HomeMy WebLinkAbout16 APPROVE CSA WITH PALEO SOLUTIONS FOR TUSTIN LEGACY• Agenda Item 16
.~~,. , ~ AGENDA REPORT Reviewed.
City Manager
Finance Director ~~'~`
MEETING DATE: JULY 19, 2011
TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER
FROM: REDEVELOPMENT AGENCY & PUBLIC WORKS DEPARTMENT
SUBJECT: APPROVE A CONSULTANT SERVICES AGREEMENT BETWEEN THE
REDEVELOPMENT AGENCY AND PALED SOLUTIONS FOR TUSTIN LEGACY
SUMMARY
Approval is requested of a Consultant Services Agreement with Paleo Solutions, Inc. for certain
archaeological, Native American, and paleontological assessment services at Tustin Legacy.
RECOMMENDATION
It is recommended that the City Council:
Approve a Consultant Services Agreement for certain Tustin Legacy support services between the
City and Paleo Solutions, Inc., and authorize the City Manager and/or Assistant City Manager to
execute the document on behalf of the City; and
2. Appropriate from unappropriated funds in CFD ,06-01 Fund (434) $15,400 to the Tustin Ranch
Road Extension Project Capital Improvement Program Fund (CIP No. 70206) and $13,130 to the
MCAS Tustin Redevelopment Fund (555), respectively, to cover associated expenses.
FISCAL IMPACT
The consulting services will be compensated on a time and material basis with a not to exceed budget
of $28,530. The Scope of Services will require an appropriation from unappropriated funds in the CFD
06-01 Fund. An itemized list of approved Tustin Legacy agreements for professional consulting
services, including pending approvals, is attached for reference.
DISCUSSION
In conjunction with the termination of the Disposition and Development Agreement for the Master
Developer site with Tustin Legacy Community Partners, LLC ("TLCP"), the City is desirous of
continuing to complete those specific tasks that TLCP was near completion on and to continue with
needed services related to Tustin Legacy Backbone Infrastructure projects. Specialized services
include completion of lab analysis and reporting for the TLCP-completed grading work in
Neighborhood E and archaeological, Native American, and paleontological assessment services for
the Tustin Ranch Road Extension project. The work tasks for these assessment services will be
prioritized and task work orders will be issued as needed.
The City requested and received a proposal for archaeological, Native American, and paleontological
assessment services from Paleo Solutions, Inc. based upon their past work and familiarity and
experience with the site and future work required. They were previously retained by TLCP at Tustin
Legacy as an archaeological, Native American, and paleontological consultant and were the consultant
Paleo Solutions, Inc. Consultant Services Agreement
July 19, 2011
Page 2
involved in the Neighborhood E rough grading work within the former master developer footprint. They
have already conducted a comprehensive investigation of the site and gathered artifacts encountered
to-date from Neighborhood E.
Continuing with Paleo Solutions, Inc. as the archaeological, Native American, and paleontological
service provider would provide a seamless transition as the City moves forward not only with the
Tustin Ranch Road Extension project but with other Tustin Legacy backbone infrastructure projects as
well. Bidding these services through a solicitation process would result in the City needing to add
significant time to the start of the Tustin Ranch Road Extension project and the need to reeducate a
new archaeological, Native American, and paleontological firm to the complexities of the Tustin Legacy
project.
~~ ~~/
Christine A. Shingleton D u I .Stack, P.E.
Assistant City Manager Di t f Public Works/City Engineer
Attachment: Paleo Solutions, Inc. Proposal dated June 6, 2011
Proposed Consultant Services Agreement
Tustin Legacy Agreements Summary
S:\City Council Items\2011 Council Items\Approval of CSA for Archeo, Paleo, and Native American Services for Tustin Legacy with
Paleo Solutions.docx
PALEO ~ SOLUTIONS
P:ilenntolo~ical & A~ehaeciic~,iea(C,omplianee & Cot~suiein~ Sc~v~ces
2U» Placentia :\~ ~ • Suite D • Carta Mesa • (;1 )2C>2
June 6th 2011
Ken Nishikawa
Tustin Legacy Development Services Manager
300 Centennial Way
Tustin, California 92780
Mr. Nishikawa
Thank you for the opportunity to submit this proposal to provide Archaeological, Native
American and Paleontological services during grading activities for the Tustin Legacy Project,
Tustin, California. This is our cost estimate based on 3 weeks of earth-moving in undisturbed
sediment. It is additionally assumed 8 hours per day 5 days a week. Native American monitoring
will be provided by Sam Dunlap of the Gabrielino Tribe.
Paleo Solutions is a Certified SBE and WBE environmental consulting company that specializes
in archaeological and paleontological mitigation and compliance with federal, state, and local
regulations while eliminating or minimizing impacts to grading procedures and schedules. Our
time efficient, professional staff has a total of over 60 years of experience in California.
We understand that in construction down time can be extremely costly. It is our goal to help keep
our clients' projects on track. We have experience on hundreds of diverse construction projects
making us safe, efficient and aware of our clients' needs and concerns. Our hard-working staff,
expertise in field mitigation, and understanding of construction site methodologies, greatly
minimizes the time required for completion of recoveries.
We hope you will be pleased with our service, from monitoring to management.
Sincerely,
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Scott Armstrong
Principal
Paleo Solutions Inc.
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PALE O, S O LLTTI C~ N S
Palecmtcalt.~giatl. & Arcluteotogi,cal Comp&ance & Ccinsulting Secclces
?(?» 1'Iacentia ,etc • quite I? • Costa ~lcsa • (.;i1 92G2?
SCOPE OF WORK AND BUDGET OUTLINE FOR PALEONTOLOGICAL,
ARCHAEOLOGICAL AND NATIVE AMERICAN MONITORING PROGRAM,
REPORT PRODUCTION AND ARTIFACT DISPLAY FOR THE TUSTIN LEGACY
PROJECT, TUSTIN CALIFORNIA
Paleo Solutions is pleased to provide this proposal to supply Archaeological, Native American
and Paleontological services for the Tustin Legacy Project, Orange County, California.
This proposal is divided into three separate sections, which may be accepted individually.
However Section 3 cannot be accepted without all work in Section 2 being completed.
SECTION 1
PALEONTOLOGICAL, ARCHAEOLOGICAL AND NATIVE AMERICAN
MONITORING SERVICES
All paleontological services will be conducted under the direction of Qualified
Paleontologist Geraldine Aron, MS Geology. Archaeological services will be conducted
under the direction of Joan Brown, RPA. Native American services will be conducted by
Sam Dunlap of the Gabrielino Tribe.
This proposal is based on 5 days of grading at 8 hours each day, for 3 weeks. All fees will be
billed monthly on a time and materials basis. This proposal assumes no discoveries and negative
report. A change order may be necessary if any of the following conditions arise:
^ Grading extends beyond 5 days a week and/or 8 hours each day.
^ Grading in undisturbed sediments extends beyond 3 weeks.
^ Additional funds are required for storage, preparation curation and/or transport of
specimens or artifacts.
^ Additional materials are needed to complete recoveries or cultural resource excavation.
^ Discoveries made during grading require additional reporting and final report hours
TASK 1 Archaeological and Paleontological Monitoring (120 hrs @ $55) $6,600.00
Monitoring will be conducted on a full time basis during impacts to undisturbed
sediments. If cultural or paleontological resources are unearthed, standard procedures will
be followed in accordance with all applicable laws and regulations. A change order will
be required in the event of archaeological and/or paleontological resource discoveries to
accommodate recovery time, lab work and extra report hours.
TASK 2 Native American Monitoring (60 hrs @ $55) $3,300.00
Native American Monitoring will be provided by Sam Dunlap.
TASK 3 Archaeological and Paleontological Oversight (12 hrs @ $125) $1,500.00
TASK 4 Archaeological and Paleontological Negative Reports (32 hrs @ $55) $3,360.00
TASK 5 Meetings (Field director, 4 hrs @ $105) $420.00
TASK 6 General Admin (4 hrs @ $55) $220.00
The cost presented under this task is for report production with no discoveries
made during monitoring.
SECTION 1 TOTAL ESTIMATED COSTS
$15,400.00
SECTION 2
AREA E REPORT AND LABORATORY WORK FINALIZATION
TASK 1 Archaeological and Paleontological Report (68 hrs @ $125.00) $8,500.00
Two final reports will be prepared. One shall outline Archaeological findings and
procedures. The other shall be the Paleontological report produced by Geraldine Aron
(MS Geology) describing parcel geology, stratigraphy, and summarize field techniques
used.
TASK 2 Archaeological Laboratory (56 hrs @ $55.00)
$3,080.00
Artifacts collected during the grading of Area E undergo final analysis and cataloguing in
preparation for the final report and acceptance by an accredited repository. Curation fees are not
included and are to be negotiated between the City of Tustin and the accessioning repository.
TASK 3 Meetings (Field director, 2 hrs @ $105) $210.00
TASK 4 General Admin (4 hrs @ $55) $220.00
TASK 5 GIS Mapping (16 hrs @ $70) $1120.00
SECTION 2 TOTAL ESTIMATED COSTS $13,130.00
We look forward to speaking with you if any further explanation is necessary. It is our intent that
you will be pleased with our service. Please contact me by phone if you have any questions or
comments at (949) 813-1240, or email at Scott@paleosolutions.com. Geraldine Aron can also be
contacted at (562) 818-7713 or geraldine@paleosolutions.com.
-~ ~,.,,
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Scott Armstrong
Principal
Paleo Solutions Inc.
CONSULTANT SERVICES AGREEMENT
This Agreement for Consultant Services (herein "Agreement"), is made and entered
into this day of , 2011, by and between the CITY OF TUSTIN,
a municipal corporation ("City"), and Paleo Solutions, Inc., a California corporation
("Consultant").
WHEREAS, Consultant is qualified to provide the necessary services and has
agreed to provide such services; and
WHEREAS, Consultant has submitted to City a Proposal and Scope of Work, dated
June 6, 2011, 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 "proposal and scope of work").
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, City 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 Work 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 applicable laws, ordinances, resolutions, statutes, rules,
and regulations of the City of Tustin 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.
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Should the Consultant discover any latent or unknown conditions materially differing from
those inherent in the work or as represented by the City, Consultant shall immediately
inform City 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 City, except such loss or damages as may be
caused by City'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 ten percent (10%) of the
original Contract sum must be approved in writing by the Contract Officer. Any greater
increase must be approved in writing by the City Manager.
1.7 Special Requirements. Any additional terms and conditions of this
Agreement are set forth in Exhibits "B" and "C" and are incorporated herein by this
reference. In the event of a conflict between the provisions of Exhibit "B" and "C", and any
other provision or provisions of this Agreement including Exhibit "A", the provisions of
Exhibits "B" and "C" 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".
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 City in the form approved by City's Director of Finance, an invoice for services rendered
prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon
which are approved by City 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 City, 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.
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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 at the personnel hourly rates prescribed in Exhibit "C" hereto. Note:
Exhibit "C" prohibits billing for travel.
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 marked Exhibit "D". The extension of any time period
specified in the Exhibit "D" must be approved in writing by the Contract Officer.
3.3 Force Majeure. 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:
Scott Armstrong, Principal
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing Principal is a substantial inducement for City 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 City.
4.2 Contract Officer. The Contract Officers shall be the Assistant City
Manager and Public Works Director unless otherwise designated in writing by the City
Manager. It shall be the Consultant's responsibility to keep Contract Officers fully informed
of the progress of the performance of the services and Consultant shall refer any decisions
which must be made by City to the Contract Officers. Unless otherwise specified herein,
any approval of City required hereunder shall mean the approval of the Contract Officers.
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 City 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 City. 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 City.
4.4 Independent Contractor. Neither the City 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 City
and shall remain at all times as to City 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
City. 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 City employees.
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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 City of the purchase of the required tail insurance or continuation
of the professional liability policy by executing a Letter Agreement on Consultant's
letterhead for of which is included and attached to Exhibit "B-1".
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 City for losses paid under the policy, which
losses arose from the work performed by the named insured.
In the event Consultant has no employees requiring
Consultant to provide Workers' Compensation Insurance, Consultant shall so certify to
City in writing prior to City's execution of this agreement. At any such time that Consultant
shall hire employees, such requirements shall be immediately met. City and City
Personnel shall not be responsible for any claims in law or equity occasioned by failure of
the Consultant to comply with this section or with the provisions of law relating to Workers'
Compensation.
D. Other applicable insurance requirements are: (1) Name the
City of Tustin, 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 Grade A and
Class VII or better (if an admitted carrier) or Grade A- and Class X (if offered by a surplus
line broker), by the latest edition of Best's Key Rating Guide, except that the City will
accept workers' compensation insurance rated Grade B and Class 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 City. (4) The commercial general and automobile
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liability insurance shall each be primary as respects the City, and any other insurance
maintained by the City shall be in excess of this insurance and not contribute to it.
E. Upon execution of this Agreement, Consultant shall provide to
City 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 City 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 City, 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 City 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 City's negligence or that
of its officers or employees.
The Consultant shall also defend, indemnify and hold the City harmless from any claims or
liability for City 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 City and shall be delivered to City 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 City
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. Use of such documents by City for projects
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not the subject of this agreement shall be at City's sole risk without legal liability or
exposure to consultant.
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.
7.2 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 City 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 City shall be deemed to waive or render
unnecessary City'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
Page 7
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 City 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, City 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 City
shall use reasonable efforts to mitigate damages, and City may withhold any payments to
the Consultant for the purpose of set-off or partial payment of the amounts owed to City.
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. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
8.1 Non-Liability of City Officers and Employees. No officer or employee
of City shall be personally liable to the Consultant, or any successor-in-interest, in the
event of any default or breach by the City 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.
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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:
CITY OF TUSTIN
300 Centennial Way
Tustin, CA 92780
Attention: Assistant City
leaders (Contract Officers)
To Consultant:
Manager and Public Works Director co-team
Paleo Solutions, Inc.
2035 Placentia Ave., Suite D
Costa Mesa, CA 92627
Attention: Scott Armstrong, 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
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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates
stated below.
Dated:
Dated:
"City"
CITY OF TUSTIN, a municipal corporation
Douglas S. Stack
Director of Public Works
By:
"Consultant"
Paleo Solutions, Inc., a California corporation
By:
Scott Armstrong
Principal
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EXHIBIT "A"
SCOPE OF SERVICES
See attached proposal for a summary of the work required to complete the task.
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 Agreement is in effect, neither Consultant nor any of
its offices or employees will accept private work from or provide services for any
company for work at Tustin Legacy.
The intended term of this agreement is estimated to be a three to four (3 to 4)
week period during which Consultant will provide assessment, laboratory and
reporting services. The term is expected to end upon the completion of the scope
of work or by the execution of termination clause of this contract Section 7-6
which is hereby amended to allow for the voluntary termination of Agreement by
Consultant.
In addition, Consultant agrees that during the term of Agreement neither
Consultant nor its officers or employees will accept public work from any public
agency or quasi-public agency that relate to legal action on the Tustin Legacy
project, unless otherwise noted herein.
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 shall be final. A list of
known projects acknowledged by City that are not in conflict with the intended
work is attached to this contract as Exhibit "E", "List of Paleo Solutions, Inc.
Projects Subject to Conflict of Interest Waiver".
3. Consultant shall present to the City certificates of insurance and endorsement
forms pursuant to Agreement requirements verifying that the Consultant has the
insurance as required by this agreement.
4. 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.
5. The Consultant shall review and replace project personnel assigned to project
who do not perform assigned work in a manner satisfactory to Contract Officer.
6. The Consultant has identified the following staff members that will provide
support to the Consultant Team with Scott Armstrong to be the Consultant
Principal:
Geraldine Aron, MS Geology
Joan Brown, RPA
Sam Dunlap, member of Gabrielino Tribe
As the lead, Mr. Armstrong shall be available to meet with Contract Officer as
required at designated dates and times to coordinate scope of services required
by the contract, to resolve problems, to discuss progress on scope of work at
Contract Officer's direction and to discuss assumptions developed during task
levels.
7. Field investigations. 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.
8. No substitution of professional personnel or sub-Consultant shall be made without
the advance written approval of the Contract Officer, after review of the proposed
replacement's experience and qualifications with a written explanation of the
necessity for the change. No increase in the compensation or reimbursable salary
rates will be allowed when personnel or firm substitutions are authorized.
9. Consultant shall remove and replace project personnel or sub-Consultants
assigned to project personnel or sub-Consultants assigned to project who do not
perform assigned duties in a manner satisfactory to the Contract Officer.
EXHIBIT "B-1"
CONTINUATION OF THE PROFESSIONAL LIABILITY POLICY LETTER
EXHIBIT "C"
SCHEDULE OF COMPENSATION AND PERSONNEL HOURLY RATES
1. Compensation
As compensation for the Consultant's services under this Agreement, the City shall pay
the Consultant a total fee not to exceed $28,530.
Time and Material shall be billable per hourly rates shown and as herein attached as
Exhibit "C-1 ". For Direct Expense Reimbursement, see restrictions on No. 2 below of
Exhibit "C".
2. Direct Expense Reimbursement
The Consultant's not-to-exceed compensation for services under this Agreement may
include reimbursement for miscellaneous direct expenses. The City shall reimburse
Consultant for direct expenses such as and including postage, plotting and printing, and
express mail and delivery services. 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 changes identified in No. 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 Item and specific task
work order.
B. No overhead charges on top of direct expenses will be authorized.
3. Compensation for Additional Services
In the event the City requires services in addition to those described in Exhibit A, said
services must first be approved in writing by the Contract Officer. The Consultant shall be
compensated at the Consultant's standard hourly rates for professional services as shown
in Exhibit C-1, plus reimbursement of expenses or a fixed amount agreed to in writing by
the City and Consultant.
4. Payments for Compensation and Direct Expense Reimbursement
As a condition precedent to any payment to Consultant for Compensation and Direct
Expense Reimbursement under the Agreement, the Consultant shall submit monthly
invoices to the City which clearly sets forth the specific Scope of Work Items and specific
task work orders being billed against, the actual hours spent on a task, the hourly billing
rate, the personnel classification or the individual performing the task, the fees being billed
for all Consultant personnel as well as direct reimbursement expenses for which
compensation is submitted. 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.
5. Timing of Payment
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 under terms
provided herein or as agreed to in writing by specific work task orders approved by
both parties.
B. Task 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 the Task, and depend on tasks specifically assigned by City and
the complexity of the assignment under such work task orders. Therefore, when
requested by the City, Consultant agrees to work with the City to project monthly
and quarterly budgets.
EXHIBIT "C-1"
PALED SOLUTIONS, INC. HOURLY RATE SCHEDULE
See Exhibit "A", Proposal
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
A Schedule of Performance agreed upon in writing by the Consultant and City may be
incorporated into this Agreement.
EXHIBIT "E"
LIST OF PALED SOLUTIONS, INC. PROJECTS SUBJECT TO CONFLICT OF
INTEREST WAIVER
TUSTIN LEGACY AGREEMENTS
EXISTING AGREEMENTS WITH CITY OF TUSTIN
Thursday, June 23, 2011
Master
Development
Approval by Task Order
Consultant/Contractor Type of Services Footprint Work Item Cost
City Council Issued
includingTRR
Extension
Hunsaker Engineering y 9/7/2010 Disposition Strategy $ 25,000 y
Engineering y Mapping/PERF/Water Quality $ 60,000 y
Engineering y Tustin Ranch Road $ 129,600 y
Engineering y Valencia Ave. $ 40,800 y
Sub-Total $ 255,400
Hunsaker-Amendfil Engineering y 11/2/2010 Disposition Strategy $ 72,500 y
Engineering y Tustin Ranch Road -Homeowner Mitigation $ 12,050 y
Sub-Total $ 84,550
Hunsaker -Amend ft2 Engineering y 2/1/2011 Tustin Ranch Road $ 103,200 y
Engineering y Valencia Ave. $ 17,000 y
Engineering y Park Ave. & Legacy Road $ 106,500 y
Engineering y IRWD Capital Plans $ 38,600 y
Engineering y Reimbursables $ 17,500 y
Sub-Total $ 282,800
Hunsaker -Amend k3 EnRineerin~ y 5/3/2011 Tustin Ranch Road GradinX and Drainage $ 42,700 V
Engineering y Disposition Strategy - Mapping $ 59,000 y
Sub-Total $ 101,700
TOTAL $ 724,450
Psomas Mapping both in the MD Nql Mapping of activities including LIFOC parcels and $ 31,000 y
footprint and SOCCCD land swap
outside the
footprint
TOTAL $ 31,000
John Burns Real Estate Residential Market y 11/2/2010 Disposition Strategy $ 29,400 y
Consultin¢ Analvsis
TOTAL $ 29,400
Vandermost Consulting Environmental y 11/2/2010 Regulatory Agency Consulting $ 20,000 y
TOTAL $ 20,000
The Concord Group Non-Residential y 11/2/2010 Disposition Strategy $ 42,000 y
Market Analvsis
TOTAL $ 42,000
Pacific States Environmental y 11/16/2010 Environmental Consulting $ 10,000
Y
Sub-Total $ 10,000
Pacific States -Amend ttl Environmental y 3/15/2011 Tustin Ranch Road -Specifications $ 32,385 y
Environmental y Tustin Ranch Road - OCSD &IRWD Permits $ 8,000 y
Environmental y Tustin Ranch Road -Potholing & Sampling $ 9,500 y
Environmental y Tustin Ranch Road -Well Relocation $ 18,800 y
Environmental y Technical Support $ 10,300
Y
Sub-Total $ 78,985
Pacific States -Amend #2 Environmental y 6/21/2011 Tustin Ranch Road -Specifications $ 4,000
Environmental Tustin Ranch Road - CO6 & CO9 Soil Sampling $ 38,500
Environmental Tustin Ranch Road -Groundwater Modeling $ 13,500
Environmental Technical Support $ 7,800
Sub-Total $ 63,800
TOTAL $ 152,785
Vista Environmental Environmental y 12/7/2010 Tustin Ranch Road -Homeowner Mit. Assessments $ 9,828 y
TOTAL $ 9,828
Page 2 7/12/2011
TUSTIN LEGACY AGREEMENTS
EXISTING AGREEMENTS WITH CITY OF TUSTIN
Thursday, June 23, 2011
Master
Development
Consultant/Contractor
Type of Services
Footprint Approval by
Work Item
Cost Task Order
including TRR City Council Issued
Extension
David Taussig & Associates Financial n 1/4/2011 Disposition Strategy including refinement of $ 47,500 y
infrastructure backbone fees
TOTAL $ 47,500
So Cal Sandbags Maintenance & y 12/7/2010 Maintenance of undeveloped portions including $ 547,524 y
Erosion Control erosion control
TOTAL $ 547,524
Spectrum Landscaping - Maintenance n 6/15/2010 Maintenance of sites outside Master Developer $ 71,208 y
Amend ri5 footprint
TOTAL $ 71,208
Moffatt & Nichol On-Call Plancheck y Ongoing 3 Public Works, Bridges & Structures, and Rail & Transit $ 30,000 y
Engineers Engineering
Hartzog & Grabill, Inc. On-Call Plancheck y Ongoing a Traffic Engineering $ 30,000 y
Engineering
DSL Consulting, Inc. On-Call Plancheck y Ongoing 3 Hydrology & Hydraulics, Street, Mapping, and $ 30,000 y
Engineering Landscape
Parsons Transportation Construction y 5/3/2011 Tustin Ranch Road - CM $ 1,882,075 y
Group Management
TOTAL $ 1,882,075
Paleo Solutions. Inc. Archeology v Pending Tustin Ranch Road -Archeo & Paleo Monitoring $ 6,600
Tustin Ranch Road -Nat. American Monitoring S 3.300
Tustin Ranch Road -Archeo & Paleo Oversight $ 1,500
Tustin Ranch Road -Archeo & Paleo Reports $ 3,360
Tustin Ranch Road -Meetings & General Admin. $ 640
Sub-Total $ 15,400
N-E -Archeo & Paleo Report $ 8,500
N-E -Archeo Lab $ 3,080
N-E -Meetings, Mapping, & General Admin. $ 1,550
Sub-Total $ 13,130
TOTAL $ 28,530
TOTALCONTRACiS $ 5,635,108
TOTAL TASKS ORDERED $ 4,772,270
NOTES:
1. "NA" are items in which funding was appropriated through the adoption of the 2010/2011 Budget and were authorized by staff through a Purchase
Order or within contract amendment limit (10% of total amount) that could be amended by staff, with greater were within the appropriation amounts of
the City Manager.
2. "Pending" are items anticipated to be brought to the City Council for approval in the near future.
3. On-call services established by Public Works operating budget for traffic engineering, development review and special plan check
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