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HomeMy WebLinkAbout06 ADVISORY SVCS 06-07-04 A G END A REPORT Agenda Item ~ Reviewed: ttt-- City Manager Finance Director MEETING DATE: June 7, 2004 TO: FROM: WILLIAM A. HUSTON, CITY MANAGER REDEVELOPMENT AGENCY STAFF SUBJECT: DEVELOPMENT ADVISORY SERVICES FOR TUSTIN LEGACY SUMMARY Authorization is requested for the City to enter into a Consultant Services Agreement with Keyser Marston Associates for Development Advisory Services for the Tustin Legacy Project. RECOMMENDATION It is recommended that the City Council authorize the City Manager or Assistant City Manager to execute a Consultant Services Agreement with Keyser Marston Associates for Development Advisory Services for the Tustin Legacy project, subject to legal review of the final document by the City Attorney. FISCAL IMPACT The anticipated costs for services will be recovered from Master Developer planning and negotiation deposits made as part of the Master Developer exclusive Negotiation Agreement, from other Developer negotiation deposits, or from future land sale proceeds as applicable. Services were contemplated and budgeted in the Fiscal Year 2003-04 and proposed 04-05 budget as part of the Tustin Legacy Enterprise Fund. BACKGROUND City of Tustin (the "City"), the designated Local Redevelopment Authority (LRA) for Marine Corps Air Station (MCAS) Tustin has developed the MCAS Tustin Specific Plan/Reuse Plan ("Reuse Plan") to guide the redevelopment of surplus land at this former military facility. Following the completion of the Reuse Plan, the City completed a Business Development Plan that set forth a financial and implementation framework for development of Tustin Legacy. The Business Plan was also the basis of negotiations with the Department of the Navy ("Navy") which culminated in a Conveyance Agreement for conveyance of significant portions of the former military William A. Huston Tustin Legacy Developer Disposition Services June 7, 2004 Page 2 facility to the City. Under the Conveyance Agreement, the City has received to date over 1,000 acres of land and is currently leasing approximately 152 acres of land that will be conveyed upon the Navy's implementation of remediation on these properties and the release of a Finding of Suitability to Transfer the properties. The City and Tustin Community Redevelopment Agency (the "Agency") are now in active implementation of the Reuse Plan and with the selection of the Master Developer and continued negotiations on other portions of Tustin Legacy not within the Master Developer footprint, the City continues to have a need for additional consultant services in support of a number of tasks in the property negotiation and disposition process. These services were previously authorized and performed by Economic and Planning Services who recently terminated their contract. Staff is proposing at this time that the necessary services be provided by Keyser Marston Associates. A nationally recognized financial and economic consulting firm, Keyser Marston Associates has extensive redevelopment experience as well as having been directly involved in property negotiations at a number of closed military bases in California (i.e., the San Diego Naval Training Center, the Alameda Naval Station, Fort Ord Army Depot) and has negotiation experience with the Tustin Legacy Master Developer. A proposed scope of anticipated services is included with the attached Consultant Services Agreement. Broadly, the Consultant role would include: . Services related to analysis and management coordination of certain project related tasks including provision of economic, real estate development, financial, market, and overall business advice; . Disposition and development activities; and . A broad range of general implementation tasks necessary to ensure the orderly disposition and development of the Tustin Legacy site. On the Master Developer planning and negotiation process, the Consultant will provide strategic support to the City's planning and negotiation process with the Master Developer and on other development negotiations at Tustin Legacy, under City staff direction and as assigned. The Consultant will also provide assistance to the City in the negotiation process to include review of technical terms and conditions under discussion, assistance in developing new negotiation positions and alternative approaches, and in providing document review (i.e., Market studies, Term Sheet and DDA drafts). The Consultant will also provide input regarding the longer-term business implications of proposed transactions, and will assist the team and the City with organization and process issues, as needed. This will include participation and William A. Huston Tustin Legacy Developer Disposition Services June 7, 2004 Page 3 completion in specific tasks provided by the City on research, analysis, and negotiations necessary to define, evaluate and refine development, financing, land disposition, payment and participation, and other financial and development elements of any developer transaction or agreement. Services may also include the necessary due diligence and reporting requirements for this complex, large-scale development project. The City may identify additional implementation tasks for assignment to the Consultant as considered necessary by the City as the project proceeds. Under the direction of the Assistant City Manager, the Consultant would be an independent consultant providing the necessary personnel and expertise to enable the City to plan, manage and implement the Tustin Legacy project. Gerald Trimble, Managing Principal, will be the primary Consultant contact leading the Consultant real estate and planning advisors to the City. Additional senior Consultant staff will also provide additional assistance, as needed, to the City on tasks related to financial analysis and supporting research and strategy development, when assigned and as needed. The work effort for each of the Consultant members will vary depending on the specific tasks requested and at different points in the Master Developer planning and negotiation process, and issues that the Consultant is asked to address. Therefore, the budget is proposed on a time-and-materials basis. Staff will also work closely with the Consultant to project a monthly and/or quarterly budget for individual tasks when specific schedules are assigned related to individual tasks. Staff time will be billed at standard hourly rates (as identified in the Consultant Services Agreement) based on the time actually spent, and direct expenses, such as for travel, data and copying, will be billed at cost subject to all provisions contained in the Consultant Services Agreement. 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 Keyser Marston Associates, Inc, a California Corporation ("Consultant"). WHEREAS, Consultant is qualified to provide the necessary services and has agreed to provide 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. I n 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, and (d) fully understands the facilities, difficulties and restrictions attending perforrnance 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 darnage to rnaterials, papers or other cornponents of the work, and shall be responsible for all such darnage 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 perforrn any additional services without compensation. Any additional compensation not exceeding ten percent (10%) of the original Contract surn must be 180912.1 Comm.Dev./RDA CA 2/2004 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", "C", and "D" and are incorporated herein by this reference. In the event of a conflict between the provisions of Exhibit "B" , "C", and "D" and any other provision or provisions of this Agreement including Exhibit A, the provisions of Exhibits "B", "C" and "D" 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 ss are prescribed in Exhibit C. 2.2 Method of Pavment. 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 forrn approved by City's Director of Finance, an invoice for services rendered prior to the date of the invoice. City shall pay Consultant for all expenses stated thereon which are approved by City consistent with this Agreement, no later than the last working day of said month. 2.3 Chances. In the event any change or changes in the work is requested by City, the parties hereto shall execute an addendurn to this Agreement, setting forth with particularity all terms of such addendurn, 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 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 Pavment for Chances. 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" rnust be approved in writing by the Contract Officer. 3.3 Force Maieure. The time for performance of services to be rendered pursuant to this Agreement may be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant, including, but not 180912.1 2 Comm.Dev./RDA CA 2/2004 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 (J) 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: Gerald Trimble, Managing Principal, San Diego Office. It is expressly understood that the experience, knowledge, capability and reputation of the foregoing Principal is a substantial inducernent 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 City Manager of City unless otherwise designated in writing by the City Manager of City. The Co-Contract Officer shall be the John Buchanan. It shall be the Consultant's responsibility to keep the Contract Officer, or the Co-Contract Officer in the Contract Officer's absence, 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 or the Co-Contract Officer. 4.3 Prohibition Aaainst Subcontractina or Assianrnent. 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 180912.1 3 Comm.Dev./RDA CA 2/2004 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. B. Consultant shall maintain in full force and effect during the term of this Agreement a policy of professional liability insurance coverage with limits of at least $1,000,000 combined single limit coverage per claim or per occurrence. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1) to purchase tail insurance in the amount required by this Agreement or to cover claims made within five (5) years of the completion of Consultant's service under this Agreement, or (2) to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least five (5) years after completion of Consultant's services under this Agreement. Consultant shall also provide evidence to the City of the purchase of the required tail insurance or continuation of the professional liability policy by executing 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 frorn the work performed by the named insured. D. Other applicable insurance requirements are: (1) Name the City, 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 City; 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 7D 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. 180912 .1 4 Comm.Dev./RDA CA 2/2004 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 negligence in the performance under this Agreement, except for such loss as may be caused by City's sole negligence or that of its officers or employees. The Consultant shall also defend, indemnify and hold the City harmless from any claims or liability for City health and welfare, retirement benefits, or any other benefits of part-time or fulltime City employment sought by Consultant's officers, employees, or independent contractors, whether legal action, administrative proceeding or pursuant to State statue. 6. RECORDS AND REPORTS 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to properly perform the services required by this Agreement and enable the Contract Officer to evaluate the performance of such services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit and make records and transcripts from such records. 6.3 Ownership of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of this Agreement shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the termination of this Agreement, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights or ownership of the documents and materials hereunder. Consultant may retain copies of such documents for its own use. Consultant shall have an unrestricted right to use the concepts embodied therein. 6.4 Release of Documents. All drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. 7. ENFORCEMENT OF AGREEMENT 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Orange, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim 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 180912 .1 5 Comm.Dev./RDA CA 2/2004 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 shail 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 Riahts 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 Leaal 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 shail be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated, provided that the City shall use reasonable efforts to mitigate damages, and City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed to City. 7.8 Attornevs Fees. If either party commences an action against the other party arising out of or in connection with this Agreement or it subject matter, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. 8. CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION 180912.1 6 CommDev./RDA CA 2/2004 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 Aaainst 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: Director of Community Development (Contract Officer) To Consultant: Gerald M. Trimble Managing Principal Keyser Marston Associates, Inc. 1660 Hotel Circle N, Suite 716 San Diego, CA 92108 9.2 Intearated Aareement. 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 anyone 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. 180912 .1 7 Comm.Dev./RDA CA 2/2004 9.5 Corporate Authoritv. 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, a municipal corporation By: Christine Shingleton Assistant City Manager APPROVED AS TO FORM: Lois Jeffrey City Attorney "Consultant" Keyser Marston Associates, Inc. By: S:\RDA\Consultants COl\Consultant Services Agrmt, 2-04.DOC 180912.1 8 Comm.Dev./RDA CA 2/2004 EXHIBIT "A" SCOPE OF SERVICES A. General Consultant shall provide services related to analysis and management coordination of certain project related tasks; Disposition and development activities; and A broad range of general implementation tasks necessary to -ensure the orderly disposition and development of the Tustin Legacy site. Services may also include necessary due diligence and reporting requirements for this complex, large-scale development project. The City may identify additional implementation tasks for assignment to the Consultant as considered necessary by the City as the project proceeds. Consultant would be an independent consultant providing the necessary personnel and expertise to enable the City to plan, manage and implement the Tustin Legacy project. B. Developer Negotiations/Site Conveyance and Disposition Advisory Services within Master Developer Footprint Consultant will assist the City during Master Development Planning and Negotiation Process as described in the RFO and Exclusive Agreement to Negotiate with the Master Developer Additionally, an increased emphasis will be required on defining, analyzing and negotiating business and financial terms and translating those into the documents that will secure the transaction with the Developer. Task 1: Developer's Preparation of a Preliminary Master Developer Development Plan and Initial Threshold Analysis. Consultant will assist City in Identifying key deal parameters and objectives on a preliminary basis, including lease versus sale of land, affordable housing objectives and strategies, financial goals and priorities, and other important outcomes that the City will pursue. The Consultant will advise and assist City in strategy and approach, including review of the concepts being prepared by the Master Developer with City officials and other community stakeholders When specifically directed in writing, the Consultant will review Developer's comprehensive and transparent pro forma cash flow model that will not be proprietary and will serve as a flexible tool for analyzing deal points and a means of documenting agreed upon assumptions on costs, revenues, development program, phasing and other project characteristics. 180912.1 9 Comm.Dev./RDA CA 2/2004 If requested by the City, the Consultant will assist the City in reviewing the work of other sub-consultants on the use of public financing mechanisms or in profiling potential public financing mechanisms, their legal requirements and potential application to the project. The Consultant will work with the City Work Group, as assigned, and the Master Developer to evaluate the impact of emerging development opportunities on the plan and to ensure that the developer's due diligence efforts provide a sufficient basis for supporting key market, financing and cost assumptions. Task 2: Refinement of Master Developer Plan and Infrastructure Plan by Master Developer The Consultant will assist the City in providing direction to the Master Developer for their revision of the preliminary Master Development Plan including direction on phasing and reaction to the detailed infrastructure phasing plan and in the review of materials required in this Task by the Exclusive Agreement to Negotiate. Task 3: Preparation of Preliminary Business Plan by Master Developer The Consultant, will assist the City in review and analysis of the Preliminary Business Plan. Task 4: Preparation of Master Development Plan Package by Master Developer Consultant will assist both the City and Master Developer in refinement of the Business Plan and any requested revisions to the documents with direction approved by the City for any revisions. Task 5: Negotiate Business Term Sheet The Consultant will assist and be active participant providing support to the City and its identified legal counsel in this task. Task 6: Finalize Plan Revisions The Consultant as directed by the City will assist in finalizing Plan revisions. Task 7: Negotiate Development and Disposition Agreement (DDA) . The Consultant, will be an active participant and provide business recommendations and support to the City in this task, and to the City's special legal counsel. Consultant will provide necessary due diligence reports (Reuse analysis and Summary Report) as needed for processing of DDA document. Task 8: Commission and Council Presentations Consultant will be available throughout the negotiation period to provide briefings to the City Council, individual members of the City Council and other City and community decision makers as directed by City staff. Deiiverables: to be determined by City. 180912.1 10 Comm.Dev./RDA CA 2/2004 C. Services Associated with Developer Negotiations/Site Conveyance and Disposition Advisory Services Outside of Master Developer Footprint When requested by the City, the Consultant shall provide disposition strategy and comments to the City or may assist in the City's negotiations with selected developers on sites other than within the Master Developer footprint. This may include providing assistance in outlining terms, schedules, responsibilities and conditions of interim Memorandum of Understandings ("MOU's"), Term Sheets and/or Disposition Development Agreements ("DDA's") between the City and selected developers. . The Consultant may also be requested to assist in creating a Compliance Monitoring Program for inclusion in the final MOU's and DDA's. The City may request that the Consultant monitor a developer's progress in compliance with certain specific terms and conditions of a DDA and to provide a written report to the Agency. . The City may also request the Consultant's assistance in the review of Navy transfer documents to identify potential issues relative to the City's proposed pass-through disposition of property to private sector developers. The Consultant will provide written comments and recommendations to the City regarding such reviews, including but not limited to, business terms, deed restrictions, property encumbrances and non-title contingencies. The Consultant may also be requested to assist the City respond to due diligence information requested from developers during the closing process. Deliverables: To be determined by City. D. Miscellaneous Preparation of Request for Qualifications ("RFQ")I Request for Proposals ("RFP") Consultant shall prepare and produce comprehensive RFQ/RFP packages review draft packages prepared by the City and/or Agency and, in the event the Consultant is asked to prepare RFP/RFQ packages, the style and quality of the additional packages shall be comparable to that of those previously produced for the Agency for MCAS Tustin. It will be the responsibility of the City to make direct payment for all printing costs. The Consultant shall provide a color mock-up of the final documents for City review and approval as well as a copy of the electronic production files for printing purposes and the Agency's files for each package produced. The Consultant shall also work with the City to review RFP content in an effort to stimulate creative development responses and maximize the potential leverage of community benefits derived from the proposals. Consultant may also be asked to identify highly qualified potential developers to receive RFP/RFP notices based upon the type of experience needed for a particular disposition package. The City shall receive a copy of the electronic file for this data from the Consultant. The Consultant may also be asked to recommend an advertising plan and schedule for the disposition packages and shall provide recommended ad copy for placement in development and real estate industry publications. The City will make direct payment for the cost of such ad placements. Deliverables: Disposition packages (number and schedule to be determined by the 180912.1 11 Comm.Dev./RDA CA 2/2004 City): 1. Request for Qualifications and/or Request for Proposal documents; 2. Developer notice list; and 3. Solicitation advertising plan and schedule. The City has established a Technical Evaluation Team ("TET') to review all responses to RFQ's and RFP's for Tustin Legacy. In addition to City staff and legal counsel, the TET may include representatives from the Consultant and any additional sub- consultants in specialized areas of development as warranted for specific RFQ/RFP packages and as approved by the City. To facilitate the coordination and assignment of responsibilities for this task, the Consultant may also be asked to organize and conduct a session that includes City staff and other personnel and sub-consultants as approved by the City. It is anticipated that the Consultant will include but not be limited to the review of submitted qualifications and proposals of the responding development entities, including: 1. Development entity structure, relevant experience, financial capability, capitalization, sustainable capacity for development over time, etc.; 2. Respondents' vision for Tustin Legacy and its consistency with the Specific Plan/Reuse Plan; 3. Timing and type of proposed business transaction; 4. Property management experience and capabilities; and 5. Respondents' proposed development pro forma submittals. The Consultant's comments and recommendations shall be provided in writing. addition, the Consultant shall assist in the following: In 1. Preparation of materials to be distributed to all TET Members for meetings where qualifications and proposals are to be discussed. 2. Preparation of evaluation criteria and scoring techniques to assist the TET in ranking responses and reaching agreement on a "short list" of respondents. 3. Summarization of TET discussions and comments, ranking recommendations and assisting in drafting recommendations to the City Council. 4. Scheduling and coordination of respondent interviews, including preparation of the interview format and questions. 5. Providing written updates to TET members on the status of the respondent review and selection process. Deliverables: For each disposition package RFP and/or RFP as determined: 1. Written comments and recommendations; 180912.1 12 CommDev./RDA CA 2/2004 2. Evaluation format and scoring criteria for the TET; 3. Interview schedule, format and questions; 4. Consolidated evaluation summary; and 5. Program status reports to the TET. 180912.1 13 Comm.Dev./RDA CA 2/2004 EXHIBIT "B" Special Requirements 1. Consultant shall not release to the public or the press information on this project without prior authorization by Contract Officer. 2. Conflict of Interest. In order to assure City that Consultant is not subject to any conflict of interest, Consultant affirms that while Agreement is in effect, neither Consultant nor any of its officers or employees will accept private work from or provide services for any company who is doing or proposing development at Tustin Legacy. In addition, Consultant agrees that neither Consultant nor its officers or employees will accept public work from or provide services to either the County or Orange or the Cities of Irvine or Santa Ana that relate to the Tustin Legacy project, unless other wise noted herein. City acknowledges that the Consultant has been engaged to provide financial and economic services to the County or Orange to support its review of responses to proposals for the Northerly Blimp Hangar and the Regional Park proposed by the County of Orange at Tustin Legacy. Consultant has agreed that none of its officers or employees specifically identified to support of the City of Tustin in this Agreement on the Tustin Legacy project (see this Exhibit, item # 7) or as otherwise identified in this Agreement shall be participate in any County of Orange scope of services that would involve the Tustin Legacy project or any property that will be conveyed at Tustin Legacy to the County of Orange. In addition, Consultant understands and agrees that all work it undertakes for the City of Tustin shall be considered confidential and shall not be shared by Consultant with any other party without a written release from the City of Tustin. In the event of uncertainty about whether a potential conflict of interest exists, Consultant shall advise Contract Officer whose decision shall be final. 3. A no-fee business license shall be provided by the City to Consultant. 4. Consultant shall present to the Agency certificates of insurance and endorsement forms pursuant to Agreement requirements verifying that the Consultant has the insurance as required by this agreement. Said forms shall be reviewed and approved by the City Attorney. 5. If Contract Officer determines that a product deliverable is unacceptable, either before or after a draft or final draft is issued, because it does not conform to the requirements of this agreement, the Consultant shall submit a revised report or product at Consultant's expense. 6. The Consultant shall review and replace project personnel assigned to project who do not perform assigned work in a manner satisfactory to Contract Officer. 180912 .1 14 CommDev./RDA CA 2/2004 7. The Consultant has identified the following staff members that will provide support to the Consultant Team with Gerald Trimble to be the Consultant lead As the lead, Mr. Trimble shall be available to meet with Contract Officer as required at designated dates and times to coordinate scope of services required by the contract, to resolve problems, to discuss progress on scope of work at Contract Officer's direction and to discuss assumptions developed during task levels. Gerald Trimble, Managing Director, San Diego Office, (619) 718-9500 Jerry Keyser, Chairman, San Francisco Office, (415) 398-3050 Jim Rabe, Principal, Los Angeles Office, (213)622-8095 Debbie Kern, Principal, San Francisco Office, (415) 398-3050 Reed Kawahara, Manager, San Francisco Office, (415) 398-3050 Michael Wong, Manager, San Diego Office, (619)718-9500 David Doezema, Associate, San Francisco Office, (415) 398-3050 8. Field Investigations necessary. The Consultant shall obtain necessary field data and make site investigations and studies necessary to the proper accomplishment of the work required under this contract. 180912.1 15 Comm.Dev./RDA CA 2/2004 EXHIBIT "C" SCHEDULE OF COMPENSATION 1.0 Compensation 1.1 Agency shall compensate the Consultant based on actual time and effort expended on specific scope of service tasks identified in Exhibit A that City may assign Consultant.. 1.2 Computation of Compensation. Compensation for scope of service tasks will be determined according to hourly rates for the Consultant as shown in Exhibit C-Attachment 1. Adjustments to the hourly rate will be negotiated on an annual basis subject to mutual written agreement by the City and the Consultant. 2.0 Direct Expense Reimbursement The Consultant shall be entitled to reimbursement for direct expenses not to exceed $1,000 per month without prior written approval of the City. The City shall reimburse the Consultant for direct expenses such as and including printing, postage, telephone charges and Consultant travel. Any such reimbursements requests shall not be considered part of Compensation shown in Paragraph I, above, and shall be subject to the following restrictions: A. Expenses for air travel shall be for standard, economy class only; and B. Expenses for hotel stay, as City determines necessary for service provision, shall be based on standard non-luxury hotel rates. C. Itemized payment statements shall set forth in detail all actual direct reimbursement expenses during the preceding month. 3.0 Pavments for Compensation and Direct Expense Reimbursements As condition precedent to any payment to Consultant for Compensation and Direct Expense Reimbursement under the Agreement, the Consultant shall submit a monthly invoice to the City which clearly sets forth the specific Scope of Service tasks being billed against, the actual hours spent on a task, the hourly billing rate, the personnel classification or individual performing the task, the fees being billed for all Consultant and sub-consultant personnel as well as direct reimbursable expenses for which compensation is submitted. Consultant staff time shall be calculated against the established standard hourly rates shown in Exhibit C- Attachment 1. All invoices shall be based on actual hours worked by an individual multiplied by the fixed hourly rates for that individual and the corresponding firm. A. The City shall review the Consultant's monthly invoices and pay the Consultant for services rendered and costs incurred hereunder at the rates and in the amounts and under 180912.1 16 Comm.Dev./RDA CA 2/2004 the terms (i.e., compensation, Direct Expense Reimbursement) provided hereunder on a monthly basis in accordance with the approved monthly statements. B. Consultant acknowledges that the work effort of Consultant may vary at different points in assigned scope of service items, depend on tasks specifically assigned by City and the issues the Consultant is asked to address. Therefore, Consultant agrees to work with City to project a monthly or quarterly budget as City defines a more specific definitive time schedules for any assigned scope of service tasks. Said budget projections shall be provided to City in the form shown in Attachment CAttachment 1. 180912 .1 17 Comm.Dev./RDA CA 2/2004 EXHIBIT "D" SCHEDULE OF PERFORMANCE For scope of work tasks and special service projects and reports, a Schedule of Performance shall be assigned by City to Consultant and agreed to by Consultant and City in writing, and shall be incorporated into this Agreement upon execution. Contract Officer reserves the right to request '1ast tracking" of a scope of work task or service. Consultant understands that the City wishes to proceed with a very aggressive schedule on Scope of Services Item B as described in Exhibit B and to comply with the schedule the City has committed to with the Master Developer in the Exclusive Agreement to Negotiate. However, it is acknowledged that it is difficult to determine with certainty how long the negotiation process might take since it depends on the parties coming to agreement based on a host of issues and business terms. In any event, the Consuitant acknowledges the City has identified the desire to see completion of negotiations and a DDA within 15 months and will provide adequate support to City to meet any City identified schedules. 180912 .1 18 Comm.Dev./RDA CA 2/2004 Keys., M..ston Associates, Inc. Allocation of P.,sonnel T"slln legacy City 01 Tustin KMA Office I Ad"'so,y Se""ces Emphasis I SO SF LA SF SF SO SF Ge,ald M. A. Je"" J. Rabe O. Kern R. Kawaha'a M. Wong O. O..,ema Support Total T,lmble ~ P,'nc'pa' ~ Manage, ~ Associate Service Negollal;og sod coosult;... 00 I;"".;al aod d;spos;l;oo ;s,ue, Nelol;al;og sod coos"ltl... 00 marl<cl. I;""".;al sod d;,po,;lIoo ;"ue, x Meel;og, w;lh clieol, developer, legal couosel aod olho<s Prepacal;oo of maler;als sod ,upport;... doc"meots x F;""".;al lesllog aod a",,'y';s 01 laod usa co".epl, x Afto,dable 1Io",'og & f;,oal ;mpacVecooom;c be""t;t a",,'y';' Adv;ce 00 lI"oc;... opt;o"" bu,i""" lerms aod laod d;'po,;lIoo ;"u", x Total I - --~- ~~Imated Budget Pe, Month I Gerald M. A. Jer", Jim Debbie T,'mble ~~~ Maoager Maoage' Associate Support Total $ 230.00 $ 235.00 $ 220.00 $ 220.00 17500 175.00 140.00 82.50 Negol;al;og aod coos"lt;og 00 I;oa".;al aod d;,po,;I;oo ;"ue, Nelol;al;"" aod co"",It;og 00 markel. I;""".;al sod d;'pO';I;OO ;"ue, Meet;"", w;lh cI;eol, developer, legal couosel aod olheos Preparal;o" 01 mater;al, aod ,upport;og documeots Floa".;alle";",, aod a",,'y';' 01 laod u,e co....pt, Affordable hou'i... & I;scal ;mpacVecooom;c be""t;t aoaly'i' Adv;ce 00 I;oa";",, opl;OO', bu,'oe" lerm, sod lsod d;'oo,;t;oo ;"ue, Subtotal. KMA TEs $ Relmburseables TotaUMooth TotaVOIt Prepared by, Keyser Maosloo As,oclale" "'.. Apr;122, 2004. T,,";o legacy. KMA Peosoooel AJloc.