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HomeMy WebLinkAboutCC 11 CONS SVC AG 09-08-92fro ;-Ylr b+i � = CONSENT CALENDAR NO 11 ;, y , _ A _� 9-8-92 [ A� N. Y DATE: SEPTEMBER 8, 1992 Inter -Com i. TO: WILLIAM A. HUSTON, CITY MANAGER FROM: CHRISTINE A. SHINGLETON, ASSISTANT CITY MANAGER SUBJECT.- APPROVAL OF CONSULTANT SERVICES AGREEMENT RECOMMENDATION It is recommended that the City Council authorize the Assistant City Manager to execute a consultant services agreement between the City of Tustin and Cotten, Day & Selfon. BACKGROUND In conjunction with the base reuse planning efforts for the Marine Corps Air Station, Tustin, the City has utilized the interim services of the firm of Cotten, Day & Selfon. Over the last several months through a purchase order procedure, the firm has acted as the City's representative in Washington and monitored and reviewed federal executive proposals, and. other Washington developments that impact the City's base reuse planning efforts. The two key individuals at Cotten, Day & Selfon that the City staff have established interim services with are Mr. George Schlossberg and John Lynch. Mr. Schlossberg was senior counsel for real estate/base reuse for the Office of the Secretary of Defense and counsel to the President's Economic Adjustment Committee from 1980 to 1990. Mr. Lynch was Associate Director of Economic Adjustment, Office of the Secretary of Defense from 1972 - 1989. In this position, he directed the civilian reuse of 15 major military bases including the Boston Navy Shipyard. . He has authored a number of Publications including "Planning Civilian Reuse of Former Military Bases". With the major planning efforts on the Base Reuse Plan now beginning, it is appropriate for the City to formalize its relationship and enter into a contractual services agreement with Cotten, Day & Selfon so that their resources are available as needed during the planning effort. Staff feels that the firm is eminently qualified in a very specialized arena, and would recommend Council approval of the attached agreement. Christine A. Shing on Assistant City Ma er CAS:<bc\cdscontr.cas CONSULTANT SERVICES AGREEMENT This Agreement for Contract Services (herein "Agreement"), is made and entered into by and between the CITY OF TUSTIN, a municipal corporation ("City"), and Cotten, Day & Selfon, Attorneys at Law, ("Consultant"). WHEREAS, Consultant has represented that it is qualified to provide the necessary services and has agreed to �pfovide such services; and 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. 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 carefully considered how the work should be performed, and (c) fully understands the difficulties and restrictions attending performance of the work under this Agreement. 1.5 Additional Services. Consultant shall perform services when directed to do so by the Contract Officer. 2. COMPENSATION -1- 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 this Agreement. 2.2 Method of Payment. Each month Consultant shall provide City with a statement covering the preceding month which shall set forth in detail the time spent by each (named) person on tasks for City's benefit, the dollar amount of the fees for each person's services, a complete description of the services rendered, and an itemization of costs expended. City shall pay'Consultant for all fees and expenses stated thereon which are approved by City as being 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. 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 in a timely and expeditious manner and within any time periods prescribed in any request for services. Extension of any time period must be approved in writing by the Contract Officer. 3.3 Term. Unless earlier terminated in accordance with Section 7.5 of this Agreement, this Agreement shall continue in full force and effect until completion of the services but not exceeding one (1)' year from date hereof. 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following Principal of Consultant is hereby designated as being the principal representative of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: George Schlossberg. It is understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducement for City to enter into this Agreement. Accordingly, 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 -2- services hereunder. The foregoing Principal may not be changed by Consultant without the express written approval of City. It is understood and agreed that John Lynch, an independent contractor of Consultant, will provide services as requested by City from time to time and that the services performed by John Lynch shall be provided pursuant to the direction of Consultant and shall be billed to City through Consultant. 4.2 Contract Officer. The Contract Officer shall be the Director of Community Development of City unless otherwise designated in writing by the City Manager of City. 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, employees and subcontractor John Lynch 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 Consultant. 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 consultant of City and shall remain at all times as to City a wholly independent consultant 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. 5. INDEMNIFICATION 5.1 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, and for errors and omissions committed by Consultant, its officers, employees and agents, arising out of or related to Consultant's performance under this Agreement, except for such loss as may be -3- caused by City's own negligence or that of its officers or employees. 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 performtthe 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 reports, records, documents and other materials prepared or obtained 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 reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party cures any default within -4- 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 7.5 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 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 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 the period of notice shall be such shorter time as may be deemed 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 Attorneys Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or its subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. MIC 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 8.1 Non -Liability of City Officers and Employees. No officer or employee of City shall be personally liable to the Consultant, or any successor -in -interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Covenant Against Discrimination. Consultant covenants that, by and for itself, its heirs, executor's, assigns, and all persons claiming under or through them, that .here 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 15222 Del Amo Avenue Tustin, CA 92680 Attention: Director . (Contract To Consultant: of Community Development Officer) George Schlossberg Cotten, Day & Selfon, Attorneys at Law 1899 "L" Street N.W. Washington, D.C. 20036 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. cm 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,ito 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. Dated: APPROVED AS TO FORM: James G. Rourke City Attorney "City" CITY OF TUSTIN, a municipal corporation By. • Christine Shingleton Assistant City Manager Director of Community Development "Consultant" Cotten, Day & Selfon Attorney's at Law By: -7- Name Printed Title SCOPE OF SERVICES EXHIBIT A A. As requested by City from time to time, Consultant shall serve and act as representative of City in Washington, D.C. in connection with the closure of the Marine Corps Air Station, Tustin, California. B. Consultant shall monitor and review, as direai'ed by City, federal executive proposals, legislation under consideration, proposed and adopted administrative rules and regulations and other Washington developments, including. actions of the Department of Defense, Department of Navy, United States Marine Corps (USMC), our congressional delegations and each Congressional Armed Services Committee. C. Pursuant to each request of City, Consultant shall furnish detailed information as requested. Such requests shall be only as made to Consultant by the City Manager or Assistant City Manager. D. Consultant shall advise City of opportune times for City officials to make appearances in Washington. Consultant shall counsel City representative(s) regarding such appearances and will arrange for appointments as necessary. E. When and as requested by City, 'Consultant shall contact appropriate federal agencies, on City's behalf, when City grant applications related to the base closure are under consideration. F. Consultant shall take positions on potential national legislation as directed from time to time by the City Manager or Assistant City Manager. G. As requested by the City Manager or Assistant City Manager, Consultant will provide comments and analyses to City on specific areas or issues.in development of a base reuse plan and serve as an advisor to the City on base reuse at key points in the planning process. SPECIAL REQUIREMENTS EXHIBIT B 1. For purposes of this contract, Consultant's representatives as approved by City of Tustin are identified as George Schlossberg, attorney, and John Lynch, sub -consultant. 2. In providing direction to Consultant in conjunct,16nwith the Scope of Work identified in Exhibit A, the City will be as specific as possible in all requests for services (all said requests will be in writing or confirmed in writing immediately). In such requests, the City shall identify how much effort we want on each request or project, the extent, depths and detail of effort. 6 EXHIBIT C METHOD OF COMPENSATION A. Consultant shall keep an accurate account of time spent in rendering of services. B. Itemized payment statements shall set forth in ,detail all actual and necessary costs, expenses and disbursements incurred during the preceding month and for the term of contract. C. The billing rate for services will be as follows: GEORGE SCHLOSSBERG $200/hr. JOHN LYNCH $125/hr. Disbursement and expenses to be identified and billed separately.