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08-0619_GARY L. VOGT & ASSOCIATES_Professional Servces AgreementPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 19'" day of June, 2008, 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 public body duly organized and validly existing underthe 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. 675-081-17 &18; 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. 675-081-17 &18. 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. 675- 081-17 &18 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 September 2, 2008. 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 eleven thousand dollars and no cents ($11,000). 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. Subject to Section 3.1, 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 Assignment. 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 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 Proiect 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 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 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. 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 Agency, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the Agency. 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 Agency, its officers, employees, agents, and volunteers as additional insureds 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 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 Agency, 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 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. [Reservedl. 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) IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO r)t,l`T Dave Adams, Executive Director CONSULTANT ary L. Vogt, Vrincipal Jv ATTEST: R. Monahan, Agency Secretary APPROVED AS TO FORM: Omar Sand val, Agency Counsel GARY L. VOGT AND ASSOCIATES REAL ESTATE APPRAISERS AND CONSULTANTS 33191 PASEO BLANCO SAN JUAN CAPISTRANO, CA 92675 TELEPHONE: (949) 489-8029 FACSIMILE: NO) 489-8028 E-MAIL g"tgmx.n Sent Via Email Only to ddumhart0sanWancapistrano.org May 27, 2008 Douglas Dumhart City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RE: Proposal for Appraisal Services SunCai / Camino Las Ramblas Dear Doug: GARY L. VOGT. MAI MEMBER, APPRAISAL INSTITUTE CERTIFIED GENERAL NO. AGO07272 I have given consideration to the scope of work, timing, and fee required to prepare an appraisal ofthe 17.3 acre property located at the northwest comer of Camino Las Ramblas-and Via De Ague in San Juan Capistrano. The vacant property is currently owned by Suncal and is identified as Orange County Assessor Parcel Nos. 675-081'-17 &18. At your request, the property is to be appraised under the following two land use assumptions: Existing Land Use Designation The property's current land use designation PUROS (Public Institution/Recreational Open Space) was apparently placed on the property in anticipation that the property would be conveyed to the Capistrano Unified School District for use as an elementary school site. Previous Residential & Park Designation I understand that the property's prior land use designation under the Forster Canyon Comprehensive Land use Plan was for up to 32 residential units on t4 acres and a community park on the balance. As we discussed, Suncal's Memorandum dated April 8, 2008 suggesting that the property is suitable for up to 147 residential units is not to be considered a viable development option for purposes of this appraisal. I can complete a Summary Appraisal Report containing the two value estimates within 45 to 60 days after receipt of authorization to proceed. My fee would be based upon my time required for the assignment but would not exceed $11,000. I appreciate the opportunity to be considered for this appraisal assignment. Sincerely: ^ / Gary L. Vogt, MAI EXHIBIT A 32400 PASEO ADELANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www.sanjuancapistrano.org MEMBERS OF THE CITY COUNCIL TRANSMITTAL June 23, 2008 SAM ALLEVATO THOMAS W. HRIBAR MARK NIELSEN JOE SOTO DR. LONDRES USO TO:, Gary L. Vogt, Principal Gary L. Vogt and Associates 33191 Paseo Blanco San Juan Capistrano, CA 92675 FROM: Meg Monahan, MMC — City Clerk (949) 443-6308 RE: Personal Services Agreement related to fair market value appraisal of APN 675-081-17 & -18. Enclosed: (1) original, executed agreement for your records. CC: Douglas Dumhart, Economic Development Manager San Juan Capistrano: Preserving the Past to Enhance the Future 10 Printed on 100% recycled paper