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HomeMy WebLinkAbout1988-10-25; City Council; 9688; Agreements For Acquisition Of Easements* * \ II \ AB# qd cfg MTG.a&aa 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. , . 1 I . \ * 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. /// /// /// /// I// /I/ I// I// I// /// 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 1 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 2 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 3 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 . 1 . . 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. 2 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. 3 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 . 4 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 .- - 5 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 L 6 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 7 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 8 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 9 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. 10 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 - . ‘ ’ , - 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 ) - - 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. MacFARLANE and Associates -3- ( ASACARO 1 ) - ._ 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. MacFARLANE and Associates -4- (ASACAROl) -_ .* 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. MacFARLANE and Associates -5- (ASACAROl ) . . . .-- , - Acquisition S, ices Agreement - continued: 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 MacFARLANE and Associates -6- ( ASACARO 1 )