HomeMy WebLinkAbout12 REVISED LUCE FORWARDAgenda Item 12
Reviewed:
AGEl`1DA ~~~PCJRT City Manager
Finance Director
MEETING DATE: MARCH 6, 2012
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: CITY MANAGER'S OFFICE
SUBJECT: REVISED LUCE FORWARD CONTRACT FOR DEVELOPMENT OF A
GOVERNANCE STRUCTURE FOR THE TUSTIN LEGACY PROJECT
SUMMARY
Approval is requested for changes to Consultant Services Agreement (CSA) originally
reviewed by the City Council at its regular meeting of January 3, 2012 to provide
professional services to assist the Gity in development of a governance structure in its
limited executive master developer role for the Tustin Legacy Project.
RECOMMENDATION
It is recommended that the City Council:
1. Authorize the City Manager or Assistant Executive Director to execute the attached
revised CSA with Luce, Forward, Hamilton, & Scripps, LLP (Luce Forward), subject
to any insurance changes approved by the City's Risk Manager and any non-
substantive modifications as may be deemed necessary by the City Attorney prior to
execution of the CSA.
2. Approve a Waiver of Conflict of Interest.
FISCAL IMPACT
It is estimated that the cost for Luce Forward services will be approximately $85,000
which has been previously appropriated by the City Council {Tustin Legacy Expenditure
Account 200-40-00-7500).
BACKGROUND
The City Council at its regular meeting on January 3, 2012 authorized the City Manager
to execute a CSA with Luce Forward for development of a governance structure for the
remaining portions of property to be developed within the former master developer
footprint at Tustin Legacy. The City Attorney was authorized to make non-substantive
Agenda Report -CSA with Luce Forward
March 6, 2012
Page 2
modifications to the agreement prior to execution, however, the City Attorney believes
that minor clarifications to the scope of work proposed in the CSA were necessary as
well as a few minor modifications to address issues associated with insurance
provisions. The scope of work would continue to 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. The consultant will also be available in the future to process any supplements to
the CC&Rs that may be required as development sites are added to the initial
governance structure as an additional scope of work
The City also was recently informed that the firm of Luce Forward will be merging with
the firm of McKenna Long & Aldridge LLP ("MLA"). MLA currently represents SOCCCD
with regard to BRAC issues related to the acquisition and development of real property
located in another portion of the former MCAS Tustin site. Luce Forward has requested
a waiver of this conflict interest subject to the informed consent of both the City and
SOCCCD and creation of an ethical wall isolating all our personnel who provide or
support legal services to Tustin in the Governance Structure services from personnel
who provide or support legal services related to the SOCCCD property and from all files
relating to these respective matters. The City Attorney and Assistant Executive Director
have reviewed the request and with the proposed ethical wall recommend support far
the foregoing described conflict.
A copy of the revised CSA is attached. Staff will be available to respond to any
questions that the City Council might have.
s-
Christine Shingleton
Assistant Executive Director
Attachments: Revised Consultant Services Agreement with Luce Forward
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, ALP ("Consultant").
WHEREAS, City acting in a limited master developer role for the Tustin t_egacy
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, Gity 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. Incompliance with all terms and conditions of this
Agreement, Consultant shall provide those professional legal 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 legal 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 considered the work to be performed, and
{b) has carefully considered how the work should be performed.
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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 peform any additional services without
compensation. Any additional compensation not exceeding ten percent (10°l0} of the
original contract sum must be approved in writing by the Contract Officer. Any greater
increase must be approved in writing by the Gity 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.
1.8 Future Conflict Waivers. City recognizes that Consultant may be
requested by developers that acquire property within the Tustin Legacy Project to provide
legal services related to their developments. City agrees to reasonably consider requests
for waivers of conflicts of interest if required for Consultant to provide such services.
Consultant has disclosed to the City the existence of a potential legal conflict as described
on Exhibit "D". City agrees to execute the letter waiving such conflict attached as Exhibit
"D'
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" for actual fees incurred, in an amount not to exceed Eighty-
Five Thousand Dollars ($85,000.00), except as approved as provided in this Agreement.
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 fees and casts 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:
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A. To provide for revisions or modifications to documents or other
work product or work when documents or other work product or work is required by the
enactment or revision of law subsequent to the preparation of any documents, other work
product or work;
B. To provide for additional services not included in this Agreement
or not customarily furnished in accordance with generally accepted practice in Consultant's
profession.
2.4 Payment for Changes. Changes approved pursuant to an Addendum
shall be compensated at the personnel hourly rates prescribed in Exhibit "C" hereto.
Note: Exhibit "C" prohibits billing for travel.
3. PERFORMANCE SCHEDULE
Agreement.
3.1 Time of Essence. Time is of the essence in the performance of this
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 Mai'ieure. 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 farce 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:
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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 Gity
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 ar 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 far 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.
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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
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.
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 lasses arose
from the work performed by the named insured.
D. Other applicable insurance requirements are: (1) The insurance
referenced in Sections A and C above, 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; and {2} The insurance shall not be
cancelled, except after thirty {30) days written prior notice to City.
E. Upon execution of this Agreement, Consultant shall provide to
City certificates of insurance (or other declarations of coverage} evidencing the required
insurance. 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.
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 ar ownership of the documents and materials hereunder. Consultant may
retain copies of such documents far its own use. Consultant shall have an unrestricted
right to use the concepts embodied therein.
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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.'I 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 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 ar remedy of
a non-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 far 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.
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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.
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 orsent bypre-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.
Ta City:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Assistant Executive Director
(Contract Officer)
To Consultant:
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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.
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 ar 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:
APPROVED AS TO FORM:
David E. Kendig
City Attorney
"CITY"
City of Tustin
gy:
City Manager or
Assistant Executive Director
"Consultant"
LUCE, FORWARD, HAMILTON & SCRIPPS, LLP
By:
Nancy T. Scull
Partner
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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 alterna#ive 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, afterwhich 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 far 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 the community CC&R's and identify any budget issues.
4. Consultant shall identify those issues that need to be considered in Consultant's
preparation of the governing documents far 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 far consideration.
Consultant, and City team members will be responsible far considering and responding to
the lists of issues. The expenses associated with the services of the Budget Preparer
Consultant shall be paid by City.
5. 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
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 assaciation;
{c} determining possible formulas far allocating assessments; {d) determining possible
voting structures and ensuring the City retains necessary jurisdiction over certain matters of
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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.
6. Consultant, when directed by the City Contract Officer and after apre-meeting, will
review the proposed structure with the Department of Real Estate.
7. 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 community CC&Rs and two
community associations that will need to be created at a minimum.
1. Consultant shall complete drafts of the governing dacuments 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 nat agree to review governing documents unless a first builder file is
submitted to the DRE. During this step, Consultant shall develop procedures forthe City to
coordinate with the developers to submit the first file to DRE and to ensure there is
uniformity of approach imposed in all conveyance documents to any developerslbuilders at
Tustin Legacy.
Additional Scoae 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.
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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.
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EXHIBIT "B"
SPECIAL REQUIREMENTS
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. RII 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 J. Burchett
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.
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EXHIBIT "C"
COMPENSATION
Compensation
1. As compensation for the Consultant's scope of services under this Agreement, the
consultant's compensation is estimated below on a phased basis far legal work
described in Exhibit "A", with the total compensation amount for the project not to
exceed $85,000 in any event without an agreement amendment. The estimated
compensation by phase is for planning purposes only and the allocated cast
estimates per phase or between phases shall not be exceeded unless written
authorization is provided to Consultant by the Contract Officer.
Phase 1 Estimate $15,000.00
Phase 2 Estimate $20,000.00
Phase 3 Estimate $50,000.00
Total Not to Exceed Compensation $85,000.00
Consultant shall bill based on an hourly rates identified herein for each attorney:
Nancy T. Scull--$510 per hour
Marjorie Burchett--$480 per hour
The Phase 4 additional scope of work identified in Exhibit A 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 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 following 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 far 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
101813303.3
Consultant Services Agreement EXHIBIT C
34696-00001 1 City of Tustin 1 2/22/12
Consultant shall agree to hold Consultant's standard hourly rates for professional
services to those shown below:
Luce Forward
a. Nancy T. Scull -- $510.00
b. Marjorie J. Burchett -- $480.00
Method of Payment
5. 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.
Timin oq f Payment
6. 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.
101813303.3
Consultant Services Agreement EXHIBIT C
34696-00001 !City of Tustin 2 2/22/12
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 $ 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
Gonsultant once costs can be determined.
101813303.3
Gonsultant Services Agreement EXHIBIT D
34696-00001 t Gity of Tustin 1 2122112