2019/01/16 Mullin360 Real Estate Services, LLC Net Growth Demand Analysis - Automobile Retail Cluster FeasibilityCITY OF MENIFEE
PROFESSIONAL SERVICES AGREEMENT
NET GROWTH DEMAND ANALYSIS
(AUTOMOBILE RETAIL CLUSTER FEASIBILITY)
this rtr IS PRO
day of
ESSIONA L SE.RVICES AGREEMEN'l ("Agreement") is made and effective
,2019 ("Eflfective Date") by and between the Cl'l'Y Otr MENIFEE,
a Califomia municipal co ration, ("City")and MULLIN360 Real Estate Services LLC ,AS
Corporation ("Consultant"). City and Consultant may sometimes herein be referred to individually
as a "Party" and collectively as the "Parties."
SECTION I. SERVICES.
Subject to the terms and conditions set forth in this Agreement, Consultant shall provide to
City the services described in the Scope of Services, attached hereto as Exhibit A and incorporated
herein by this rclerence (the "Services"). Consultant will perform subsequent task orders as
requested by the Contract Administrator (as defined below), in accordance with the Scope of
Services. In the event ofa conflict in or inconsistency between the terms of this Agreement and
Exhibit A, this Agreement shall prevail.
L I Term of Services. The term of this Agreement shall begin on January 16,2019
and shall end on June 30, 2019 unless the term of this Agreement is otherwise terminated or
extended as provided for in Section 8. l-he time provided to Consultant to complete the Services
required by this Agreement shall not affect City's right to terminate this Agreement, as provided
lor in Section 8.
1.2 Standard of Performance. Consultant represents and warrants that Consultant is a
provider of first class work and services and Consultant is experienced in performing the Servrces
contemplated herein and, in light of such status and experience, Consultant shall perform the
Services required pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Consultant is engaged in the
geographical area in which Consultant practices its profession and to the sole satisfaction of the
Contract Administrator.
1.3 Assignment of Personnel.Consultant shall assign only competent personnel to
perform the Services pursuant to Agreement. In the event that City, in its sole discretion, at any
time during the term of this Agreement. desires the reassignment ofany such persons, Consultant
shall, immediately upon receiving notice from City ofsuch desire of City, reassign such person or
persons.
1.4 !1q9. Consultant shall devote such time to the performance of the Services
pursuant to this Agreement as may be reasonably necessary to satisfy Consultant's obligations
hereunder.
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1.5 Authorization to Perform Services. Consullant is not authorized to perlbrm any of
the Services or incur any costs whatsoever under the terms of this Agreement until receipt of
authorization from the Contract Administrator.
City hereby agrees to pay Consultant a sum not to exceed SEVENTY SEVEN
THOUSAND THREE HUNDRED DOLLARS AND ZERO CENTS ($77,300.00)
notwithstanding any contrary indications that may be contained in Consultant's proposal, for the
Services to be pcrformed and reimbursable costs incurred under this Agreement. In the event ofa
conflict between this Agreement and Exhibit A, regarding the amount of compensation, this
Agreement shall prevail. City shall pay Consultant lor the Services rendered pursuant to this
Agreement at the time and in the manner set lorth herein. The payments specified below shall be
the only payments from City to Consultant for the Services rendered pursuant to this Agreement.
Consultant shall submit all invoices to City in the manner specified herein. Except as specifically
authorized in advance by City, Consultant shall not bill City lor duplicate services performed by
more than one person.
Z.l lnvoices. Consultant shall submit invoices monthly during the term of this
Agreement. based on the cost for the Services performed and reimbursable costs incurred prior to
the invoice date. Invoices shall contain the lollowing information:
a.
invoice, etc.;
Serial identifications of progress bills; i.e., Progress Bill No. I for the first
b. The beginning and ending dates ofthe billing period;
c. A "Task Summary" containing the original contract amount, the amount of
prior billings, the total due this period, the balance available under this Agrcement, and the
percentage of completion;
d. At City's option, lor each item in each task. a copy ofthe applicable time
entries or time sheets shall be submitted showing the name of the person performing the
Services, the hours spent by each person, a brief description of the Services, and each
reimbursable expense;
e. The total number of hours of work performed under this Agreement by
Consultant and each employee, agent, and subcontractor of Consultant performing the
Services hereunder necessary to complete the Services described in Exhibit A;
Receipts lor expenses to be reimbursed;
The Consultant Representative's signature
lnvoices shall be submitted to:
City of Menifee
Attn: Accounts Payable
f.
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SECTION 2. COMPENSATION.
29714 Haun Road
Menifee. CA 92586
2.2 Monthly Pavment. City shall make monthly payments, based on invoices received,
for the Services satisfactorily performed, and for authorized reimbursable costs incurred. City
shall have thirty (30) days from the receipt ofan invoice that complies with all ofthe requirements
above to pay Consultant.
2.3 Final Payment. Clit y shall pay the last five percent (57o) of the total amount due
pursuant to this Agreement within sixty (60) days after completion ofthe Services and submittal
to City ofa final invoice, ifall ofthe Services required have been satisfactorily performed.
2.4 Total Payment. Cit y shall not pay any additional sum for any expense or cost
whatsoever incurred by Consultant in rendering the Services pursuant to this Agreement. City
shall make no payment lor any extra. further, or additional service pursuant to this Agreement.
In no event shall Consultant submit any invoice for an amount in excess ol the
maximum amount of compensation provided above either for a task or for the entirety of the
Services perlormed pursuant to this Agreement, unless this Agreement is modified in writing prior
to the submission ofsuch an invoice.
2.5 Hourly Fees. Fees for the Services perlormed by Consultant on an hourly basis
shall not exceed the amounts shown on the lee schedule included with Exhibit A.
2.6 ReimbursableExpenses Reimbursable expenses are included within the maximum
amount of th is Agreement.
2.7 Payment of Taxes. Consultant is solel y responsible for the payment of employment
taxes incurred under this Agreement and any federal or state taxes.
2.8 Payment upon 'f ermination. ln the event that Cit v or Consultant terminates this
Agreement pursuant to Section 8, City shall compensate Consultant for all outstanding costs and
reimbursable expenses incurred for Services satisfactorily completed and for reimbursable
expenses as olthe date of written notice of termination. Consultant shall maintain adequate logs
and timesheets in order to verify costs and reimbursable expenses incurred to that date.
SECTION 3. FACILITIES AND EQUIPMENT.
Except as otherwise provided, Consultant shall, at its sole cost and expense, provide all
facilities and equipment necessary to perform the services required by this Agreement. City shall
make available to Consultant only physical facilities such as desks, filing cabinets, and conference
space, as may be reasonably necessary for Consultant's use while consulting with City employees
and reviewing records and the information in possession of City. The location, quantity, and time
of fumishing those lacilities shall be in the sole discretion of City. In no event shall City be
required to furnish any lacility that may involve incurring any direct expense, including but not
limited to computer, long-distance telephone or other communication charges, vehicles, and
reproduction faci I ities.
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SECTION 4. INSURANCE REQUIREMENTS.
Before beginning any work under this Agreement, Consultant, at its own cost and expense,
shall procure the types and amounts of insurance checked below and provide Certificates of
Insurance, indicating that Consultant has obtained or currently maintains insurance that meets the
requirements ol this section and which is satisfactory, in all respects, to City. Consultant shall
maintain the insurance policies required by this section throughout the term of this Agreement.
The cost of such insurance shall be included in Consultant's compensation. Consultant shall not
allow any subcontractor, consultant or other agent to commence work on any subcontract until
Consultant has obtained all insurance required herein for the subcontractor(s) and provided
evidence thereofto City. Verification ofthe required insurance shall be submitted and made pan
of this Agreement prior to execution. Consultant acknowledges the insurance policy must cover
inter-insured suits between City and other Insureds-
4.2 Commercial General and Automobile Liability Insurance.
a General requiremcnts. Consultan t, at its own cost and cxpense, shall
maintain commercial general and automobile liability insurance lor the term olthis Agreement in
an amount not less than ONE MILLION DOLLARS (S1,000,000.00) per occurrence, combined
single limit coverage, for risks associated with the Services contemplated by this Agreement, l'WO
MILLION DOLLARS ($2,000,000.00) general aggregate, and TWO MILLION
DOLLARS ($2,000,000.00) products/completed operations aggregate. If a Commercial General
Liability Insurance or an Automobile t-iability Insurance form or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to the Services to
be performed under this Agreement or the general aggregate limit shall be at least twice the
required occurrence limit. Such coverage shall include but shall not be limited to, protection
against claims arising from bodily and personal injury, including death resulting therefrom, and
damage to property resulting from the Services contemplated under this Agreement, including the
use of hired, owned. and non-owned automobiles.
b. Minimum scoDe oflcoveraqe. Commercial general coverage shall be at least
as broad as Insurance Services OITice Commercial Ceneral Liability occurrence form CC 0001.
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4,1 Workers' Compensation. Consultant shall, at its sole cost and expense. maintain
Statutory Workers' Compensation Insurance and Employer's Liability lnsurance for any and all
persons employed directly or indirectly by Consultant pursuant to the provisions olthe Calilomia
Labor Code. Statutory Workers' Compensation Insurance and Employer's Liability Insurance
shall be provided with limits of not less than ONE MILLION DOLLARS ($1,000,000.00) per
accident, ONE MILLION DOLLARS ($ 1,000,000.00) disease per employee, and ONE MILLION
DOLLARS (S I ,000.000.00) disease per policy. In the altemative, Consultant may rely on a self-
insurance program to meet those requirements, but only ifthe program of self-insurance complies
fully with the provisions of the Califomia Labor Code. Determination of whether a self-insurance
program meets the standards ofthe Califomia Labor Code shall be solely in the discretion ofthe
Contract Administrator. The insurer, if insurance is prov ided. or Consultant, if a program of self-
insurance is provided, shall waive all rights of subrogation against City and its officcrs, officials,
employees, and authorized volunteers lor loss arising from the Services performed under this
Agreement.
Automobile coverage shall be at least as broad as Insurance Services Office Automobile Liability
form CA 0001 Code 2,8, and 9. No endorsement shall be attached limiting the coverage.
Additional requirements. Each of the followin g shall be included in thec.
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis. and
not on a claims-made basis.
b. Any failure of Consultant to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers, employees, agents,
and volunteers.
4.3 Professional Liabilitvlnsurance.
a.ral uirements. Consultant , at its own cost and expense, shall
maintain for the period covered by this Agreement professional liability insurance for licensed
professionals performing the Services pursuant to this Agreement in an amount not less than ONE
MILLION DOLLARS ($1,000,000) covering the licensed professionals' errors and omissions.
Any deductible or sell-insured retention shall be shown on the Certificate. If the deductible or
self-insured retention exceeds TWENTY-FIVE THOUSAND DOLLARS ($25,000), it must be
approved by City.
b. Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be no
later than the commencement ofthe Services.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five (5) years after the expiration or termination of this
Agreement or completion of the Services, so long as commercially available at
reasonable rates.
c. If coverage is canceled or not renewed and it is not replaced with
another claims-made policy form with a retroactive date that precedes the Effective
Date of this Agreement, Consultant must provide extended reporting coverage for
a minimum of five (5) years after the expiration or termination of this Agreement
or the completion ofthe Services. Such continuation coverage may be provided by
one ofthe following: (l) renewal olthe existing policy; (2) an extended reporting
period endorsement; or (3) replacement insurance with a retroactive date no later
than the commencement of the Services underthis Agreement. City shall have the
right to exercise, at Consultant's sole cost and expense, any extended reporting
provisions olthe policy, ifConsultant cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
City prior to the commencement of the Services under this Agreement.
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4.4 All Policies Requirements.
a.Acceptability of insurers. All insurance required by this Section is to be
placed with insurers with a Bests' rating of no less than A:VII and admitted in Califomia.
b. Verification of coverage Prior to beginning the Services undcr this
Agreement, Consultant shall furnish City with Cenificates of Insurance, additional insured
endorsement or policy language granting additional insured status complete certified copies ofall
policies, including complete certified copies ol'all endorsements. All copies of policies and
certified endorsements shall show the signature oI a person authorized by that insurer to bind
coverage on its behalL The Cenificate of Insurance must include the lollowing reference: ![
GROWTH DEMAND ANALYSIS (AUTOMOBILE RETAIL CLUSTER FEASIBILITY).
The name and address for Additional Insured endorsements, Cerlificates of Insurance and Notice
of Cancellation is: City of Menifee, 29714 Haun Road, Menifee, CA 92586. City must be
endorsed as an additional insured lor Iiability arising out ofongoing and completed operations by
or on behalf of Consultant.
Notice of Reduction in or Cancellation of Coverase. Consultant shall
provide written notice to City within ten ( I 0) working days it ( I ) any of the required insurance
policies is terminated; (2) the limits ofany ofthe required polices are reduced; or (3) the deductible
or seli insured retention is increased.
d. Additional insured; primary insurance. Cit y and its officers, employees,
agents, and authorized volunteers shall be covered as additional insureds with respect to each of
the lollowing: liability arising out of the Services performed by or on behalf ol Consultant,
including the insured's general supervision of Consultanti products and completed operations of
Consultant, as applicable; premises owned, occupied, or used by Consultant; and automobiles
owned, leased, or used by Consultant in the course of providing the Services pursuant to this
Agreement. The coverage shall contain no special limitations on the scope ofprotection allorded
to City or its officers, employees, agents, or authorized volunteers. The insurance provided to City
as an additional insured must apply on a primary and non-contributory basis with respect to any
insurance or self-insurance program maintained by City. Additional insured status shall continue
for one ( I ) year after the expiration or termination olthis Agreement or completion ofthe Services.
A certified endorsement must be attached to all policies stating that coverage is
primary insurance with respect to City and its officers, officials, employees, and volunteers, and
that no insurance or self-insurance maintained by City shall be called upon to contribute to a loss
under the coverage.
Deductibles and Self-insured Retentions. Consultant shall obtain the
c.
written approval of City for the self-insured retentions and deductibles before beginning any ofthe
Services.
During the term of this Agreement. only upon the prior express written
authorization of the Contract Administrator, Consultant may increase such deductibles or self-
insured retentions with respect to City, its officers, employees, agents. and volunteers. 'I'he
Contract Administrator may condition approval of an increase in deductible or self-insured
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retention levels with a requirement that Consultant procure a bond guaranteeing payment of losses
and related investigations, claim administration, and defense expenses that is satisfactory in all
respects to each of them.
Variation. Thc Contract Administrator ma y, but is not required to, approve
in writing a var
coverage, scope,
City's interests a
iation in the loregoing insurance requirements, upon a determination that the
limits, and forms of such insurance are either not commercially available, orthat
re otherwise fully protected.
4.5 Remedies. In addition to an y other remedies at law or equity City may have if
Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent
and within the time herein required, City may, at its sole option, exercise any of the following
remedies, which are alternatives to other remedies City may have and are not the exclusive remedy
for Consultant's hreach:
a. Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under this Agreementl
'l'erminate this Agreement.c
SECTION 5. INDT,,MNIFICATION.
5.1 Indemnification for Prolessional Liabilitv. Where the law establishes a
professional standard of care for performance of the Services, to the fullest extent permitted by
law, Consultant shall indemnify, protect, defend (with counsel selected by City), and hold harmless
City and any and all of its officers, cmployees, officials, volunteers, and agents lrom and against
any and all claims, losses, costs. damages, expenses, liabilities, liens, actions, causes ofaction
(whether in tort, contract, under statute, at law, in equity, or otherwise) charges. awards,
assessments. fines. or penalties of any kind (including reasonable consultant and expert fees and
expenses of investigation, costs of whatever kind and nature and, if Consultant fails to provide a
defense for City. the legal costs of counsel retained by City) and any judgment (collectively,
"Claims") to the extent same are caused in whole or in part by any negligent or wrongful act, error,
or omission of Consultant, its officers. agents, employees, or subcontractors (or any entity or
individual that Consultant shall bear the legal liability thereof) in the performance of prolessional
services under this Agreement.
5.2 icat ion for Other than Prolessional Liabilit . Other than in the
performance of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend (with counsel selected by City), and hold harmless City, and any and
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f. Subcontractors. Consultant shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified endorsements for each
subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated
herein.
b. Order Consultant to stop work under this Agreement or withhold any
payment that becomes due to Consultant hereunder, or both stop work and withhold any
payment, until Consultant demonstrates compliance with the requirements hereot and/or
all ol its officers, employees, officials, volunteers, and agents from and against any and all Claims,
where the same arisc out of, are a consequence of, or are in any way attributable to, in whole or in
pa(, the performance of this Agreement by Consultant or by any individual or entity lor which
Consultant is legally liable. including but not limited to ofTicers, agents, employees or
subcontractors of Consultant.
5.3 Limitation of Indemnification. The provisions of this Section 5 do not apply to
claims occurring as a result olCity's sole or active negligence. The provisions of this Section 5
shall not release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officers, officials, employees, and agents acting in an oflicial capacity.
SECTION 6. STATUS OF CONSULTANT.
6.1 lndependent Contractor. At alltimes durin g the term ofthis Agreement, Consultant
shall be an independent contractor and shall not be an employee of City. City shall have the right
to control Consultant only insofar as the results of the Services rendered pursuant to this
Agreement and assignmenl of personnel pursuant to Subparagraph 1.3; however, otherwise City
shall not have the right to control the means by which Consultant accomplishes the Services
rendered pursuant to this Agreement. The personnel performing the Services under this
Agreemenl on bchalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Consultant shall not at any time or in any manner represent that it or any of its officers,
employees, or agents is in any manner officers, officials, employees, or agents of City. Consultant
shall not incur or have the power to incur any debt, obligation, or liability whatever against City,
or bind City in any manner. Except lorthe fees paidto Consultant as provided in this Agreement,
City shall not pay salaries, wages, or other compensation to Consultant for performing the Services
hereunder for City. City shall not be liable for compensation or indemnification to Consultant for
injury or sickness arising out of performing the Services hereunder. Notwithstanding any other
City, state, or lederal policy, rule, regulation, law, or ordinance to the contrary, Consultant and any
of its employees, agents, and subcontractors providing services under this Agreement shall not
qualify for or become entitled to any compensation, benefit, or any incident of employment by
City, including but not limited to eligibility to enroll in the Califomia Public Employecs
Retirement System ("PERS") as an employee of City and entitlement to any contribution to be
paid by City for employer contributions and/or employee contributions for PERS benefits.
SE,CTION 7. LEGAL REQUIREMENTS.
7.1 Goveming Law. The laws of the State of Califomia shall govern this Agreement.
7.2 Compliance with Apolicable Laws. Consultant and any subcontractor shall comply
with all applicable local, state, and federal laws and regulations applicable to the performance of
the work hereunder. Consultant shall not hire or employ any person to perform work within City
or allow any person to perform the Services required under this Agreement unless such person is
properly documented and legally entitled to be employed within the United Srates. Any and all
work subject to prevailing wages. as determined by the Director oflndustrial Relations ofthe State
of California, will be the minimum paid to all laborers, including Consultant's employee and
subcontractors. It is understood that it is the responsibility oflConsultant to determine the correct
scale. The State Prevailing Wage Rates may be obtained from the California Department of
8
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lndustrial Relations ("DIR") pursuant to Califomia Public Utilities Code, Sections 465.466, and
467 by calfing 415-703-4774. Appropriate records demonstraling compliance with such
requirement shall be maintained in a sal'e and secure location at all times, and readily available at
City's request. Consultant shall indemnify, defend, and hold City and its elected and appointed
boards, members, officials, olficers, agents, representatives, employees. and volunteers harmless
from and against any liability, loss. damage, cost or expenses (including but not limited to
reasonable attomeys' fees, expert witness fees, court costs, and costs incurred related to any
inquiries or proceedings) arising lrom or related to (i) the noncompliance by Consultant or any
party performing the Services ofany applicable local" state, and/or federal law, including, without
limitation, any applicable federal and/or state labor laws (including, without limitation, the
requirement to pay state prevailing wages and hire apprentices)l (ii) the implementation ofSection
l78l of the Labor Code, as the same may be amended from time to time, or any other similar law;
and/or (iii) failure by Consultant or any party perlorming the Services to provide any required
disclosure or identification as required by Labor Code Section l78l , as the same may be amended
from time to time, or any other similar law. lt is agreed by the Parties that, in connection with
performance ofthe Services, including, without limitation, any and all public works (as defined
by applicable law), Consultant shall bear all risks ofpayment or non-payment ofprevailing wages
under Calilomia law and/or the implementation of Labor Code Section I 78 I , as the same may be
amended from time to time, and/or any other similar law. Consultant acknowledges and agrees
that it shall be independently responsible for reviewing the applicable laws and regulations and
effectuating compliance with such laws. Consultant shall require the same ofall subcontractors.
7 .3 Licenses and Permits. Consultant re presents and warrants to City that Consultant
and its employees, agents, and any subcontraclors have all licenses, permits, qualifications, and
approvals of whatsoever nature that are legally required to practice their respective professions.
Consultant represents and warrants to City that Consultant and its employees, agents, and
subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of
this Agreement any licenses, permits, and approvals that are legally required to practice their
respective professions. ln addition to the loregoing, Consultant and any subcontractors shallobtain
and maintain during the term of this Agreement valid Business Licenses from City.
SECTION 8. TERMINATION AND MODIFICATION.
8.1 fermination. Cit y may cancel this Agreement at any time and without cause upon
written notification to Consultant
8.2 Termination by Consultant. Consultant ma y cancel this Agreement upon 30 days'
written notice to City.
8.3 Conse uences of T n. In the event of termination . Consultant shall be
entitled to compensation for the Services performed up to the date of termination: City. however,
may condition payment of such compensation upon Consultant delivering to City any or all
documents, photographs, computer software, video and audio tapes, and other materials provided
to Consultant or prepared by or for Consultant or City in connection with this Agreement.
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8.4 Extension. City may, in its sole and exclusive discretion, extend the end date of
this Agreement beyond that provided lor in Subsection l.l. Any such extension shall require a
written amendment to this Agreement, as provided lor herein. Consultant understands and agrees
that. if City grants such an extension, City shall have no obligation to provide Consultant with
compensation beyond the maximum amount provided flor in this Agreement. Similarly. unless
authorized by the Contract Administrator. City shall have no obligation to reimburse Consultant
for any otherwise reimbursable expenses incuned during the extension period.
8.5 Amendments. l'he Parties may amend this Agreement only by a writing signed by
all the Parties.
8.6 Assisnment and Subcontractins. City and Consultant recognize and agree that this
Agreement contemplates personal performance by Consultant and is based upon a determination
of Consultant's unique personal competence. experience, and specialized personal knowledge.
Moreover, a substantial inducement to City for entering into this Agreement was and is the
professional reputation and competence ofConsultant. Consultant may not assign this Agreement
or any interest therein without the prior written approval ofthe Contract Administrator. Consultant
shall not subcontract any portion ofthe performance contemplated and provided for herein, other
than to the subcontractors noted in Consultant's proposal, without prior written approval of the
Contract Administrator. ln the event that key personnel leave Consultant's employ, Consultant
shall notify City immediately.
8.7 Survival. All obligations arising prior to the expiration or termination of this
Agreement and all provisions of this Agreement allocating liability between City and Consultant
shall survive the expiration or termination of this Agreement.
8.8 Options upon Breach by Consultant. lfConsultant materially breaches any ofthe
terms of this Agreement, City's remedies shall include, but not be limited to, any or all of the
following:
Immediately terminate this Agreement.;a
b. Retain thc plans, specifications, drawings, rcports. design documents. and
any other work product prepared by Consultant pursuant to this Agreement;
c. Retain a different consultant to complete the Services described in
Exhibit A: and/or
d. Charge Consultant the difference between the cost to complete the Services
described in Exhibit A that is unfinished at the rime of breach and the amount thar City
would have paid Consultant pursuant to Section 2 if Consultant had completed the
Services.
SECTION 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Crea ted as Part of Consultant's Perlormance . All reports. data, maps,
models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records,
files, or any other documents or materials, in electronic or any other lorm that Consultant prepares
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or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the
property ofCity. Consultant hereby agrees to deliver those documents to City upon the expiration
or termination of this Agreement. It is understood and agreed that the documents and other
materials, including but not limited to those described above, prepared pursuant to this Agreement
are prepared specifically for City and are not necessarily suitable for any luture or other use. Any
useofsuch documents for other projects byCity shall be without Iiabilityto Consultant. Cityand
Consultant agree that, until final approval by City. alldata, plans, specifications, reports, and other
documents are confidential and will not be released to third parties without prior written consent
of both Parties unless required by law.
9.2 Licensing of lntellectual Property. This A greement creates a non-exclusive and
perpetual license for City to copy. use. modify, reuse, or sublicense any and all copyrights, designs,
rights of reproduction, and other intellectual property embodied in plans. specifications, studies,
drawings. estimates, test data. survey results. models, renderings, and other documents or works
ofauthorship fixed in any tangible medium ofexpression, including but not limited to. physical
drawings. digital renderings, or data stored digitally, magnetically, or in any other medium, which
are prepared or caused to be prepared by Consultant under this Agreement ("Documents and
Data"). Consultant shall require all subcontractors to agree in writing that City is granted a non-
exclusive and perpetual license for any Documents and Data the subcontractor prepares under this
Agreement. Consultant represents and warrants that Consultant has the legal right to license any
and all Documents and Data. Consultant makes no such representation and warranty in regard to
Documents and Data which were prepared by design professionals other than Consultant or
provided to Consultant by the City. City shallnot be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by this
Agreement shall be at City's sole risk.
9.3 Consultant's Books and rds. Consultant shall maintain an y and all ledgers,
books ofaccount, invoices, vouchers, canceled checks. and other records or documents evidencing
or relating to charges lor the Services or expenditures and disbursements charged to City under
this Agreement for a minimum of three (3) years, or for any longer period required by law, from
thedateoffinal payment to Consultant under this Agreement. All such records shall be maintained
in accordance with generally accepted accounting principles and shall be clearly identified and
readily accessible.
9.4 InsDect ion and Audit ol' Records . Any records or documents that Section 9.3 of
this Agreement requires Consultant to maintain shall be made available for inspection, audit,
and/or copying at any time during regular business hours, upon oral or written request of City.
Under Califomia Govemment Code Section 8546.7, ifthe amount ofpublic funds expended under
this Agreement exceeds TEN 1'["IOUSAND DOLLARS ($10,000.00). this Agreement shall be
subject to the examination and audit ol the State Auditor, at the request of City or as part of any
audit of City, for a period ofthree (3) years alter final payment under this Agreement.
SECTION IO.MISCELLANEOUS PROVISIONS.
I 0. I Attomeys' Fees. lf either Party to this Agreement brings any action, including an
action for declaratory reliet', to enlorce or interpret the provision of this Agreement, the prevailing
Party shall be entitled to reasonable attorneys'fees and expenses including costs, in addition to
-n-2671/0:I85n,000!
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any other reliefto which that Party may be entitled; provided, however, that the attomeys' lees
awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services
multiplied by the reasonable number of hours spent by the prevailing Party in the conduct of the
litigation. The court may set such lees in the same action or in a separate action brought for that
purpose.
10.2 Applicable Lawl Venue. The internal laws of the State of Califomia shall govern
the interpretation and enforcement of this Agreement. In the event that either Party brings any
action against the other under this Agreement, the Parties agree that trial of such action shall be
vested exclusively in Riverside County.
| 0.3 Severability. If any provision of this Agreement is held invalid, the remainder of
this Agreement shall not be affected thereby and all other parts of this Agreement shall
nevertheless be in full force and effect.
10.5 No Im li i reach . The waiver ofany breach ofa specific provision ol
this Agreement does not constitute a waiver ofany other breach ofthat term or any other term of
this Agreement.
I 0.6 Successors and Assisns. The provisions ofthis Agreement shall inure to the benefit
ofand shall apply to and bind the successors and assigns ofthe Parties.
10.7 Consultant Representative. All matters under this Agreement shall be handled for
Consultant by Jim Mullin ("Consultant's Representative"). The Consultant's Representative shall
have full authority to represent and act on behalf of Consultant lor all purposes under this
Agreement. The Consultant's Representative shall supervise and direct the Services, using his
best skill and attention, and shall be responsible for all means, methods. techniques, sequences,
and procedures and for the satisfactory coordination of all portions of the Services under this
Agreement.
10.8 City Contract Administration. This A greement shall be administered by a City
employee, Gina Conzalez, Economic Development Director ("Contract AdministratoC'). All
correspondence shall be directed to or through the Contract Administrator or his designee. 1'he
Contract Administrator shall have the power to act on behalf of City for all purposes under this
Agreement. Unless otherwise provided in this Agreement, Consultant shall not accept direction
or orders from any person other than the Contract Administrator or his designee.
10.9 Notices. Any written notice to Consultant shall besentto:
MULLIN360 Real Estate Services LLC
Attn: Jim Mullin
4014 North Goldwater Boulevard. Suite 203
Scottsdale. AZ 85251
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10.4 Section Headings and Subheadinqs. The section headings and subheadings
contained in this Agreement are included for convenience only and shall not Iimit or otherwise
affect the terms of this Agreement.
-12-
Any written notice to City shall be sent to the Contract Administrator at:
City of Menifee
29714 Haun Road
Menifee, CA 92586
Attn: Gina Gonzalez, Economic Development Director
with a copy to:
City Clerk
City of Menifee
29714 Haun Road
Menifee. CA 92586
10.10 Professional Seal. Where applicable in the determination of the Contract
Administrator, the first page ofa technical report, first page oldesign specifications, and each page
of construction drawings shall be stamped/sealed and signed by the licensed professional
responsible for the repor/design preparation. The stamp/seal shall be in a block entitled "Seal and
Signature of Registered Prol'essional with report/design responsibility," as in thc lollowing
example.
Seal and Signature of Registered Professional with
rcport/desi gn responsibil ity.
l0.l I Riehts and Remedies.Except with respect to rights and remedies expressly
declared to be exclusive in this Agreement, the rights and remedies ofthe Parties are cumulative
and the exercise by either Party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the same default
or any other default by the other Party.
10.12 lntesration. This A greement, including the scope of services attached hereto and
incorporated herein as Exhibit A, represents the entire and integrated agreement between City and
Consultant and supersedes all prior negotiations, representations, or agreements, either written or
oral. The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed lor or against either Party by reason ofthe authorship of
this Agreement or any other rule ofconstruction which might otherwise apply.
10.13 Countemarts. This A greement may be executed in multiple counterparts. each of
which shall be an original and all of which together shall constitute one agreement.
10.14 Execution ofContract. The persons executing this Agreement on behalfofeach of
the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so
executing this Agreement, such Pany is formally bound to the provisions ofthis Agreement, and
(iv) that entering into this Agreement does not violate any provision of any other Agreement to
which said Party is bound.
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I 0. I 5 Nondiscrimination. Consultant covenants that, by and for itself, its heirs, executors.
assigns, and all persons claiming under or through them, that in the performance ofthis Agreement
there shall be no discrimination against or segregation of, any person or group of persons on
account of any impermissible classification including, but not limited to, race, color, creed,
religion, sex, marital status. sexual orientation, national origin, or ancestry-
10.16 No Third Party Beneficiaries. With the exception of the specific provisions set
lorth in this Agreement, there are no intended third-party beneficiaries under this Agreement and
no such other third parties shall have any rights or obligations hereunder.
l0.l 7 Nonliability olCity Officers and Emolovees. No officer, official. employee, agent,
representative, or volunteer of City shall be personally liable to Consultant, or any successor in
interest, in the event ofany delault or breach by City or for any amount which may become due to
Consultant or to its successor. or for breach ofany obligation ofthe terms of this Agreement.
I 0. I 8 No Undue lnfluence. Consultant declares and warrants that no undue influencc or
pressure is used against or in concert with any officer or employee of City in connection with the
award, terms or implementation of this Agreement, including any method of coercion, confidential
financial arrangement, or financial inducement. No o{Ticer or employee of City shall receive
compensation, directly or indirectly, from Consultant, or from any officer, employee. or agent of
Consultant, in connection with the award ofthis Agreement or any work to be conducted as a result
of this Agreement.
10.19 No Benefit to Arise to Citv Employees. No member. officer, oremployee of City,
or their designees or agents, and no public official who exercises authority over or has
responsibilities with respect to this Agreement during his/her tenure or for one ( I ) year thereafter.
shall have any interest, direct or indirect, in any agreement or sub-agreement, or the proceeds
thereof, for the Services to be performed under this Agreement.
ISignatures on Following Page]
2671/0.r tE58,0001
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IN WITNESS WHEREOF. the Parties heleto have executed and entered into this
Agreement as of the El'fcctive Date.
CITYOFMENIFEE CONSULTANT
Bill Zimmerman, Mayor
Attest:
.I I tl-()$,ner
Sarah Manwaring. City fllcrk
Approved as to Form:
Jim Lrllin. Orvnet'
[Note:2 officer's signatures required if
Consultant is a corporation, unless provided
with a cenificate ofsecletary in-lieu]Jeffrey T. Melching, City Attorney
267tioi I858-0001
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IN WITNESS WHEREOF, the Parties hereto have executed and entered into this
Agreement as ofthe Effective Date.
CITY OF MENIFEF].CONSULTANT
-vY'\r1/
Billzimfu)a(Mayor m Mullin, Owner
[Note:2 officer's signatures required if
Consultant is a corporation, unless provided
with a cenificate ofsecretary in-lieul
Atte
Manwarin Clerk
ed as to Form:
. Melching,Attomev
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\AA^"s-
Mn^"^f-
y'm Mullin. Owner
-/
EXHIBIT A
SCOPE OF SERVICES
The Scope of Services is detailed in the lollowing pages
The total agreement is lor a not-to-exceed amount of $77,300. Please note this includes up to
$6,800 for potential eligible travel expense(s) related to completion of the market study, and a
deposit for assistance with implementation ofauto dealer attraction efforts. Consultant shall only
bill based on actual travel completed, and shall coordinate with City staff any pre-approvals and
supporting documentation and reports needed prior to incurring such expenses.
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Re
MULLlN36o
Real Estate Services LLC
october 3,2018
Gina Gonzalez, MA
Economic Oevelopment Director
Oflice ot Economic Development
City of Meniree
29714 Haun Road
Menifee, CA 92586
Net Growth Demand Analysis (NGDA): Opportunities for New and
Rslocating Oealerships to locate in Msnifse, California
Dear Ms. Gonzalez,
Thank you tor your interest in Mullin360 Real Estiate Services to share our
knowledge in researching the net growth demand Ior the potential of new points
and relocating dealerships lo Menifee California.
ln the following proposal, we examine the potential for a future automotive/light
truck dealership cluster in Menifee, California, where it should be located and the
related sales lax revenues it would represent to the City. Our firm uses our
proprietary research modeling techniques refined from over 30 years of
experience to develop your analysis coupled with in-market study from principals
who have over 30 years experience in locating dealership sites nationally.
Here are the areas Mullin360 proposes to research and analyze for the custom
automotive retail cluster feasibility report in the Menifee market:
Primarv Goals:
Our study will answer these directional questions:
a) What derines a significant automotlve reiail cluster that creates the tolal
synergy necessary for a maximized sales destination? Can a significant
automotive retailcluster be localed in the Menifee city boundaries, based
on net market potential, recognizing state-regulated distances between
same-make dealerships and the defned secondary market built on
4014 North Goldwater Boulevard, Surte :o3, Scottsdale Anzona USA 48o.4.r.l.9loo
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MULLlN36o
Real E5tate Services LLC
b) Assuming affirmative results above, where should the automotive cluster
be located within the Menifee market to maximize sales tax potential and
to avoid a stiatute-backed dealer protest(s) from sunounding
dealership(s)? We will lriage lhe potential sites (up to hree) based on the
MULLlN360 net demand criteria.
c) lf the City has a tiarget location for the dealership cluster, does this
location meet the requirement needed for a sucressful auto cluster,
including site-specilic OEM desired qualities and market Potential? How
does it compare to the other triaged/identified sites in the trade area?
d) What will be the absorption timing for lhe proposed cluster, based on our
potential demand model and the sales prolit thresholds required by area
dealerships to iustify a new point or relocation? ls the timing now? Two to
five years in the future? Ten years? Longer?
e) What makes are the most likely candidates for an auto clusler in Menifee,
initially and throughout the marketing life of the potential selected site?
Which brands will justify locating in Menifee first and in what order for a
satisfied synergistic threshold of sustainability?
f) What are the potential new and used vehicle sales that will be generated
by the dealership cluster?
g) What are the potential tax revenues represented by these sales and
taxable service revenues?
h) What is the amount of land necessary for the majority of tfre brands to
operate a traditional dealership in the market or at a selected site? Based
on today's construction soft and hard costs, what site costs will be
sustained based on the combination of new, used and service sales
volume?
How we will conduct our analvsis;
The following topics will be developed to create and support our findings
and recommendations:
Surte 2oj, 9(ottsdale Ar
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synergy threshold of the cluster's pull into secondary (nm- Menifee)
markets?
MULLlN36o
(t)@
We will initially consider any and all sites that have been proposed for
developmenl as well as offer our own perceptive based on our Mullin360 teams
national site selection background in the automotive industry. These options will
be triaged to (up to three) potential sites.
First, we will review the site's suilability based on statute distance
limitations governing the required distance between same makes. We will
identify those makes that can be considered candidates for the proposed site(s).
Our initial focus, of course, will be on potential anchor makes (Toyotia, Nissan,
Honda, Ford, Chevrolet and Chrysler-Dodge-Jeep-Ram and potential luxury lines
of Mercedes, BMW and Lexus).
Once we have established the suitability of the site (or siles) based on
polential candidates, we will locus on site-specific factors that most influence the
success ol a dealership and a dealership cluster.
- Arlerial access, existing, planned, funded. unfunded.
- Population/household, existing and potential.
- Retail development...existing and potential bcations for regional and
super-regional malls
- Employment centers, both existing and potential.
A successful dealership depends on visibility and access to primary
roadways. The dealership location needs to pass the test of the dealer
operating/ownership group but also the OEM (brand) that approves the proposed
relocation or new-point location. lt will also depend on access to
population/household centers. . . buyers.
Proximity, to primary relail is also measured. Regional and super regional
malls can acl as sales catalysts for dealerships, by generating traflic and
increase the regional "pull" for auto retail and identity. Employment centers,
allhough not typically as important as retail, can also be sales catalysts. This is
particularly true, depending on brand, for the servlce sector of a dealership.
Primarily using these factors, we will review the proposed site or sites. We will
determine the site(s) potential strengths and weaknesses, and factor in their
impact on potential demand for vehicles and potential sales tax mntibutions. lf
the site(s) has significant shortcoming, we may advise against its development or
provide recommendations on how to work around its limitrations lf a proposed
site(s) is limited, we will provide for alternative locations, as development options
or competitors.
4014 Nonh Goldwater Boulevard, Suite 2ol, Scottsdale Arrzona USA 48o.441.93oo
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Real Estate Servi(es LLC
MULLlN35o
Real Estate Servi(es LLC
(2) The Primarv Market Area (PN4A).
This is the nexl slep, afler we have identitied site suitability
The PMA is the marketplace surrounding a selected site that will have the
greatest impact on the potential sales volumes for dealerships. For most makes,
the majority of their sales (new and used) will be to residents of the PMA.
The creation of the PMA will be based acceptable dislance tomarkel
share ratios (the drive-time that buyeG will undertake) by brand. Once a base
drive-time model is establish€d, the PMA will be reconfigured, allowing for
. Physical boundaries (mountains and waterways).. Perceived boundaries (reputations of submarkets). Potential OEM restrictions.. The locations of retail nodes and employment nodes.. The location of other dealership or a lack of dealerships
(3) Demand proiections for new cars and liqht trucks within the defined trade
area (PMA).
We will proiect the demand for new cars and light trucks in the PMA over
the next five to 10 years, or longer, if needed to cover the marketing life of the
dealership duster. We will use ffve-year averages in our projeclons. Proleclions
over 10 years are directive as many factors can adjust oler that period of time.
Our initial forecast will be of gross demand...he potential demand for new
and used vehicles available to dealerships at the selected location(s) within he
PMA, as well as, other dealerships lhroughout the broader market area.
Projections of demand will be rooled in local and regional patterns in
population growth, including both increases in population and changes in
demographic characler - income and lifestyle.
Special attention will also be give to the interrelationship belween potential
demand for new housing, planned residential development, housing starls,
densilies and populatbn growth. We will in addition look at the potential impact
of economic growtr (employment gains by industry type locally and regionally) on
population gains
i014 North Goldwater Boulevard, Surte 2o3, Scottsdale Anzona USA 48o.443.9Jr
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MULLIN35o
Real Estate Services LLC
(4) Sales oerformance for he dealershio cluster
We will use market shares demonstrated by makes at other existing
dealerships in the area to estimate potential sales volume (new and used) that a
dealership can expect to extract from the PMA
Gross demand for a selected make in the PMA multiplied by typical
market share will yield sales al the cluster by PMA residents for the selected
make.
To create total potential sales for dealerships, including residents within
and oulside ol the PMA, we will review the typical percentage that the PMA
represent to total sales and apply the percenlage to create total net demand. The
net demand analysis will illustrate the gross demand modified by penetration and
neighboring brands influence in he PMA to the targeted dealership/brand lor the
City of Menifee.
We expect to make trree forecasts for each make at the auto
cluster. ..low, middle and high.
The forecast will reflect variations in he laclors that will power gross
demand in the PMA. They will also, however, allow for potential differences in a
dealership's ownership performance.
(5) Potential tax revenues
Based on pobntial new and used sales volumes generated by dealerships
in the cluster, we will estimate the polential lax revenues generated by he auto
cluster.
Our estimate will be based on
Average transactonal sales price.
Typical trade values.
Total taxable new and used sales.
Taxable portion of the service revenues
We will also develop additional lindings on sib size potential for planning
purposes.
Specifically, we will estimate the total acreage and potential mix of lot
sizes that potenlial new car/lighl truck deelerships represent, so that the City of
4014 North Goldwater Boulevard, Surte 203, Scottsdale Aflzona USA 48o.443.93oo
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(6) Cluster sizino and olannino
MULLlN35o
Real Estate Services LLC
Meniiee gains insights on the amornt of land necessary to best capitahze on
auto retail sales lax.
Our estimate of total acreage and lol sizes will be based on expected
sales volume and ttle typical showroom, service and parking requirements
needed lo accommodate thes€ sales. We ryill look al land requirements over time
(absorption) and size lots (and potential land reserves) to rellect the make's
volume and any manufaclurer's requirements. Wilhin this framerrcrk. we will
evaluate the potefltial suitability of eny sites that have been proposed.
Timino and reoorlinq:
We will comd€te a draft report within 45 days of .eceiving s,yitten
aulhonzatix and an indic€tion from you that an initial depos( payrnenl has been
processed br payment.
The final reporl will be available approximately 14 days afler th€ drafr is
submined. lt will be in dQital form alorp with two DRAFT paper copies. The
report is hundreds of pages h length therefore. lhe linal mutually egred
released repo.l version is typicaly deliyered in summary fofm and will be suilable
for outslde orculation.
As indicated, our propo6al is designed to detemine location performance
potential. tining. viable targel makes, anticipated net sales revenues and likely
related sales tax revenues.
Phase ll:
Afrer revew of the final report for the analysis, we will (al the city's
request) assist with implernentiatiln of auto dealef attraction etrorts.
(Deposn $2.5O0)
Ellllqd.Erlslrrl;
We will cfiarge $60.000 br both the drafi and tlle tinal r6port. A deposil of
S10,000.00 rs required to initiate the analysis and the remaining fee will be due at
the submissim of our drafl rBporl detailed herein.
ln addition. we will requfe reinbursement for the cost of raw data on new
and used regisfations in the sunounding rnarket. Depending on the g€ographic
scope required. we estimate thet the needed data will cost betrreen $5,000 and
$8.000 from R, L. Polk (parent company'lHS Markif). These exp€ns€s will be
billed at the time that they are ina.lned without markup. Should the City of
Menife€ have a relation with this specilied pfoyider, it can be advantageous to
purchase lhe data through the Crty's purchasing relationship.
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MULLlN36o
Real Estate Servi(es LLC
We also expecl tc conduct lield researcfr (lrip 1) during our analysis, to
initially meet with City representatives, review any polential site issues and
evaluate the strenglhs and weaknesses of local and area dealerships. We will, in
addition, present our findings in person (trip 2) after the completion oI our report.
Fee time and expenses stemming from lield research and our presentation (two
trips) will be induded within our overall fee.
We are also prepared to make additional lrips to the market, after the
completion of ourstudyandfinal presentation. This often occurs as Council
proposes questions or specific land owner discussions arise for development and
clarific€tions to these audiences are necessary. These day trips will be billed at a
Rat rate of $1,500 per trip plus market travel expenses.
A cost summary is as follows (Mullin360 does not offer hourly breakdowns);
Total Fee for analysis
Data Expense (estimate)
Field Research/Presentation
Estimated Total Fees and Expenses
Less Required lnitial Payment
Less Data Exoense (at time incurred)
Fee Due at Draft Delivery
$60,000
$5,00G$8,000
:
$6s,00G.$68,000
$10,000
s5.000-$8.000
$s0,000
Should additional trips tc the market
Be requested post-report
(plus Eavel expenses)$1 .500 per trip
Thank you for providing Mullin360 Real Estate Services, LLC the
opportunity to provide this proposal for insighb into automotive dealership
opportunities in Menifee, California
Please sign and retum with the required initial payment
Agreed
Name
Title
Date
iter Soulevard. Su'te 201. S )ttsdale Ar
:om
8
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