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HomeMy WebLinkAboutKeyser Marston Associates Inc; 2015-06-04; PEM1222PEM1222 AGREEMENT FOR REAL ESTATE CONSULTING SERVICES KEYSER MARSTON ASSOCIATES, INC. THIS AGREEMENT is made and entered into as of the y^-^^ day of V//^ , 2015, by and between the CITY OF CARLSBAD, a municipal corp6ratioi^, ("City"), and KEYSER MARSTON ASSOCIATES, INC., a California corporation /("Contractor"). RECITALS A. City requires the professional services of a real estate analytic firm that is experienced in municipal commercial real estate development and economic analysis. B. Contractor has the necessary experience in providing professional services and advice related to municipal commercial real estate development and economic analysis. C. Contractor has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. SCOPE OF WORK City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in attached Exhibit "A", which is incorporated by this reference in accordance with this Agreement's terms and conditions. 2. STANDARD OF PERFORMANCE While performing the Services, Contractor will exercise the reasonable professional care and skill customarily exercised by reputable members of Contractor's profession practicing in the Metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise. 3. TERM The term of this Agreement will be effective for a period of one (1) year from the date first above written. The City Manager may amend the Agreement to extend it for three (3) additional one (1) year periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance. City needs, and appropriation of funds by the City Council. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 4. TIME IS OF THE ESSENCE Time is of the essence for each and every provision of this Agreement. 5. COMPENSATION The total fee payable for the Services to be performed during the initial Agreement term will be an amount not exceed thirty thousand dollars ($30,000). No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. If the City elects to extend the Agreement, the amount shall not exceed thirty thousand dollars ($30,000) per Agreement year. The City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or Services specified in Exhibit "A". Incremental payments, if applicable, should be made as outiined in attached Exhibit "A". City Attorney Approved Version 4/1/15 PEM1222 6. STATUS OF CONTRACTOR Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitied. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor. 7. SUBCONTRACTING Contractor will not subcontract any portion of the Services without prior written approval of City. If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for the acts and omissions of persons directly employed by Contractor. Nothing contained in this Agreement will create any contractual relationship between any subcontractor of Contractor and City. Contractor will be responsible for payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically noted to the contrary in the subcontract and approved in writing by City. 8. OTHER CONTRACTORS The City reserves the right to employ other Contractors in connection with the Services. 9. INDEMNIFICATION Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorney's fees arising out of the performance of the work described herein caused by any negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. 10. INSURANCE Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance city Attorney Approved Version 4/1/15 PEM1222 carrier is required to have a current Best's Key Rating of not less than "A-:Vir'; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10.1 Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liabilitv Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liabilitv. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liabilitv. Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 10.2.3 This insurance will be in force during the life ofthe Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain City Attorney Approved Version 4/1/15 PEM1222 the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. BUSINESS LICENSE Contractor will obtain and maintain a City of Carlsbad Business License for the term of the Agreement, as may be amended from time-to-time. 12. ACCOUNTING RECORDS Contractor will maintain complete and accurate records with respect to costs incurred under this Agreement. All records will be cleariy identifiable. Contractor will allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of records and any other documents created pursuant to this Agreement. Contractor will allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 13. OWNERSHIP OF DOCUMENTS All work product produced by Contractor or its agents, employees, and subcontractors pursuant to this Agreement with the exception of contractor's proprietary computer models, is the property of City. In the event this Agreement is terminated, all work product produced by Contractor or its agents, employees and subcontractors pursuant to this Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy of the work product for Contractor's records. 14. COPYRIGHTS Contractor agrees that all copyrights that arise from the services will be vested in City and Contractor relinquishes all claims to the copyrights in favor of City. 15. NOTICES The name of the persons who are authorized to give written notice or to receive written notice on behalf of City and on behalf of Contractor under this Agreement. For Citv For Contractor Name Steve Hodges Name Paul C. Marra Title Management Analyst Title Managing Principal Department Public Works - Property Address 555 West Beech St., Suite 460 City of Carisbad San Diego, CA 92101 Address 405 Oak Avenue Phone No. 619-718-9500 Carisbad, CA 92008 Email pmarra@keysermarston.com Phone No. 760-434-2925 Each party will notify the other immediately of any changes of address that would require any notice or delivery to be directed to another address. City Attorney Approved Version 4/1/15 PEM1222 16. CONFLICT OF INTEREST Contractor shall file a Confiict of Interest Statement with the City Clerk in accordance with the requirements of the City of Carisbad Conflict of Interest Code. The Contractor shall report investments or interests in all four categories. 17. GENERAL COMPLIANCE WITH LAWS Contractor will keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Contractor, or in any way affect the performance of the Services by Contractor. Contractor will at all times observe and comply with these laws, ordinances, and regulations and will be responsible for the compliance of Contractor's services with all applicable laws, ordinances and regulations. Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986 and will comply with those requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors and consultants whose services are required by this Agreement. 18. DISCRIMINATION AND HARASSMENT PROHIBITED Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment. 19. DISPUTE RESOLUTION If a dispute should arise regarding the performance of the Services the following procedure will be used to resolve any questions of fact or interpretation not otherwise settled by agreement between the parties. Representatives of Contractor or City will reduce such questions, and their respective views, to writing. A copy of such documented dispute will be forwarded to both parties involved along with recommended methods of resolution, which would be of benefit to both parties. The representative receiving the letter will reply to the letter along with a recommended method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the disputes will be fonwarded to the City Manager. The City Manager will consider the facts and solutions recommended by each party and may then opt to direct a solution to the problem. In such cases, the action of the City Manager will be binding upon the parties involved, although nothing in this procedure will prohibit the parties from seeking remedies available to them at law. 20. TERMINATION In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination. Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and ofthe percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable City Attorney Approved Version 4/1/15 PEM1222 under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 21. COVENANTS AGAINST CONTINGENT FEES Contractor warrants that Contractor has not employed or retained any company or person, other than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that Contractor has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making of this Agreement. For breach or violation of this warranty. City will have the right to annul this Agreement without liability, or, in its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the fee, commission, percentage, brokerage fees, gift, or contingent fee. 22. CLAIMS AND LAWSUITS By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as partof the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 23. JURISDICTION AND VENUE Any action at law or in equity brought by either of the parties for the purpose of enforcing a right or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 24. SUCCESSORS AND ASSIGNS It is mutually understood and agreed that this Agreement will be binding upon City and Contractor and their respective successors. Neither this Agreement nor any part of it nor any monies due or to become due under it may be assigned by Contractor without the prior consent of City, which shall not be unreasonably withheld. 25. ENTIRE AGREEMENT This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. City Attorney Approved Version 4/1/15 PEM1222 26. AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR KEYSER MARSTON ASSOCIATES, INC., a California corporation By: (sign here) CITY OF CARLSBAD, a municipal corporation of the State of California By: Patrick Thomas Paul Marra / Vice President (sign here) Paul Marra / Assistant Secretary (print name/title) If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a corporation. Agreement must be signed by one corporate officer from each of the following two groups. Group A Chairman, President, or Vice-President Group B Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY:_ Assistant City Attorney City Attorney Approved Version 4/1/15 ALL- PURPOSE CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On (9^ / 2/ / 2015 before me. L. Gleeson Notary Public Paul Marra (Here insert name and title of the officer) personally appeared . _ . . . „. ^ who proved to me on the basis of satisfactory evidence to be the person^ whose twne(^)(QfeH^ subscribed to the wiMn instrument and acknowledged to me that '^^he/they executed the same ir^i^mef/their authorized capacity{iest, and that by ^^Sier/their signature^ on the instrument the personj», or the entity upon behalf of which the person^ acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITN nd official seal. T-^^ L, GLEESON z COMM. # 1960640 ^ CALIFORNIA W L i.\!_ir._^ -. ri-i 0 Ofig£:£ggH NOTARV PUBUC ^ 2yilS3y7 ^'EGO COUNTY O I ^^^t^t^COMM. EXPIRES NOV. 17,2815 f (Notary Public Seal) ADDITIONAL OPTIONAL INFORMAT DESCRIPTION OF THE ATTACHED DOCUMENT 'o! description of attaclied docurrient) (Titja or description offflJached Number of Pages «^ Document Date. ON INSTRUCTIONS FOR COMPLETING THIS FORM This form complies wilh current California slatutes regarding notary wording and. if needed, should be completed and attached to the document. Acknolwedgents from other states mav be completed for documents being sent lo that stale so long as the wording does not require the California notary' to violate California notary law. State and County int'ormation must be the State and County where the document (Titte'or description of attaclied document) • ^laie ana i_ouniy niiunnduon .HUM o,..,^ <,;^ •—...^ ...^ — ^ r /7Z' O/. 1/^ ,ni>r' ///•> <±jnr('^'^^^'^(^'> personally appeared before ihe notaiy public for acknowledgment. .jOn^d/rtna^^t^rUlCjLO t\€tJSLri tut or^TT'Date of notarization must be the date that the signer(s) personally appeared (Titk or description of^ched document continuecV must also be the same dale the acknowledgment is completed. which CAPACITY CLAIMED BY THE SIGNER • Individual (s) • Corporate Officer • • • • (Title) Partner(s) Attorney-in-Fact Trustee(s) Other 'ersion www .NolarvClasses.com 800-873-9865 The notary public musl print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). Print the nanie(s) of document signer{s) who personally appear at the time of notarization. Indicate the correct singular or plural forms by crossing olT incorrect fornis (i.e. h«/she/theyr is /are ) or circling the conect forms. Failure to correctly indicate this information may lead lo rejection of document recording. The notary seal impression must be clear and photographically reproducible. Impression must not co\ er text or lines. If seal impression smudges, re-seal if a sufficient area pemiits. otherwise complete a different acknowledgment form. Signature ofthe notary public must match the signature on file with the office of the county clerk. •:• Additional informaiion is not required but could help to cn.sure this acknowledgment is nol misused or attached lo a different document. •:• Indicate title or type of attached document, number of pages and date. •:• Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). Securely attach this document to the signed document with a staple. PEM1222 EXHIBIT "A" SCOPE OF SERVICES The City intends to issue a Developer Request for Proposals (RFPs) for Lot 4 and Lot 5. Keyser Marston Associates, Inc. will assist the City's evaluation of the development proposals through one or more of the following economic analysis tasks. Any/all of these tasks will be provided solely at the direction and request of City staff. 1. Conduct an initial review of respondents' proposals, including project descriptions, financial plans, and financial infonnation to identify need for clarification and/or additional information from any/all respondents. 2. Undertake limited research using third party data sources to corroborate key market parameters for proposed land uses. 3. Review respondents' estimates of fiscal and economic impacts to the City, and prepare alternative calculations if changes in inputs/assumptions are warranted. 4. Rank proposals in terms of economic benefits to the City reflecting the findings of the KMA fiscal/economic analyses. 5. Prepare an executive summary report for each lot documenting the KMA evaluation of fiscal/economic benefits and ranking of respondents. 6. Participate in meetings with City staff/selection panel to present KMA findings. 7. Prepare for and attend public meeting(s). KMA recognizes that the City may wish to adapt this work program to meet its specific requirements for either or both of the lots. Additionally, should the City desire, KMA is available to provide the following additional services: (a) conduct financial feasibility analyses of the development proposals to determine ground rental income to the City, and/or (b) evaluate the respondents' financial capability to complete the proposed projects. KMA will provide any ofthe above services requested by the City on a time-and-materials basis subject to their standard hourly billing rate schedule (attached). Schedule of Fees: Staff Position Hourlv Rate A. Jerry Keyser* $280.00 Managing Principals* $280.00 Senior Principals* $270.00 Principals* $250.00 Managers* $225.00 Senior Associates $187.50 Associates $167.50 Senior Analysts $150.00 Analysts $130.00 Technical Staff $95.00 Administrative Staff $80.00 City Attorney Approved Version 4/1 /15 PEM1222 Directly related job expenses not included in the above rates are: auto mileage, parking, air fares, hotels and meals, car rentals, taxies, telephone calls, delivery, electronic data processing, graphics and printing. Directly related job expenses will be billed at 110% of cost. Monthly billings for staff time and expenses incurred during the period will be payable within thirty (30) days of invoice dates. * Rates for individuals in these categories will be increased by 50% for time spent in court testimony. City Attorney Approved Version 4/1/15 Donna Heraty From: Donna Heraty Sent: Tuesday, June 09, 2015 3:01 PM To: 'pmarra@keysernnarston.com' Cc: Shelley Collins; Rhonda Gasper-Heather; Janean Hawney Subject: REQUIRED CONFUCT OF INTEREST Attachments: Resolution No. 2015-050.pdf To Whom It May Concern: You are receiving this email because your company has a consultant agreement with the City of Cadsbad. The City of Carlsbad's Conflict of Interest Code requires all consultants to file a statement disclosing certain economic interests, that may foreseeably be affected materially by any decisions made, or participated in, by a designated official because of their position. To comply with this requirement a Statement of Economic Interest Form 700 "Assuming Office" is required to be filed with the City of CaHsbad City Clerk's Office. To file your Assuming Office statement, please follow the instructions below: • As reflected in the City Conflict of Interest Code - Resolution No. 2015-050 (attached), the employee(s) of your company that work directly with citv staff are required to complete the Statement of Economic Interest Form (Form 700). Consultants are required to claim - Category (A) Investment and Real Property Disclosure Category (B) Personal Income Disclosure Category (C) Business Entity Income Disclosure Category (D) Business Position Disclosure • Your "Assuming Office" date for this filing is May 28,2015. • Even if there are no reportable interests, the cover page is still required to be completed with box "None" in Section 4 checked. • THE COMPLETED FORM 700 IS DUE IN THE CITY CLERK'S OFFICE BY 5:00 PM. JUNE 29. 2015. Mailing Address: Citv Clerk's Office. 1200 CaHsbad Village Drive. Carlsbad. CA 92008. • Form 700 • Form 700 Reference Pamphlet Other documents vou mav use as reference: • FAQ: Form 700 Disclosure • Local Gift Fact Sheet • Resolution Nos. 2012-114 and 2013-237 In addition, when your contract with the City of Carlsbad is completed, the employee(s) that filed the Assuming Office statement is/are required to file a "Leaving Office" statement, utilizing the same Form 700 and entering the date the contract ended in the "Leaving Office" date line, and submitting to the City Clerk's Office no later than 30 days following completion of the agreement. **Failure to file the Assuming and/or Leaving Office statement(s) could result in penalties assessed at $10.00 per day, not to exceed $100.00, in addition to any other penalties per California Government Section Code 91013. If you have any questions or need additional information, please feel free to contact me or the Fair Political Practices Commission (FPPC) at 1-866-ASK-FPPC (1-866-275-3772). Sincerely, Donna Heraty. ^ CITV Of CARLSBAD Donna Heraty, CMC Deputy City Clerk City of Carisbad 1200 Carisbad Village Drive Carisbad, CA 92008 www.carisbadca.gov P: 760-434-2808 F: 760-720-6917 donna.heraty (Scarisbadca.gov Please consider the environment before printing this e-mail