Loading...
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- I' .21U c CaJ OE ma, 3; OM qa -c drd aJ 66 VJW b urd aJaJ I- 'oc 4 d at) sm & cdF: z3 ?a 4J 66 aJaJ Q) E+ -rl Ti co .rl 2s c, $ '5 -5 ma *a 6 2 0. -0 aJ6a k rdk p9 k @a, NaJ Ink IM cn aaz nU *a k VIaJaJ aJU,.o c4vo ap: Wk uo aJ k.21 av O& VI amk rdrda 4 -a VI LIS z 2.c 2T.5 urn 3 \ cn \ h v) rr) Z 2 O a z 3 0 O I- i L ,r '; DEP' AB # '7 (3 ro 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 0 a - 4- 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. L .., -4 w- 1 2 3 4 5 6 7 8 9 10 11 12 13 ’ 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a e 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 * -,- 1 2 3 4 5 6 7 8 9 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 . 26 27 28 a W 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 * -- 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. Rev. ll/< - a e -I 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 Rev. 111 2 - 0 w I- 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 3 Rev. 1 I/! a w 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. 4 Rev. 11, 0 e .- 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. Rev. 11/! 5 w 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 6 Rev. 1 A/< a V .- *I 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( 7 Rev. 111 e w '- 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. 8 Rev. 1 l/< w 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 9 Rev. 11) . 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 e W - ~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. 2 8 w .- 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 3 0 w 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. 0 m 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 .- m w a 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 . " CO U N S EL " 0 '. 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. Rev. 11 m w .- 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) 0 ’. 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/! ’. .- 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 0 m 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 m w 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 m ?, 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 a- w w 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 I_ 0 w * .- ) 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