre parcel from a private party (Mark Watkins). The parcel is located along the westerly side of
the San Juan Creek Channel just north of Stonehill Drive, See Exhibits A and B for an assessor's
parcel map and aerial photograph, respectively. The subject site lies within the incorporated area of
the City of San Juan Capistrano. The subject property is designated for open space on the City's
general plan and zoning map.
Parcel Description
According to public records, the subject parcel has an area of 1.34 -acres and is held under private
ownership. The site is vacant, irregularly shaped, and does not have street access. Pursuant to a
review of the County of Orange right-of-way map for San Juan Creek channel, right-of-way for the
future extension of Alipaz Street may overlay the subject parcel.
Purpose and Intended Use of the Aupraisal
The purpose of the appraisal is to estimate the current market value of the fee interest of the subject
site. The intended use of the appraisal report is to serve as a basis of value in the City's negotiations
to purchase the property from a private owner.
Appraisal Assignment
The appraisal assignment is to prepare an estimate of the market value (defined as the most
probable price) of the 1.34 -acre parcel. Prior to commencing the appraisal assignment the appraiser
will be expected to attend a pre -appraisal meeting with a staff committee for the purpose of
discussing the scope of work and clarifying any potential issues and concerns.
The appraiser must, in the course of the appraisal, make such investigation, perform such studies,
and complete such analysis as is reasonably necessary to permit the development and substantiation
of his or her opinions of value. In estimating the value of the "Watkins" parcel, the appraiser must
consider the existence of any easement interests and/or right-of-way the currently encumbers the
subject property.
EXHIBIT A
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Report Format and Delivery
The format of the appraisal shall be a summary appraisal report as identified in USPAP Standard
Rule 2-2(b). Per the Comment section of SR 2-2(b)(viii), "The appraiser must provide sufficient
information to enable the client and intended users to understand the rationale for the opinions and
conclusions, ..." Supporting information set forth in the summary report shall include detailed sales
summary sheets with maps and photos. Differences between the comparable sales and subject
property shall be sufficiently described and explained as to demonstrate how the market data
reflects the value of the property being appraised. The appraiser shall personally inspect market
data used in the report and the appraiser must personally verify the pertinent information relative to
the comparable sales with the buyer or seller and/or their respective representatives.
The appraiser shall deliver four copies of the completed report to:
Douglas D. Dumhart
Economic Development Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Questions regarding this assignment can be directed to Dennis Dumhart at (949) 443-6316.
Attachments
Exhibit A - Assessor's Parcel Map
Exhibit B - Aerial Photgraph
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Exhibl� �
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493-1171
(949) 493.1053 FAX
www.sanjuancapistrano.org
TRANSMITTAL
TO:
Gary L. Vogt
Gary L. Vogt & Associates
33191 Paseo Blanco
San Juan Capistrano, CA 92675
DATE: October 11, 2007
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FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
RE: Professional Services Agreements — Appraisal for Assessor's Parcel # 121-240-36 and
Assessor's Parcel # 668-211-20
Thank you for maintaining documentation confirming compliance with the terms of the
agreement related to insurance. Your automobile insurance certificate expires on October 18,
2007. Please submit a copy of your new certificate to the City Clerks office.
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 agreements, please contact Douglas D. Dumhart,
Economic Development Manager (949) 443-6316.
Two original agreements are enclosed for your records.
Cc: Douglas D. Dumhart, Economic Development Manager
San Juan Capistrano: Preserving the Past to Enhance the Future
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