HomeMy WebLinkAbout1995-03-07; City Council; 13050; SELECTION OF SPECIAL TAX AND FINANCIAL CONSULTANT, BOND COUNSEL, AND ASSESSMENT APPRAISER FOR COMMUNITY FACILITIES DISTRICT NO. 3 - CARLSBAD RANCH PROJECT.4-
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MTG. 3-7-95 CONSULTANTl BOND COUNSEL, AND ASSESSMENT CITY
DEPT. CM DISTRICT NO. 3 - CARLSBAD RANCH PROJECT CITY
RECOMMENDED ACTION:
OF CAWLSBAD - AGE* BILL clB
TITLE: SELECTION OF SPECIAL TAX AND FINANCIAL
APPRAISER FOR COMMUNITY FACILITIES
Adopt Resolution No. 95- %electing Kadie-Jensen, Johnson & Bodnar to provide spec
and financial consulting services, Brown, Diven & Hentschke to act as bond counse
Roberts & Roberts to perform an assessment appraisal in the formation of Community Fa
District (CFD) No. 3.
ITEM EXPLANATION:
The City received a request from the property owner of the Carlsbad Ranch Project to '
Mello-Roos CFD to fund certain public improvements within the Carlsbad Ranch Specific
After reviewing Council Policy 38, which defines for both the City and property owner
instances where the use of public debt might be appropriate, and a list describing
documents and retain the services of bond counsel and a special tax and financial con
to establish the formation of CFD No. 3 at its December 13, 1995 meeting.
Previous experience with Kadie-Jensen, Johnson & Bodnar as financial advisor on sever8
issues has been very positive. The consulting firm of Kadie-Jensen, Johnson & Bodn
utilized in the formation and initial stages of the CFD No. 1 to create tax formulas, ca:
analyses, and assist in the implementation of tax rates. Because of their special knowledi
experience with CFD No. 1, and the requirement for immediate consulting assistanc
Purchasing Officer is waiving the requirement for solicitation of multiple proposals.
recommends retaining Kadie-Jensen, Johnson & Bodnar on a five-year, not-to-exceed cc
of $50,000.
The bond counsel firm of Brown, Diven & Hentschke was an integral part in the creation 1
No. 1 and of the tax formula. F. MacKenzie Brown's knowledge of the complex structure (
districts has been proven invaluable during debt structuring and issuance stages.
meeting of December 13, 1995, Council authorized staff to retain the services of Brown
& Hentschke as bond counsel for CFD No. 3. Contract documents were to be retut
Council for approval prior to execution by the Mayor. These documents are attached
agenda bill. Council is being asked to approve a resolution authorizing the Mayor to E
a Special Council Agreement with Brown, Diven & Hentschke. Payment to bond coun
be made in two parts: (1) Following a successful election, $1 0,000 will be paid for the for
of the District, and (2) A fee based on the amount of bond issuance as noted in the at
Counsel Agreement.
In addition to retaining special tax consulting and bond counsel services, staff is asking (
to move forward with this project by selecting the project appraiser. The appraiser is task
determining the value of the land that will ultimately support the bonds issued by the I
Adequate land value is essential to guaranteeing the stability of the District over time.
Kadie-Jensen, Johnson & Bodnar solicited requests for proposal for the assessment ay
consultant from three appraisal firms who are known for their excellent reputation in gen
well as their specific experience with appraisals used for the purpose of marketing tax-1
bonds, The bids received were as follows:
improvements requesting consideration by the property owner, Council directed staff to p
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4 Page Two of Agenda Bill No, I <, OJO
Roberts & Roberts $1 4,000
Bruce Hull & Associates $18,000 to $20,000
Samppala Group $22,000
The recommendation for assessment appraisal consultant by Kadie-Jensen, Johnson & B
was to select Roberts & Roberts.
FISCAL IMPACT:
Costs associated with retaining the services Kadie-Jensen, Johnson & Bodnar, Brown, Rl
& Roberts, and Diven & Hentschke will be borne by the developer or paid from the
proceeds. Resolution No. 94-326 directed the property owner, Carltas, to deposit $SO,OC
the City as an advance to cover initial formation costs. This deposit was received the firsi
of February 1995.
EXH I BITS :
1. Resolution No. 'l5 - 5 2- selecting Kadie-Jensen, Johnson & Bodnar to provide I
tax and financial consulting services, Brown, Diven & Hentschke to act as bond co
and Roberts & Roberts to provide assessment appraisal services in the formal
Community Facilities District No. 3.
Consultant Agreement with Kadie-Jensen, Johnson & Bodnar. 2.
0 Exhibit "A" - Proposal letter dated December 12, 1994 from Kadie-Jc
Johnson & Bodnar.
3.
LC.
Special Council Agreement with Brown, Diven & Hentschke.
Letter dated January 27, 1995 from Kadie-Jensen, Johnson & Bodnar recomme
Roberts 8. Roberts as assessment appraisal consultant.
Consultant Agreement with Roberts & Roberts. 5.
0 Exhibit "A" - Proposal letter dated February 3, 1995 from Rob
Roberts.
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RESOLUTION NO. 95-52
A RESOLUTION OF THE CITY OF CARLSBAD, CALIFORNIA,
AUTHORIZING THE MAYOR TO EXECUTE A CONSULTANT
AGREEMENT AND SPECIAL COUNSEL AGREEMENT FOR
PROJECT
COMMUNITY FACILITIES DISTRICT NO. 3 - CARLSBAD RANCH
WHEREAS, the City received a request from the property owner of the Carlsbad
Project to form a Community Facilities District to fund certain public improvements wii
Carlsbad Ranch Specific Plan; and
WHEREAS, Council directed staff at its December 13, 1994 meeting to proce
the establishment of forming such a District; and
WHEREAS, Kadie-Jensen, Johnson & Bodnar has previous experience as fi
advisor to the City on bond issues; and
WHEREAS, Brown, Diven & Hentschke has provided bond counsel services s
been instrumental during debt structuring and bond issuance; and
WHEREAS, Roberts and Roberts has been selected as the assessment apprs
their expertise with appraisals used for the purpose of marketing tax-exempt bonds.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carl:
follows:
1.
2.
That the above recitations are true and correct.
That the Mayor is hereby authorized to execute the attached Coi
Agreement with Kadie-Jensen, Johnson & Bodnar for special tax and financing servi
3. That the Mayor is hereby authorized to execute the attached (
Agreement with Brown, Diven and Hentschke for bond counsel services.
Ill
Ill
Ill
Ill
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4. That the Mayor is hereby authorized to execute the attached Cor
Agreement with Roberts & Roberts for assessment appraisal services.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Counc
City of Carlsbad, California on the 7th day of March , 1995
following vote, to wit:
AYES: Council Members Lewis, Nygaard, Finnila and Hall
NOES: None
ABSENT: Council Member Kul
ATTEST:
ALETHA L. RA
0 m EXti I i
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AGREEMENT
THIS AGREEMENT, made and entered into as of the day of
1995, by and between the CITY OF CARLSBAD, a municipal corporation, hereina
referred to as "City", and KADIEJENSEN, JOHNSON & BODNAR, hereinafter referrec
as "Consultant".
RECITALS
City requires the services of a municipal financing consultant to provide
necessary assistance in the special tax financing of the Carlsbad Ranch Project; i
Consultant possesses the necessary skills and qualifications to provide the servic
required by the City;
NOW, THEREFORE, in consideration of these recitals and the mutual covena
contained herein, City and Consultant agree as follows:
1. CONSULTANT'S OBLlGATlONS
Consultant will provide the City with special tax and financing consulting servi
in connection with the Carlsbad Ranch Project as detailed in Exhibit A to this agreeml
2. CITY OBLIGATIONS
The City shall approve services to be performed on a task-by-task basis. The (
Financial Management Director, Finance Director, and Assistant Finance Director
authorized staff to approve services and budget for services. Additionally, the City s
provide Consultant access to City staff and records, and agrees to pay Consultanl
stipulated in Paragraph 4.
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3. PROGRESS AND COMPLETION
The work under this contract will begin within ten (10) days after receipl
notification to proceed by the City and be completed within five years or until all wor
co m p I eted .
4. FEES TO BE PAID TO CONSULTANT
The total shall not exceed the fee payable according to Paragraph 6, "Paymer
Fees," and shall be $35,000. This amount may be increased with prior approval by
City Manager, but in event shall exceed $50,000. No other compensation for servi
will be allowed except those items covered by supplemental agreements per Paragri
7, "Changes in Work."
5. DURATION OF CONTRACT
This agreement shall extend for a period of five years or until all work has b
co m p I et ed .
6. PAYMENT OF FEES
Fees for services will be based on the hourly rate of $135 plus reimbursemen
out-of-pocket expenses, subject to the conditions detailed in Exhibit A to this agreem
Fees will be paid by monthly invoice.
7. CHANGES IN WORK
If, in the course of the contract, changes seem merited by the Consultant or
Cityy, and informal consultations with the other party indicate that a change in
conditions of the contract is warranted, the Consultant or the City may request a cha
in contract. Such changes shall be processed by the City in the following mannei
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letter outlining the required changes shall be forwarded to the City by Consultanl
inform them of the proposed changes along with a statement of estimated change!
charges or time schedule. A supplemental agreement shall be prepared by the City i
approved by the City according to the procedures described in Carlsbad Municipal Cc
Section 3.28.1 72. Such supplemental agreement shall not render ineffective or invalid
unaffected portions of the agreement.
8. COVENANTS AGAINST CONTINGENT FEES
The Consultant warrants that their firm has not employed or retained any comp
or person, other than a bona fide employee working for the Consultant, to solici
secure this agreement, and that Consultant has not paid or agreed to pay any comp
or person, other than a bona fide employee, any fee, commission, percentage, brokerl
fee, gift, or any other consideration contingent upon, or resulting from, the awarc
making of this agreement. For breach or violation of this warranty, the City shall h
the right to annul this agreement without liability, or, in its discretion, to deduct from
agreement price or consideration, or otherwise recover, the full amount of such
commission, percentage, brokerage fees, gift, or contingent fee.
9. NONDISCRIMINATION CLAUSE
The Consultant shall comply with the state and federal laws regarc
nondiscrimination.
10. TERMINATION OF CONTRACT
In the event of the Consultant’s failure to prosecute, deliver, or perform the v
as provided for in this contract, the City may terminate this contract for nonperformE
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by notifying the Consultant by certified mail of the termination of the Consultant. '
Consultant, thereupon, has five (5) working days to deliver said documents ownec
the City and all work in progress to the Financial Management Director. The Finar
Management Director shall make a determination of fact based upon the documt
delivered to City of the percentage of work which the Consultant has performed wl
is usable and of worth to the City in having the contract completed. Based upon
finding as reported to the City Manager, the Manager shall determine the final payn
of the contract.
11. DISPUTES
If a dispute should arise regarding the performance of work under this agreem
the following procedure shall be used to resolve any question of fact or interpretation
otherwise settled by agreement between parties. Such questions, if they becc
identified as a part of a dispute among persons operating under the provisions of
contract, shall be reduced to writing by the principal of the Consultant or the
Attorney. A copy of such documented dispute shall be forwarded to both pa
involved along with recommended methods of resolution which would be of benei
both parties. The City Attorney or principal receiving the letter shall reply to the I
along with a recommended method of resolution within ten (10) days. If the resoh
thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute
be forwarded to the City Council for their resolution through the Office of the
Manager. The City Council may then opt to consider the directed solution to
problem. In such cases, the action of the City Council shall be binding upon the p~
involved, although nothing in this procedure shall prohibit the parties seeking rem€
available to them at law.
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12. SUSPENSION OR TERMINATION OF SERVICES
This agreement may be terminated by either party upon tendering thirty (30) di
written notice to the other party. In the event of such suspension or termination, uy
request of the City, the Consultant shall assemble the work product and put samt
order for proper filing and closing and deliver said product to City. In the even
termination, the Consultant shall be paid for work performed to the termination di
however, the total shall not exceed the lump sum fee payable under paragraph 4. ‘
City shall make the final determination as to the portions of tasks completed and
compensation to be made.
13. STATUS OF THE CONSULTANT
The Consultant shall perform the services provided for herein in Consultant’s c
way as an independent contractor and in pursuit of Consultant’s independent calling, i
not as an employee of the City. Consultant shall be under control of the City only a!
the result to be accomplished, but shall consult with the City as provided for in
req u est for proposal .
The Consultant is an independent contractor of the City. The payment mad1
the Consultant pursuant to the contract shall be the full and complete compensatioi
which the Consultant is entitled. The City shall not make any federal or state
withholdings on behalf of the Consultant. The City shall not be required to pay
workers’ compensation insurance on behalf of the Consultant. The Consultant agr
to indemnify the City for any tax, retirement contribution, social security, overt
payment, or workers’ compensation payment which the City may be required to m
on behalf of the Consultant or any employee of the Consultant for work done under
agreement.
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The Consultant shall be aware of the requirements of the Immigration Reform i
Control Act of 1986 and shall comply with those requirements, including, but not lim
to, verifying the eligibiliG for employment of all agents, employees, subcontractors I
consultants that are included in this agreement.
14. CONFORMITY TO LEGAL REQUIREMENTS
The Consultant shall cause all spreadsheets, financial analyses, special
reports, schedules, formulas, and all other written products to conform to all applics
requirements of law: federal, state and local. Consultant shall provide all necess
supporting documents, to be filed with any agencies whose approval is necessary.
The City will provide copies of the approved documents and reports to any 0'
agencies.
15. OWNERSHIP OF DOCUMENTS
All spreadsheets, financial analyses, special tax reports, schedules, formulas, i
all other written products as herein required are the property of the City, whether
work for which they are made be executed or not. In the event this contrac
terminated, all spreadsheets, financial analyses, special tax reports, schedules, formu
and all other written products shall be delivered forthwith to the City. Consultant s
have the right to make one (1) copy of the documents for his/her records.
16. REPRODUCTION RIGHTS
The Consultant agrees that all copyrights which arise from creation of the w
pursuant to this contract shall be vested in City and hereby agrees to relinquish all cla
to such copyrights in favor of City.
17. HOLD HARMLESS AGREEMENT
The City, its officers, and employees shall not be liable for any claims, liabilil
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penalties, fines, or any damage to goods, properties, or effects of any person whatf
nor for personal injuries or death caused by, or resulting from, any intentiona
negligent acts, errors or omissions of Consultant or Consultant’s agents, employee:
representatives. Consultant agrees to defend, indemnify, and save free and harmless
City and its officers and employees against any of the foregoing claims, liabili
penalties or fines, including liabilities or claims by reason of alleged defects in any p
and specifications, and any cost, expense or attorney’s fees which are incurred by
City on account of any of the foregoing.
18. ASSIGNMENT OF CONTRACT
The Consultant shall not assign this contract or any part thereof or any mo
due thereunder without the prior written consent of the City.
19. SUBCONTRACTING
If the Consultant shall subcontract any of the work to be performed under
contract by the Consultant, Consultant shall be fully responsible to the City far the
and omissions of Consultant’s subcontractor and of the persons either directl!
indirectly employed by the subcontractor, as Consultant is for the acts and omissior
persons directly employed by consultant. Nothing contained in this contract shall cr
any contractual relationship between any subcontractor of Consultant and the City.
Consultant shall bind every subcontractor and every subcontractor of a subcontracto
the terms of this contract applicable to Consultant’s work unless specifically noted to
contrary in the subcontract in question approved in writing by the City.
20. PROHIBITED INTEREST
No official of the City who is authorized in such capacity on behalf of the Cii
negotiate, make, accept, or approve, or take part in negotiating, making, acceptin(
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approving of this agreement, shall become directly or indirectly interested personail:
this contract or in any part thereof. No officer or employee of the City who is authori;
in such capacity and on behalf of the City to exercise any executive, supervisory
similar functions in connection with the performance of this contract shall become dire
or indirectly interested personally in this contract or any part thereof.
21. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of
City, either before, during or after the execution of this contract, shall affect or modify i
of the terms or obligations herein contained nor entitle the Consultant to any additic
payment whatsoever under the terms of this contract.
22. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all teri
conditions, and provisions hereof shall insure to and shall bind each of the pad
hereto, and each of their respective heirs, executors, administrators, successors, i
assigns.
23. EFFECTIVE DATE
This agreement shall be effective on and from the day and year first written abc
24. CONFLICT OF INTEREST
The Consultant shall file a conflict of interest statement with the city clerk
accordance with the requirements of the City's conflict of interest code.
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25. INSURANCE
The requirement for liability insurance is waived; however, a City of Carlst
business license is required.
Executed by Consultant this day of , 1s
CONSULTANT:
CITY OF CARLSBAD, a municipal
corporation of the State of California
Kadie-Jensen, Johnson & Bodnar
By:
By: Mayor
(sign here)
ATTEST:
(print name here)
(title and organization of signatory)
ALETHA L. RAUTENKRANZ
City Clerk
(Proper notarial acknowledgment of execution by CONSULTANT must be attached
(President or vice-president and secretary or assistant secretary must sign
corporations, If only one officer signs, the corporation must attach a resolution certi
by the secretary or assistant secretary under corporate seal empowering that office
bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
BY Deputy City Attorney
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tAH
TFNSE~. J w Al Tsos a BODN~ ,vumww PwING coNsuL:T-,
Corporate O-6t.e.-
San Diego, California 92108 TEL 619/2%1550
7801 Mission Cenrer Court, Suite 460
RE:
city of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attention: Mr. Jim Elliott
Carlsbad Ranch - Special Tax and Financing Consulting
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~ee fer Speaial Tax Consulting services:
hourly rate of $135 plus reimbursement for out-of-pocket expenses, subject to the following terms and conditions:
1) The amount payable hereunder for services outlined in
Zaragraphs 1) through 7) above shall be $35,000. This amount be increased with prior approval of the Office of the city Manager but in no event shall exceed $50,000. (Note: these
maximums do not include compensation for over two property ow
meetings).
2) To minimize costs, XJJB will subcontract all clerical and
drafting work and bill the City at cost as opposed to the quot hourly rate.
3)
4) portion of the project improvements depends on an engineering analysis, such as the divisions of costs of grading based on project requirements and developer requirements, such cost
analysis will be provided by the City or will be subcontracted KJJB at the direction of the City. such analysis are not included in the fee maximums shown above
The fee for service outlined above will be based on our
Fees will be payable by Eonthly invoice.
To the extent that the determination of benefit of any
Any costs associated with
Financial consulting Services
Financial Consulting services, as required to prepare the
Special Tax report, are included in the fee above. Financial Consulting Services associated with the structuring and sale o bonds are as described below:
1) Nectotiated sale: Provide all services necessary to achie
the best possible pricing of bonds. Examine all proposed documentation to be sure that the interests of the City are
protected. Note: Consultane will present a detailed enumerati
af service for City approval if the City determines to sell securities on a negotiated basis.
2) ComDetitive sale: Prepare and distribute a Preliminary ,
Final Official Statement together with all necessary bidding specifications for the compecitive sale of securities. Assist
bond council in preparing legal documents. Note: Consultant will present a detailed enumeration of services for City appro'
if the City determines to sell securities on a cempetitive bid
basis.
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Fee for consulting services:
1) bonds and payable from proceeds.
2) Cometitive sale . A fee of $27,500 plus reimbursement f out of pocket expenses for a direct and overlapping debt statement, printing and mailing of the Preliminary and Final Official Statelnent and any costs for rating and/or bond insurance. No reimbursable casts will be incurred under this paragraph without prior City approval.
Other terms and considerations:
1) Tern of aa reement: Five years or until all work is completed, except as in 2), below.
2) Cancellation of asreement: This agreement can be cancelel
at any time by the City. No fees will be payable for services rendered after KJJB has received notice of cancellation. KJJB
may cancel this agreement by giving the City a sixty day notic! KJJB understands that the value of work performed and paid for may be reduced if KJJ3 elects to cancel this agreement, and wi
abide by a determination of an independently appointed arbitra< as to any rebate that may be due.
Negotiated Sale, A fee cf $5,500 subject to the sale of
If the foregoing meets with the City’s approval, please so
indicate in the space provided.
us this opportunity to serve the City of Carlsbad-
Thank you very much for givinc
Your ’ s very truly,
Carl Kadie
President, RJJB
Approved and accepted for the City of Carlsbad:
BY
Title
Date
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SPECIAL COUNSEL AGREEMENT
THIS AGREEMENT is made and entered into this ,,'dS day of L by and between the CITY OF CARLSBAD, CALIFORNIAl a public corporation (he referred to as "City") f and BROWN, DIVEN & HENTSCHKE (hereinafter referr "Counsel ") .
NOW, THEREFOREf IT IS HEREBY AGREED by and between the parties hereto as fol
SECTION 1. That Counsel shall perform legal services in connection with posed proceedings relating to the formation of a community f district, including any related bond issuance, said community f
district known and designated as COMMUNITY FACILITIES DISTRI (CARLSBAO RANCH) (hereinafter referred to as the "Districl proceedings conducted pursuant to the provisions of the "M Community Facilities Act of 1982", being Chapter 2.5, Part 1, 2, Title 5 of the Government Code of the State of California.
Said services shall include:
A. Preparation of all resolutions, notices, contracts, bond f other papers and documents required in the proceedings;
B. Examination of the proceedings, step by step, as taken;
C. Appear at all hearings under the proceedings, and attend an where attendance is required;
D. Review the "Report" of the Engineer as it relates to the pr for the District;
Di strict ;
apportionment of the special tax;
E. Review and examine the map showing the area and boundaric
F. Review the method and fornula utilized by the Engineer
G. Make recommendations as to sale of bonds, as required;
H. Assist in any election procedure processing, as necessai
requ i red ;
1. Instruction and advice in connection with any of the foregoi
J. Issuance of an approving legal opinion attesting to the va
the proceedings and the issuance of the bonds;
Any and all other customary proceedings relating to the for the District and the issuance of bonds. K.
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SECTION 2. That the City shall perform as follows:
A. Furnish to Counsel such maps, records, title searches, an( documents and proceedings, or certified copies there
necessary.
B. Payment to Counsel shall be made as follows:
1. Upon the conclusion of a successful election, Counsel s paid the sum of $10,000.00; however, said fee may be d and credited against any fees due and payable for bc issue, as hereinafter set forth.
A fee computed on the final amount of the bond issue as fc
ONE-HALF PERCENT (1/2%) of the first $5,000,000;
ONE-QUARTER PERCENT (1/4%) from $5,000,001 to $10,000,000; ONE-EIGHTH PERCENT (1/8%) from $10,000,001 to $15,000,000; ONE-SIXTEENTH PERCENT (1/16%) on the balance with a minimum fee of $7,500.00.
3. If temporary bond anticipation notes are issued, the fe be twenty-five percent (25%) of the fee as above set for not less than $2,500.00, unless a different fee h
2.
mutually agreed upon between the partiesI
SECTION 3. The fees specified in Section 2 above do not include any serv connection with the acquisition, by contract or condemnation,
easements or other property necessary for the District, or any : in connection with any other litigation.
Upon written request , Counsel will handle appurtenant legal relating to said project, including, but not limited to, the fol1(
A. Environmental proceedings;
B. Acquisition of property by negotiation or condemnation; C. Litigation challenging the validity of the proceedings; D. Extraordinary services after District election certification; E. Judicial validation proceedings.
Counsel will perform any of the above services at a rate to be i agreed upon before any work is actually performed.
pocket expenses incurred, including travel , telephone and copy , only expenses to be billed to City would be extraordinary m and/or overnight mai 1 delivery services.
SECTION 5. In the event the proceedings are terminated or abandoned prior sale of bonds either upon conclusion of the public hearing or I conclusion of the election, Counsel shall be paid a reasonable services rendered to date not to exceed $125.00.
SECTION 4. This Agreement contemplates that Counsel shall pay all ordinary
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SECTION 6. Counsel hereby states that it does not represent clients with
interests to the City as it relates to the issuance and sale bonds for financing this District.
That this Agreement may be terminated by either party hereto by
written notice thereof to the other party. SECTION 7.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be exe the day and year first hereinabove written.
STATE OF CALIFORNIA
ATTEST :
CITY CLERK CITY OF CARLSBAD STATE OF CALIFORNIA
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" CO U N S EL "
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AGREEMENT
THIS AGREEMENT, made and entered into as of the /&a day of %-
19-, by and between the CITY OF CARLSBAD, a municipal corporation, herein
referred to as "City", and Roberts & Roberts, hereinafter referred to as "Consultant"
RECITALS
City requires the services of an assessment appraisal consultant to providt
necessary appraisal services for the financing of the Carlsbad Ranch project;
Consultant possesses the necessary skills and qualifications to provide the set-
required by the City;
NOW, THEREFORE, in consideration of these recitals and the mutual cover
contained herein, City and Consultant agree as follows:
1. CONSULTANT'S OBLIGATIONS
Consultant will provide the City with an assessment appraisal of the Carl
Ranch parcel as detailed in Exhibit "A" to this agreement.
2. CITY OBLIGATIONS
The City shall approve services to be performed on a task-by-task basis. Th(
Financial Management Director, Finance Director, and Assistant Finance Directo
authorized staff to approve services and budget for services. Additionally, the City
provide Consultant access to City staff and records, and agrees to pay Consulta
stipulated in Paragraph 4.
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3. PROGRESS AND COMPLETION
The work under this contract will begin within ten (10) days after receipt
notification to proceed by the City and be completed within thirty (30) days.
4. FEES TO BE PAID TO CONSULTANT
The total shall not exceed the fee payable according to Paragraph 6, "Paymen
Fees," and shall be $1 4,000. No other compensation for services will be allowed exc
those items covered by supplemental agreements per Paragraph 8, "Changes in Wo
5. DURATION OF CONTRACT
This agreement shall extend for a period of thirty (30) days from c
thereof.
6. PAYMENT OF FEES
The fee is due and payable upon submission of the report. In the event
project should be terminated prior to completion, the work accomplished to date will
charged at $250/hr, plus reimbursement for out-of-pocket expenses, subject to
conditions detailed in Exhibit "AI to this agreement.
7. CHANGES IN WORK
If, in the course of the contract, changes seem merited by the Consultant or the (
and informal consultations with the other party indicate that a change in the conditi
of the contract is warranted, the Consultant or the City may request a change in contr
Such changes shall be processed by the City in the following manner: A letter outlir
the required changes shall be fotwarded to the City by Consultant to inform them 01
proposed changes along with a statement of estimated changes in charges or i
2 Rev. 11)
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schedule. A supplemental agreement shall be prepared by the City and approve(
the City according to the procedures described in Carlsbad Municipal Code Set
3.28.172.
unaffected portions of the agreement.
8. COVENANTS AGAINST CONTINGENT FEES
Such supplemental agreement shall not render ineffective or invali
The Consultant warrants that their firm has not employed or retained any comF
or person, other than a bona fide employee working for the Consultant, to solic
secure this agreement, and that Consultant has not paid or agreed to pay any comf
or person, other than a bona fide employee, any fee, commission, percentage, brake
fee, gift, or any other consideration contingent upon, or resulting from, the awarc
making of this agreement. For breach or violation of this warranty, the City shall t
the right to annul this agreement without liability, or, in its discretion, to deduct from
agreement price or consideration, or othetwise recover, the full amount of such
commission, percentage, brokerage fees, gift, or contingent fee.
9. NONDISCRIMINATION CLAUSE
The Consultant shall comply with the state and federal laws regarc
nondiscrimination.
10. TERMINATION OF CONTRACT
In the event of the Consultant’s failure to prosecute, deliver, or perform the worl
provided for in this contract, the City may terminate this contract for nonperformancl
notifying the Consultant by certified mail of the termination of the Consultant.
Consultant, thereupon, has five (5) working days to deliver said documents ownec
3 Rev. 11/!
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the City and all work in progress to the Financial Management Director. The Finan
Management Director shall make a determination of fact based upon the docume
delivered to City of the percentage of work which the Consultant has performed wt
is usable and of worth to the City in having the contract completed. Based upon
finding as reported to the City Manager, the Manager shall determine the final payrr
of the contract.
11. DISPUTES
If a dispute should arise regarding the performance of work under this agreemi
the following procedure shall be used to resolve any question of fact or interpretation
otherwise settled by agreement between parties. Such questions, if they becc
identified as a part of a dispute among persons operating under the provisions of
contract, shall be reduced to writing by the principal of the Consultant or the
Attorney. A copy of such documented dispute shall be forwarded to both par
involved along with recommended methods of resolution which would be of benefi
both parties. The City Attorney or principal receiving the letter shall reply to the IE
along with a recommended method of resolution within ten (10) days. If the resolu
thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute s
be forwarded to the City Council for their resolution through the Office of the
Manager. The City Council may then opt to consider the directed solution to
problem. In such cases, the action of the City Council shall be binding upon the par
involved, although nothing in this procedure shall prohibit the parties seeking remec
available to them at law.
12. SUSP€NSION OR TERMINATION OF SERVICES
This agreement may be terminated by either party upon tendering thirty (30) c
4 Rev. 1 l/!
0 - written notice to the other party. In the event of such suspension or termination, ul
request of the City, the Consultant shall assemble the work product and put samc
order for proper filing and closing and deliver said product to City. In the even
termination, the Consultant shall be paid for work performed to the termination dl
however, the total shall not exceed the lump sum fee payable under paragraph 4,
City shall make the final determination as to the portions of tasks completed and
compensation to be made.
13. STATUS OF THE CONSULTANT
The Consultant shall perform the services provided for herein in Consultant’s c
way as an independent contractor and in pursuit of Consultant’s independent calling, I
not as an employee of the City. Consultant shall be under control of the City only a
the result to be accomplished, but shall consult with the City as provided for in
request for proposal.
The Consultant is an independent contractor of the City. The payment made to
Consultant pursuant to the contract shall be the full and complete compensation to wl
the Consultant is entitled. The City shall not make any federal or state tax withholdi
on behalf of the Consultant. The City shall not be required to pay any work
compensation insurance on behalf of the Consultant. The Consultant agrees
indemnify the City for any tax, retirement contribution, social security, overtime paym
or workers’ compensation payment which the City may be required to make on be
of the Consultant or any employee of the Consultant for work done under
agreement.
The Consultant shall be aware of the requirements of the Immigration Reform
5 Rev. 111
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Control Act of 1986 and shall comply with those requirements, including, but not limi
to, verifying the eligibility for employment of all agents, employees, subcontractors i
consultants that are included in this agreement.
14. CONFORMITY TO LEGAL REQUIREMENTS
The Consultant shall cause all drawings and specifications to conform to
applicable requirements of law: federal, state and local. Consultant shall provide
necessary supporting documents, to be filed with any agencies whose approva
necessary.
The City will provide copies of the approved plans to any other agencies.
15. OWNERSHIP OF DOCUMENTS
All analyses, formulas, schedules, and all other written products as herein requi
are the property of the City, whether the work for which they are made be executec
not. In the event this contract is terminated, all documents, plans, specificatic
drawings, reports, and studies shall be delivered forthwith to the City. Consultant s
have the right to make one (1) copy of the plans for his/her records.
16. REPRODUCTION RIGHTS
The Consultant agrees that all copyrights which arise from creation of
work pursuant to this contract shall be vested in City and hereby agrees to relinquis'
claims to such copyrights in favor of City.
17. HOLD HARMLESS AGREEMENT
The City, its officers, and employees shall not be liable for any claims, liabili
penalties, fines, or any damage to goods, properties, or effects of any person what€
nor for personal injuries or death caused by, or resulting from, any intentiom
Rev. 11/ 6
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17
negligent acts, errors or omissions of Consultant or Consultant’s agents, employees
representatives. Consultant agrees to defend, indemnify, and save free and harmless
City and its officers and employees against any of the foregoing claims, liabilit
penalties or fines, including liabilities or claims by reason of alleged defects in any pli
and specifications, and any cost, expense or attorney’s fees which are incurred by
City on account of any of the foregoing.
18. ASSIGNMENT OF CONTRACT
The Consultant shall not assign this contract or any part thereof or any monies t
thereunder without the prior written consent of the City.
19. SUBCONTRACTING
If the Consultant shall subcontract any of the work to be performed under
contract by the Consultant, Consultant shall be fully responsible to the City for the :
and omissions of Consultant’s subcontractor and of the persons either directlp
indirectly employed by the subcontractor, as Consultant is for the acts and omission
persons directly employed by consultant. Nothing contained in this contract shall crt
any contractual relationship between any subcontractor of Consultant and the City.
Consultant shall bind every subcontractor and every subcontractor of a subcontracto
the terms of this contract applicable to Consultant’s work unless specifically noted to
contrary in the subcontract in question approved in writing by the City.
20. PROHIBITED INTEREST
No official of the City who is authorized in such capacity on behalf of the Cit
negotiate, make, accept, or approve, or take part in negotiating, making, acceptin{
approving of this agreement, shall become directly or indirectly interested personal
7 Rev. 111
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this contract or in any part thereof. No officer or employee of the City who is authoriz
in such capacity and on behalf of the City to exercise any executive, supervisory,
similar functions in connection with the performance of this contract shall become dim
or indirectly interested personally in this contract or any part thereof.
21. VERBAL AGREEMENT OR CONVERSATION
No verbal agreement or conversation with any officer, agent, or employee of
City, either before, during or after the execution of this contract, shall affect or modify i
of the terms or obligations herein contained nor entitle the Consultant to any additic
payment whatsoever under the terms of this contract.
23. SUCCESSORS OR ASSIGNS
Subject to the provisions of Paragraph 18, "Hold Harmless Agreement," all terr
conditions, and provisions hereof shall insure to and shall bind each of the par
hereto, and each of their respective heirs, executors, administrators, successors, :
assigns.
24. EFFECTIVE DATE
This agreement shall be effective on and from the day and year first written abc
25. CONFLICT OF INTEREST
The Consultant shall file a conflict of interest statement with the city clerk
accordance with the requirements of the City's conflict of interest code.
26. INSURANCE
The requirement for liability insurance is waived; however, a City of Carlst:
business license is required.
The City shall be named as an additional insured on these policies. The Consuli
shall furnish certificates of insurance to the City before commencement of work.
8 Rev. ll/C
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Executed by Consultant this 22nd day of February , 19 I-
CONSULTANT: CITY OF CARLSBAD, a municipal
ROBERTS 6 ROBERTS '
(narme of Consultant)
7
By: p3z3 -p/m /
t (sign here)
ATTEST:
Thomas L. Roberts
(print name here)
PrinciDal/owner
(title and organization of signatory) ALETHA L. RAUTENKRANZ \
City Clerk
(Proper notarial acknowledgment of execution by CONSULTANT must be attached.
(President or vice-president and secretary or assistant secretary must sign
corporations. If only one officer signs, the corporation must attach a resolution certil
by the secretary or assistant secretary under corporate seal empowering that office
bind the corporation.)
APPROVED AS TO FORM:
RONALD R. BALL
City Attorney
BY iLQ-65, Qep&y City Attorney
3- 9- 9r
9 Rev. 1 l/C
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* .-
)
E STATE OF CALIFORNIA }ss * COUNTV OF
personally appeared
, personally knowr
subscribed to the within instrument and acknowledged to me that he/she/they executed tht
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrum
person(s) or the entity upon behalf of which the person(s) acted, executed the instrumer
(This area for oflicial notarial seal)
Title of Document
Date of Document
/
EXHIBIT I'
c -1 -, -,
-J -
a
./ < - --
ROB-ERTS&ROBERTS
THOMAS L ROBERTS MA1 BEATRICE E. ROBERTS p
SI:
nppratsnl of real estate
City of Carlsbad February 3, i
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Mr. James Elliott, Finance Management Director
Re: Leg0 Drive, Carlsbad
Our File No. 95-2
Dear
Thank you for the opportunity to review the above-
referenced Community Facilities District project.
I believe we can furnish an appraisal report, in 3
copies, suitable for your assessment purposes with a currer date of value for a fee of $ 14,000.00 within 30 days or tf later of: (1) your authorization to proceed, or (2) your transmittal of the complete assessment roll with identifiec
and any other information, and data necessary for the appraisal. This fee includes most normal appraisal expens6
It is my understanding that the parcels are to be appraised at the value after the completion of the proposec bonded construction. It is my practice to construct and submit a parcel value matrix including an appraised value j
each assessment parcel with the letter of transmittal of
sufficient detail for inclusion in the Official Statement.
assessment parcels and individual parcel area calculations,
The fee is due and payable upon submission of the repc
The terms on the reverse side of the page are incorporated
into this agreement. Please make all checks payable to Princeton Financial, Inc., Tax ID No. 95-2913051.
Due to the complex nature of this appraisal, I will kc
be terminated prior to completion, the work accomplished tc date will be charged at $250/hr. plus major expenses, for principal appraiser. This hourly charge includes normal office, equipment, and overhead charges.
you informed of our progress. In the event the project shc
3580 ADAMS AVENUE. SAN DIEGO. CALIFORNIA 92116 * 619*283*5711 FAX-619.2
*
s 4+l
City of Carlsbad February 3, 1995
Page 2
If these terms are satisfactory, please sign one copy
return it. This proposal is effective 30 days from date o
this letter.
Thank you for the opportunity to be of service to you
this challenging assignment.
Sincerely,
Th&as L. Roberts, MA1
-* / ~ ;.'
0 ,JI A+ y LL/4L=u
TLR/b
ACCEPTANCE: I agree to the above terms.
- Signed Bated
~()l;l'~" - ':Oiil iII\. i\'O iI)I\I\ \!'\I :.\I\ I~(,o.( \IIIO~<\I\. 02Ii
U
ENGAGEMENT AGREEMENT -5
In addition to the terms and conditions on the face of this letter agreement, the appraiser and ( to the following additional terms and conditions:
1. al R- The appraisal services will be conducted in conformity with, and will
to, the requirements of the Code of Professional Ethics and the Uniform Standards of Professional Prac
Appraisal Institute, including requiiements for review of the report for compliance with professional sti
duly authorized representatives of The Appraisal Institute.
2. n of Contents of the p In accepting the appraisal rei
agrees to disseminate the report only in its original ~IIIEQ and not in pmtmns, except: (1) as Appraise
written consent, and/or (2) as Client's counsel may find appropriate for exchange requirements in legal pi
In dissemination of portions, by any communication, Client agrees not to provide portions of such typc
which may mislead third parties with regard to the Appraiser's data, reasoning, or conclusions. In no
Client, or subsequent possessors of this report, reproduce this report in any manner or for any purpos
express written consent of the appraiser.
3. Media; Client agrees that neither all nor any part of the contents of this report; esp
conclusions as to value, the identity of the Appraiser, or the firm with which they are connected, or an
to The Appraisal Institute or to the MA1 designation; shall be disseminated to the public through adverti:
or public communication without the prior written consent and approval of the Appraiser.
4. -: The expense advance in the amount described on the face of this letter is su
Client's authorization to proceed. Appraiser shall have sole discretion as to when and how such expens<
paid, so long as the expenses are necessarily related to the appraisal. If all appraisal fees and all expenses
paid, Appraiser may apply said money to the balance due for the appraisal fee, and Client will be responsi
unpaid amount remaining for said appraisal fee.
All fees and expenses are due and payable upon demand by invoice statement: and are not conting
manner on the value appraised, nor on an action or event resulting from the analyses, opinions, or con
or use of, this report: nor on Client's success in obtaining any loan, sale, decision, or court judgement reli
appraised property.
Notwithstanding any other provision of this agreement, Client agrees to pay all unpaid fees and exp
to trial testimony.
5. Lia~ Client expressly agrees that a lien is hereby granted to the Appraiser, for any amounts due
agreement, under the proceeds of sale, transfer, loan, or judgement involving the appraised property. CIi
authorizes, without further instruction, the escrow holder or other custodian or payor of funds, to pay diri
Appraiser such amounts due upon presentation of statement and copy of this agreement.
.. 6. v I trnk Notwithstanding any other provision of this agreement, the Appraiser's report is
and accepted by Client, only on the basis that Appraiser's payment for all losses, adjudged to have bet
by use of, or reliance upon, this report is limited to a total amount of not more than $5,000, and the i
offered to, and accepted by Client on no other basis.
7. est Ctmgax In the event any fees due for services rendered to Client, including, but not
appraisal report, pre-trial preparation, pre-trial conferences, assistance to Client or his attorney, expert
and/or exhibits, etc., are not paid within 30 days of submission of statement, Client agrees to pay 12% [
accrued monthly on the unpaid balance, to accrue from the date of statement.
8. J&&QIL In the event it is required to bring legal action to collect fees and charges due under thi
Client agrees to pay all reasonable expenses of collection and litigation, including, but not limited to
agency fees, reasonable attorney's fees, court costs, witness fees, and any other charges necessary incu
enforcement of this agreement.
A m 0 He=
c&G!
s
c9t
March 7, 1995
TO: MAYOR AND CITY COUNCIL
VIA:
FROM: Financial Management Director
clTY MANAG%&
CORRECTION TO CONTRACT WITH KADIE-JENSEN, JOHNSON & BODNAR
Tonight the Council will be considering Agenda Bill No. 13,050, an action approv
contracts with the special tax and financial consultant, bond counsel, and assessrn
appraisal for CFD No. 3, the Carlsbad Ranch Project.
LJnfortunately, we have discovered an error in the contract with KadieJensen, Johns
and Bodnar that needs to be brought to the attention of the Council. The secc
sentence of Section 4 of the contract (page 6 of the agenda bill packet) currently rea
"this amount may be increased with prior approval by the City Manager, but in event si
exceed $50,000." This sentence should read, "This amount may be increased with pr
approval by the City Manager, but in any event shall not exceed $50,000.11
We apologize to the Council for this error. According to the City Clerk, the Council rr
adopt the resolution as presented. This adjustment to the language will be made pr
ontract.
c: City Clerk
City Attorney
tXHIt5I 1
&DIE- JENSEN, JaSON & BODNAR MUNICIPAL FA md CIh'G CDNSULTm, I
-
7 Colporute Ofice:
San Diego, Culif0;mia 92108
YEL 619/296-1450
FAX 61 91296-3 783
7801 Mission Cmter Court, Suire 460
G@p 3 - --_
BY FAX ORLY
Mr. Jim Elliott
City of Carlsbad Carlsbad, California
January 27, 1995
RE: Appraisal Services for Carlsbad Ranch
At your directior,, we requested a bid from three appraisal fir
that are know to us for their excellent reputation in general for their specific experience with appraisals to be used for t purpose of marketing tax exempt bonds. The bids received were fo3lows :
Roberts & Roberizs Sl4,OOO Bruce Kull 6 Associates
Samppala Group $22,000
$18,000 to $20,000
As all of the bidders are well qualified to preform the assignment, we recommend that the contract be awarded to the 1 bidder, Roberts is Roberts. We have taken the liberty to reque that Ton Roberts send you a contract far your consideration. C)* remain Dear ir, 3.0s~ faithfully yours:
a c3-b.a- e- ens Johnson & Bodnar MFC, Inc.
Charter Member: National Association of Independent Public Finance Advisors