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07-1129_MARKET PROFILES, INC_Professional Services Agreement0 0
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this 29th day
of November, 2007, by and between the City of San Juan Capistrano (hereinafter referred
to as the "City") and Market Profiles, Inc. (hereinafter referred to as the "Consultant").
RECITALS:
WHEREAS, the City desires to retain professional services for a market absorption
study consultant for the proposed Community Facilities District No. 01 (Ventanas Business
Center) (the "CFD"); and
WHEREAS, Consultant is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Consultant mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by the City shall consist of those tasks as set
forth in Exhibit 'A,"attached and incorporated herein by reference. To the extent that there
are any conflicts between the provisions described in Exhibit "A" and those provisions
contained within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
This Agreement shall commence on the effective date and shall terminate, and all
services required hereunder shall be completed, no later than January 21, 2008.
Section 3. Compensation.
3.1 Amount.
Total compensation for the services hereunder shall not exceed $13,000, as
set forth in Exhibit 'B", attached and incorporated herein by reference.
3.2 Method of Payment.
Subject to Section 3.1, Consultant shall submit monthly invoices based on
total services which have been satisfactorily completed for such monthly period. The City
will pay monthly progress payments based on approved invoices in accordance with this
Section.
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3.3 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 City.
Section 4. 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 5. 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.
Section 6. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is
required prior to Consultant undertaking any extra work. In the event of a change in the
Scope of Work provided for in the contract documents as requested bythe 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 7. Familiarity with Work and/or Construction Site.
By executing this Agreement, Consultant warrants that: (1) it has investigated the
work to be performed; (2) if applicable, it has investigated the proposed project site and is
aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions
of the work to be performed 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 the City of this and shall not proceed with
further work under this Agreement until written instructions are received from the City.
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Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Consultant shall comply with all applicable laws, ordinances, codes and regulations
of federal, state and local government.
Section 10. Conflicts of Interest
Consultant covenants that it presently has no interest and shall not acquire any
interest, direct or indirect, which would conflict in any manner or degree with the
performance of the services contemplated by this Agreement. No person having such
interest shall be employed by or associated with Consultant.
Section 11. Copies of Work Product.
At the completion of the work, Consultant shall have delivered to City at least one
(1) hard copy and one electronic version in either Word or PDF format of any final reports
and/or notes or drawings containing Consultant's findings, conclusions, and
recommendations with any support documentation. All reports submitted to the City shall
be in reproducible format.
All services to be rendered hereunder shall be subject to the direction and approval
of the City.
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Consultant in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Consultant agrees that they shall not be made available
to any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits with the exception of computer models previously developed
by consultant shall be the property of the City and shall be delivered to the City in PDF
format upon demand without additional costs or expense to the City. The City
acknowledges such documents are instruments of Consultant's professional services.
Section 13. 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 and for damages arising from the negligence,
recklessness, or willful misconduct of Consultant in Consultant's performance under this
agreement.
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Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Consultant, at its own cost and expense, shall carry, maintain for the duration
of the agreement, and provide proof thereof that is acceptable to the City, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to
the City. Consultant shall not allow any subcontractor to commence work on any
subcontract until all insurance required of the Consultant has also been obtained for the
subcontractor. 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 an amount not less than one
million dollars per occurrence ($1,000,000.00), combined single limit coverage for risks
associated with the work contemplated by this agreement. If a Commercial General
Liability Insurance form or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under this
agreement or the general aggregate limit shall be at least twice the required occurrence
limit.
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 an amount not less than one million dollars per occurrence
($1,000,000.00).
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 naming City, its officers, employees, agents, and
volunteers as additional insured's as respects each of the following: Liability arising out of
activities performed by or on behalf of Consultant, including the insured's general
supervision of Consultant; products and completed operations of Consultant; premises
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owned, occupied or used by Consultant; or automobiles owned, leased, hired, or borrowed
by Consultant. The coverage shall contain no special limitations on the scope of protection
afforded City, its officers, employees, agents, or volunteers.
14.5 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, 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.
Prior to beginning any work under this Agreement, Consultant shall submit
an insurance certificate to the City Clerk for certification that the insurance requirements of
this Agreement have been satisfied. Consultant shall not proceed with any work underthis
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 shall have the right to terminate this Agreement without cause by giving thirty
(30) days' advance written notice of termination to Consultant.
In addition, this Agreement may be terminated by any party 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
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Douglas D. Dumhart
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To Consultant: Market Profiles, Inc.
200 North Tustin Ave, #102
Santa Ana, CA 92705
Attn: Robert Reicher
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. 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
APPROVED AS TO FORM:
A�,
WIN
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CITY OF SAN JUAN CAPISTRANO
Qva--FG�
Dave Adams, City Manager
Market Profiles, Inc. "CONSULTANT'
Boyd Martin, C
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Exhibit A
SCOPE OF WORK
The primary purpose of this study will be to establish a base of information regarding current
and projected growth of employment -generating businesses, and to determine which
business types would be most likely to locate in the subject development. In addition, a
review of projected new development activity of this type will be provided.
The study will analyze market activity in the defined Competitive Market Area (CMA), an area
comprised of a primary and secondary market area, boundaries of which will be established in
the course of the study.
Data Collection and Analysis
To assess the market potential of the subject property, Market Profiles will perform the
following:
❑ An economic background analysis including a review and forecast of Business
Center space demand based on the following factors:
• Regional employment trends by major S.I.C. category
• Population growth (historical and projected)
• Historical patterns of Light Industrial space absorption
• Overall economic conditions.
❑ A field audit of actively competitive projects to determine specific project
characteristics, features, lease and sales rates and terms, unit sizes, absorption experience,
user/buyer profiles, occupancy levels, development scale, and market entry.
❑ A review of such site-specific factors as adjacent land uses, perceived identity of the
site, ingress and egress, relationship to other Business Center locations, accessibility,
visibility, and other salient characteristics.
❑ A review of proposed competitive development activity for the CMA to assess the
future posture of the marketplace.
❑ A physical inspection of the subject development site to evaluate the strength of the
location versus the most salient competition — including topography, climate, ingress/egress,
neighborhood composition, supporting shopping and recreational amenities — while being
aware of any special features inherent in the site.
Conclusions and Recommendations
Based upon comparative data analysis, we will prepare the following conclusions and
recommendations.
❑ Projection of demand for Business Center square footage in the trade area over
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the next three years.
❑ Description and evaluation of existing and proposed Business Centers in and
around the trade area.
❑ Definition of the primary and secondary uses that might be attracted to the
project based on analysis of tenancy patterns.
❑ Confirmation of optimumrip cing by unit size.
❑ Forecast of market absorption for each product offering.
Deliverables
Based on the demand- and supply-side analyses, Market Profiles will provide findings,
conclusions, and recommendations in a written report forthe project, along with supporting
data (15-20 tables, charts, graphs, etc.). Two hard copies and one PDF file of the report
are included in the market study fee.
Timing
Market Profiles estimates that the data development and analysis time necessary to
complete the work tasks and prepare the deliverables outlined above will require
approximately 30 working days from commencement of work on the engagement.
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Exhibit B
FEE SCHEDULE
FEE SCHEDULE BY TASK
Competitive Analysis $ 4,000
Economic Analysis $ 4,000
Final Draft report
$5,000
TOTAL FEE (including expenses) $13,000
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32400 PASEO AOELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493.1171
(949) 493-1053 FAX
wwwsanjuancapistrano. org
TRANSMITTAL
TO:
Robert Reicher
Market Profiles, Inc.
200 North Tustin Ave., Suite 102
Santa Ana, CA 92705
DATE: December 14, 2007
i� litRRIIRG
• LLf5i'leusdm 196)
1776
FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
SAM ALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
OR. LONORES USO
RE: Personal Services Agreement — Market Absorption Study for Ventanas Business Center
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 Douglas D. Dumhart,
Economic Development Manager (949) 443-6316.
An original agreement is 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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