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HomeMy WebLinkAbout1995-03-07; City Council; Resolution 95-52t c 1 2 3 4 5 6 e 0 RESOLUTION NO. 95-52 A RESOLUTION OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO EXECUTE A CONSULTANT AGREEMENT AND SPECIAL COUNSEL AGREEMENT FOR PROJECT COMMUNITY FACILITIES DISTRICT NO. 3 - CARLSBAD RANCH WHEREAS, the City received a request from the property owner of the Carlsbad R Project to form a Community Facilities District to fund certain public improvements withi Carlsbad Ranch Specific Plan; and 7 8 9 WHEREAS, Council directed staff at its December 13, 1994 meeting to proceec 10 the establishment of forming such a District; and 11 WHEREAS, Kadie-Jensen, Johnson & Bodnar has previous experience as fin: 12 l4 WHEREAS, Brown, Diven & Hentschke has provided bond counsel services anc 13 advisor to the City on bond issues; and been instrumental during debt structuring and bond issuance; and 15 WHEREAS, Roberts and Roberts has been selected as the assessment apprais 16 17 18 19 20 21 their expertise with appraisals used for the purpose of marketing tax-exempt bonds. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsb follows: 1. That the above recitations are true and correct. 2. That the Mayor is hereby authorized to execute the attached Cons ~ 22 ll Agreement with Kadie-Jensen, Johnson & Bodnar for special tax and financing servicc 23 24 Ill 25 Agreement with Brown, Diven and Hentschke for bond counsel services. 3. That the Mayor is hereby authorized to execute the attached Cc 26 Ill 27 Ill 28 111 It q e 0 1 2 4. That the Mayor is hereby authorized to execute the attached Cons1 Agreement with Roberts & Roberts for assessment appraisal services. 3 ll PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council ( 4 5 6 7 City of Carlsbad, California on the 7th day of March , 1995, b following vote, to wit: AYES: Council Members Lewis, Nygaard, Finnila and Hall 8 9 10 NOES: None ABSENT: Council Member Kul 11 12 ATTEST: 13 14 l5 /I 16 17 18 19 20 21 22 23 24 25 26 27 28 It '* 0 0 -\,e t=/i~.j I B I AGREEMENT THIS AGREEMENT, made and entered into as of the day of 1995, by and between the CITY OF CARLSBAD, a municipal corporation, hereinaftc referred to as "City", and KADIE-JENSEN, JOHNSON & BODNAR, hereinafter referred tl as "Consultant". RECITALS City requires the services of a municipal financing consultant to provide tt- necessary assistance in the special tax financing of the Carlsbad Ranch Project; ar Consultant possesses the necessary skills and qualifications to provide the service required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenan contained herein, City and Consultant agree as follows: 1. CONSULTANT'S OBLIGATIONS Consultant will provide the City with special tax and financing consulting servicc in connection with the Carlsbad Ranch Project as detailed in Exhibit A to this agreemer 2. CITY OBLIGATIONS The City shall approve services to be performed on a task-by-task basis. The C Financial Management Director, Finance Director, and Assistant Finance Director E authorized staff to approve services and budget for services. Additionally, the City sh provide Consultant access to City staff and records, and agrees to pay Consultant stipulated in Paragraph 4. Rev. 1 1/91 % 0 0 - 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt c notification to proceed by the City and be completed within five years or until all work i! completed. 4. FEES TO BE PAID TO CONSULTANT The total shall not exceed the fee payable according to Paragraph 6, "Payment c Fees," and shall be $35,000. This amount may be increased with prior approval by th City Manager, but in event shall exceed $50,000. No other compensation for serviw will be allowed except those items covered by supplemental agreements per Paragray: 7, "Changes in Work." 5. DURATION OF CONTRACT This agreement shall extend for a period of five years or until all work has be€ completed. 6. PAYMENT OF FEES Fees for services will be based on the hourly rate of $135 plus reimbursement fl out-of-pocket expenses, subject to the conditions detailed in Exhibit A to this agreemer Fees will be paid by monthly invoice. 7. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Consultant or t City, and informal consultations with the other party indicate that a change in t conditions of the contract is warranted, the Consultant or the City may request a chan in contract. Such changes shall be processed by the City in the following manner: 2 Rev. 1 1/9/ -i 0 e - letter outlining the required changes shall be forwarded to the City by Consultant tc inform them of the proposed changes along with a statement of estimated changes ir charges or time schedule. A supplemental agreement shall be prepared by the city anc approved by the City according to the procedures described in Carlsbad Municipal Cod( Section 3.28.172. Such supplemental agreement shall not render ineffective or invalidatl unaffected portions of the agreement. 8. COVENANTS AGAINST CONTINGENT FEES The Consultant warrants that their firm has not employed or retained any compar or person, other than a bona fide employee working for the Consultant, to solicit ( secure this agreement, and that Consultant has not paid or agreed to pay any compar or person, other than a bona fide employee, any fee, commission, percentage, brokerac fee, gift, or any other consideration contingent upon, or resulting from, the award ( making of this agreement. For breach or violation of this warranty, the City shall ha\ the right to annul this agreement without liability, or, in its discretion, to deduct from tt agreement price or consideration, or otherwise recover, the full amount of such fe commission, percentage, brokerage fees, gift, or contingent fee. 9. NONDISCRIMINATION CLAUSE The Consultant shall comply with the state and federal laws regardir nondiscrimination. 10. TERMINATION OF CONTRACT In the event of the Consultant’s failure to prosecute, deliver, or perform the wc as provided for in this contract, the City may terminate this contract for nonperforman 3 Rev. 1 1/91 ". 0 * by notifying the Consultant by certified mail of the termination of the Consultant. Thc Consultant, thereupon, has five (5) working days to deliver said documents owned b) the City and all work in progress to the Financial Management Director. The Financia Management Director shall make a determination of fact based upon the document delivered to City of the percentage of work which the Consultant has performed whicl is usable and of worth to the City in having the contract completed. Based upon thz finding as reported to the City Manager, the Manager shall determine the final paymer of the contract. 11. DISPUTES If a dispute should arise regarding the performance of work under this agreemer the following procedure shall be used to resolve any question of fact or interpretation nc otherwise settled by agreement between parties. Such questions, if they becorr identified as a part of a dispute among persons operating under the provisions of tt- contract, shall be reduced to writing by the principal of the Consultant or the C' Attorney. A copy of such documented dispute shall be forwarded to both partil involved along with recommended methods of resolution which would be of benefit both parties. The City Attorney or principal receiving the letter shall reply to the leu along with a recommended method of resolution within ten (10) days. If the resoluti thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute st be forwarded to the City Council for their resolution through the Office of the C Manager. The City Council may then opt to consider the directed solution to t problem. In such cases, the action of the City Council shall be binding upon the part involved, although nothing in this procedure shall prohibit the parties seeking remed available to them at law. 4 Rev. 1 1/9 - 0 0 - 12. SUSPENSION OR TERMINATION OF SERVICES This agreement may be terminated by either party upon tendering thirty (30) day? written notice to the other party. .In the event of such suspension or termination, upor request of the City, the Consultant shall assemble the work product and put same ir order for proper filing and closing and deliver said product to City. In the event o termination, the Consultant shall be paid for work performed to the. termination date however, the total shall not exceed the lump sum fee payable under paragraph 4. Th City shall make the final determination as to the portions of tasks completed and th cqmpensation to be made. 13. STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant’s ow way as an independent contractor and in pursuit of Consultant’s independent calling, an not as an employee of the City. Consultant shall be under control of the City only as ’ the result to be accomplished, but shall consult with the City as provided for in tk request for proposal. The Consultant is an independent contractor of the City. The payment made ’ the Consultant pursuant to the contract shall be the full and complete compensation ’ which the Consultant is entitled. The City shall not make any federal or state t: withholdings on behalf of the Consultant. The City shall not be required to pay ar workers’ compensation insurance on behalf of the Consultant. The Consultant agre to indemnify the City for any tax, retirement contribution, social security, overtir payment, or workers’ compensation payment which the City may be required to ma on behalf of the Consultant or any employee of the Consultant for work done under tl agreement. 5 Rev. 1 1/91 - 0 e The Consultant shall be aware of the requirements of the Immigration Reform and Control Act of 1986 and shall comply with those requirements, including, but not limitec to, verifying the eligibility for employment of all agents, employees, subcontractors anc consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Consultant shall cause all spreadsheets, financial analyses, special ta reports, schedules, formulas, and all other written products to conform to all applicabl requirements of law: federal, state and local. Consultant shall provide all necessar supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved documents and reports to any othe agencies. 15. OWNERSHIP OF DOCUMENTS All spreadsheets, financial analyses, special tax reports, schedules, formulas, ar all other written products as herein required are the property of the City, whether tt work for which they are made be executed or not, In the event this contract terminated, all spreadsheets, financial analyses, special tax reports, schedules, formula and all other written products shall be delivered forthwith to the City. Consultant sh: have the right to make one (1) copy of the documents for his/her records. 16. REPRODUCTION RIGHTS The Consultant agrees that all copyrights which arise from creation of the wc pursuant to this contract shall be vested in City and hereby agrees to relinquish all clair to such copyrights in favor of City. 17. HOLD HARMLESS AGREEMENT The City, its officers, and employees shall not be liable for any claims, liabilitit 6 Rev. 1 1/91 0 0 penalties, fines, or any damage to goods, properties, or effects of any person whatever nor for personal injuries or death caused by, or resulting from, any intentional 01 negligent acts, errors or omissions of Consultant or Consultant’s agents, employees, 01 representatives. Consultant agrees to defend, indemnify; and save free and harmless the City and its officers and employees against any of the foregoing claims, liabilities penalties or fines, including liabilities or claims by reason of alleged defects in any plan! and specifications, and any cost, expense or attorney’s fees which are incurred by thl City on account of any of the foregoing. 18. ASSIGNMENT OF CONTRACT The Consultant shall not assign this contract or any part thereof or any monie due thereunder without the prior written consent of the City. 19. SUBCONTRACTING If the Consultant shall subcontract any of the work to be performed under th contract by the Consultant, Consultant shall be fully responsible to the City for the ac and omissions of Consultant’s subcontractor and of the persons either directly ( indirectly employed by the subcontractor, as Consultant is for the acts and omissions ( persons directly employed by consultant. Nothing contained in this contract shall crea any contractual relationship between any subcontractor of Consultant and the City. Tt- Consultant shall bind every subcontractor and every subcontractor of a subcontractor k the terms of this contract applicable to Consultant’s work unless specifically noted to tl contrary in the subcontract in question approved in writing by the City. 20. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City negotiate, make, accept, or approve, or take part in negotiating, making, accepting, 7 Rev. 1 1/9/’ 0 0 approving of this agreement, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directl) or indirectly interested personally in this contract or any part thereof. 21 m VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of.thl City, either before, during or after the execution of this contract, shall affect or modify an' of the terms or obligations herein contained nor entitle the Consultant to any additions payment whatsoever under the terms of this contract. 22. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all term: conditions, and provisions hereof shall insure to and shall bind each of the partic hereto, and each of their respective heirs, executors, administrators, successors, an assigns. 23. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written abok 24. CONFLICT OF INTEREST The Consultant shall file a conflict of interest statement with the city clerk accordance with the requirements of the City's conflict of interest code. 8 Rev. 1 1/9, T. 0 0 25. INSURANCE The requirement for liability insurance is waived; however, a City of Carlsbad business license is required. Executed by Consultant this day of 9 19- CONSULTANT: CITY OF CARLSBAD, a municipal corporation of the State of California Kadie-Jensen, Johnson & Bodnar By: By: Mayor (sign here) ATTEST: (print name here) (title and organization of signatory) ALETHA L. RAUTENKRANZ City Clerk (Proper notarial acknowledgment of execution by CONSULTANT must be attached.) (President or vice-president and secretary or assistant secretary must sign fi corporations. If only one officer signs, the corporation must attach a resolution certific by the secretary or assistant secretary under corporate seal empowering that officer bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney BY Deputy City Attorney 9 Rev. 1 1/91 4 #-/\I I I u I ~FNsEN, J. @SON & IjODNAR MUNICIPAL 1 aClNG kavsumms, INc. ,*cember 12, 1994 Corporate O-fice: $art Diego, California 92108 Tw; 61 9/2%1450 FAX 61 91296-3 783 7801 Mission Center Cam, Srrire 460 City of Carlsbad 1266 Carlsbad Village Drive Carlsbad, CA. 92008 Attention: Mr. Jim Elliott RE: Carlsbad Ranch - Special Tax and Financing Consulting Services We would be pleased.to provide the City with Special Tax and Financing Consulting Services in connection nith the Carlsbad Ranch Project as described below. SDecial TaX Consulting 1) Examine the benefits of the various facilities proposed for Mello Roos Funding and determine a uniform and equitable formula for the allocation of sucn costs. 2) Based on cost estimates and/or construction bids to be provided by the City, develop a formula for the levy of the special tax which reflects the benefits of the projects as well as interest cost estimates and debt repayment schedules designed to optimize the utility of Mello Roos financing to the property owners I 3) Prepare a draft Special Tax Report containing our findings and all necessary support information for City Review. 4) Based on city comment, prepare a Final Special Tax report incorporating any recommended changes, required maps and ar/othe property descriptions, and such findings as are required by law. 5) Attend City Council meetings and hearings as necessary to present the Special Tax Report and explain its contents. 6) Coordinate with the County Clerk, or other designated organizations to provide the materials necessary to effectuate a successful election. 7) Tabulate election results and certify as necessary. 8) Attend property owners meetings as directed by City. Two such meetings are included in the project budget. Charter Member1 National Association of Independent Public Finance Advisors 4 0 0 Fee far Special Tax Consulting services: The fee for service outlined above will be based on our hourly rate of $135 plus reimbursement for out-of-pocket expenses, subject to the following terms and conditions: 1) The amount payable hereunder for services outlined in Paragraphs 1) through 7) above shall be $35,000. This amount mz be increased with prim approval of the Off ice of the City Manager but in no event shall exceed $50,000. (Note: these maximums do not include compensation for over two property ownel meetings). 2) To minimize costs, KJJB will subcontract all clerical and drafting work and bill the City at cost as apposed to the quotec hourly rate. 3) Fees will be payable by monthly invoice. 4) Ta the extent,that the determination of benefit of any portion of the project improvements depends on an engineering analysis, such as the divisions of costs of grading based on project requirements and developer requirements, such cast analysis will be provided by the City or will be subcontracted 1 KJJB at the direction of the City. Any casts associated with such analysis are not included in the fee maximurns shown above. Financial consultins Services Financial Consulting services, as required to prepare the Special Tax report, are included in the fee above. Financial Consulting Services associated with the structuring and sale of bands are as described below: 1) Nectotiated sale: Provide all services necessary to achievc the best possible pricing of bonds. Examine all proposed documentation to be sure that the interests of the city are protected. Note: Cansultanc will present a detailed enumeratia Of service for City approval ir^ the City determines to sell securities on a negotiated basis. 2) ComDetitive sale: Prepare and distribute a Preliminary al Final Official Statement together with all necessary bidding specifications far the comp.ecitive sale of securities. Assist bond. council in preparing legal documents. Note: Consultant Will present a detailed enumeration of services for city approv: if the City determines to sell securities on a competitive bid basis. - L * e 0 - Fee for consulting Services: 1) Neaotiated Sale. A fee of $5,500 subject to the sale of 'bands and payable from proceeds. 2) ConDetitive sale. A fee of $27,500 plus reimbursement for out of pocket expenses for a direct and overlapping debt statement, printing and nailinq of the Preliminary and Final Official Statement'and any costs for rating and/or bond insurance. No reimbursable costs will be incurred under this paragraph without prior City approval. Other terms and considerations: 1) Term of aareement: Five years or until all work is completed, except as in 2), below. 2) Cancel.lation of asreement: This agreement can be canceled at any time by theiCity. No fees will be payable for services rendered after KJJB has received notice of cancellation. KJJB may cancel this agreement by giving the City a. sixty day notice. KJJB understands that the value of work performed and paid for may be reduced if KJ33 elects to cancel this agreement, and will abide by a determination of an independently appointed arbitratc as to any rebate that may be due. If the foregoing meets with tfie city's approval, please so indicate in the space provided. Thank you very much for giving Us this opportunity to serve the City of Carlsbad- Your's very truly, Carl Kadie President, KJJB Approved and accepted for the City of Carlsbad: BY Title Date -. 2 e c 0. SPECIAL COUNSEL AGREEMENT THIS AGREEMENT is made and entered into this pz day of 'L I by and between the CITY OF CARLSBAD, CALIFORNIA, a public corporation (herei referred to as "City") , and BROWN, DIVEN & HENTSCHKE (hereinafter referred "Counsel ") . NOW, THEREFORE, IT IS HEREBY AGREED by and between the parties hereto as follov SECTION 1. That Counsel shall perform legal services in connection with tk posed. proceedings relating to the formation of a community fac district, including any related bond issuance, said community fac district known and designated as COMMUNITY FACILITIES DISTRICT (CARLSBAD RANCH) (hereinafter referred to as the "District") proceedings conducted pursuant to the provisions of the "Me1 Community Facilities Act of 1982", being Chapter 2.5, Part 1, D 2, Title 5 of the Government Code of the State of California. Said services shall include: A. Preparation of all resolutions, notices, contracts, bond for other papers and documents required in the proceedings; B. Examination of the proceedings, step by step, as taken; C. Appear at a71 hearings under the proceedings, and attend any where attendance is required; D. Review the "Report" of the Engineer as it relates to the pro( for the District; E. Review and examine the map showing the area and boundaries District; ' F. Review the method and formula utilized by the Engineer apportionment of the special tax; G. Make recommendations as to sale of bonds, as required; H. Assist in any election procedure processing, as necessar) requ i red ; I. Instruction and advice in connection with any of the foregoin J. Issuance of an approving legal opinion attesting to the val the proceedings and the issuance of the bonds; K. Any and all other customary proceedings relating to the forrr the District and the issuance of bonds. 0 0 SECTION 2. That the City shall perform as fol lows: A. Furnish to Counsel such maps , records , title searches, and o documents and proceedings, or certified copies thereof, necessary. B. Payment to Counsel shall be made as follows: 1. Upon the conclusion of a successful election, Counsel shal paid the sum of $10,000.00; however, said fee may be defa and credited against any fees due and payable for bond issue, as hereinafter set forth. 2. A fee computed on the final amount of the bond issue as foll ONE-HALF PERCENT (1/2%) of the first $5,000,000; ONE-QUARTER PERCENT (1/4%) from $5,000,001 to $10,000,000; ONE-EIGHTH PERCENT (1/8%) from $10,000,001 to $15,000,000; ONE-SIXTEENTH PERCENT (1/16%) on the balance with a minimum fee of $7,500.00. 3. If temporary bond anticipation notes are issued, the fee be twenty-five percent (25%) of the fee as above set forth not less than $2,500.00, unless a different fee has mutual ly agreed upon between the parties. SECTION 3. The fees specified in Section 2 above do not include any servic connection with the acquisition, by contract or condemnation, o easements or other property necessary for the District, or any se- in connection with any other litigation. Upon written request , Counsel will handle appurtenant legal m' relating to said project, including, but not limited to, the follow A. Environmental proceedings; B. Acquisition of property by negotiation or condemnation; C. Litigation challenging the validity of the proceedings; D, Extraordinary services after District election certification; E. Judicial validation proceedings. Counsel will perform any of the above services at a rate to be mu agreed upon before any work is actually performed. SECTION 4. This Agreement contemplates that Counsel shall pay all ordinary c pocket expenses incurred, including travel, telephone and copy, E only expenses to be billed to City would be extraordinary me! and/or overnight mai 1 del ivery services. SECTION 5. In the event the proceedings are terminated or abandoned prior sale of bonds either upon conclusion of the public hearing or UF conclusion of the election, Counsel shall be paid a reasonable 1 services rendered to date not to exceed $125.00. e e SECTION 6. Counsel hereby states that it does not represent clients with ad interests to the City as it relates to the issuance and sale 01 bonds for financing this District. SECTION 7.' That this Agreement may be terminated by either party hereto by ms written notice thereof to the other party. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be execut the day and year first hereinabove written. STATE OF CALIFORNIA ATTEST: CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA - "COUNSEL" e @' AGREEMENT THIS AGREEMENT, made and entered into as of the b* day of %- 19-, by and between the CITY OF CARLSBAD, a municipal corporation, hereinaft referred to as "City", and Roberts & Roberts, hereinafter referred to as "Consultant". RECITALS City requires the services of an assessment appraisal consultant to provide tt necessary appraisal services for the financing of the Carlsbad Ranch project; ar Consultant possesses the necessary skills and qualifications to provide the servic required by the City; NOW, THEREFORE, in consideration of these recitals and the mutual covenar contained herein, City and Consultant agree as follows: 1. CONSULTANT'S OBLIGATIONS Consultant will provide the City with an assessment appraisal of the Carlsk Ranch parcel as detailed in Exhibit "A" to this agreement. 2. CITY OBLIGATIONS The City shall approve services to be performed on a task-by-task basis. The ( Financial Management Director, Finance Director, and Assistant Finance Director authorized staff to approve services and budget for services. Additionally, the City s provide Consultant access to City staff and records, and agrees to pay Consultant stipulated in Paragraph 4. Rev. 1 1/! -0 e 3. PROGRESS AND COMPLETION The work under this contract will begin within ten (10) days after receipt o notification to proceed by the City and be completed within thirty (30) days. 4. FEES TO BE PAID TO CONSULTANT The total shall not exceed the fee payable according to Paragraph 6, "Payment c Fees," and shall be $14,000. No other compensation for services will be allowed excel: those items covered by supplemental agreements per Paragraph 8, "Changes in Work 5. DURATION OF CONTRACT This agreement shall extend for a period of thirty (30) days from da thereof. 6. PAYMENT OF FEES The fee is due and payable upon submission of the report. In the event tk project should be terminated prior to completion, the work accomplished to date will I charged at $250/hr, plus reimbursement for out-of-pocket expenses, subject to tl conditions detailed in Exhibit "A" to this agreement. 7. CHANGES IN WORK If, in the course of the contract, changes seem merited by the Consultant or the Ci, and informal consultations with the other party indicate that a change in the conditia of the contract is warranted, the Consultant or the City may request a change in contra Such changes shall be processed by the City in the following manner: A letter outlini the required changes shall be forwarded to the City by Consultant to inform them of I proposed changes along with a statement of estimated changes in charges or til 2 Rev. 1 1/9 0 0 schedule. A supplemental agreement shall be prepared by the City and approved b! the City according to the procedures described in Carlsbad Municipal Code Sectior 3.28.172. Such supplemental agreement shall not render ineffective or invalidatc unaffected portions of the agreement. 8. COVENANTS AGAINST CONTINGENT FEES The Consultant warrants that their firm has not employed or retained any compar or person, other than a bona fide employee working for the Consultant, to solicit ( secure this agreement, and that Consultant has not paid or agreed to pay any compar or person, other than a bona fide employee, any fee, commission, percentage, brokerag fee, gift, or any other consideration contingent upon, or resulting from, the award ( making of this agreement. For breach or violation of this warranty, the City shall hai the right to annul this agreement without liability, or, in its discretion, to deduct from tl- agreement price or consideration, or otherwise recover, the full amount of such fe commission, percentage, brokerage fees, gift, or contingent fee. 9. NONDISCRIMINATION CLAUSE The Consultant shall comply with the state and federal laws regardir nondiscrimination. IO. TERMINATION OF CONTRACT In the event of the Consultant’s failure to prosecute, deliver, or perform the work i provided for in this contract, the City may terminate this contract for nonperformance notifying the Consultant by certified mail of the termination of the Consultant. T Consultant, thereupon, has five (5) working days to deliver said documents owned 3 Rev. 11/91 0 0 the City and all work in progress to the Financial Management Director. The Financia Management Director shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Consultant has performed whic! is usable and of worth to the City in having the contract completed. Based upon thz finding as reported to the City Manager, the Manager shall determine the final paymer of the contract. 11. DISPUTES If a dispute should arise regarding the performance of work under this agreemer the following procedure shall be used to resolve any question of fact or interpretation nc otherwise settled by agreement between parties. Such questions, if they becorr identified as a part of a dispute among persons operating under the provisions of th contract, shall be reduced to writing by the principal of the Consultant or the Ci, Attorney. A copy of such documented dispute shall be forwarded to both partil involved along with recommended methods of resolution which would be of benefit both parties. The City Attorney or principal receiving the letter shall reply to the letl along with a recommended method of resolution within ten (10) days. If the resolutic thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute sh be forwarded to the City Council for their resolution through the Office of the C Manager. The City Council may then opt to consider the directed solution to t problem. In such cases, the action of the City Council shall be binding upon the parti involved, although nothing in this procedure shall prohibit the parties seeking remed~ available to them at law. 12. SUSPENSION OR TERMINATION OF SERVICES This agreement may be terminated by either party upon tendering thirty (30) di 4 Rev. 1 1/9 0 e - written notice to the other party. In the event of such suspension or termination, upon request of the City, the Consultant shall assemble. the work product and put same ir order for proper filing and closing and deliver said product to City. In the event 0’ termination, the Consultant shall be paid for work performed to the termination date however, the total shall not exceed the lump sum fee payable under paragraph 4. Thc City shall make the final determination as to the portions of tasks completed and thl compensation to be made. 13. STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant’s ow way as an independent contractor and in pursuit of Consultant’s independent calling, an not as an employee of the City. Consultant shall be under control of the City only as 1 the result to be accomplished, but shall consult with the City as provided for in tt- request for proposal. The Consultant is an independent contractor of the City. The payment made to tl Consultant pursuant to the contract shall be the full and complete compensation to whic the Consultant is entitled, The City shall not make any federal or state tax withholdin! on behalf of the Consultant. The City shall not be required to pay any workel compensation insurance on behalf of the Consultant. The Consultant agrees indemnify the City for any tax, retirement contribution, social security, overtime payme or workers’ compensation payment which the City may be required to make on beP of the Consultant or any employee of the Consultant for work done under tl agreement. The Consultant shall be aware of the requirements of the Immigration Reform s 5 Rev. 1 1/9 0 0 Control Act of 1986 and shall comply with those requirements, including, but not Iirnhec to, verifying the eligibility for employment of all agents, employees, subcontractors anc consultants that are included in this agreement. 14. CONFORMITY TO LEGAL REQUIREMENTS The Consultant shall cause all drawings and specifications to conform to a applicable requirements of law: federal, state and local. Consultant shall provide a necessary supporting documents, to be filed with any agencies whose approval i: necessary. The City will provide copies of the approved plans to any other agencies. 15. OWNERSHIP OF DOCUMENTS All analyses, formulas, schedules, and all other written products as herein require are the property of the City, whether the work for which they are made be executed ( not. In the event this contract is terminated, all documents, plans, specification: drawings, reports, and studies shall be delivered forthwith to the City. Consultant shc have the right to make one (1) copy of the plans for his/her records. 16. REPRODUCTION RIGHTS The Consultant agrees that all copyrights which arise from creation of ti- work pursuant to this contract shall be vested in City and hereby agrees to relinquish i claims to such copyrights in favor of City. 17. HOLD HARMLESS AGREEMENT The City, its officers, and employees shall not be liable for any claims, liabilitic penalties, fines, or any damage to goods, properties, or effects of any person whatevc nor for personal injuries or death caused by, or resulting from, any intentional 6 Rev. 1 1/9/ 0 0 negligent acts, errors or omissions of Consultant or Consultant’s agents, employees, 01 representatives. Consultant agrees to defend, indemnify, and save free and harmless thE City and its officers and employees against any of the foregoing claims, liabilities, penalties or fines, including liabilities or claims by reason of alleged defects in any plan! and specifications, and any cost, expense or attorney’s fees which are incurred by thc City on account of any of the foregoing. 18. ASSIGNMENT OF CONTRACT The Consultant shall not assign this contract or any part thereof or any monies du thereunder without the prior written consent of the City. 19. SUBCONTRACTING If the Consultant shall subcontract any of the work to be performed under th contract by the Consultant, Consultant shall be fully responsible to the City for the ac and omissions of Consultant’s subcontractor and of the persons either directly indirectly employed by the subcontractor, as Consultant is for the acts and omissions persons directly employed by consultant. Nothing contained in this contract shall crea any contractual relationship between any subcontractor of Consultant and the City. TI Consultant shall bind every subcontractor and every subcontractor of a subcontractor I the terms of this contract applicable to Consultant’s work unless specifically noted to t contrary in the subcontract in question approved in writing by the City. 20. PROHIBITED INTEREST No official of the City who is authorized in such capacity on behalf of the City negotiate, make, accept, or approve, or take part in negotiating, making, accepting, approving of this agreement, shall become directly or indirectly interested personall) 7 Rev. 11/9, e e . this contract or in any part thereof. No officer or employee of the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or similar functions in connection with the performance of this contract shall become directly or indirectly interested personally in this contract or any part thereof. 21. VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of thr City, either before, during or after the execution of this contract, shall affect or modify an! of the terms or obligations herein contained nor entitle the Consultant to any addition: payment whatsoever under the terms of this contract. .23. SUCCESSORS OR ASSIGNS Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all term: conditions, and provisions hereof shall insure to and shall bind each of the partic hereto, and each of their respective heirs, executors, administrators, successors, ar assigns. 24. EFFECTIVE DATE This agreement shall be effective on and from the day and year first written abob 25. CONFLICT OF INTEREST The Consultant shall file a conflict of interest statement with the city clerk accordance with the requirements of the City's conflict of interest code. 26. INSURANCE The requirement for liability insurance is waived; however, a City of Carlsb business license is required. The City shall be named as an additional insured on these policies. The Consulti shall furnish certificates of insurance to the City before commencement of work. 8 Rev. 1 1/9 - * a 0 Executed by Consultant this 2~ day of February , 19x5 CONSULTANT: CITY OF CARLSBAD, a municipal ROBERTS & ROBERTS (name of Consultant) ” BY3 +?zip -f%W /’ (sign here) i Thomas L, Roberts (print name here) ATTEST: PrinciDal/owner (title and organization of signatory) ALETHA L. RAUTENKRANZ . . City Clerk (Proper notarial acknowledgment of execution by CONSULTANT must be attached.) (President or vice-president and secretary or assistant secretary must sign fc corporations, If only one officer signs, the corporation must attach a resolution certifie by the secretary or assistant secretary under corporate seal empowering that officer t bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL City Attorney BY L f2 k., Qep&y City Attorney 2- 9- 9s- 9 Rev. 1 1 /9/! - I a a .. STATE OF CALIFORNIA COUNTY OF 1 1, }ss.. .' .. STATE OF CALIFORNIA COUNTY OF 1 1, }ss.. .' On dk42. .\ 19 95, before me, personally appeared v , personally known to (or proved to me on the basis dence) to be the person(s) whose name(s)' is subscribed to the within instrument and acknowledged to me that he/she/they executed the si in his/her/their authorized capacity(ies), and that by hislherltheir signature(s) on the instrumen. person(s) or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand nd official seal. A /7 Signatur .e /v Ab@L&& 11) o (This area for official notarial seal) I - Title' of Document Date of Document do ,. rn 8 e 0 EXH I BIT "A" .pa ", -i P , ~. . \. , -., . "_ ROBERTS&ROBERTS THOMAS L. ROBERTS MA1 BEATRICE E. ROBERTS MA1 SRPA appraisal of' real estate City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, CA 92008 February 3, 19! Attn: Mr. James Elliott, Finance Management Director Re: Leg0 Drive, Carlsbad Our File No. 95-2 Dear Thank you for the opportunity to review the above- referenced Community Facilities District project. I believe we can furnish an appraisal report, in 3 copies, suitable for your assessment purposes with a current date of value for a fee of $ 14,000.00 within 30 days or the later of: (1) your authorization to proceed, or (2) your transmittal of the complete assessment roll with identified assessment parcels and individual parcel area calculations, and any other information; and data necessary for the appraisal. This fee includes most normal appraisal expenses It is my understanding that the parcels are to be appraised at the value after the completion of the proposed bonded construction. It is my practice to construct and submit a parcel'value matrix including an appraised value fc each assessment parcel with the letter of transmittal of sufficient detail for inclusion in the Official Statement. The fee is due and payable upon submission of the repol The terms on the reverse side of the page are incorporated into this agreement. Please make all checks payable to Princeton Financial, Inc., Tax ID No. 95-2913051. Due to the complex nature of this appraisal, I will kec you informed of our progress. In the event the project shot be terminated prior to completion, the work accomplished to date will be charged at $250/hr, plus major expenses, for principal appraiser. This hourly charge includes normal office, equipment, and overhead charges. 3580 ADAMS AVENUE, SAN DIEGO. CALIFORNIA 92116 * 619.28305711 FAX0619-28 I 8 -0 0 . City of Carlsbad February 3, 1995 Page 2 If these terms are satisfactory, please sign one copy ar return it. This proposal is effective 30 days from date of this letter. Thank you for the opportunity to be of service to you i1 this challenging assignment. Sincer$,ly, Th&as L. Roberts, MA1 /- .'' "' .: A ..ST / /I' , . . . . " + c. W,/Gx+- TLR/b ACCEPTANCE: I agree to the above terms. Signed - Bated I<OI%I.;KI'S <- I<OI%I<I<TS, 3jS0 \I);I.\IS \I. ~l~tji.;. S.\S ',.II.;(;()~ (;.I.~,II:(~\<~~,I (lzll(> 'i s * 0 e ENGAGEMENT AGREEMENT In addition to the terms and conditions on the face of this letter agreement, the appraiser and ehn to the following additional terms and conditions: 1. ort Standards: The appraisal services will be conducted in conformity with, and will be to, the requirements of the Code of Professional Ethics and the Uniform Standards of Professional Practice Appraisal Institute, including requirements for review of the report for compliance with professional stand: duly authorized representatives of The Appraisal Institute. 2. al Rep& In accepting the appraisal report agrees to disseminate the report only in its original m&&y and not in ~Q&QRS, except: (1) as Appraiser IT written consent, and/or (2) as Client's counsel may find appropriate for exchange requirements in legal proce In dissemination of portions, by any communication, . Client agrees not to provide portions of such type or which may mislead third parties with regard to the Appraiser's data, reasoning, or conclusions. In no evc Client, or subsequent possessors of this report, reproduce this report in any manner or for any purpose, express written consent of the appraiser. 3. Media; Client agrees that neither all nor any part of the contents of this report; especi: conclusions as to value, the identity of the Appraiser, or the firm with which they are connected, or any rt to The Appraisal Institute or to the MA1 designation; shall be disseminated to the public through advertising or public communication without the prior written consent and approval of the Appraiser. 4. v: The expense advance in the amount described on the face of this letter is submi Client's authorization to proceed. Appraiser shall have sole discretion as to when and how such expenses i paid, so long as the expenses are necessarily related to the appraisal. If all appraisal fees and all expenses hs! paid, Appraiser may apply said money to the balance due for the appraisal fee, and Client will be responsible unpaid amount remaining for said appraisal fee. All fees and expenses are due and payable upon demand by invoice statement: and are not contingent manner on the value appraised, nor on an action or event resulting from the analyses, opinions, or conclu: or use of, this report: nor on Client's success in obtaining any loan, sale, decision, or court judgement relatin! appraised property. Notwithstanding any other provision of this agreement, Client agrees to pay all unpaid fees and expen: to trial testimony. 5. Lax Client expressly agrees that a lien is hereby granted to the Appraiser, for any amounts due un agreement, under the proceeds of sale, transfer, loan, or judgement involving the appraised property. Clienl authorizes, without further instruction, the escrow holder or other custodian or payor of funds, to pay direct1 Appraiser such amounts due upon presentation of statement and copy of this agreement. 6. y I imit; Notwithstanding any other provision of this agreement, the Appraiser's report is of and accepted by Client, only on the basis that Appraiser's payment for all losses, adjudged to have been i by use of, or reliance upon, this report is limited to a total amount of not more than $5,000, and the app, offered to, and accepted by Client on no other basis. 7. rest Charaes: In the event any fees due for services rendered to Client, including, but not lirr appraisal report, pre-trial preparation, pre-trial conferences, assistance to Client or his attorney, expert te: and/or exhibits, etc., are not paid within 30 days of submission of statement, Client agrees to pay 12% per accrued monthly on the unpaid balance, to accrue from the date of statement. 8. m In the event it is required to bring legal action to collect fees and charges due under this ( Client agrees to pay all reasonable expenses of collection and litigation, including, but not limited to, c agency fees, reasonable attorney's fees, court costs, witness fees, and any other charges necessary incurrec enforcement of this agreement.