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HomeMy WebLinkAbout08 APPROVAL OF OF CSA WITH DEVELOPERS RESEARCH AND SMS ARCHITECTS_ ~ DA REPORT Agenda Item 8 Reviewed: ' AGEN ' t'4 City Manager Finance Director MEETING DATE: SEPTEMBER 7, 2010 TO: WILLIAM A. HUSTON, CITY MANAGER & EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY FROM: REDEVELOPMENT STAFF SUBJECT: CONSULTANT SERVICES AGREEMENTS WITH DEVELOPERS RESEARCH AND SMS ARCHITECTS FOR PROFESSIONAL CONSULTING SERVICES FOR THE TUSTIN LEGACY PROJECT SUMMARY Approval is requested of two Consultant Services Agreements (CSAs) to provide services intended to assist the Agency in refinement and revision of the City's disposition and business strategy for the Master Developer footprint at Tustin Legacy. RECOMMENDATION It is recommended that the Tustin Community Redevelopment Agency: 1. Authorize the Executive Director or Assistant City Manager to execute the attached CSA's with Developer's Research and SMS, subject to any non-substantive modifications as may be deemed necessary by the City Attorney prior to execution of the Agreements. 2. Appropriate $150,000 from un-appropriated funds in the MCAS Tustin Redevelopment fund (555) to MCAS Tustin Redevelopment Account No. 555-35-00-6010. FISCAL IMPACT As indicated in the City Council Agenda Report of June 15, 2010, it was expected that the Redevelopment Agency would incur expenses for any activities associated with revision of the City's disposition and business strategy for the Tustin Legacy Project, including but not limited to, necessary financial analysis, legal consultation, real estate surveys, subdivision mapping and engineering services, land use planning and design and other expenses. Support for refinement of the disposition and business strategy for the Tustin Legacy Project is an acceptable use of MCAS Tustin Redevelopment funds. As currently proposed, the services with Developers Research and SMS Architects would have the following fiscal impacts: City Council Agency Report September 7, 2010 CSA Agreements-Developers Research and SMS Architects Page 2 1. On the Developer's Research Agreement, services are proposed not to exceed a compensation amount of $75,000. 2. On the SMS Agreement, services are proposed not to exceed a compensation amount of $75,000. BACKGROUND As the Agency is aware, the recent City Council approval of a Termination and Settlement Agreement with Tustin Legacy Community Partners LLC ("TLCP"), resulted in termination of a Disposition and Development Agreement with TLCP. With an August 5, 2010 close of escrow, TLCP re-conveyed back to the City approximately 335 acres at Tustin Legacy. The City is now posed to proceed in a timely manner over the next few months to refine and revise its disposition and business strategy for the master developer footprint (820 gross acres, of which approximately 420 acres will be available for development). The staff has identified the need to obtain additional consultant support for the development of the revised disposition and business plan strategy, in addition to the involvement of key core internal project teams from a number of the City's operating departments. Given the highly complex nature of the project and recent economic and real estate market conditions, the engagement of a number of outside consultant firms with specific expertise in a variety of development, design, and real estate related disciplines will assist the Agency in preparation of a viable business strategy. The anticipated need for outside consultant support will include, but may not be limited to, assistance with financial feasibility analysis, including development of financing strategies for the project and evaluation of fiscal impacts, advice on market conditions (including updates on various market demand studies previously completed for the project), advice on land use/planning and design issues, advice on engineering and design issues, and subsequent marketing of the property. Given their experience in land use, development, engineering issues and/or financial feasibility issues previously at Tustin Legacy and their thorough knowledge of the Master Plan, the City has requested that several firms support its efforts as a member of a "Core Team" to revise the Disposition and Business Strategy for the Tustin Legacy project. Attached are two proposed Consultant Services Agreements with two firms that have extensive experience in their disciplines and vast knowledge of the Tustin Legacy project. Procuring the services of both firms would benefit the Legacy project in time and cost savings and be most cost efficient given that they would not have to be educated regarding the project. While there are certainly many qualified experts and firms in the industry that could support the City's efforts, going through an open solicitation process City Council Agency Report September 7, 2010 CSA Agreements-Developers Research and SMS Architects Page 3 would result in the Agency largely having to pay to educate new firms regarding the complexities of the Tustin Legacy project. Additional consultant support from other firms may also be brought forward to the Agency in the future. The first Agreement is proposed to be with the firm of Developers Research, with Barry Gross to be the principal engaged in the project. Developers Research has been previously engaged by the Agency and City on the Tustin Legacy project on a number of assignments including, but not limited to, undertaking land valuation modeling, land value and cash flow analysis, hiring and managing sub-consultant work on residential market demand analysis, involvement in developer negotiations as a member of the Agency's internal negotiation team, auditing and validating Tustin Legacy Backbone Infrastructure and Local Infrastructure Work and costs, and recommending cost efficiencies to the City on the project. Mr. Gross will be helpful to the core team on such tasking items as examining engineering costs and solving engineering challenges related to the project; assisting the City in identifying early implementation opportunities, mid-term opportunities and longer term opportunities; conducting financial modeling and financial burden analysis; support in examining residential market conditions for future development of the project; ultimate pricing of disposition packages and parcels, and support and advice on the sizing of future property disposition packages. The second Agreement is proposed to be with the firm of SMS Architects, with Joseph Smart to be the principal engaged in the project. Joseph Smart has been involved in the project and was instrumental in his work with the Agency, City and TLCP in development of the master plan for the master developer footprint, including significant involvement in the development of concepts for the lineal park, and key iconic elements of the master plan including the Warner Avenue bridge, Tustin Ranch Road bridge and Armstrong Bridges. Mr. Smart will be helpful to the core team in any land use planning and design issues that will impact future disposition of the project, assistance in refining any parcelization approach (in conjunction with financial consultants), and understanding any proposed vertical development issues for the project that could also impact disposition. SMS's services will also include architectural expertise to support the Agency's site plan and design review of certain MCAS Tustin development projects. Additional marketing materials are attached on each firm for the City Council's information and review. Should you have any questions, staff will be available to respond. 1 Christine A. Shingleton Assistant City Manager Attachments I~~~~- DEVELOPERS RESEARCH Developers Research strives to provide Developers, Homebuilders and Private Institutional Investors with a comprehensive understanding of the value of their development projects. Our staff achieves this goal by providing both quantitative and qualitative analyses. We identify land improvement costs, entitlement issues and project risks that enable a client to better understand their project and make recommendations to reduce cost or maximize project profitability. DEVELOPERS RESEARCH OFFERS THE FOLLOWING PRODUCTS AND SERVICES: FINANCIAL SERVICES Project Cost Estimates Project Feasibility Analysis Vertical Cost Estimates Impact Fee Analysis Flash Budgets Grading Takeoffs (Including Remedial Grading) Community Facilities District Analysis Multiple Project Acquisition Analysis PROJECT RELATED SERVICES Land Use Optimization Analysis Due Diligence Services Gantt Charts Bid Package Preparation Management of Bond Exoneration Preparation of Constraints Maps "Back Office" Staffing/Support Tentative Tract Map Review INSPECTION SERVICES Control Fund Disbursement Site Inspections ISO 9001: 2000 Certified For Management Consulting Services For Land Development Developers Research • Tel: (949) 861-3300 J www.dev-res.com J dr@dev-res.com Page 1 PROJECT COST ESTIMATES Developers Research ("DR") offers Project Financial Analysis for Land Development Improvement Costs at three different levels: Cost Estimates Without an Existing Land Plan DR has accumulated a database from evaluating more than 8,000 projects containing more than five million lots. We can effectively estimate project costs without an existing land plan. A DR cost analysis is generally separated into three significant areas: • Intract Costs or Direct Improvement Costs: Direct Improvement Costs for individual home sites ("Intract Costs") are straight forward to estimate. They include improvement costs for wet and dry utilities in local streets that impact lots specifically within the project. • Backbone: Backbone Costs include improvements that are physically on site, but may serve more than one planning area or areas not designed with lots. By DR's definition, Backbone streets do not have lots fronting on them. • Bring-up Costs: Bring-up Costs, as defined by DR, include costs for improvements not physically located on the property. Such costs may include construction of offsite sanitary sewer treatment plants, offsite water reservoirs, electrical substations or freeway interchanges. Cost Estimates Based On Tentative Tract Maps or Specific Plans To determine these costs, DR analyzes tentative tract maps, preliminary project conditions, initial reports and other project related documents. Cost Estimates Based On Completed Engineering Drawings DR analyzes engineering drawings, project specific conditions, project related reports and other client provided documents to prepare the budget. PROJECT FEASIBILITY ANALYSIS DR can combine its cost information with revenue information provided by third parties to provide either project feasibility analyses or cash flow analyses. The cash flow analysis yields both a profit estimate and an Internal Rate of Return calculation. VERTICAL COST ESTIMATES Based on a builder's specifications, DR can prepare preliminary house construction costs. We prepare vertical budgets with Sage Timberline and On Center software using the Fredley Residential Data Base. DR personnel have extensive experience in vertical costing and are supported by RSMeans and multiple manufacturers and subcontractors. IMPACT FEE ANALYSIS We have a dedicated department to research Impact Fees and other public financing issues. Preparation of a fee estimate is often complex since each jurisdiction has different fee programs. Our Fee Department is in constant communication with local public agencies to better understand a project's Impact Fees. FLASH BUDGETS We have developed a proprietary database of costs for different product types in various geographic areas. By using appropriate regression analyses, we are able to reasonably predict a project's costs based on historical data. This allows the client to obtain a "ballpark" development cost for use in investment decisions. In preparing Flash Budgets, DR still uses its traditional standard of care in determining impact fees, but uses regression analysis to estimate Improvement Costs. This service is often available at a significant reduction from the cost of preparing a complete detailed analysis. Developers Research J Tel: (949) 861-3300 J www.dev-res.com J dr@dev-res.com Page 2 GRADING TAKEOFFS DR uses Agtek Earthwork 3D, Earthgraphics and Carlson Takeoff software to prepare grading takeoffs. DR can digitize existing contours and proposed grades if electronic plans are not available. If AutoCAD files are available, the plans can be directly imported into the grading software. These electronic takeoffs can also be sent to a grading contractor to facilitate the bidding process. For all grading takeoffs, we determine quantities for remedial grading such as overexcavation, alluvium or colluvium removals, heavy ripping and blasting. We provide graphical output allowing the clients to review the areas of cut and fill to better understand the project's grading issues. Through the use of these grading softwares, DR is able to recommend the most profitable way to grade a site. CFD ANALYSIS DR has worked with various clients and Community Facilities District consultants in scheduling costs that are eligible for inclusion in a CFD bond financing. This service includes reviewing Joint Community Facilities Agreements ("JCFA") and interpreting Rate and Method of Apportionment ("RMA") documents. MULTIPLE PROJECT ACQUISITION ANALYSIS DR has prepared complex analyses for the acquisition of multiple projects by a single buyer. These reviews have assisted clients in better negotiating transaction pricing. DR recently completed comprehensive budgets for 14 projects with 2,000 lots in less than three weeks. LAND USE OPTIMIZATION ANALYSIS Optimization modeling can determine the most effective product mix that will maximize the residual land value. In contrast to other "optimization methods" that primarily deal with revenues, DR has developed a method that coordinates revenues and costs for each product type. We can adjust the cost structure and allocation of backbone and Bring-ups to continually monitor the profitability of a land plan. DR uses linear regression, multiple regression and Genetic Algorithm tools to determine effective product mixes. In every assignment to date, DR was able to develop a product mix that increased the land residual by a minimum of 15% and in some cases increased the land residual value by 200%. DUE DILIGENCE SERVICES DR provides a qualitative approach to assist buyers during the land acquisition process. To fully understand the current condition of a proposed land purchase, it is critical to know: a) the subject property's stage of entitlement within the local agency; b) the existence of covenants, conditions or restrictions; c) the status of land improvements currently in progress or projected to start; and d) an overall opinion of the viability and complexity of the property. The due diligence review is presented in a systematic format allowing a client to better understand these issues and opportunities. GANTT CHARTS A Gantt Chart is a graphical representation of a project as it relates to time. DR prepares Gantt Charts to provide clients with an in-depth understanding of how long a particular project will take. Gantt Charts also allow clients to identify the status of a development project at any given time. "BACK OFFICE" STAFFING/$UPPORT DR provides full site development staffing for several clients. The use of DR's personnel on an "as needed" basis allows clients to reduce overhead while utilizing an experienced staff. Developers Research J Tel: (949) 861-3300 J www.dev-res.com J dr@dev-res.com Page 3 3D Cut /Fill Exhibit BID PACKAGES DR prepares comprehensive bid packages including engineering drawings, quantity takeoffs, technical specifications, special conditions and insurance requirements to ensure that all bids are consistent. The bid packages are appropriate for both conventional construction and CFD construction. By using DR for preparation of bid packages, a client can avoid overloading its internal staff and may reduce costs. MANAGEMENT OF BOND EXONERATION DR provides services to its clients to manage the exoneration of improvement and completion bonds. The process is prepared with the intention of minimizing client involvement. A bi-weekly status report is forwarded to clients, allowing them to monitor the bond exoneration process. INSPECTION SERVICES DR has a department that provides inspection services useful to financial institutions for disbursement of funds and by developers for monitoring the progress of offsite improvements. Currently, our team inspects and prepares monthly reports for more than 40 projects throughout California, Arizona and Texas. PREPARATION OF CONSTRAINTS MAPS DR assists its clients and their consultants in preparing Constraints Maps using specialized software. DR can plot legal, geotechnical, environmental, CEQA, general plan and zoning constraints on a single map. TENTATIVE TRACT MAP REVIEW We assist clients in reviewing Tentative Tract Maps for consistency with local laws and ordinances as well as ensuring the maps comply with local engineering standards. By providing a Quality Control review, DR is able to error check existing plans and assist its clients in minimizing government review time. CLIENTS /PROJECTS /STATES OF OPERATION Partial List of Clients ^ Angelo Gordon ^ Brookfield Homes ^ D.R. Horton ^ Fieldstone ^ Hearthstone ^ IHP Capital Partners ^ Lehman Brothers ^ Lennar Communities ^ Lyle Anderson ^ Matlin Patterson ^ MBK Homes, LTD ^ Pulte Homes ^ Stanwood ^ SunCal ^ The Shopoff Group ^ The Trump Group ^ Toll Brothers ^ William Lyon Homes Partial List of Projects ^ 4S Ranch ^ Keahou ^ Aquabella ^ Marblehead ^ Bressi Ranch ^ Monrovia Nursery ^ Chandler Ranch ^ New Model Colony ^ City of Tustin ^ Old Ranch ^ Columbia Grove ^ Platinum Triangle ^ Diamond Valley ^ Ritter Ranch Rec. Area ^ Riverside County ^ Eagle Valley ^ The Headlands ^ Heritage Fields ^ Whispering Hills States of Operation ^ Arizona ^ Oregon ^ California ^ Texas ^ Colorado ^ Utah ^ Delaware ^ Washington ^ Florida ^ Baja, MX ^ Georgia ^ Hawaii ^ Idaho ^ Louisiana ^ Nevada ^ New Jersey ^ New Mexico ^ New York Developers Research J Tel: (949) 861-3300 J www.dev-res.com J dr@dev-res.com Page 4 CONSULTANT SERVICES AGREEMENT This Agreement for Consultant Services (herein "Agreement"), is made and entered into by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic, ("Agency"), and Developer's Research ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, City has identified a Scope of Services, a copy of which is attached hereto as Exhibit "A", and is by this reference incorporated herein as though set forth in full hereto (the "Scope of Services"). WHEREAS, Consultant is qualified to provide the necessary services, and has been selected because of its extensive related experience and familiarization with the Tustin Legacy Project and has agreed to provide services to the Agency. NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, Agency agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows: SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant warrants that all services shall be performed in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. In the event of any inconsistency between the terms contained in Exhibit "A" and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and Tustin Community Redevelopment Agency and of any federal, state or local governmental agency of competent jurisdiction. 1.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Familiarity with Work. By executing this Contract, Consultant warrants that Consultant (a) has thoroughly investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the Agency, Consultant shall immediately inform Agency of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract Officer. 1.5 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work, and shall be responsible for all such damage until acceptance of the work by Agency, except such loss or damages as may be caused by Agency's own negligence. 1.6 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so in writing by the Contract Officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding $10,000 must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the Executive Director. 1.7 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibits "B", "C" and "D" and are incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B", "C" and "D" and any other provision or provisions of this Agreement, the provisions of Exhibit A shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amount as are prescribed in Exhibit C, in an amount not to exceed Seventy Five Thousand Dollars ($75,000). 2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to Agency in the form approved by Agency's Director of Finance, an invoice for services rendered prior to the date of the invoice. Agency shall pay Consultant for all expenses stated thereon which are approved by Agency consistent with this Agreement, no later than the last working day of said month. 2.3 Changes. In the event any change or changes in the work is requested by Agency, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: 2 A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Changes approved pursuant to an Addendum shall be compensated based on a time and materials amount and at the personnel hourly rates included as Attachment 1 of Exhibit "C", or a not to exceed amount as determined in writing by the parties. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto as Exhibit "D". The extension of any time period specified in or pursuant to Exhibit "D" must be approved in writing by the Contract Officer. 3.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until satisfactory completion of the services but not exceeding one (1) year from the date hereof, unless extended by mutual written agreement of the parties. 3 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Barry Gross, President Developer's Research 2151 Michelson Drive, Suite 190 Irvine, CA 92612 Phone: (949) 861-3300 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for Agency to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of Agency. 4.2 Contract Officer. The Contract Officer shall be the Assistant City Manager of City unless otherwise designated in writing by the Executive Director of Agency. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by Agency to the Contract Officer. Unless otherwise specified herein, any approval of Agency required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the Agency to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the Agency. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of Agency. 4.4 Independent Contractor. Neither the Agency nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of Agency and shall remain at all times as to Agency a wholly independent contractor with only such obligations as are consistent with 4 that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Agency. Consultant shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes. Employees or independent contractors of Consultant are not Agency employees. 5. INSURANCE /INDEMNIFICATION 5.1 Insurance. A. Consultant shall maintain in full force and effect during the term of these Agreement policies of commercial general liability and automobile liability insurance (each of which shall include property damage and bodily injury) and each with limits of at least $1,000,000 combined single limit coverage per occurrence. B. Consultant shall maintain in full force and effect during the term of this Agreement a policy of professional liability insurance coverage with limits of at least $1,000,000 combined single limit coverage per claim or per occurrence. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement or to cover claims made within five (5) years of the completion of Consultant's service under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least five (5) years after completion of Consultant's services under this Agreement. Consultant shall also provide evidence to the Agency of the purchase of the required tail insurance or continuation of the professional liability policy by executing the attached Letter Agreement on Consultant's letterhead. C. Consultant shall carry and pay for such workers' compensation insurance as is required fully protect Consultant and its employees under California Worker's Compensation Insurance Law. The insurance company shall agree to waive all rights of subrogation against the Agency for losses paid under the policy, which losses arose from the work performed by the named insured. D. Other applicable insurance requirements are: (1) Name the Agency, its officials and employees as an additional insured on the commercial, general and automobile policies. (2) The insurance shall be issued by a company authorized by the Insurance Department of the State of California and rated A, VII or better (if an admitted carrier) or A-, X (if offered, by a surplus line broker), by the latest edition of Best's Key Rating Guide, except that the Agency will accept workers' compensation insurance rated B-VIII or better or from the State Compensation Fund. (3) The Insurance shall not be cancelled, except after thirty 5 (30) days written prior notice to the Agency; and (4) The commercial general and automobile liability insurance shall each be primary as respects the Agency, and any other insurance maintained by the Agency shall be in excess of this insurance and not contribute to it. E. Upon execution of this Agreement, Consultant shall provide to Agency certificates of insurance and insurer endorsements evidencing the required insurance. Insurer endorsements (or a copy of the policy binder if applicable) shall be provided as evidence of meeting the requirements of Subsections (1 ), (3) and (4) of Section D above and the waiver of subrogation requirement in Section C above. If self-insured for worker's compensation, Consultant shall submit to Agency a copy of its certification of self-insurance issued by the Department of Industrial Relations. 5.2 Indemnification. The Consultant shall defend, indemnify and hold harmless the Agency, its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person or persons, for damage to property, including property owned by Agency, arising from errors and omissions of Consultant, its officers, employees and agents, and arising out of or related to Consultant's performance under this Agreement, except for such loss as may be caused by Agency's sole negligence or that of its officers or employees. The Consultant shall also defend, indemnify and hold the Agency harmless from any claims or liability for Agency health and welfare, retirement benefits, or any other benefits of part-time or fulltime City employment sought by Consultant's officers, employees, or independent contractors, whether legal action ,administrative proceeding or pursuant to State statue. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of Agency and shall be delivered to Agency upon request of the Contract Officer or upon the termination of 6 this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by Agency of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions conceming any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within ninety (90) days after service of the notice, or if the cure of the default is commenced within thirty (30) days after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the Agency may take immediate action under Section 7.6 of this Agreement. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of anon-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of Agency shall be deemed to waive or render unnecessary Agency's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same 7 or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Termination Prior to Expiration of Term. The Agency reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to Consultant, except that where termination is due to the fault of the Consultant and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. 7.7 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, Agency may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the Agency shall use reasonable efforts to mitigate damages, and Agency may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to Agency. 7.8 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. AGENCY AND CITY OFFICERS AND EMPLOYEES; NON- DISCRIMINATION 8.1 Non-Liability of City Officers and Employees. No officer or employee of Agency or City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the Agency or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the 8 performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: TUSTIN COMMUNITY REDEVELOPMENT AGENCY 300 Centennial Way Tustin, CA 92780 Attention: Assistant City Manager (Contract Officer) To Consultant: Barry Gross Developer's Research 2151 Michelson Drive Suite 190 Irvine, CA 92612 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. "Agency" Dated: APPROVED AS TO FORM: Doug Holland City Attorney Barry Gross Title: President S:\RDA\Consultants RDA\RDA Consultant Agreement, TEMPLATE, 8-07.doc TUSTIN COMMUNITY REDEVELOPMENT AGENCY By: William A. Huston Executive Director "Consultant" Developer's Research By: 10 EXHIBIT "A" "Scope Services" Task 1. Meetings and Consultation-Refinement of Tustin Legacy Business Plan and Disposition Strategy Consultant will make themselves available to meet on an as-needed basis with City staff and/or other City hired Consultants, as specifically requested by City, over a four to six month period to provide assistance to City in refinement of its strategies for the disposition of the Tustin Legacy "master developer" footprint and preparation and development of any revised business plan as the property has reverted to City ownership. It expected that this work effort would include meetings and consultation with City by Consultant's principal largely related to Consultant's level of expertise in land use, development and design including input on a variety of implementation approaches necessary to ensure orderly disposition and development of the Tustin Legacy site. It is anticipated that Consultants principal Barry Gross will be the staff member responsible for this effort: Task 2. Task Assignments To the extent that meeting follow-up require specific work tasks beyond attendance at the meetings and consultation, these services will be determined and compensation provided on a time and materials basis and/or not-to exceed basis based upon a signed task order for each task approved in writing by City and Consultant. Consultant agrees and acknowledges that the work effort and services of Consultant desired by the City may vary at different points in the assignment and under terms of the Agreement and will depend on tasks specifically assigned by the City and the issues that the City asks Consultant to address. It is anticipated that work products and deliverables shall be determined by City and are anticipated to include, but not be limited to: Consultant preparation of written staff reports or technical memorandum to the City, narrative and statistical analysis, modeling, including findings and conclusions and recommendations. 11 Additional support staff from Consultant for Task Assignments who may be utilized with written approval of the City and could include the following staff members: • Scot Oldham, Vice President • Ian Wales, Director • John Lucarelli, Project Specialist • Blake Kunisch, Project Manager Task 3. Refinements of Tustin Legacy Backbone Infrastructucture Costs 1. When requested by City in writing ,Consultant shall provide its professional review and opinions as to any updates to the Tustin Legacy Backbone Infrastructure Program and cost estimates at Tustin Legacy. 2. Services shall be performed on a direct client basis from Consultant to City: Consultant work products produced for the City shall not be provided by Consultant to any outside entities, public or private, without prior written authorization from City. 3. Anticipated work products and deliverables shall be determined by City and are anticipated to include but not be limited to: Consultant preparation of written staff reports or technical memorandum to the City, narrative analysis including findings and conclusions and recommendations. Specific assignments, including time frames for performing such assignments shall be identified on an assignment by assignment basis by task work order approved in writing by the City and Consultant. During specific assigned tasks, The City may also request Consultant's attendance at meetings the City holds with development interests at Tustin Legacy. Consultant may also be asked to provide briefings to City staff and other decision makers as directed by City and the Redevelopment Agency. Additional support staff from Consultant for Task Assignments who may be utilized with approval of the City include: • Scot Oldham, Vice President • Ian Wales, Director • John Lucarelli, Project Specialist • Blake Kunisch, Project Manager 12 EXHIBIT "B" "Special Requirements" 1. Consultant shall not release to the public or the press information on this project without prior authorization by Contract Officer. 2. Conflict of Interest and Confidentiality. In order to assure City that Consultant is not subject to any conflict of interest, Consultant affirms that while portions of Tasks 1 and 2 services continue to be required, neither Consultant nor any of its offices or employees will accept work from or provide services for any company related to the Tustin Legacy project. The intended term of the services under Task 1 and 2 is estimated to be a four to six month and said tasks are expected to end upon adoption or acceptance by the City Council of a revised disposition and business plan strategy or by the execution of termination clause of this contract section 7-6 by the City, or upon an extension of services, or modification of Agreement provisions in the future as it applies to future services, as may be modified by mutual agreement in writing by the City and Consultant. Consultant agrees that during the term of Agreement, unless other modified by mutual agreement in .writing by the parties, it shall not challenge, comment on, or oppose, nor shall it fund or in any way assist any other person or entity (other than the City of Tustin) to challenge or oppose, to or before any local, regional, state or federal agency or assist in party in any actions or proceedings to set aside, enjoin, challenge, appeal, or other pursue any legal, equitable or administrative remedies regarding the approval or implementation of any proposals, applications, approvals, or permits related to the Tustin Legacy project. In addition, Consultant agrees that during the term of Agreement for all other tasks identified in the Scope of Services, neither Consultant nor its officers or employees will accept work from or provide services to other development interests at Tustin Legacy without a written request to the City and written release granted by the City. Consultant understands and agrees that all work it undertakes for the City of Tustin shall be considered confidential and shall not be shared by Consultant with any other party without a written release from the City of Tustin. 13 In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract Officer whose decision to review and consider a conflict waiver shall be final. 3. A no-fee business license shall be provided by the City to Consultant. 4. Consultant shall present to the Agency certificates of insurance and endorsement forms pursuant to Agreement requirements verifying that the Consultant has the insurance as required by this agreement. 5. If Contract Officer determines that a product deliverable is unacceptable, either before or after a draft or final draft is issued, because it does not conform to the requirements of this agreement, the Consultant shall submit a revised report or product at Consultant's expense. 6. The Consultant shall review and replace project personnel assigned to project who do not perform assigned work in a manner satisfactory to Contract Officer. 7. Consultant's principal assigned to this Agreement shall be available to meet with Contract Officer as required at designated dates and times to coordinate scope of services required by the Agreement, to resolve problems, to discuss progress on scope of work at Contract Officer's direction and to discuss assumptions developed during task levels. 8. Field investigations necessary. The Consultant shall obtain necessary field data and make site investigations and studies necessary to the proper accomplishment of the work required under this contract. 14 EXHIBIT "C" "Schedule of Compensation" 1. City shall compensate the Consultant up to a total compensation not to exceed $75,000, unless modified in writing pursuant to Section 2.1 and 2.3 of the Agreement, based on the following: a. For Task 1 services ,compensation shall be based on actual time and materials in accordance with hourly rates as shown in Exhibit C-Attachment and other provisions contained in this Exhibit. b. For Task 2 and 3 services, compensation shall be based on tasks assigned in writing by City and agreed upon by Consultant and shall be based on either a not-to exceed agreed upon amount per task work order or based on time and materials as determined by the Contract Officer and agreed to in writing by Consultant, and sais compensation schedule for each task work order shall be incorporated into this Agreement upon execution of individual task orders as though fully set forth herein. 2. Direct Expense Reimbursement The Consultant shall be entitled to reimbursement for reasonable direct expenses such as and including reproduction, blueprinting, postage, telephone charges not to exceed $5,500, unless a higher amount is approved in writing by the City. Consultant travel to and from the City for meetings shall not be an authorized reimbursement. Such reimbursement requests shall not be considered part of the charges identified in Paragraph 1 above, and shall be subject to the following restrictions: a. Itemized payment statements shall set forth in detail all actual direct reimbursement expenses during the proceeding moth by Scope of Work Task and specific task work order. b. No overhead charges on top of direct expenses will be authorized. 3. Payments for Compensation and Direct Expense Reimbursements As a condition precedent to any payment to Consultant for Compensation and Direct Expense Reimbursements under the Agreement, the Consultant shall submit monthly invoices to the City which clearly sets forth the specific Scope of Work Tasks and task work orders being billed against, the actual hours spent on a tasks, the hourly billing rate if applicable, the personnel classification or individual performing the task, the fees being billed for all Consultant personnel 15 as well as direct reimbursement expenses for which compensation is submitted. Where applicable, Consultant time shall be calculated against the established standard hourly rate shown on Exhibit C-Attachment 1 which hourly rate shall not be altered unless approved in writing by the City pursuant to services under this Agreement. a. The City shall review the Consultant's monthly invoices and pay the Consultant for services rendered and costs incurred at their rates and in amounts and/or under terms provided herein or as agreed to in writing by specific work task orders approved by both parties. b. Task 2 and 3 services shall only be compensation to the extent that the Contract Officer has authorized in writing such tasks and their appropriate costs. c. Consultant acknowledges that the work effort of Consultant may vary at different points in time for Tasks 2 and 3 and depend on tasks specifically assigned by City and the complexity of the assignments under such work task orders. Therefore, when requested by the City Consultant agrees to work with the City to project monthly and quarterly budgets. 16 "Exhibit C-1" Attachment 1 "Consultant Hourly Rates" Standard Hourly Rates (in $'s) Principals (Barry Gross) 275 Vice President (Scott Oldham) 200 Directors and/or Project Specialists 175 Project Managers 150 Technicians 90 17 EXHIBIT "D" "Schedule of Performance" 1. For Task 1, City shall identify dates that Consultant shall be requested to attend meetings and provide specific consultation services. Consultant acknowledges and understands that the City wishes to proceed with a very aggressive schedule for Task 1 which is considered a priority and will make any request to be responsive in a "fast track" manner. 2. For Tasks 2 and 3, and the individual task work orders anticipated with the scope of services under these tasks, City shall assign a schedule of performance agreed to with Consultant in writing in issuing any task work orders for these assignments, and shall be incorporated into this Agreement upon execution of individual task orders as though fully set forth herein. 18 smart • michael • simonoff _`1 ARCHITECTS .~ -- ~ ~~ ~, _ i ~ ya SMS Architects is a leading full service Architectural and Planning Firm. We possess the skills necessary to deliver a well designed project within established budgets and time frames. Our strength is our wide range of expertise in a variety of project types with the ability to understand each component as a separate building type or integrated into a mixed use development. We understand the necessity to confront the economic issues facing our clients by providing architectural services that deliver the right mix of value and creativity. We listen to our clients and approach our work through a collaborative and interactive process. We are committed to being responsive and providing outstanding service while delivering the quality and expertise our clients have come to expect. PLANNING MIXED-USE RETAIL MULTI-FAMILY HOSPITALITY OFFICE CIVIC THEATRES -. ~.~Y ys „ ~._:~ . .y i~ ..__ ~_- ~~~, y , ~ ^® '~ ~r 0. ~~ ~.; _. r... __ .._.. ,1 _ ::~~ _ - .T. _ _ _ Selected Projects o n the Board s . , S~'~trf •s >~ ,• i Alhambra Place Alhambra, California A master plan for approximately 10 acres within the urban downtown core of the City of Alhambra.This plan allows forthe inclusion ofactive public space along Main Street while allowing for multi-level retail consisting of large box format stores and in line retail /restaurants. Parking is accommodated within a below grade and above grade structure. This project is currently in design. smart • michael ~ simonoff ARCHITECTS Selected Projects o n the Board s ~# . Fox Village Fullerton, California Fox village is a new mixed use development located adjacent to the historic Fox Theatre in downtown Fullerton. The five story structure will include ground level retail, a second level art house theater and restaurants with office space above. Live/Work lofts line a new multistory public parking structure. Garden paseos and public art installations will be highlighted features of this project. This project is currently in schematic design and entitlements. smart ~ michael • simonoff ARCHITECTS BUILDING B F .~ ~`l~~ Selected Projects o n the Board s ~:.. Tustin Courts Tustin, California _-~ Tustin courts is a mixed -use urban infill project located in historic downtown Tustin. f Designed to integrate into the historic urban fabric with a modern feel. '° The project includes Restaurants, Retail, Office and a new elevator/clock tower providing access to the existing parking structurefromTustinCourts. This project is currently in design. _ , '` w N _Z H W A 3 __ ~~ ~. "'" smart • michael • simonoff ARCHITECTS V EL CAMINO REAL Selected Projects o n the Board s ~~ .. I T i ~-11 AT FENCE _I N 1 I I ~ q ~ I SHADE ~ I I 3 I STRUCTURES ~ _. W C -I~. 12~ W ~ d' ~ I Ir~ y l ENTRY I G7 ~Y _~ I Z i Y ~ i _ iI ~ - - KENTUCKY STREET 4- JI Ut:IUttL i O 1 - - -°- - - - - - -t smart michael ~ simonoff ~` ARCHITECTS t i_ 7 ' 5 3 ~ V "7 H VVV W RETAIL C I,1 L 3,000 SF ~I H N 3 ___ -- RETAIL-_ ~ g W Y 1,300 SF 2STORY Q OFFICE m BUILDING 1 I RETAIL A 6,000 SF I 3,000 SF Selected Projects o n the Board s --- -----~ Parking _ Structure Retail Anchor .~- ' _~ --~1 r~ West Grand Avenue and Mandela Parkway ~ , °I Oakland, California ~1 I~ A vertically stacked mixed-use project combining large format . - _~ ~ r! retail with housing, shops, casual dining and pedestrian plazas. i L~1, This project will become a key component to the revitalization of ~ ', j this area of Oakland and provides convenient services to traffic ~. ~ i coming off of the Bay Bridge. At its full build-out the project will include up to 480,000 square i feet of retail and up to 160 residential units. This project is currently in design. ,_,_ _~ --------------~ I -_ , ~ ~_ ~ '~ ~ ' r ; ;, - ~s ~ _ '- _ - ~~ _ 4 r ,~ ~ .z i ~ ~ I ~ I , ~~ . . ~ !~ (/; r/ f 1 RE ~~~. /~ J c _ LYIa~ Y i 1 `~ / -~ % ~_ O ~// ~ ~ r / / 13 tF1pb ~~' iLa W f l I ! I ~. ~ _ __ __ i _. `~ c~MM.-pyQ- n~~ F ! ~ - ~ v- AKK2D_ _ -y -_.- / ~~_ ~~ ~y AR _-- ' ~ ~ ~/ / s / caw' i ~~ ~~ i ` // i i _ f ____ o __ _ --_ ~ ~. (~ r ~ ,Second Level Retail Anchor 7, ~- Retail .\.L~..Vy~~r.i Parking Structure . c~'v`~ix'~l ~ 'I I! -~~--- smart ~ michael simonoff ARCHITECTS Selected Projects o n the Board s smart michael ~ simonoff ARCHITECTS Selected Projects o n the Board s a i~` Desert Willow Golf Resort Building Expansion and Renovation Palm Desert, California -= ~ ~Aj ,',~~=~ Clubhouse Terrace Kitchen expansion, Bar renovation - and Canopy addition. A sweeping staircase leads from the golf course to two new terraces, a fire pit, outdoor bar, fireplace and lounge. The project is currently in construction documents. ,_ .v ... _ w, . _. -_.,a --q ,,,,6 w ~.. ~ ,_ Q I I 1 i {. R_ .~~~ O ~ O ~ 1'~ 0 I I I .. r ~" ~ ~--~ r ~ 1 ._ ~ ,rd ~ . ~ yT a r1 e ', i G. ~ t _ ~ 6tM3r~J fR~rg GiChY` - 16M 1~ ~'Mw l1t°.r: . ., X4 ~ i... ..a - O*Kkis A45. - ~ Ib ~' t ~le~oce 6marwx~-141'm5f 4khenE-23175f ~Ne..lob0y.4ao~dODSL ra , hlemrk3c~rn adPCtn DBSeel ROOfn Staope ad Oelice E>moegn~1.1975F roew llotlscxie~I.EOD SF 67)vIDm olld~e~e~, Idloce~314 $F -~~ smart • michael simonoff ~ ARCHITECTS ,; Selected Projects o n the Board s Newport Dunes Resort Family Newport Beach, California >; F, yY bet ~d ~. ~ Y Newport Dunes is a 275 key beachfront resort located at the entrance to the Back Bay nature preserve. Guests can enjoy the lushly landscaped grounds and resort style pools or beachfront swimming, sailing or kayaking. This project is in the design and entitlement phase. ~~~,:~~ smart michael ~ simonoff ARCHITECTS '' T Work Competed While at Other Firms Prince Area wR, WALDORF ASTORUI VILLAS: (our to qle prim cour[yard lames ckncered wound pod deck and prdcra arrarted to r»imriae lake and mountain vows HGVC TIMESHARES: cried - irraneecl t0 n'{ialmlae mOUiWNiS.;oN - courra~ Pod dock tajoon and hkeside views .: .~~ GnM Resort Entry ~'. ~~ ~ Errc+uswe Raxorr Pav,tnn a~i;_ Jt r ~. CLUlHOUSE wah eapanwe lake v:aws ~~, Champrondrip Gal Ca[rcse __ , TIMESHARE CASITAS: um „nm clusters d tvo scary prenuum r~r,,,.. r . ~ _ , .. n lakeside setrvq Landreac•M Pnc G. r eF spa Iil~inped Resort Rod wnh Cascadkt Water66 Lagoon i Boat Dock Neva pedeetriaNjol( ort ~ ~• Hilton Lake Las Vegas Lake LasVe9as, Nevada The Hilton Corporation Credit: Joseph Smart, Principal and Email Michael, Director of Hospitality, MBH Architects The Bay Club Waikoloa, Hawaii The Hilton Corporation and Waikoloa Land Company Credit: Joseph Smart, Principal and Email Michael, Director of Hospitality, MBH Architects Work Competed While at Other Firms Owens-IllinoisWorld Headquarters Campus Opened Sept. 2006 r _ ' i~ r .,. •~ -4_ `drr.~ 11p;~rT r~ ~• Future Commercial or Residential & Hosoita! .- ~l Commercial Cam us Midwest Owens BrownstoneVilla Office/Lightlndustry Urban Parkway TownhomesandV Opened Sept. 2006 Multiple Phases Opened July 2006 -~.:.., -PhaSeTwo h•,•;~~ -Additional Retail, ~ ` 200 Room Hotel & !p, ~%t.,~~ ''~ Conference Center -Apartments and ~; lofts over Retail Oct~2004 -330,000 SF -Theaters -Restaurants -Retail ' ' :~~ ~ -Mixed Use wq ' -Commercial • ~T • i' -Retail -Residential ..... -Lofts Preston Gardens -Services 330 Unit Luxury Apartment Community Opened Dec. 2005 Levis Commons Perrysburg, Ohio Dillin Development Credit:loseph Smart, Principal and Gregory Simonoff,Director ofRetail/ Mixed Use, MBH Architects :~;; ~ -. r ---~~" .~ 6e '~. - _ :. i ~• 1 tl Work Competed While a t Other Firm s ~~ >: _ :~~>~~ ~a - Gateway at Emeryville Emeryville, California BREProperties Credit: Joseph Smart, Principal, MBH Architects 1~..{..~~ ~ 1-j Harbor Lofts San Francisco, California Emerald Fund Credit: Joseph Smart, Principal, MBH Architects Catherine Street Mixed Use Stanton, California UCDCalifornia, LLC Credit: Joseph Smart, Principal, MBH Architects .as.~~ r a.. ;~,; ~, ~'n ' . .~_.. ,y ~' ~. ~M+' "~._" Solano Beach Train Station Solano Beach, California Shea Properties Sedona Pacific Credit: Joseph Smart, Principal, MBH Architects Work Competed While at Other Firms Bridge Street Town Center Mckinney, Texas 0&S Holdings Credit: Gregory Simonoff,Director ofRetail/Mixed-Use, MBH Architects .~ r y ~ ..,~~{' ~t r M ~+ ~ 7k~_~ j/,Tf Ic -~. c='-~, ~• ~ ;,•~ -~-, - ~ -' Santa Fe Trail Plaza ~.` '-rr'~.~ - .,~ ~ ~.~~ -~~ 1`~, . EI Monte, California _ ~ ~ ~> ~~ Festival Companies 4 ~ ;~- ,, "~ Credit: Gregory Simonoff,Director ofRetail/Mixed-Use, _ ,~ _ , '~:~ ,~ ~" MBH Architects `,;; ~',r~~.4 '~~~ ~-~ Colma Station " ~ ~` ~~~~ -~~ ~ ~ ~ ~ `_- ~ Daly City, California ~~~~' ~ ~~~' _ 1-: %lopkins Real Estate Group ~`• ~ , f ~V ~`` `~_' " `.. ~ Credit: Gregory Simonoff, Director of Retail/Mixed-Use, -~,. t ,~ ~- ~ w ~ MBH Architects ~.. ~Y ~' •~ `'~•,r ~ ~ -n ni , r '~ ~ +~ d _~~t~.1 ~ ~ ~isr.. .>e Y~ ~~ fit. ~~ _ . __ ._ - r , - ~~-i _. } ~ , ~~ ~. Long Beach Landing -_~"'~ y .` f; I Queen Mary ~ y~"`=:` "- •~ ,~ vim. .e c, ~. +~ ~4. Long Beach, California ~ ~ .~;- 0&SHoldings ~ ~ ~ ~-_- ~~ ..,, Credit: Gregory Simonoff, Director of Retail/Mixed-Use, MBH Architects _. , ~' ~.- Y1 t '" Work Competed While at Other Firms r- ~. ;i,a . ~ ; i :~_ ~~ _ - . -. . -. ,~ - . , ~ m-~¢~ ,~-~ cam;, ° .. ~, ,,, ~ ~~ ~ ,~~ ~ W d m ~ Desert Star ~~ ~'~~~;r. ~ 3m ~~ y' ~ ~ ~`~ ~, F~~,~' ~~'~ -~ North LasVegas,Nevada ~. ~ ak ~'~~' ~°°° ° ° "~ ' ° ~~ Credit: Greg Simonoff, Director of Retail/ ~q~a ~t;~ Y: ~'~ ~ ®, , , _ ~ y ~ ~~; Mixed Use, MBH Architects J. Crew Store Los Angeles, California The Grove Credit:loseph Smart, Principal, MBH Architects EI Centro De Huntington park Huntington Park, California The Festival Companies Credit: Gregory Simonoff,Director ofRetail/Mined Use, MBH Architects _~ m ~-- pj L -O `~ X ~ - C O ~ ~ ~ _~ T L ro O _V + ~ Ol ~_ ~ = O ~ m O d Q/ C d._ '~ V ~ d C ~` O O C C A Vl Vl ~ ~. T Q O O ~ 07 Oi `l `J O lJ ~ N V Retail Tenants • 24-Hour Fitness • Adidas • Albertsons Grocery • Ann Taylor • Any Mountain • Axis Personal Trainer • Barbeques Galore • Bed Bath and Beyond • Best Buy • Bristol Farms • Burke Williams Spas • Burlington Coat Factory • CinemaStar Theaters • Comp USA • Crary Shirts • Del Taco • Denney's Work Competed While at Other Firms • Downey Savings • Eddie Bauer • Endangered Species • Famous Footwear • Farmer Boys • Galaxy Theaters • Gap • General Cinemas • Golds Gym • Golf Galaxy • Goodyear Tire Stores • Gym Masters • IHOP • In and Out • J. Crew • Kmart and SuperKmart • Laemmle's Theater • Louis Vuitton Solstice • Louis Vuitton Synchrony • Lucky's Grocery • Macy's • McDonald's • Mervyn's • Mikimoto • Monaco Theatres • Office Depot • Old Navy • Party City • Rally's • Rite Aid • Ross • Safeway • Savon Drugs • Schulman Theatres • Sephora • Splats Urban Assault • Sport Chalet • Staples • Starbucks • Steinmart • Steve and Barry's • Target • Toys R Us • Trader Joes • Tully's Coffee • UltraStar Theaters • Walgreen's • Xtreme Cinemas • Yum, Inc. • Zany Brainy • ZCity TV Hoff CONSULTANT SERVICES AGREEMENT This Agreement for Consultant Services (herein "Agreement"), is made and entered into by and between the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic, ("Agency"), and SMS Architects ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide such services; and WHEREAS, City has identified a Scope of Services, a copy of which is attached hereto as Exhibit "A", and is by this reference incorporated herein as though set forth in full hereto (the "Scope of Services"). WHEREAS, Consultant is qualified to provide the necessary services, and has been selected because of its extensive related experience and familiarization with the Tustin Legacy Project and has agreed to provide services to the Agency. NOW, THEREFORE, in consideration of the premises and mutual agreements contained herein, Agency agrees to employ and does hereby employ Consultant and Consultant agrees to provide consulting services as follows: SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services specified in the "Proposal and Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference, (the "services" or the "work"). Consultant represents that all services shall be performed in a competent, professional and satisfactory manner in accordance with all standards prevalent in the industry. In the event of any inconsistency between the terms contained in Exhibit "A" and the terms set forth in the main body of this Agreement, the terms set forth in the main body of this Agreement shall govern. 1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all laws, ordinances, resolutions, statutes, rules, and regulations of the City of Tustin and Tustin Community Redevelopment Agency and of any federal, state or local governmental agency of competent jurisdiction applicable to Consultant and its Scope of Services. 1.3 Licenses and Permits. Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. 1.4 Familiarity with Work. By executing this Contract, Consultant represents that Consultant (a) has thoroughly investigated and considered the work to be performed, (b) has investigated the site of the work and become fully acquainted with the conditions there existing, (c) has carefully considered how the work should be performed, and (d) fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should the Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by the Agency, Consultant shall immediately inform Agency of such fact and shall not proceed with any work except at Consultant's risk until written instructions are received from the Contract Officer. 1.5 Care of Work. Consultant shall adopt and follow reasonable procedures and methods during the term of the Agreement to prevent loss or damage to materials, papers or other components of the work by Consultant and/or any of its subconsultants, and shall be responsible for all such damage caused by Consultant and/or any of its subconsultants, until acceptance of the work by Agency, and except such loss or damages as may be caused by Agency's own negligence. 1.6 Additional Services. Consultant shall perform services in addition to those specified in the Proposal when directed to do so in writing by the Contract Officer, provided that Consultant shall not be required to perform any additional services without compensation. Any additional compensation not exceeding $10,000 must be approved in writing by the Contract Officer. Any greater increase must be approved in writing by the Executive Director. 1.7 Special Requirements. Any additional terms and conditions of this Agreement, are set forth in Exhibits "B", "C" and "D" and are incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B", "C" and "D" and any other provision or provisions of this Agreement, the provisions of Exhibit A shall govern. 2. COMPENSATION 2.1 Compensation of Consultant. For the services rendered pursuant to this Agreement, the Consultant shall be compensated and reimbursed only such amount as are prescribed in Exhibit C, in an amount not to exceed Seventy Five Thousand Dollars ($75,000). 2.2 Method of Payment. In any month in which Consultant wishes to receive payment, Consultant shall no later than the first working day of such month, submit to Agency in the form approved by Agency's Director of Finance, an invoice for services rendered prior to the date of the invoice. Agency shall pay Consultant for all expenses stated thereon which are approved by Agency consistent with this Agreement, no later than the last working day of said month. 2 2.3 Changes. In the event any change or changes in the Scope of Services is requested by Agency, the parties hereto shall execute an addendum to this Agreement, setting forth with particularity all terms of such addendum, including, but not limited to, any additional Consultant's fees. Addenda may be entered into: A. To provide for revisions or modifications to documents or other work product or work when documents or other work product or work is required by the enactment or revision of law subsequent to the preparation of any documents, other work product or work; B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 2.4 Payment for Changes. Changes approved pursuant to an Addendum shall be compensated based on a time and materials amount and at the personnel hourly rates included as Attachment 1 of Exhibit "C", or a not to exceed amount as determined in writing by the parties. 3. PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The Consultant will perform its services with reasonable diligence and expediency consistent with sound professional practices. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed within any time periods prescribed in any Schedule of Performance attached hereto as Exhibit "D". The extension of any time period specified in or pursuant to Exhibit "D" must be approved in writing by the Contract Officer. 3.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not restricted to, acts of God or of a public enemy, acts of the government, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, and unusually severe weather if the Consultant shall within ten (10) days of the commencement of such condition notify the Contract Officer who shall thereupon ascertain the facts and the extent of any necessary delay, and extend the time for performing the services for the period of the enforced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3 3.4 Term. Unless earlier terminated in accordance with Section 7.7 of this Agreement, this Agreement shall continue in full force and effect until satisfactory completion of the services but not exceeding one (1) year from the date hereof, unless extended by mutual written agreement of the parties. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of the Consultant is hereby designated as being the principal and representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: Name: Joseph Smart, Principal SMS Architects Address: 18662 MacArthur Boulevard Suite 101 Irvine, CA 92612 Phone: (949) 757-3240 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for Agency to enter into this Agreement. Therefore, the foregoing Principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of Agency. 4.2 Contract Officer. The Contract Officer shall be the Assistant City Manager of City unless otherwise designated in writing by the Executive Director of Agency. It shall be the Consultant's responsibility to keep the Contract Officer fully informed of the progress of the performance of the services and Consultant shall refer any decisions which must be made by Agency to the Contract Officer. Unless otherwise specified herein, any approval of Agency required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Consultant, its principals and employees were a substantial inducement for the Agency to enter into this Agreement. Therefore, Consultant shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of the Agency. In addition, neither this Agreement nor any interest 4 herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of Agency. 4.4 Independent Contractor. Neither the Agency nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees perform the services required herein, except as otherwise set forth herein. Consultant shall perform all services required herein as an independent contractor of Agency and shall remain at all times as to Agency a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Agency. Consultant shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes. Employees or independent contractors of Consultant are not Agency employees. 5. INSURANCE /INDEMNIFICATION 5.1 Insurance. A. Consultant shall maintain in full force and effect during the term of these Agreement policies of commercial general liability and automobile liability insurance (each of which shall include property damage and bodily injury) and each with limits of at least $1,000,000 combined single limit coverage per occurrence. B. Consultant shall maintain in full force and effect during the term of this Agreement a policy of professional liability insurance coverage with limits of at least $1,000,000 combined single limit coverage per claim or per occurrence. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement or to cover claims made within five (5) years of the completion of Consultant's service under this Agreement, or (2) to maintain professional liability insurance coverage in the amount required by this Agreement for at least five (5) years after completion of Consultant's services under this Agreement. Consultant shall also provide evidence to the Agency of the purchase of the required tail insurance or continuation professional liability coverage by executing the attached Letter Agreement on Consultant's letterhead. C. Consultant shall carry and pay for such workers' compensation insurance as is required fully protect Consultant and its employees under California Worker's Compensation Insurance Law. The insurance company shall agree to waive all rights of subrogation against the Agency for losses paid under the policy, which losses arose from the work performed by the named insured. 5 D. Other applicable insurance requirements are: (1) Name the Agency, its officials and employees as an additional insured on the commercial, general and automobile policies. (2) The insurance shall be issued by a company authorized by the Insurance Department of the State of California and rated A, VII or better (if an admitted carrier) or A-, X (if offered, by a surplus line broker), by the latest edition of Best's Key Rating Guide, except that the Agency will accept workers' compensation insurance rated B-VIII or better or from the State Compensation Fund. (3) The Insurance shall not be cancelled, except after thirty (30) days written prior notice to the Agency; and (4) The commercial general and automobile liability insurance shall each be primary as respects the Agency, and any other insurance maintained by the Agency shall be in excess of this insurance and not contribute to it. E. Upon execution of this Agreement, Consultant shall provide to Agency certificates of insurance and insurer endorsements evidencing the required insurance. Insurer endorsements (or a copy of the policy binder if applicable) shall be provided as evidence of meeting the requirements of Subsections (1), (3) and (4) of Section D above and the waiver of subrogation requirement in Section C above. If self-insured for worker's compensation, Consultant shall submit to Agency a copy of its certification of self-insurance issued by the Department of Industrial Relations. 5.2 Indemnification. A. All officers, agents, employees, sub-Contractors, their agents, officers and employees who are hired by or engaged by Contractor in the performance of this Agreement shall be deemed officers, agents and employees and sub-Contractors of Contractor, and City shall not be liable or responsible to them for anything whatsoever. B. Contractor agrees to save, keep, hold harmless and defend City and all of its elected and appointed boards, commissions, officers employees and agents from all claims, damages, costs or expenses in law and in equity, including costs of suit and expenses for legal services, that may at any time arise or be claimed because of damage to property or injury to persons, including City, allegedly received or suffered and to be found to have been caused by any wrongful or negligent act or omission on the part of Contractor or any of its agents, officers and employees and sub-Contractors in the performance of this Agreement. C. Contractor shall not be deemed to assume any liability for wrongful or negligent acts of City or its officers, agents, employees and sub- contractors, and City shall defend and hold Contractor harmless against any such claims. 6 D. The Consultant shall also defend, indemnify and hold the Agency harmless from any claims or liability for Agency health and welfare, retirement benefits, or any other benefits of part-time or fulltime City employment sought by Consultant's officers, employees, or independent contractors, whether legal action ,administrative proceeding or pursuant to State statue. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of Agency and shall be delivered to Agency upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by Agency of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within ninety (90) days after service of the notice, or if the cure of the default is commenced within thirty (30) days after service of said notice and is cured within a reasonable time after commencement; provided that if the default is an immediate danger to the health, safety and general welfare, the Agency may take immediate action under Section 7.6 of this Agreement. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured. 7.3 Waiver. No delay or omission in the exercise of any right or remedy of anon-defaulting party on any default shall impair such right or remedy or be construed as a waiver. No consent or approval of Agency shall be deemed to waive or render unnecessary Agency's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 7.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, a declaratory judgment or any other remedy consistent with the purposes of this Agreement. 7.6 Termination Prior to Expiration of Term. The Agency and Consultant reserve the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice to the other party, except that where termination is due to the default of the Consultant and constitutes an immediate danger to health, safety and general welfare, the period of notice shall be such shorter time as may be appropriate. Upon receipt of the notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter. 8 7.7 Termination for Default of Consultant. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, Agency may take over the work and prosecute the same to completion by contract or otherwise, and the Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the Agency shall use reasonable efforts to mitigate damages, and Agency may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to Agency. 7.8 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. AGENCY AND CITY OFFICERS AND EMPLOYEES; NON- DISCRIMINATION 8.1 Non-Liability of City Officers and Employees. No officer or employee of Agency or City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the Agency or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination or segregation in the performance of or in connection with this Agreement regarding any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry. Consultant shall take affirmative action to insure that applicants and employees are treated without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 9. MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent by pre-paid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: TUSTIN COMMUNITY REDEVELOPMENT AGENCY 300 Centennial Way 9 Tustin, CA 92780 Attention: Assistant City Manager (Contract Officer) To Consultant: Joseph Smart SMS Architects 18662 MacArthur Blvd. Suite 101 Irvine. CA 92612 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 9.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. <Signatures Follow> 10 "Agency" Dated: APPROVED AS TO FORM: Doug Holland City Attorney TUSTIN COMMUNITY REDEVELOPMENT AGENCY By: William A. Huston Executive Director "Consultant" SMS Architects, Inc. By: Name Title: By: Name Title: S:\RDA\Consultants RDA\RDA Consultant Agreement, TEMPLATE, 8-07.doc 11 EXHIBIT "A" "Scope Services" Task 1. Meetings and Consultation Consultant will make themselves available to meet on an as-needed basis with Agency and City staff and/or other Agency hired Consultants, as specifically requested by Agency, over a four to six month period to provide assistance to Agency in refinement of its strategies for the disposition of the Tustin Legacy "master developer" footprint and any revised business plan development. It expected that this work effort would include meetings and consultation with Agency by Consultant's principal largely related to Consultant's level of expertise in land use, development and design including input on a variety of implementation approaches necessary to ensure orderly disposition and development of the Tustin Legacy site. It is anticipated that Consultants principal Joseph Smart will be the staff member responsible for this effort: Task 2. Task Assignments To the extent that meeting follow-up require specific work tasks beyond attendance at the meetings and consultation, these services will be determined and compensation provided on a time and materials basis and/or not-to exceed basis based upon a signed task order for each task approved in writing by Agency and Consultant. Consultant agrees and acknowledges that the work effort and services of Consultant desired by the Agency may vary at different points in the assignment and under terms of the Agreement and will depend on tasks specifically assigned by the Agency and the issues that the Agency asks Consultant to address. Additional support staff from Consultant for Task Assignments who may be utilized with approval of the City include: Greg Simonoff James Paresi Leslie McClellan Brandon Dedmon Principal Senior Planner/ Designer I Intermediate Designer II Job Captain I Task 3. Tustin Legacy Design Review Planning Services 12 1. When requested by City, Consultant shall provide its professional opinion as to the visual and aesthetic potential of specific design proposals at Tustin Legacy. Such services will include Consultant's review and comment on concept plans, design concepts, and/or site plans, and/or proposed development proposals or revised design guidelines recommended by various private developers and public agencies at Tustin Legacy. 2. Services shall be performed on a direct client basis: Consultant work products shall not be provided to outside entities, public or private, without prior written authorization from City. 3. Anticipated work products and deliverables shall be determined by City and are anticipated to include but not be limited to: Consultant preparation of written staff reports or technical memorandum to the City, alternative sketch plans, narrative analysis including findings and conclusions and recommendations. Specific assignments, including time frames for performing such assignments shall be identified on an assignment by assignment basis by task work order approved in writing by the City and Consultant. During specific assigned tasks, The City may also request Consultant's attendance at meetings the City holds with development interests at Tustin Legacy. Consultant may also be asked to provide briefings to City staff, the Planning Commission, City Council and community decision makers as directed by City and the Redevelopment Agency. Additional support staff from Consultant for Task Assignments who may be utilized with approval of the Agency include: Greg Simonoff James Paresi Leslie McClellan Brandon Dedmon Principal Senior Planner/ Designer I Intermediate Designer II Job Captain I 13 EXHIBIT "B" "Special Requirements" 1. Consultant shall not release to the public or the press information on this project without prior authorization by Contract Officer. 2. Conflict of Interest and Confidentiality. In order to assure Agency and City that Consultant is not subject to any conflict of interest, Consultant affirms that while portions of Tasks 1 and 2 services continue to be required, neither Consultant nor any of its offices or employees will accept work from or provide services for any company related to the Tustin Legacy project. The intended term of the services under Task 1 and 2 is estimated to be a four to six month and said tasks are expected to end upon adoption or acceptance by the City Council of a revised disposition and business plan strategy or by the execution of termination clause of this contract section 7-6 by the City, or upon an extension of services, or modification of Agreement provisions in the future as it applies to future services, as may be modified by mutual agreement in writing by the Agency and Consultant. Consultant agrees that during the term of Agreement, unless other modified by mutual agreement in writing by the parties, it shall not challenge, comment on, or oppose, nor shall it fund or in any way assist any other person or entity (other than the Tustin Community Redevelopment Agency or City of Tustin) to challenge or oppose, to or before any local, regional, state or federal agency or assist in party in any actions or proceedings to set aside, enjoin, challenge, appeal, or other pursue any legal, equitable or administrative remedies regarding the approval or implementation of any proposals, applications, approvals, or permits related to the Tustin Legacy project. In addition, Consultant agrees that during the term of Agreement for all other tasks identified in the Scope of Services, neither Consultant nor its officers or employees will accept work from or provide services to other development interests at Tustin Legacy without a written request to the Agency City and written release granted by the Agency. Consultant understands and agrees that all work it undertakes for the Agency shall be considered confidential and shall not be shared by Consultant with any other party without a written release from the Agency . In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract Officer whose decision to review and consider a conflict waiver shall be final. 14 3. A no-fee business license shall be provided by the City to Consultant. 4. Consultant shall present to the Agency certificates of insurance and endorsement forms pursuant to Agreement requirements verifying that the Consultant has the insurance as required by this agreement. 5. If Contract Officer determines that a product deliverable is unacceptable, either before or after a draft or final draft is issued, because it does not conform to the requirements of this agreement, the Consultant shall submit a revised report or product at Consultant's expense. 6. The Consultant shall review and replace project personnel assigned to project who do not perform assigned work in a manner satisfactory to Contract Officer. 7. Consultant's principal assigned to this Agreement shall be available to meet with Contract Officer as required at designated dates and times to coordinate scope of services required by the Agreement, to resolve problems, to discuss progress on scope of work at Contract Officer's direction and to discuss assumptions developed during task levels. 8. Field observations necessary. The Consultant shall obtain necessary field data and make site observations and studies necessary to the proper accomplishment of the work required under this contract. 15 EXHIBIT "C" "Schedule of Compensation" 1. Agency shall compensate the Consultant total compensation not to exceed $75,000, unless modified in writing pursuant to Section 2.1 and 2.3 of the Agreement, based on the following: a. For Task 1 services ,compensation shall be based on actual time and materials in accordance with hourly rates as shown in Exhibit C- Attachment and other provisions contained in this Exhibit. b. For Task 2 and 3 services, compensation shall be based on tasks assigned in writing by City and agreed upon by Consultant and shall be based on either snot-to exceed agreed upon amount per task work order or based on time and materials as determined by the Contract Officer and agreed to in writing by Consultant, and sais compensation schedule for each task work order shall be incorporated into this Agreement upon execution of individual task orders as though fully set forth herein. 2. Direct Expense Reimbursement The Consultant shall be entitled to reimbursement for reasonable direct expenses such as and including printing, postage, telephone charges. Consultant travel to and from the Agency for meetings shall not be a authorized reimbursement. Such reimbursement requests shall not be considered part of the charges identified in Paragraph 1 above, and shall be subject to the following restrictions: 1. Itemized payment statements shall set forth in detail all actual direct reimbursement expenses during the proceeding month by Scope of Services Work Task and specific task work order. 2. No overhead charges on top of direct expenses will be authorized. 3. Payments for Compensation and Direct Expense Reimbursements As a condition precedent to any payment to Consultant for Compensation and Direct Expense Reimbursements under the Agreement, the Consultant shall submit monthly invoices to the City which clearly sets forth the specific Scope of Work Tasks and task work orders being billed against, the actual hours spent on a tasks, the hourly billing rate if applicable, the personnel classification or individual performing the task, the fees being billed for all Consultant personnel as well as direct reimbursement expenses for which compensation is submitted. 16 Where applicable, Consultant time shall be calculated against the established standard hourly rate shown on Exhibit C-Attachment 1 which hourly rate shall not be altered unless approved in writing by the Agency pursuant to services under this Agreement. a. The Agency shall review the Consultant's monthly invoices and pay the Consultant for services rendered and costs incurred at their rates and in amounts and/or under terms provided herein or as agreed to in writing by specific work task orders approved by both parties. b. Task 2 and 3 services shall only be compensation to the extent that the Contract Officer has authorize in writing such tasks and their appropriate costs. c. Consultant acknowledges that the work effort of Consultant may vary at different points in time for Tasks 2 and 3, depend on tasks specifically assigned by Agency and the complexity of the assignments under such work task orders. Therefore, when requested by the Agency, Consultant agrees to work with the Agency to project monthly and quarterly budgets. 17 EXHIBIT "C" ATTACHMENT 1 "SMS Architects Hourly Rate Schedule" Title Hourly Rate Principal $175.00 Senior Planner/ Designer I $150.00 Intermediate Designer II $95.00 Designer III $75.00 Project Manager I $125.00 Job Captain I $95.00 CAD Drafter I $75.00 CAD Drafter II $60.00 Administrative Assistant $55.00 18 EXHIBIT "D" "Schedule of Performance" 1. For Task 1, Agency shall identify dates that Consultant shall be requested to attend meetings and provide specific consultation services. Consultant acknowledges and understands that the Agency wishes to proceed with a very aggressive schedule for Task 1 which is considered a priority and will make any request to be responsive in a "fast track" manner. 2. For Tasks 2 and 3, and the individual task work orders anticipated with the scope of services under these tasks, Agency shall assign a schedule of performance agreed to with Consultant in writing in issuing any task work orders for these assignments, and shall be incorporated into this Agreement upon execution of individual task orders as though fully set forth herein. 19