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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. Page 1 of 10 0 0 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. Page 2 of 10 0 9 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. Page 3 of 10 0 0 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 Page 4 of 10 0 0 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 Page 5 of 10 0 0 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] Page 6 of 10 u IN WITNESS WHEREOF, the parties hereto have executed this Agreement. APPROVED AS TO FORM: A�, WIN .. CITY OF SAN JUAN CAPISTRANO Qva--FG� Dave Adams, City Manager Market Profiles, Inc. "CONSULTANT' Boyd Martin, C Page 7 of 10 0 0 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 Page 8 of 10 0 0 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. Page 9 of 10 rI 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 Page 10 of 10 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 JPrinted on 100% recycled paper