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HomeMy WebLinkAbout09 GOVERNANCE STRUCTURE FOR TUSTIN LEGACY PROJECTAgenda Item ~_ Reviewed: AGENDA REPORT City Manager ~-~- ~" Finance Director MEETING DATE: January 3, 2012 TO: JEFFREY C. PARKER, CITY MANAGER FROM: CITY MANAGER'S OFFICE & REDEVELOPMENT AGENCY SUBJECT: DEVELOPMENT OF A GOVERNANCE STRUCTURE FOR THE TUSTIN LEGACY PROJECT INCLUDING DEVELOPMENT OF CC&R'S AND DEPARTMENT OF REAL ESTATE SUBMITTALS SUMMARY Approval is requested for Consultant Services Agreements (CSA) to provide professional services to assist the City in development of a governance structure in its limited executive master developer role, including development of CC&R's for the Tustin Legacy Project, maintenance budgets and assessment schedules, and Department of Real Estate submittals. RECOMMENDATION It is recommended that the City Council: 1. Authorize the City Manager or Assistant Executive Director to execute the attached CSA with Luce, Forward, Hamilton, & Scripps, LLP (Luce Forward), subject to non-substantive modifications as may be deemed necessary by the City Attorney prior to execution of the CSA. 2. Authorize the City Manager or Assistant Executive Director to execute the attached CSA with PCM Consulting Services, Inc. (PCM), subject to non- substantive modifications as may be deemed necessary by the City Attorney prior to execution of the CSA. FISCAL IMPACT The City Council at its meeting on December 6, 2011, approved a budget appropriation for preparation of CC&R's for the Tustin Legacy Project (Tustin Legacy Expenditure Account 200-40-00-7500). In the event any current contractual restrictions on the Redevelopment Agency under the California Supreme Court stay of portions of AB1 26 January 3, 2012 Agenda Report - CSAs with Luce Forward and PCM Page 2 and AB1 27 are lifted, the MCAS Tustin Project Area will repay the Capital Projects Fund. It is estimated that the cost for Luce Forward services will be approximately $85,000 with services with PCM estimated at $25,000. BACKGROUND As was discussed in the City's executive master developer expenditure budget and included in the Tustin Legacy Disposition Strategy which was accepted by the City Council in April of 2011, the City will need to place CCR's and Special Restrictions on property within-the former master developer footprint prior to any land sales for at least the sites for which the City is the process of selecting developers. The development sites that are being marketed and succeeding property owners would be bound by these future CC&Rs and Special Restrictions as they affect development of individual sites and will be for the purpose of enhancing and protecting the value, desirability and attractiveness of the property and the Tustin Legacy Project. It is anticipated that development sites as may be required by the City would be included in a Master Association or Associations which would have jurisdiction over all or portions of the Tustin Legacy Project and will be formed ta, among other things, maintain private parks, common areas, landscaping, medians and any private streets that are not accepted for maintenance by the City. Properties within the Master Association would be required to pay all costs incurred for said maintenance and the cost of work that might be associated with annexation of development sites to the Master Association documents including, but not limited to, the cost of any modifications to a standard Supplemental Declaration which would be directed by the City as a result of the nature of a particular project, and the cost of any City and outside counsel review and approval of any documents required or provided pursuant to this process. There are a number of law firms and budget estimating firms that provide quality services. However, both Luce Forward and PCM have previously undertaken a considerable amount of background work on the Tustin Legacy Project, and have previously been involved in development of a preliminary governance structure with the City's involvement and that of the former master developer. Procuring the services of both Luce Forward and PCM will benefit the Tustin Legacy Project in time savings and cost savings, and is the most cost efficient approach given the steep learning curve needed to gain expertise regarding the project. Going through an open solicitation process would result in the City largely having to pay to educate the new firms regarding the complexities of the Tustin Legacy Project. January 3, 2012 Agenda Report - CSAs with Luce Forward and PCM Page 3 What is being proposed is coordinated effort by two firms: Luce Forward and PCM, Inc. with a summary of the scope of each firm's proposed work as follows: • Luce Forward is a law firm whose scope would include analyzing and working with City staff to develop governance alternatives for the Project, structuring the actual governance documents, and processing them with the California Department of Real Estate. They will also be available as an additional scope of work in the future to process any supplements to the CCR's that may be required as development sites are added to the initial governance structure. • PCM, Inc. has almost 40 years in managing hundreds of communities throughout Southern California. Accurate budgets are critical to ensuring that maintenance is adequately handled in master associations. Appropriately, PCM will coordinate with the City on forward planning/association readiness including coordinating with the City and providing input to the City and Luce Forward on the governance structure and .determining and completing an adequate financial feasibility analysis, preparation of a budget structure and assessment program, cash flow analysis and any tasks necessary to ensure association readiness, training, and Department of Real Estate budget submittals. A copy of the CSA for each firm is attached with an accompanied detailed scope of work. Staff will be available to respond to any questions that the City Council might have. ~~ .~ A - '% _:ww, _ ~Christine,Shingleton Assistant Executiveirector Attachments: Consultant Services Agreement with Luce Forward Consultant Services Agreement with PCM, Inc. CONSULTANT SERVICES AGREEMENT This Agreement for Consultant Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation, ("City"), and LUCE, FORWARD, HAMILTON & SCRIPPS, LLP ("Consultant"). WHEREAS, City acting in a limited master developer role for the Tustin Legacy Project is desirous of having governance documents completed in the most cost efficient means possible for the Tustin Legacy project; and WHEREAS, Consultant is qualified to provide the necessary services, has been previously engaged and has knowledge as a former consultant on the Tustin Legacy Project and has agreed to provide such services; and WHEREAS, City and Consultant have determined 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 "Proposal"). 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 "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 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 1 performed, (b) has investigated the site of the work and became 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 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 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 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" far actual costs incurred, in an amount not to exceed Eighty-Five Thousand Dollars ($85,000.00). 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 the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. When approved by City Attorney and Contract Officer, the 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. 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 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. 4. COORDINATION OF WORK 4.1 presentative 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: 3 Nancy T. Scull 600 West Broadway San Diego, Calif. 92101 (619) 236-1414 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 Officer shall be the Assistant Executive Director unless otherwise designated in writing by the City Manager. 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 City to the Contract Officer. Unless otherwise specified herein, any approval of City 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 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. 5. INSURANCE I 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. 4 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 City 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 City and the Tustin Community Redevelopment 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 City 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 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 sole negligence or that of its officers or employees. 5 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. 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 Dis utes. 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 6 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 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 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. 7 8. CITY AND TUSTIN COMMUNITY REDEVELOPMENT AGENCY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non-Liability of City Officers and Employees. No officer or employee of City or Tustin Community Redevelopment Agency 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. 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 Executive Director (Contract Officer) To Consultant: Nancy T. Scull, Esq. Luce, Forward, Hamilton & Scripps, LLP 600 West Broadway San Diego, Calif. 92101 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 8 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. "CITY" Dated: City of Tustin By: City Manager or Assistant Executive Director APPROVED AS TO FORM: David E. Kendig City Attorney "Consultant" LUCE, FORWARD, HAMILTON & SCRIPPS, LLP By: Nancy T. Scull Partner 9 EXHIBIT "A" SCOPE OF SERVICES Phase 1 -Analyze Governance Alternatives and Agree Upon a Governance Approach During this Phase, an overall governance framework shall be developed. 1. Consultant shall meet with the City and appropriate City staff members and consultants as determined by the Contract Officer (i.e. engineering team etc.) to review the proposed Tustin Legacy development plan and objectives of the City in implementing the development plan through one or more community associations. It is anticipated that this initial meeting would likely be a two to three hour meeting. 2. Consultant shall develop an analysis of the various alternative governance structures for discussion and evaluation by the City. This analysis will include a description of the advantages and disadvantages of each of the alternative governance strategies. 3. Consultant shall meet with the City and appropriate City staff and consultants as determined by the Contract Officer to review the proposed governance alternatives and to consider which governance alternatives may or may not be acceptable. This is anticipated to involve a two to three hour meeting, after which Consultant shall modify, adapt and refine the analysis of the governance alternatives in response to direction from the Contract OfFicer and obtain preliminary City's agreement in the governance approach for Tustin Legacy. Phase 2 -Agreement on Key Issues for Governing Documents and Identification of Budget Issues During this Phase, the Consultant shall work with the City to obtain agreement on the key terms to be included in various CC&R's and identify any budget issues. 1. Consultant shall identify those issues that need to be considered in Consultant's preparation of the governing documents for the community association(s). Concurrently with the preparation of a list of the legal issues, the City will also coordinate with its "Budget Preparer Consultant" who will also prepare a list of issues for consideration. Consultant, and City team members will be responsible for considering and responding to the lists of issues. 2. During this Phase, there will be several working meetings with the Consultant who shall meet with the City and appropriate City staff and consultants as directed by the Contract OfFicer to reach agreement on (a) designating areas that will be privately 1 maintained by a community association or other association; (b) designating areas that will be maintained by the City but owned by a private entity such as an association; (c) determining possible formulas for allocating assessments; (d) determining possible voting structures and ensuring the City retains necessary jurisdiction over certain matters of concern to the City; (e) determining applicable use restrictions; and (f) identifying any cost sharing agreements that may need to be implemented by and among the various associations that may be formed to govern portions of Tustin Legacy. Once the maintenance areas are determined, the City's engineer will prepare a comprehensive maintenance exhibit. 3. Consultant, when directed by the City Contract Officer and after apre-meeting, will review the proposed structure with the Department of Real Estate. 4. Consultant will provide a presentation of proposed structure to the City Council. Phase 3 - Preparation of Governing Documents and Coordination with Developers During this Phase, the Consultant shall prepare the governing documents. It is assumed that there be at least one and more likely two sets of CC&Rs and two community associations that will need to be created at a minimum. 1. Consultant shall complete drafts of the governing documents which will be submitted to the City for review. Consultant will hold a number of meetings with City staff and their team to review. Consultant shall finalize drafts of the documents prior to any transmittal of documents by the City to potential developers. At the same time, City will also review its Budget Preparer Consultant's budget and provide direction for resolution of any budget related issues. 2. There will likely be several developers for development areas at Tustin Legacy in the future. Acting as the Executive Master Developer, City will need to coordinate with the potential developers to finalize governing documents. Consultant shall coordinate review of governing documents with developers, as appropriate, when and if directed by the City's Contract Officer. 3. As the Executive Master Developer, the City will decide on what role it will take in obtaining approval from the California Department of Real Estate (DRE) for governing documents. Typically, a master developer would coordinate with a guest builder to process the governing documents through DRE. However, given the change in personnel at DRE, the DRE may not agree to review governing documents unless a first builder file is submitted to the DRE. During this step, Consultant shall develop procedures for the City to coordinate with the developers to submit the first file to DRE 2 and to ensure there is uniformity of approach imposed in all conveyance documents to any developers/builders at Tustin Legacy. Additional Scope of Work Certain additional scope of work tasks identified as Phase 4 may be required. Consultant will be provided with direction to proceed with this additional scope of work only subject to a written agreement between the City and Consultant in the future once the necessary level of effort and costs can be more adequately determined. Phase 4- Preparation of Supplements to the Declarations Throughout the build-out of Tustin Legacy, the City as the Executive Master Developer, will be required to coordinate Supplemental Declarations to be recorded with each development phase. The initial recorded CC&R's will set the framework for these Supplemental Declarations. The Supplemental Declarations will be critical to designate areas and special maintenance responsibilities on a phase by phase basis. Consultant, subject to a future written modification to the Consultant Services Agreement, may be asked to assist in this Phase and various required document preparations. 3 EXHIBIT "B" SPECIAL REQUIREMENTS 1. The Consultant shall comply with all applicable federal, state and local laws applicable to its activities. 2. The Consultant shall not release to the public or press any information regarding the purpose/scope of services to be accomplished or data specific to the project required under the Agreement without prior authorization of the contract officer. All such information is considered confidential. All inquiries made of Consultant shall be immediately referred to the Contract Officer. Consultant shall present to the City certificates of insurance and endorsement forms verifying that the Consultant has the insurance as required by this Agreement. Said forms shall be reviewed and approved by the office of the City Attorney. 3. Consultant shall utilize those professional staff members to perform services as identified herein. The Consultant has identified the following principals that would be involved in the Project from their firm: • Nancy T. Scull • Marjorie Burchett No substitution shall be made without the advance written approval of the Contract Ofhcer. No increase in compensation or reimbursable salary rates will be allowed when personnel or firm substitutions are authorized by the Contract Officer. 4. The Consultant shall review and replace project personnel who do not perform assigned duties in a manner satisfactory to Contract Officer when requested by Contract Officer. 5. Monthly progress reports shall be submitted by Consultant with billing requests. At minimum these reports shall specify the period reported, tasks completed, tasks underway, percent of project completed and strategies to solve any timing delays. 7. Consultant shall be required to meet with the Contract Officer as determined necessary or desirable to discuss elements of the Scope of Work and project's progress. 8. Field investigation necessary. The Consultant shall obtain all necessary field data and make investigations and studies necessary to properly accomplish the work required under this Agreement. 1 EXHIBIT "C" COMPENSATION Compensation 1. As compensation for the Consultant's scope of services under this Agreement, the consultant's compensation is identified on a phase basis, with a not to exceed compensation amount for each Phase as identified below: Luce Forward Phase 1not-to-exceed Fifteen Thousand Dollars ($15,000.00) Phase 2not-to-exceed Twenty Thousand Dollars ($20,000.00) Phase 3not-to-exceed Fifty Thousand Dollars ($50,000.00) Consultant shall bill based on an hourly rates identified herein for each firm: Nancy T. Scull--$510 per hour Marjorie Burchett--$480 per hour The Phase 4 additional scope of work will be authorized only subject to written agreement between the City and Consultant in the future once the level of effort and costs can be more adequately determined. Expense Reimbursement 2. The Consultant's not-to-exceed compensation for services under this Agreement may include reimbursement for miscellaneous expenses. The City shall reimburse Consultant for direct expenses such as and including postage, telephone charges and Consultant travel subject to the fallowing restrictions: a. Expenses for air travel shall be for standard, economy class only; b. Itemized payment statements shall set forth in detail all actual reimbursement expenses during the preceding month. Compensation for Additional Services 3. In the event the City requires additional services, including but not limited Phase 4. 4. Services as described in Exhibit "A"; said services must first be approved in writing by a modification to this Agreement. The compensation for said services, plus reimbursement of expenses or a not to exceed compensation amount for additional services shall be as agreed to in writing by the City and Consultant provided that the Consultant shall agree to hold Consultant's standard hourly rates for professional services to those shown below: 1 Luce Forward a. Nancy T. Scull -- $510.00 b. Marjorie Burchett -- $480.00 Method of Payment 4. As a condition precedent to any payment to Consultant under this Agreement, Consultant shall submit monthly to the City a statement of account which clearly sets forth by dates the designated items of work, as well as reimbursable expenses, for which the billing is submitted subject to approval by the City Attorney and Contract Officer. The payment request shall identify each task required by the Agreement, percent of completion, amount of actual reimbursable expenses and requested amount to be billed against each task. Timing of Payment 5. The City Attorney and City's Contract Officer shall review Consultant's monthly statements and pay Consultant for services rendered and costs incurred hereunder, at the rates and in the amounts provided hereunder, on a monthly basis in accordance with the approved monthly statements. 2 EXHIBIT "D" SCHEDULE OF PERFORMANCE Consultant shall complete the Scope of Services under this Agreement upon receipt of a Notice to Proceed based on the following schedule: Phase 1: Approximately 4-6 weeks depending upon the decision making process at the City and the time periods needed to rework any proposed alternative governing structures. Phase 2: Approximately 6-8 weeks to reach agreement on key open issues and meet with DRE. The timing will depend on how quickly the team members can make decisions regarding the allocation of responsibility for various areas at Tustin Legacy. Phase 3: Approximately 8 weeks. This assumes that there will be several drafts of the CC&Rs and team meetings to finalize the CC&Rs. Additional Scope of Services Phase 4: To be determined based on written agreement between the City and Consultant once casts can be determined. 1 CONSULTANT SERVICES AGREEMENT This Agreement for Consultant Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation, ("City"), and PCM Consulting Services, Inc. ("Consultant"). WHEREAS, City acting in a limited master developer role for the Tustin Legacy Project is desirous of having certain forward planning and Department of Real Estate budget preparation documents completed in the most cost efficient means possible for the Tustin Legacy Project; and WHEREAS, Consultant is qualified to provide the necessary services, has been previously engaged and has knowledge as a former consultant on the Tustin Legacy Project, and has agreed to provide such services; and WHEREAS, City and Consultant have determined 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 "Proposal"}. 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: 1. 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 "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 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, 1 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 City, 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 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 amounts as are prescribed in Exhibit "C" for actual costs incurred, in an amount not to exceed Twenty-Five Thousand Dollars ($25,000.00). 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 the City's Director of Finance, an invoice for services rendered prior to the date of the invoice. When approved by City Attorney and Contract Officer, the 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 Chances. 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. 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 2 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 specifed 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. 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: 3 Susan Finley, Vice President 23726 Bucher Drive Lake Forest, Calif. 92630 (949) 465-2492 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 City. 4.2 Contract Officer. The Contract Officer shall be the Assistant Executive Director unless otherwise designated in writing by the City Manager. 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 City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assi. nq ment. 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. 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. 4 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 prated 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. D. Other applicable insurance requirements are: (1) Name the City and the Tustin Community Redevelopment 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 City 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 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 sole negligence or that of its officers or employees. 5 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. City acknowledges and agrees that certain forms, schedules, report formats, inventions and other information and items produced by Consultant while performing services under this Agreement may be proprietary in nature and will remain the sole and exclusive property of Consultant, as will any copyrights, patents or trademarks for such obtained by 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 6 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 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 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 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. CITY AND TUSTIN COMMUNITY REDEVELOPMENT AGENCY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non-Liability of City Officers and Employees. No officer or employee of City or Tustin Community Redevelopment Agency 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. 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 Executive Director (Contract Officer) To Consultant: Susan Finle 2372BircherDrive Lake Forest, Calif. 92630 (949) 465-2492 8 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. "CITY" Dated: City of Tustin gy: City Manager or Assistant Executive Director APPROVED AS TO FORM: David E. Kendig City Attorney "Consultant" PCM Consulting Services, Inc., a California Corporation By: Susan Finley Vice President 9 EXHIBIT "A" SCOPE OF SERVICES At the direction of City, Consultant shall provide the following community association consulting services for Tustin Legacy: PART 1: ACCOUNT SERVICING ^ Account management, supervision and coordination of tasks as directed by City ^ Meeting time with City representatives and staff, City's vendors and Consultants ^ Telephone conferences ^ Planning, scheduling, research, coordination on designated task assignments, distribution of materials, and follow-up ^ Coordination with City on any material revisions ^ Administration and clerical time for agenda preparation, meeting preparation and task follow-up PART I1: FORWARD PLANNING/ASSOCIATION READINESS (a) Governance Model Structure ^ Coordination with City and its special legal counsel (Luce Forward) on creation of the governance model establishing the structure of the association. ^ Determination of feasibility based on financial analysis ^ Participation in and review of the creation of the corporation governing documents: CC&R's, Bylaws, Subsidy Agreements, etc. (b) Budget ^ Preparation of budget structure and assessment program, cash flow analysis and subsidy projections. (c) Association Readiness ^ Preparation of Rules and Regulations, Architectural Guidelines ^ Preparation of Association Operating Policies ^ Prepare Scope of Service for Association Maintenance Programs ^ Solicit Vendor Proposals for Services ^ Place Insurance Coverage ^ Prepare Homeowner Welcome Packets ^ Create Community Web Site ^ Establish Procedure to Coordinate Escrow Process with Management (d} Sales Staff Training ^ Education and orientation of Cityldeveloper staff regarding the association: responsibilities, assessment program, restrictions and operation. ^ Grand Opening support PART III: DRE BUDGET PREPARATION (PER ASSOCIATION) (a) Prepare Range of Assessments Budget Program for Initial Submittal: ^ Prepare range of assessments spreadsheet per DRE requirements far Master Association ^ Prepare RE 623 Forms for phased budgets (best case, worse case, buildout) as required by DRE OR (b) Prepare Large Increment Budget Program for Initial Submittal: ^ Prepare Large Increment Budget per DRE requirements for Master Association PART IV. MISCELLANEOUS ^ Other analysis and review as requested by Client ^ Budget revisions after Client's acceptance ^ Attendance at meetings as requested by Client ^ Administrative costs related to Budget packaging (photocopies, postage, telephone, FAX charges, packaging and messenger service). 2 Additional Scope of Services-Future Years PART V. DRE BUDGET COMPLIANCE -FUTURE YEARS (a) Prepare Phased Budgets (Future Years) ^ In accordance with DRE requirements for compliance with `range of assessments' program, prepare RE 623 Form for each phase as closings occur, submit copies to Client, DRE, SRP and Management for implementation.. (b) Prepare Budget 24 Month Updates (Future Years) ^ In accordance with DRE requirements complete a budget review every 24 months: update to incorporate current contracts, actual expenses, revisions to future phasing and plans. 3 EXHIBIT "B" SPECIAL REQUIREMENTS 1. The Consultant shall comply with all applicable federal, state and local laws applicable to its activities. 2. The Consultant shall not release to the public or press any information regarding the purpose/scope of services to be accomplished or data specific to the project required under the Agreement without prior authorization of the contract officer. All such information is considered confidential. All inquiries made of Consultant shall be immediately referred to the Contract Officer. Consultant shall present to the City certificates of insurance and endorsement forms verifying that the Consultant has the insurance as required by this Agreement. Said form shall be reviewed and approved by the office of the City Attorney. 3. Consultant shall utilize those professional staff members to perform services as identified herein. The Consultant has identified the following principals that would be involved in the Project from their firm: • Susan Finley No substitution shall be made without the advance written approval of the Contract Officer. No increase in compensation or reimbursable salary rates will be allowed when personnel or firm substitutions are authorized by the Contract Officer. 4. The Consultant shall review and replace project personnel who do not perform assigned duties in a manner satisfactory to Contract Officer when requested by Contract Officer. 5. Monthly progress reports shall be submitted by Consultant with billing requests. At minimum these reports shall specify the period reported, tasks completed, tasks underway, percent of project completed and strategies to solve any timing delays. 6. Consultant shall be required to meet with the Contract Officer as determined necessary or desirable to discuss elements of the Scope of Work and project's progress. 7. Field investigation necessary. The Consultant shall obtain all necessary field data and make investigations and studies necessary to properly accomplish the work required under this Agreement. 8. It is understood that any materials developed will be copy ready on 8-1/2" x 11" white paper and that any copying costs will be the responsibility of the City. Consultant, upon request of City shall provide copies of all documents in an electronic excel or pdf format, at no additional cost to City. All computer software programs and related 1 development tools remain the property of the Consultant; provided, however, that City shall have the right to duplicate all such items in whole or in part in any manner and for any purpose whatsoever related to City's (or its related affiliates) real estate developments, but not for resale. 9. It is understood that all materials provided by Consultant will be a representation of generally accepted industry standards and do not take the place of any legal recorded documents for Project. It is advisable to engage the attorneys who authored the legal documents to review the final consulting materials, but such engagement shall not serve to relieve Consultant of any of Consultant's duties or obligations to City. 10. City will furnish all necessary information to prepare all budget(s), which will be developed using zero-based budget format, tied to established standards per the industry, or the DRE, as applicable. 11. All budget(s) will be prepared according to the DRE's mast current standards as published in the Operating Cost Manual for Homeowners Associations, prevailing industry standards, and assumptions about future events based on City's management and maintenance assumptions. 12. All prepared budgets are guaranteed approval by the DRE or assigned agency as prepared by Consultant, providing. submittal and appraisal is completed within one year (1) from date of budget. 13. Consultant agrees to assist City in a timely processing of the budget(s). Assistance includes telephone follow-up, and meetings with the assigned representative(s) from the DRE or other state/federal agent. 14. Consultant does not claim to verify quantities or square/linear footage of association amenities. On-site inspections are for overall visual verification of amenities only. 15. Considerations such as environmental conditions and association maintenance practices may modify the DRE's budgetary guidelines. Any changes in current and/or future reserve allocations will be considered a revision to the budget(s) and stated revision rates will apply. 16. A budget revision is defined, but is not limited to, changes in phasing of Project, additions or deletions of amenities, addition or deletion of services, changes in number of units within Project, and/or updating the budget(s) due to date of submittal to review agency. The foregoing shall not apply to correction of errors or omissions of Consultant other than omissions resulting from City's failure to provide complete information. 2 EXHIBIT "C" COMPENSATION Compensation As compensation for the Consultant's scope of services under this Agreement, the consultant's compensation is identified on a phase basis consistent with the Scope of Work (Exhibit "A"), with a not to exceed compensation amount for each Phase as identified below: Part I: Account Servicing $150 per hour, not to exceed without City approval One Thousand Dollars ($1,000.00) Part II: Forward PlanninglAssociation Readiness (a) Governance Model Structure-$150 per hour not to exceed Two Thousand Five Hundred Dollars ($2,500) (b) Budget-$150 per hour not to exceed Four Thousand Five Hundred Dollars ($4, 500) (c) Association Readiness-$75 per hour not to exceed Two Thousand Five Hundred Dollars ($2,500) (d) Staff/Sales Training-$150 per hour not to exceed Five Hundred Dollars ($500) Part III: DRE Budget Preparation (Per Association) (a) Prepare Range of Assessments Budget Program for Initial Submittal estimated at Seven Thousand Five Hundred Dollars ($7,500) or (b) Prepare Large Increment Budget Program for Initial Submittal estimated at Three Thousand Dollars ($3,000) per increment In any event, preparation of Budget for DRE submittal not to exceed Twelve Thousand Dollars ($12,000). Part IV: Miscellaneous $150 per hour or for administrative costs such as postage, telephone, fax charges, packaging and messenger services as incurred with no overhead not to exceed One Thousand Dollars ($1,000). Additional Scope of Work The Phase IV additional scope of work and any additional scope of work will be authorized only subject to written agreement between the City and Consultant as identified below. Part V: DRE Budget Compliance Future Years (a) Prepared Phased Budgets- Five Hundred Dollars ($500) per phase not to exceed Six Thousand Dollars ($6,000) annually. 1 (b) Prepare Budget 24 Month Updates (Future Years) Seven Thousand Five Hundred Dollars ($7,500) not to exceed biannually Seven Thousand Five Hundred Dollars ($7,500). City may request additional materials or meetings at any time with mutual dates and charges to be agreed upon in advance of work being performed. Unless otherwise agreed upon, the cost for additional materials or work performed will be at the hourly rates of $150 per hour and charged against miscellaneous charges or as an additional modification to the existing Agreement subject to approval of City and Consultant. Revisions requested by City after receipt of final documents will be charged according to the hourly rate of $150 per hour. The foregoing shall not apply to correction of errors or omissions of Consultant other than omissions resulting from City's failure to provide complete information. Expense Reimbursement a. The Consultant's not-to-exceed compensation far services under this Agreement may include reimbursement for miscellaneous expenses as noted above. The City shall reimburse Consultant for direct expenses such as and including postage, telephone charges. No Consultant travel shall be billed against this Agreement; b. Itemized payment statements shall set forth in detail all actual reimbursement expenses during the preceding month. Compensation for Additional Services In the event the City requires additional services, including but not limited to Phase V services as described in Exhibit "A", said services must first be approved in writing by a modification to this Agreement. The compensation for said services, plus reimbursement of expenses or a not to exceed compensation amount for additional services shall be as agreed to in writing by the City and Consultant provided that the Consultant shall agree to hold Consultant's standard hourly rates of $150 per hour. Method of Payment As a condition precedent to any payment to Consultant under this Agreement, Consultant shall submit monthly to the City a statement of account which clearly sets forth by dates the designated items of work, as well as reimbursable expenses, for which the billing is submitted subject to approval by the City Attorney and contract officer. The payment request shall identify each task required by the Agreement, percent of completion, amount of actual reimbursable expenses and requested amount to be billed against each task. Timing of Payment The City's Contract OfFicer shall review Consultant's monthly statements and pay Consultant for services rendered and costs incurred hereunder, at the rates and in the 2 amounts provided hereunder, on a monthly basis in accordance with the approved monthly statements. 3 EXHIBIT "D" SCHEDULE OF PERFORMANCE Consultant shall complete the Scope of Services under this Agreement upon receipt of a Notice to Proceed based on a schedule to be agreed to by the parties in writing based on the input of the City's special counsel on the preparation of the CC&R and governmance structure documents Additional Scope of Services Part V: to be determined based on written agreement between the City and Consultant once costs can be determined.