HomeMy WebLinkAbout1988-10-25; City Council; 9688; Agreements For Acquisition Of Easements* * \ II \
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TITLE:
APPROVAL OF AGREEMENTS FOR ACQUISITION
DEPT.ENC,. OF OFFSITE ROADWAY AND UTILITY EASEMENTS FOR CARLSBAD TRACT 85-35 (PACIFIC RIM COUNTRY CLUB)
RECOMMENDED ACTION:
By motion, adopt Resolution No.fFgfl approving agreements for negotiation and legal services in conjunction with the acquisition of roadway and utility easements required for CT 85-35.
ITEM EXPLANATION:
On December 22, 1987, the City Council approved the Pacific Rim Country Club Resort and the first phase Tentative Ma 1 CT 85-35. The conditions of the Tentative Map included the construction of lga Road and Poinsettia Lane extending westerly to its current terminus. The extension of Poinsettia Lane traverses approximately 2,000 feet offsite of CT 85-35.
To comply with the conditions, Pacific Rim Land Associates Ltd. Partnership is required to obtain necessary rights-of-way. acquire those rights, Should the developer be unable to the City is required to proceed with condemnation, or roadway extension condition becomes invalid.
Hillman Properties is proposing that Alga Road and Poinsettia Lane be included in an Assessment District. Because of the District potential, staff deems it appro riate possi 1 to become involved in the rights-of-way acquisition as early as le to insure the integrity of the future District processes and the costs of land acquisition.
The three agreements proposed for execution are as follows:
1. Agreement with Pacific Rim Land Association Ltd. Partnership posting deposits and guaranteeing to pay costs related to acquisition.
2. Agreement with Mat Farlane and Associates to act as acquisition agent.
3. Agreement with Asaro & Keagy to act as legal counsel.
A prior agreement has been executed with Roberts & Roberts to provide property appraisals.
FISCAL IMPACT:
Developer agrees to bear all acquisition expenses. No fiscal impact.
EXHIBITS:
1. Agreement with Pacific Rim Land Associates Ltd. Partnership posting deposits and guaranteeing payment of acquisition costs.
2. Agreement with Mat Farlane & Associates to act as acquisition agent.
3. Agreement with Asaro & Keagy to act as legal counsel.
4. Resolution No. m37/ a proving services for acquisition 0 P agreements for negotiation and legal roadway and utility easements for CT 85-35.
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RESOLUTION NO. 88-371
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA ACCEPTING THREE AGREEMENTS.
WHEREAS, Pacific Rim Land Associates Ltd. Partnership (Developer) has
submitted an agreement for the acquisition of certain easements for street and
other purposes as required for Subdivision CT 85-35, and
WHEREAS, the Developer has agreed to cover all costs and has deposited
$60,000 and further agreed to deposit additional funds upon demand; and
Servi
Appoi
WHEREAS, Mat Farlane and Associates, Inc. has submitted an Acquisition
ces Agreement to act as acquisition agent for the City of Carlsbad; and
WHEREAS, the law firm of Asaro and Keagy has submitted an Agreement of
ntment as Special Counsel and Agreement for Right-of-Way Acquisition
Services; and
WHEREAS, the City Council of the City of Carlsbad has determined it to be
in the public interest to accept said agreements:
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows:
1. That the above recitations are true and correct.
2. That the above mentioned agreements which are on file with the City
Clerk and are incorporated herein by reference, are approved and the Mayor and
City Clerk are hereby authorized to execute said agreements thereafter.
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3. That the Finance Director is authorized to pay all bills resulting
from the above mentioned agreements.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 25th day of October 9 1988 by the
following vote, to wit:
AYES: Council Members Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT:
Counci1
ATTEST: ANN J. KULCHIN,'Mayor Pro-Tern
ALETHA L. RAUTENKRANZ, City ClTk (SEAL)
AGREEMENT
AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND PACIFIC RIM LAND ASSGCIATES“i;TD. PARTNERSHIP REGARDING THE ACQUISITION OF CERTAIN EASEMENTS FOR STREET AND OTHER PURPOSES .AS REQUIRED FOR SUBDIVISION CT 85-35
--4&a da This Agreement is made this day of October , 192 by
and between the City of Carlsbad, California, a municipal corporation
(hereinafter called "City") and Pacific Rim Land (called "Subdivider"). Associates Ltd. Partnership
RECITALS
A. Developer is required as a condition of Resolution No. 9322 of the
City Council of the City of Carlsbad, approving Carlsbad Tentative Tract 85-35,
to dedicate and provide certain improvements, to wit:
B. The acquisition and development of Poinsettia Lane as an off-site
improvement for the subdivision is essential to provide needed public facilities
for the subdivision and to mitigate the public facilities burdens created by the
subdivision.
C. It is necessary that Subdivider secure said easement and install
improvements thereon and in accordance with specifications of the City of
Carlsbad.
D. Subdivider has requested that the subject improvements be included
in an Assessment District, and requests that the City assist in the appraisal
and acquisition up to and including the potential exercise of the City's power
of eminent domain.
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E. This agreement is authorized by and is entered into pursuant to
Section 20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the State
Government Code.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and of the recitals, it is mutually agreed by and between the parties as follows:
1. City agrees to retain on behalf of the Subdivider qualified
appraisers, acquisition agents and attorney or attorneys to perform appropriate
services, prepare and file on behalf of the City all documents, pleadings and
process necessary to acquire the required easements up to and including an action
in eminent domain if required.
2. Subdivider agrees to bear all expenses, costs, fees, and charges,
including attorneys', engineers', appraisers' or other professional services fees
incurred or charged in connection with the acquisition of the various property
interest and the preparation and prosecution of eminent domain proceedings, and
City shall assume no responsibility for said amounts.
3. It is understood and agreed that even though the City is party
plaintiff, it shall assume no financial responsibility in any required eminent
domain action and that as further proceedings are required, outside counsel shall
assume primary responsibility and direction of any actions subject to any
necessary approvals of the City. The City agrees to cooperate and assist in
commencing and prosecuting said condemnation action in an expeditious manner for
the purpose of completing same as soon as reasonably possible in accordance with
applicable laws.
4. Subdivider shall post a deposit in the amount of $60,000 to cover
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expenses incurred by any appraiser, engineer, legal counsel or other expert
witness, providing necessary appraisal, engineering or other information in a
form suitable for use in connection with said acquisition and condemnation
proceedings. Should costs of acquisition or condemnation action exceed the
amount deposited, the subdivider agrees to deposit within 30 days of request from
the City Engineer sufficient additional funds to insure payment of all expenses.
Failure to post said funds shall delay all further action toward property
acquisition.
5. Subdivider shall pay all amounts, plus interest, as required as a
result of any judgment or settlement in payment for easement to be acquired.
City shall assume no responsibility for said payments.
6. The parties hereby agree to seek an order of immediate possession
for the real property necessary for the improvements and facilities and related
easements and comply with the legal procedures necessary therefor. The
subdivider shall be responsible for the deposit of funds, posting of security,
or payment of any cost associated with the order of immediate possession.
7. It is understood that prior to the initiation of any eminent domain
proceedings, it will be necessary for the City in its sole discretion to adopt
a Resolution of Necessity for the acquisition of the property and to make the
necessary findings as required by law. The Adoption of a Resolution of Necessity
shall be a condition precedent to any obligation of the Subdivider herein. City
agrees to use due diligence in processing the matter to hearing before the City
Council in order to ensure compliance with the time limits established by Section
20.16.095 of the Carlsbad Municipal Code and Section 66462.5 of the State
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Government Code. Subdivider agrees that any failure by the City to comply with
the time limits, however, shall not cause an invalidation of any condition of
the tentative map or relieve the subdivider of any obligation hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
DATED: d&aa /flY CITY OF CARLSBAD A Municipal Corporation of the State of California
ATTEST: ANN J. KUIkHIN, Mayor Pro-Tern
A&G&&a- ALETHA L. RAUTENKRANZ, City Cle$k
PACIFIC RIM LAND ASSOCIATES
LIMITED PARTNERSHIP
n
RONALD R. BALI.
VINCENT F. BIONDO, JR.
City Attorney I
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AGREEXENT FOR
APPOINTMENT AS SPECIAL COUNSEL AND AGREEXENT FOR
RIGHT-OF-WAY ACQUISITION SERVICES
THIS AGREEMENT, made and entered into as of the df ti; day
of a%%&4J , 1988, by and between the CITY OF CARLSBAD, a
municipal corporation, hereinafter referred to as lrCity,l' and the
law firm of Asaro and K-w, hereinafter referred to as
l'Consultant.lV
RECITALS
City requires the services of the law firm of Asaro and
Keagy as special counsel to provide the necessary acquisition
services for the acquisition of easements for street and other
purposes as required for Subdivision CT 85-35; and
Consultant possesses the necessary skills and qualifications
to provide the services required by the City;
NOW, THEREFORE, in consideration of these recitals and the
mutual covenants contained herein, City and Consultant agree as
follows:
1. CONSULTANT'S OBLIGATIONS
Consultant shall provide acquisition services for the
easements required in conjunction with Subdivision CT 85-35 in
accordance with the terms, conditions, and fees as described in
the attached proposal dated October 7, 1988 which is hereby
incorporated by reference and made a part of this agreement.
Consultant shall perform the work diligently and in a
professional manner under the direction of the City Engineer.
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2. CITY OBLIGATIONS
The City shall pay Consultant in accordance with the terms,
conditions and rates as described in the aforementioned
proposal.
3. PROGRESS AND COMPLETION
The work under this Contract will begin upon approval of
this agreement by the City Council of the City of Carlsbad and
execution of said agreement by Consultant. Work under the terms
of this agreement shall extend until such time as the necessary
acquisition services as described in the aforementioned proposal
are completed. Extensions of time may be granted if requested
by the Consultant and agreed to in writing by the City Engineer.
In consideration of such requests, the City Engineer will give
allowance for documented and substantiated unforeseeable and
unavoidable delays not caused by a lack of foresight on the part
of the Consultant, or delays caused by City inaction or other
agencies' lack of timely action.
4. FEES TO BE PAID TO CONSULTANT
The fees payable according to Paragraph 5, "Payment of
Fees," shall be in accordance with the rates and fee structure as
described in the aforementioned Consultant proposal. No other
compensation for services will be allowed except those items
covered by supplemental agreements per Paragraph 6, "Changes in
Work.*8
5. PAYMENT OF FEES
Payment of fees shall be upon delivery of invoices submitted
by Consultant and reviewed and approved by the City.
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6. CHANGES IN WORK
If, in the course of this Contract, changes seem merited by
the Consultant or the City, and informal consultations with the
other party indicate that a change in the conditions of the
Contract is warranted, the Consultant or the City may request a
change in Contract. Such changes shall be processed by the City
in the following manner: A letter outlining the required
changes shall be forwarded to the City or Consultant to inform
them of the proposed changes along with a statement of estimated
changes in charges or time schedule. After reaching mutual
agreement on the proposal, a supplemental agreement shall be
prepared by the City and approved by the City Council. Such
supplemental agreement shall not render ineffective or invalidate
unaffected portions of the agreement. Changes requiring
immediate action by the Consultant or City shall be ordered by
the City Engineer who will inform a principal of the Consultant's
firm of the necessity of such action and follow up with a
supplemental agreement covering such work.
7. COVENANTS AGAINST CONTINGENT FEES
The Consultant warrants that their firm has not employed or
retained any company or person, other than a bona fide employee
working for the Consultant, to solicit or secure this agreement,
and that Consultant 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, the City
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shall have the right to annul this agreement without liability,
orI in its discretion, to deduct from the agreement price or
consideration, or otherwise recover, the full amount of such fee,
commission, percentage, brokerage fee, gift, or contingent fee.
8. NONDISCRIMINATION CLAUSE
The Consultant shall comply with the State and Federal
Ordinances regarding nondiscrimination.
9. TERMINATION OF CONTRACT
In the event of the ConsultantVs failure to prosecute,
deliver, or perform the work as provided for in this Contract,
the City may terminate this Contract for nonperformance by
notifying the Consultant by certified mail of the termination of
the Contract. The Consultant, thereupon, has five (5) working
days to deliver said documents owned by the City and all work in
progress to the City Engineer. The City Engineer shall make a
determination of fact based upon the documents delivered to City
of the percentage of work which the Consultant has performed
which is usable and of worth to the City in having the Contract
completed. Based upon that finding as reported to the City
Council, the Council shall determine the final payment of the
Contract.
10. DISPUTES
If a dispute should arise regarding the performance of work
under this agreement, the following procedure shall be used to
resolve any question of fact or interpretation not otherwise
settled by agreement between parties. Such questions, if they
become identified as a part of a dispute among persons operating
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under the provisions of this Contract, shall be reduced to
writing by the principal of the Consultant or the City Engineer.
A copy of such documented dispute shall be forwarded to both
parties involved along with recommended methods of resolution
which would be of benefit to both parties. The City Engineer or
principal receiving the letter shall reply to the letter along
with a recommended method of resolution within ten (10) days. If
the resolution thus obtained is unsatisfactory to the aggrieved
party, a letter outlining the dispute shall be forwarded to the
City Council for their resolution through the Office of the City
Manager. The City Council may then opt to consider the directed
solution to the problem. In such cases, the action of the City
Council shall be binding upon the parties involved, although
nothing in this procedure shall prohibit the parties seeking
remedies available to them at law.
11. RESPONSIBILITY OF THE CONSULTANT
The Consultant is hired to render professional acquisition
services for easements for street and other purposes associated
with Subdivision CT 85-35. Any payments made to Consultant are
compensation solely for such services.
12. SUSPENSION OR TERMINATION OF SERVICES
This agreement may be terminated by either party upon
tendering thirty (30) days 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 in order for proper filing and closing and deliver said
product to City. In the event of termination, the Consultant
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shall be paid for work performed to the termination date;
however, the total shall not exceed the guaranteed total maximum.
The City shall make the final determination as to the portions of
tasks completed and the compensation to be made. Compensation to
be made in compliance with the Code of Federal Regulations.
13. STATUS OF THE CONSUT,TANT
The Consultant shall perform the services provided for
herein in Consultant's own way as an independent Contractor and
in pursuit of Consultant's independent calling, and not as an
employee of the City. Consultant shall be under control of the
City only as to the result to be accomplished and the personnel
assigned to the project, but shall consult with the City as
provided for in the request for proposal.
The Consultant is an independent contractor of the City.
The payment made to the Consultant pursuant to this contract
shall be the full and complete compensation to which the
Consultant is entitled. The City shall not make any Federal or
State tax withholdings on behalf of the Consultant. The City
shall not be required to pay any workers' compensation insurance
on behalf of the Consultant. The Consultant agrees to indemnify
the City for any tax, retirement contribution, social security,
overtime payment, or workers' compensation payment which the City
may be required to make on behalf of the Consultant or any
employee of the Consultant for work done under this agreement.
14. CONFORMITY TO LEGAL REOUIREMENTS
The Consultant shall cause all correspondence and
documentation or other materials required to perform said
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services related to this project to conform to all applicable
requirements of law: Federal, State and local. Consultant shall
provide all necessary supporting documents, to be filed with any
agencies whose approval is necessary.
The City will provide copies of the approved plans to any
other agencies.
15. OWNERSHIP OF DOCUMENTS
All studies, sketches, drawings, reports, appraisal data,
and other documents as herein required are the property of the
City, whether the work for which they are made to be executed or
not. In the event this Contract is terminated, all documents,
plans, specifications, drawings, reports, and studies shall be
delivered forthwith to the City. Consultant shall have the right
to make one (1) copy of the plans for his/her records.
16. &U,D HARMLESS AGREEMENT
The City, its agents, its officers, and employees shall not
be liable for any claims, liabilities, 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 , .
or claimed to have been caused by, or resulting from, any
intentional or negligent acts, errors or omission of Consultant
or Consultant's agents, employees, or representatives.
Consultant agrees to defend, indemnify; and save free and
harmless the City and its authorized agents, officers, and
employees against any of the foregoing liabilities or claims of
any kind and any cost and expense that is incurred by the City
on account of any of the foregoing liabilities, including
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liabilities or claims by reason of alleged defects in any
documentation.
17. ASSIGNMENT OF CONTRACT
The Consultant shall not assign this Contract or any part
thereof or any monies due thereunder without the prior written
consent of the City.
18. SUBCONTRACTING
If the Consultant shall subcontract any of the work to be
performed under this Contract by the Consultant, Consultant shall
be fully responsible to the City for the acts and omissions of
Consultant's subcontractor and of the persons either directly or
indirectly employed by the subcontractor, as Consultant is for
the acts and omissions of persons directly employed by
Consultant. Nothing contained in this Contract shall create any
contractual relationship between any subcontractor of Consultant
and the City. The Consultant shall bind every subcontractor and
every subcontractor of a subcontractor by the terms of this
Contract applicable to Consultant's work unless specifically
noted to the contrary in the subcontract in question approved in
writing by the City.
19. PROHIBITED INTEREST
No official of the City who is authorized in such capacity
on behalf of the City to negotiate, make, accept, or approve, or
take part in negotiating, making, accepting, or approving of any
architectural, engineering, inspection, construction or material
supply contractor, or any subcontractor in connection with the
construction of the project, shall become directly or indirectly
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interested personally in this Contract or in any part thereof.
No officer, employee, architect, attorney, engineer, or inspector
of or for the City who is authorized in such capacity and on
behalf of the City to exercise any executive, supervisory, or
other similar functions in connection with the performance of
this Contract shall become directly or indirectly interested
personally in this Contract or any part thereof.
20. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent,
or employee of the City, either before, during, or after the
execution of this Contract, shall affect or modify any of the
terms or obligations herein contained nor such verbal agreement
or conversation entitles the Consultant to any additional payment
whatsoever under the terms of this Contract.
21. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, "Hold Harmless
Agreement," all terms, conditions, and provisions hereof shall
insure to and shall bind each of the parties hereto, and each of
their respective heirs, executors, administrators, successors,
and assigns.
22. EFFECTIVE DATF;
This agreement shall be effective on and from the day and
year first above written.
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23. CONFLICT OF INTEREST
The Consultant shall file a Conflict of Interest Statement
with the City Clerk of the City of Carlsbad in accordance with
the requirements of the City of Carlsbad Conflict of Interest
Code.
IN WITNESS WHEREOF, we have hereunto set our hands and seals.
ASARO AND KEAGY CITY OF CARLSBAD:
APPROVED AS TO FORM:
Assistant City-Attorney
ATTESTED:
li!-bzLkU City Clerk
FRANK L. ASARO
ROSCOE D. KEAGY
RICHARD R. FREELAND
STEVEN A. t.,cK,NLEY
ARNOLD NLVES. JR.
c. LARRY DAVIS
MARY ELLEN ATTRlDGE
ASARO & KEAGY
ATTORNEYS AT LAW
FOURTH FLOOR
3170 FOURTH AVENUE
SAN DIEGO. CALIFORNIA 92103
TELEPHONE ,619, 297-3170
TELECOPlER I6191 299-4266
October 7, 1988
IN REPLY
REFER TO:
“‘>T* .., ,.f>/ / i’,>’
Mr. Lloyd Hubbs
City Engineer
1200 Elm Avenue
Carlsbad, CA 92008
Dear Mr. Hubbs:
The law firm of Asaro & Keagy will provide legal services to the
City of Carlsbad relating to the La Costa Avenue project, including
condemnation matters, for the following rates:
$125 .OO per hour for partners Roscoe D. Keagy and
Richard R. Freeland, and Associate Counsel C. Larry Davis;
$90 .OO per hour for associates other than Mr. Davis;
$55.00 per hour for paralegals.
These rates are substantially less than those charged to private
clients; however, they are consistent with our firm’s charges to other
governmental or quasi-governmental entities. We will also bill for actual
telephone charges and other costs. All billings are made monthly for
work performed the preceding month.
Please feel free to call should you have any questions or if you
wish to discuss this matter in more detail. We appreciate your asking
us to assist you.
Very truly yours,
ASARO & KEAGY . 644
Roscoe D. Keagy
RDK:mad
DK:MDLTRl/100788g
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ORlGlNAb
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF CARLSBAD
AND
MacFARLANE AND ASSOCIATES
THIS AGREEMENT is made and entered into this+nd- day of a 1988, by and between the CITY OF CARLSBAD, a municipal corporatio;, hereinafter referred to as “CITY”, and MacFARLANE & ASSOCIATES, a Real
Estate Consulting Firm, hereinafter referred to as “Consultant”.
RECITALS
WHEREAS, Government Code Section 37103 authorizes the City to engage
specially trained and experienced persons or firms for special services and advice in financial, economic, accounting, engineering, legal, or administrative matters; and
WHEREAS, the City requires the services of a real estate consulting firm to assist with right-of-way acquisitions and relocation assis-
tance, if required, by providing special services and advice of a type authorized by Section 37103; and
WHEREAS, Consultant has extensive experience in the negotiation and
acquisition of rights-of-way, easement interests and fee simple in-
terests, particularly in connection with public agency projects, and is ready and willing to provide CITY said professional services from time to time and on a time available basis; and
WHEREAS, the CITY has chosen Consultant to perform the needed
acquisition work in connecton with certain subdivision requirements
specifically related to the offsite extension of POINSETTIA LANE, the
offsite construction of a dentention basin and related drainage
easements and the offsite extension of a sewer and water main.
NOW, THEREFORE, in consideration of these recitals and the mutual
covenant contained herein, CITY and Consultant agree as follows:
1 . The above recitals are true and correct.
2. SERVICES TO BE PROVIDED BY CONSULTANT.
A. Consultant shall act in a professional capacity to assist the CITY. Consultant’s work shall conform to all applicable statutes,
laws, regulations, and professional standards for such work.
B. Consultant is to provide negotiation services for the acquisition of real property interests, or other assignments that fall
within the scope of the consultant’s real estate expertise, as may be required by the CITY. Consultant shall diligently perform the follow-
ing services in a professional manner under the general direction of a designated CITY staff person: (1) Conduct negotiations in a fair, honest and ethical manner. Every reasonable effort will be made to negotiate with
the property owner on a person-to-person basis. If the
owner designates another party, such as an attorney, to
negotiate on their behalf, the Consultant will abide by
this request.
(2) Review title/litigation reports, appraisal reports, right of way and construction drawings and other documents in sufficient detail to properly negotiate with the owner(s) and other parties in interest.
(3) Acquisitions will be negotiated in concert with appli- cable Federal/State constitutional/statute provisions. (4) Written offers to acquire real property interests will be made by CERTIFIED MAIL, and where possible, a follow-up in person will be made with property owners residing anywhere
in the County of San Diego.
MacFARLANE and Associates -l- ( ASACARO 1 )
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Ac #sition Services Agreement - cant led :
(5) The Consultant will keep the appraiser advised as to problems relating to the Fair Market Value offer and will
provide the appraiser with any additional market data that has been provided by the property owner.
(61 The Consultant will keep the CITY/Staff advised of the status of negotiations in terms of the owner’s attitude,
problem areas, and the likelihood of a negotiation impasse and the probability of an eminent domain action. The Con- sultant will recommend eminent domain proceedings in the event an impasse is reached in the negotiation process and provide CITY with supporting documentation.
(7) Consultant will promptly transmit to CITY, for acceptance, documents executed by owner(s) or other parties in interest. A report summarizing the pertinent data relative to the transaction will be included. (8) Consultant will maintain an acquisition file for each parcel and maintain a journal of all contacts made with the
property owner(s) setting forth a summary of negotiations and other related information.
(9) Provide, if requested by the CITY in writing, services consisting of the following:
(a) Preparation of agreements necessary for acquisitions, exchanges, leases and other documents subject to the approval of CITY’s legal counsel.
(b) Consultation with CITY staff or legal counsel regard- ding acquisition or lease negotiation procedures
and disposition of the CITY’s surplus real property. (c) Assistance in administering the relocation benefits to which the owner or tenant is entitled to receive
under Title II of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. (d ) Provide “Rep1 acement Housing Val uati on Report” ser-
vices.
3. ASSISTANCE BY CITY
Subject to other provisions of this Agreement, the City shall
provide Consultant with such information as is possessed by City and which is normally supplied to consultants performing acquisition services related to real property including, but not limited to,
appraisals, title reports, maps or drawings, construction drawings, acquisition policies, relocation assistance policies and project financing, etc.
4. COMPENSATION
faithf:ily CITY agrees to pay Consultant for its services Type. rendered hereunder which will be charged on the basis of time spent on the assigned project (measured by the time away from
other productive work) and at the following rates. The fee to be calculated by multiplying the actual number of hours worked by Consultant on this job by the hourly rate for each classification in
the following schedule: Classification of Service Hour 1 Y Rate (1) Acquisition Services $60 (2) Lease Negotiation Services $70 (3) Relocation Assistance Services $60 (4) Feasibility Studies $70 (5) Expert Witness, Depositions, Publ.ic Hearings and Trial Court $90 Payment of fees shall be made upon delivery of invoices submitted by Consultant and reviewed and approved by CITY.
b. Expenses. CITY agrees to reimburse Consultant for reason- able and typical out-of-pocket expenses, in support of the project, such as auto mileage, maps, photographs, Xerox or photocopies, copies
of deeds or other related documents, telephone, telecommunications (retrieval time), etc. Auto mileage reimbursement will be computed on the basis of $0.25 per mile. The above-mentioned out-of-pocket
MacFARLANE and Associates -2- ( ASACAROl )
AC% sition Services Agreement - cant ad:
expenses will be multiplied by an overhead factor of 1.20 which constitutes the agreed upon method of payment for these accrued
expenses.
C. Schedule. (1) Consultant will submit periodic billings (monthly in
arrears) to CITY for personal services time and out-of-pocket expense charges that have accrued.
(2) CITY shall pay fees and applicable expenses due under this Agreement within thirty (30) days of receiving such bills from Consultant. Payment of any fee or reimbursement shall not constitute a waiver by CITY of any breach of any part of this Agreement.
(3) Consultant shall bill CITY c/o
for services rendered under this Agreement.
d. Ceiling. The total aggregate payment of fees shall not exceed $15,180 for the term of this Agreement unless said $15,180
allocation is increased by mutual written agreement. CITY and Con- sultant recognize that the CITY is without authority to make such greater payments without express authorization from the CITY Council.
5. DISPUTES
If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve
any question of fact or interpretation not otherwise settled by agreement between parties. Such questi ens, if they become identified as a part of a dispute among persons operating under the provisions of
this Contract, shall be reduced to writing by the Consultant and the assigned CITY staff person. A copy of such documented dispute shall be forwarded to both parties along with recommended methods of reso- lution which would be of benefit to both parties. The party receiving
the letter shall reply to the letter along with a recommended method of resolution within ten (10) days. If the resolution thus obtained
is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the Office of the City Manager. In such cases, the action of
the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking
remedies available to them at law.
6. TERM OF AGREEMENT
a. This Agreement shall take effect on the date first written above.
b. This Agreement shall be in effect for a period of one year from the effective date of this Agreement unless terminated as described in paragraph (c) below.
C. Either party may terminate this Agreement by tendering written notice to the other party thirty (30) days before the effective date of termination. In such event, or upon request of the
CITY, Consultant shall assemble all CITY documents in the Consultant’s possession and put them in order for proper filing and closing, and deliver said document to CITY. In the event of termination, Consul- tant shall be paid for work performed to the termination date. The
CITY shall make the final determination as to the portion of tasks completed and compensation to be made.
d. This agreement may be extended an additional six (6) month
period upon mutual agreement in writing. The offer of and acceptance of an additional six (6) month period will be subject to the CITY’s prior approval of Consultant fee adjustments, if any.
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Ac. , sition Services Agreement - cant ,ed :
7. STATUS OF THE CONSULTANT
The Consultant shall perform the services provided for herein in Consultant’s own way as an independent con tractor and in pursuit of
Consultant’s independent calling. Consultant is not to be con- sidered an employee of the CITY, nor shall any employees of Consultant
be considered employees of the CITY, for any purpose. Consultant shall be under the direction and control of the CITY only as to the results to be accomplished. Consultant shall be free to pursue its
calling excepting only to the extent contained in this Agreement.
8. OWNERSHIP OF DOCUMENTS
All plans, studies, sketches, drawings, reports, appraisal data, and specifications as herein required are the property of the CITY.
In the event this Agreement is terminated, all documents, plans, specifications, drawings, reports, and studies shall be delivered forthwith to the CITY. Consultant may retain one copy of each document for its records, but shall have no proprietary rights to them.
9. ASSIGNMENTS AND SUBCONTRACTING
a. Consultant shall not assign this contract, any part thereof, or any compensation due thereunder without the prior written consent of the CITY. b. Nothing contained in this Agreement shall create any con-
tractual relationship between CITY and any subcontractor of Consul- tant. All subcontracts are subject to the prior written review and
approval of CITY.
10. PAROL AGREEMENTS
No oral agreement or representation by any officer, agent or
employee of either party made before, during, or after the execution of this Agreement shall become a part of this Agreement except to the extent such oral agreement or representation is expressly reflected in
this written Agreement or a written amendment to this Agreement. In light of the CITY’S right and duty to protect the public’s interest and the CITY’S legal obligation to have authority for its acts,
executed oral amendments shall be subject to the provisions of Section 4(d) above, dealing with exceeding the cost ceiling for this Agreement.
11. INDEMNIFICATION
During all phases of the services provided under this Agreement, Consultant agrees to indemnify and save harmless CITY, its officers,
agents, and employees from and against any and all claims, demands, losses, defense costs, or liability of any kind or nature which the CITY, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or
damage to property as a result of, arising out of, or in any manner connected with Consultant’s performance under the terms of this Agreement, excepting only liability arising out of the sole negligence
of the CITY. Without limiting Consultant’s indemnification, it is agreed that Consultant shall maintain in force at all times during the performance
of this Agreement the following policy or policies of insurance covering its operations: Comprehensive General Liability with a combined single limit
of OneaMillion Dollars ($l,OOO,OOO) including con- and products and completed operatiois liability. tractual liability
b. Business Automobile Liability with a Five Hundred Thousand Dollar ($500,000) limit.
C. Workers’ Compensation at statutory limits. By statute no coverage is required unless the Consultant employs indi- viduals other
than himself.
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-_ .* AC. lsition Services Agreement - cant ied :
Contractor’s liability insurance policy shall contain the following clauses:
a. “The City of Carlsbad is named as an additional insured as respects operations of the named insured performed under contract with
the City.” b. “It is agreed that any insurance maintained by the City
shall apply in excess of, and not contribute with, insurance provided by this policy.” All insurance policies required by this Section 11 shall contain
the following clause: “This insurance shall not be cancelled, limited, or non-renewed
until after thirty (30) days written notice has been given to the City.”
Certificates of insurance evidencing the coverages required by the clauses set forth above shall be filed with the CITY as a con- dition precedent to the formation of any obligation by the City to compensate Consultant under this Agreement.
12. NOTICE
Any notice given pursuant to this Agreement shall be deemed
received and effective when properly addressed, posted and deposited in the United States mail service addressed to the respective parties as follows:
Consul tant : MacFar 1 ane and Assoc i ates
3078 North Park Way San Diego, CA 92104
CITY:
13. NONDISCRIMINATION CLAUSE
The Consultant shall comply with the State and Federal
Ordinances regarding nondiscrimination.
14. COVENANTS AGAINST CONTINGENT FEES
The Consultant warrants that their firm has not employed or
retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this agreement, and that Consultant 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 this agreement. For breach or
violation of this warranty, the CITY shall 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 such fee, commission, percentage, brokerage fee, gift, or contingent fee.
15. CONFLICT OF INTEREST
Consultant shall file a Conflict of Interest Statement with the City Clerk of the City of Carlsbad. The Consultant shall report investments and interest in real property. No officer of employee of the City of Carlsbad may become financially interested in this
Agreement.
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IN WITNESS WHEREOF, the CITY and Ccnsultant have executed this
Agreement on the date and year first written above.
MacFARLANE & ASSOCIATES:
W.L. MacFarlane
CITY OF CARLSBAD:
ATTESTED:
BY: -.-b&, -ALETHA L. RAUTENKRANZ, City Cle k
BY VINCENT ~.~f!d&~%~~CityAttorney
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