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GARY L. VOGT /ASSOCIATES (2) i tai�oQ1 u CITY CLERK'S DEPARTMENT-ACTION REMINDER TO: Douglas Dumhart, Economic Development Manager FROM: Christy Swanson, Administrative Specialist DATE: November 26, 2007 SITUATION: On October 5, 2007, the City of San Juan Capistrano Community Redevelopment Agency entered into a Professional Services Agreement with Gary L. Vogt and Associates to retain professional consulting services for conducting a fair market value appraisal of assessor's parcel no. 121-240-36. ACTION REQUESTED: Services of this agreement shall be complete by no later than December 10, 2007. ACTION TO BE TAKEN: 7 DATE WHEN NEXT ACTION (S) SHOULD BE TAKEN: l0 ��v //�7 SIGNATURE OF OFFICIAL TAKING ACTION: DATE SIGNED: A-0�4 J --L7& ***FOR CITY CLERK'S DEPARTMENT USE ONLY*** Tickler Date: 11/26/07 Deadline Date: 12/10/07 (600.40/gary36) 0 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 a portion of Assessor's Parcel No. 121-240- 36; 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. 121-240-36. 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. 121- 240-36 is attached herein as Exhibit A. SG 0 0 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 four thousand five hundred dollars and no cents ($4,500.00). 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. 0 0 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 0 0 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 & 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. 0 0 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. 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. 0 0 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 41 0 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: City of San Juan Capistrano 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 0 0 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 � :�= G Dave Adams, Executive Director 0C SULTANT ary L. Vogt, Princip ATEST Ma onahgan, c Sec ary APPROVED AS TO FORM: John R. S aw, Agency Attorney 1.01-113.4 San Juan Creek Channel APPRAISAL SCOPE OF WORK Protect Background & Parcel Description The San Juan Capistrano Redevelopment Agency(Agency) is interested in purchasing a 1.18-acre surplus parcel from the Orange County Flood Control District(OCFCD). The surplus parcel is located along the easterly side of the San Juan Creek Channel just north of Stonehill Drive. See Exhibits A and B for a location map and legal description,respectively. The subject site lies within the incorporated area of the City of Dana Point but adjoins the boundary of the City of San Juan Capistrano. The subject property is currently landlocked, i.e.,no legal access, and is designated "RecreationatlOpen Space"by the City of Dana Point. The subject parcel is contiguous to a±t4-acre vacant site owned by the Agency and proposed for mixed-use development consisting of commercial,affordable housing, and vehicle storage components. Please refer to Exhibit C for an aerial photograph of the subject parcel and Agency- owned site. Purpose and Intended Use of the Appraisal 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 for negotiating the potential sale of the surplus parcel to the adjoining owner, i.e.,the Agency. Appraisal Assignment The appraisal assignment is to prepare an estimate of the market value(defined as the most probable price)of the 1.18-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 OCFCD parcel, the appraiser shall consider the subject property's potential for assemblage with the adjoining t14-acre Agency-owned site. To that end, the appraiser must specifically analyze and address the contribution in value achieved through assemblage of the OCFCD parcel with the proposed mixed-use development site. Valuation factors to be considered should include but not be limited to the potential for increased building area and improved interior traffic circulation. EXHIBIT A 0 0 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 Durnhart at (949)443-6316. Attachments Exhibit A - Location Map Exhibit E - Legal Description Exhibit C - Aerial Photgraph c4Ra1N ` :• w �© 1 : NARgNJq i is i i i i' r; 4CMi?gL PROJECT �Y. LOCATION !:1 M 1 i r i i 1 i G• Q i i !,i i I `-- s Q i i i !I 4 j fes.. i i Q i I i I 1 J j 1 i � I � 1 1 ' � Exhibit A i ORANGE COUNTY PUBLIC FACILITIES AND RESOURCES DEPT. RIGHT — OF — WAY LOCATION MAP PROCESSING PROJECT : SAN JUAN CREEK CHANNEL — SURPLUS PROPERTY SCALE : 1" - 300' LEGAL DESCRIPTION Facility: San Juan Creek Channel Facility No.: L01 Parcel No.: 113.7 That portion of the Pryor Homestead Tract, in the Rancho Boca de la Playa, in the City of Dana Point, County of Orange, State of California, per map of partition of said tract in the decree of the Superior Court of the State of California, in and for the County of Orange, in Case No. 1210, described in that certain Final Order of Condemnation as Parcel L1-113.01 recorded January 8, 1963 in book 6386, page 776 of Official Records in the office of the County Recorder of said county, lying easterly of a line that is parallel with and 125.00 feet easterly from that certain course described as "N.11037'1 7"E., 2223.48 feet" in said Final Order of Condemnation. RESERVING therefrom an easement for slope purposes over the westerly 20.00 feet. Containing: 1.180 Acres more or less. APPROVED: /� Pau 4—LJ Date: 11/2.9/00 oh D. Pavlik L.S. 5168 x ration Date: June 30, 2003 y�0►NID A,� 4 'Teot C►a °� Exhibit B MLWE lite Mot { "� `'a .L... r +++iflSff '+ 777....a �• ".p) . '•, ,,f - �. � ,�► �Alve , 3 J• fi • A ♦. �. ±14 acres x ♦ � s Subject Parcel•1. w • acres vow 32400 PASEO ADELANTO v �% J ® A MEMBERS OF THE CITY COUNCIL SAM ALLEVgTO SAN JUAN CAPISTRANO,CA 92675 (949)493.1171 (949)493.1053 FAX1' IA[BVOIBIFG THOMAS W.HRIBAR FSIM89F1 1961 MARK NIELSEN www.sanjuancapistrano.org 1776 JOE SOTO DR.LONDRES USO TRANSMITTAL TO: Gary L. Vogt Gary L. Vogt & Associates 33191 Paseo Blanco San Juan Capistrano, CA 92675 DATE: October 11, 2007 FROM: Maria Morris, Deputy City Clerk (949) 443-6309 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 �, Printed on 100%recycletl paper