HomeMy WebLinkAbout08 CSA VANDERMOST~~ ~ ~~., Agenda Item 8
---- ~. AGENDA REPORT Re~.ewed~
~~-~ City Manager
"~ ~ Finance Director
MEETING DATE: NOVEMBER 2, 2010
TO: DAVID C. BIGGS, EXECUTIVE DIRECTOR
FROM: REDEVELOPMENT STAFF
SUBJECT: CONSULTANT SERVICES AGREEMENT WITH VANDERMOST
CONSULTING SERVICES, INC. FOR PROFESSIONAL CONSULTING
SERVICES FOR THE TUSTIN LEGACY PROJECT
SUMMARY
Approval is requested for a Consultant Services Agreement (CSA) to provide professional
services intended to assist the Agency in ensuring compliance with existing and future
regulatory permit requirements affecting the Master Development footprint at Tustin
Legacy.
RECOMMENDATION
It is recommended that the Tustin Community Redevelopment Agency:
Authorize the Executive Director or Assistant City Manager to execute the attached
CSA with Vandermost Consulting Services, Inc. subject to any non-substantive
modifications as may be deemed necessary by the City Attorney prior to execution of
the Agreement.
2. Appropriate $20,000 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 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, market analysis, legal consultation, real estate
surveys, subdivision mapping and engineering services, land use planning and design,
and other expenses, such as environmental and regulatory permit support services.
Support for refinement of the disposition and business strategy for the Tustin Legacy
Project is an acceptable use of MCAS Tustin Redevelopment funds.
City Council Agency Report
November 2, 2010
CSA Agreement -Vandermost Consulting Services, Inc.
Page 2
As currently proposed, the services with Vandermost Consulting Services, Inc. are
proposed not to exceed a compensation amount of $20,000.
BACKGROUND
On August 5, 2010, Tustin Legacy Community Partners, LLC ("TLCP") re-conveyed back
to the City approximately 335 acres at Tustin Legacy, including assignment of the existing
401, 404, and 1600 regulatory permits from the Regional Water Quality Control Board,
U.S. Army Corp of Engineers, and California Department of Fish and Game, respectively,
as they affect the Master Development footprint. 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 Development footprint (820 gross acres) and needs to ensure the
seamless transition of the permits to the City and to address any other regulatory permit
compliance as a result of the City moving forward to complete certain Tustin Legacy
infrastructure projects such as Tustin Ranch Road.
Given its expertise in environmental and regulatory permit requirements and experience at
Tustin Legacy, the City requested and received a proposal for environmental/regulatory
permit support services from Vandermost Consulting Services, Inc. Vandermost was
previously retained as an environmental/regulatory permit consultant by the former Master
Developer and was integral in negotiating and securing the existing regulatory permits.
Due to its vast knowledge of the project and previous work efforts, Vandermost was
determined to be the most qualified to provide the required services, which shall include
ensuring the seamless assignment of the existing permits from the former Master
Developer to the City of Tustin, and providing consulting services for compliance with
regulatory requirements in the future as the City moves forward to complete certain Tustin
Legacy infrastructure projects. Soliciting these services through a solicitation process
would result in the City needing to add significant time to the completion of immediate work
efforts and the need to re-educate a new environmental firm to the complexities of the
Tustin Legacy project.
Should you have any questions, staff will be available to respond.
Christine A. Shingle..
Assistant City Manager
Attachment: Consultant Services Agreement
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 VANDERMOST
CONSULTING SERVICES, INC ("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
Twenty Thousand Dollars ($20,000).
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:
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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.
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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:
Julie Vandermost, President
Vandermost Consulting Services, INC.
30900 Rancho Viejo Road, Suite 100
San Juan Capistrano, CA 92675
Phone: (949) 489-2700 FAX: (949) 489-0309
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 the City of Tustin 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
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
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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 lettefiead.
C. Consultant shall carry and pay for such workers'
compensation insurance as is required fully protect Consultant and its employees
under Califomia 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 Califomia 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
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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
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
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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 Califomia. 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 Califomia, 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 therefore. 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 conceming 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.
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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 Attomeys 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
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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:
VANDERMOST CONSULTING SERVICES, INC
30900 Rancho Viejo Road, Suite 100
San Juan Capistrano, CA 92675
Attention: Julie Vandermost, President
(Principal)
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
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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:
TUSTIN COMMUNITY
REDEVELOPMENT AGENCY
By:
APPROVED AS TO FORM:
Doug Holland
City Attorney
Julie Vandermost
President
RDA\Consultants at Legacy\Vanderomost\Vandermost Consuftanting (CSA) SEP10.docx
David C. Biggs
Executive Director
"Consultant"
Vandermost Consulting Services, Inc.
By:
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EXHIBIT "A"
"Scope Services"
Task 1. Meetings and Consultation of Tustin Legacy Regulatory
Environmental Permits (Initial Estimate: 32 Hours)
Consultant will make themselves available to meet on an as-needed basis with
City staff and/or other City hired consultants, and with regulatory agencies as
specifically requested by City, to ensure the City's compliance with existing and
future regulatory permit requirements as they affect Tustin Legacy properties.
Currently the following six (6) regulatory permits affect the Tustin Legacy master
development properties:
1. 401 Permits -Regional Water Quality Control Board (RWQCB):
a. Master Development Plan (820 acres):
(ACOE Ref. No. 200500058-YJC)
b. Temporary Impact at Santa Fe Channel -Tustin Ranch Road
Project (ACOE Ref. No. 200800440-JPL)
2. 404 Permits - U.S. Army Corps of Engineers (ACOE):
a. Master Development Plan (820 acres):
(ACOE Ref. No. 200500058-YJC).
b. Temporary Impact at Santa Fe Channel -Tustin Ranch Road
Project (ACOE Ref. No. 200800440-JPL)
3. 1600 Permits - California Department of Fish & Game (CDF&G):
a. Master Development Plan (820 acres):
(Ref. No. 1600-3006-0324-R5)
b. Temporary Impact at Santa Fe Channel -Tustin Ranch Road
Project (Ref. No.1600-3008-0208-R5)
The City accepted assignment of the permits on August 5, 2010 as a result of the
Termination and Settlement Agreement between Tustin Legacy Community
Partners, LLC (TLCP) and the City and the resulting termination of the
Disposition and Development Agreement between TLCP and the City. Until such
time as subsequent developer(s) are selected to construct and complete
improvements at Tustin Legacy, the City intends to be the "permit caretaker" for
the individual permits. Future developer(s) at Tustin Legacy will be conditioned
by the City to be responsible for construction and completion of any required
mitigation, including widening improvements within Peters Canyon Channel. It is
expected that the Consultant's professional expertise would include providing
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recommendations to the City on current permit requirements, and would include
meetings and consultation with respective regulatory agencies and the City by
Consultant's principal largely related to Consultant's level of expertise in
regulatory and environmental services to receive written concurrence from the
regulatory agencies acknowledging the City's "permit caretaker" status.
It is anticipated that Consultant's principal Julie Vandermost and/or Beth
Martinez, Director of Regulatory Services, will be the key staff members
responsible for this effort.
Task 2. Future On-Call Task Assignments (Initial Estimate: 48 Hours)
1. When requested by the City in writing, Consultant shall provide its professional
review and opinions as to issues that may arise in the future relating to existing
and/or future regulatory and environmental permits, including but not limited to
subsequent 401, 404, 1600, State Construction, and/or De Minimus Water
Discharge permit(s), or as otherwise agreed to in writing by the City and
Consultant.
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
permit applications and correspondence, staff reports or technical memorandum
to the City, and 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 may hold 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.
Support staff from Consultant for Task Assignments who may be utilized with
written approval of the City and could include the following staff members:
• Julie Vandermost, President
• Beth Martinez, Director of Regulatory Services
• Other Consultant staff members as listed in the "Fee Schedule" in Exhibit
C-1 of this Agreement.
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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 on-going for the full twelve (12)
months of the Agreement except per 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.
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.
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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, or City-approved designee, 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.
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EXHIBIT "C"
"Schedule of Compensation"
1. City shall compensate the Consultant up to a total compensation not to exceed
$20,000, 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 rates as shown in Exhibit C-1 unless otherwise
noted within this Agreement.
b. For Task 2 services, compensation shall be based on tasks assigned in writing
by City and agreed upon by Consultant and shall be based on either anot-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
said 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, and
telephone charges approved in writing by the City. Unless otherwise agreed to in
writing by the City, the following expenses shall not be an authorized
reimbursement: Consultant travel to and from the City and or regulatory agency
offices for meetings mileage by automobile, toll road fees, and meals and
lodging. 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 preceding month 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
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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.
Where applicable, Consultant time shall be calculated against the established
standard hourly rate shown on Exhibit C-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. 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 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.
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"Exhibit C-1"
Attachment 1
Consultant's "Fee Schedule"
[Insert Fee Schedule]
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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 Task 2, 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.
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