HomeMy WebLinkAboutE-6 Staff Report - 2018 MPG Agreement AmendmentCONSENT ITEM
E-6
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: KURT E. CHRISTIANSEN, FAICP
ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR
DATE: APRIL 2, 2018
SUBJECT: CONSIDERATION OF A PROFESSIONAL SERVICES AGREEMENT
AMENDMENT WITH MORSE PLANNING GROUP TO EXTEND THE CONTRACT
FOR 1 YEAR
SUMMARY:
On April 16, 2014, the City Council authorized the City Manager to enter into an amended and restated
contract with Morse Planning Group (MPG) for contract planning services. The term of the contract
was for one year, with the ability to extend the agreement by mutual consent. On July 20, 2015, the City
Council extended the contact through June 30, 2016. The contract was extended by the City Council on
July 18, 2016 to June 30, 2017. The City Council is being asked to authorize the City Manager to
extend the contract with MPG for two years, expiring on June 30, 2019. Given the high volume of
pending projects, this will allow the City to process priority project in timely manner.
RECOMMENDATION:
Staff recommends the City Council take the following action:
1)Authorize the City Manager to execute the agreement amendment, in a form acceptable to the
City Attorney, on behalf of the City.
DISCUSSION:
On April 16, 2014, the City Council authorized the City Manager to enter into an amended and restated
contract with Morse Planning Group (MPG) for contract planning services. The agreement can be
extended by mutual consent. MPG has performed well over the last three (3) years. They have
provided staff support for the TOD Specific Plan, the Aerojet Industrial project, the initial 10th and Todd
industrial project entitlements, and the Hazard Mitigation Plan. This would be the third extension of the
agreement. MPG has provided both planning support, as well as environmental document preparation.
Ms. Morse offers a more senior staff level of service, and mentors current City staff. Because the City
has inadequate staff resources to manage all of the high priority projects, it is critical that the contract
with MPG be amended so they continue to provide contract planning services.
APPROVED
CITY COUNCIL
4/2/2018
Professional Services Agreement Amendment – Morse Planning Group
April 2, 2018
Page 2
FISCAL IMPACT:
There is no fiscal impact associated with executing the agreement amendment. The consultant’s services
will be funded with development fees and approved project budgets. The consultant's compensation
would be capped at $25,000 for City projects. However, costs associated with entitlement case
processing will be paid through a reimbursement account of the application fees, which may exceed the
$25,000 capped limit.
Prepared by: Reviewed and Approved
Kurt E. Christiansen, FAICP Louie F. Lacasella
Economic and Community Development Director Senior Management Analyst
Reviewed and Approved:
Daniel Bobadilla, P.E.
Acting City Manager
Attachment:
1) Professional Services Agreement
8513273_1
45635.01000\9609380.1
CITY OF AZUSA
AMENDED PROFESSIONAL SERVICES AGREEMENT
1.PARTIES AND DATE.
This Agreement is made and entered into this 2nd day of April, 2018 by and between the
City of Azusa, a municipal corporation organized under the laws of the State of California with
its principal place of business at 213 East Foothill Boulevard, Azusa, California 91702 (“City”)
and Morse Planning Group, a sole proprietorship, with its principal place of business at 145
North C Street, Tustin, California 92780 (“Consultant”). City and Consultant are sometimes
individually referred to herein as “Party” and collectively as “Parties.”
2.RECITALS.
2.1 Prior Agreement.
The Parties previously entered into a Professional Services Agreement dated September
22, 2014 for planning, environmental and project management services to be provided by the
Consultant on an as-needed basis and was extended on July 20, 2015 and extended again on July
18, 2016. The Parties now wish to enter into this Amended Professional Services Agreement
(the “Agreement”) to: (1) extend the term of the Agreement until June 30, 2019; (2) expand the
Scope of Services to include a Special Reimbursable Development Project for entitlements; and
(3)specify compensation for the services for the special reimbursable development project.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this
Agreement. Consultant represents that it is experienced in providing planning, environmental
and project management services to public clients, is licensed in the State of California, and is
familiar with the plans of City.
2.2 Projects.
City desires to engage Consultant to render such services for the On-Call Planning
Services project (“On-Call Services”) and the Special Reimbursable Development Projects
(“Reimbursable Projects”) as set forth in this Agreement.
3.TERMS.
3.1 Scope of Services and Term.
3.1.1 Scope of Services. Consultant promises and agrees to furnish to the City
all labor, materials, tools, equipment, services, and incidental and customary work necessary to
fully and adequately supply the professional planning consulting services necessary for the On-
Call Services and the Reimbursable Project (“Services”). The Services are more particularly
described in Exhibit “A” attached hereto and incorporated herein by reference. All Services
shall be subject to, and performed in accordance with, this Agreement, the exhibits attached
Attachment 1
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hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules
and regulations.
3.1.2 Term. The term of this Agreement shall be from July 20, 2017 to June 30,
2019, unless earlier terminated as provided herein. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and deadlines.
The Parties may, by mutual written consent, extend the term of this Agreement if necessary to
complete the Services.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Consultant or under its supervision. Consultant will determine
the means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant retains the right to perform similar or different services for others during the term of
this Agreement. Any additional personnel performing the Services under this Agreement on
behalf of Consultant shall also not be employees of City and shall at all times be under
Consultant’s exclusive direction and control. Consultant shall pay all wages, salaries, and other
amounts due such personnel in connection with their performance of Services under this
Agreement and as required by law. Consultant shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, disability insurance, and workers’
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit “B” attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to perform the
Services in conformance with such conditions. In order to facilitate Consultant’s conformance
with the Schedule, City shall respond to Consultant’s submittals in a timely manner. Upon
request of City, Consultant shall provide a more detailed schedule of anticipated performance to
meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of City.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that
certain key personnel will perform and coordinate the Services under this Agreement. The key
personnel for performance of this Agreement are as follows: Collette L. Morse, AICP.
3.2.5 City’s Representative. The City hereby designates the Economic and
Community Development Director, or his designee, to act as its representative for the
performance of this Agreement (“City’s Representative”). City’s Representative shall have the
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power to act on behalf of the City for all purposes under this Contract. Consultant shall not
accept direction or orders from any person other than the City’s Representative or his designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Collette L.
Morse, AICP or her designee, to act as its representative for the performance of this Agreement
(“Consultant’s Representative”). Consultant’s Representative shall have full authority to
represent and act on behalf of the Consultant for all purposes under this Agreement. The
Consultant’s Representative shall supervise and direct the Services, using her best skill and
attention, and shall be responsible for all means, methods, techniques, sequences and procedures
and for the satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City
staff in the performance of Services and shall be available to City’s staff, consultants and other
staff at all reasonable times.
3.2.8 Standard of Care. Consultant shall perform all Services under this
Agreement in a skillful and competent manner, consistent with the standards generally
recognized as being employed by professionals in the same discipline in the State of California.
Consultant represents and maintains that it is skilled in the professional calling necessary to
perform the Services. Finally, Consultant represents that it has all licenses, permits,
qualifications and approvals of whatever nature that are legally required to perform the Services,
including a City Business License, and that such licenses and approvals shall be maintained
throughout the term of this Agreement. As provided for in the indemnification provisions of this
Agreement, Consultant shall perform, at its own cost and expense and without reimbursement
from the City, any services necessary to correct errors or omissions which are caused by the
Consultant’s failure to comply with the standard of care provided for herein.
3.2.9 Laws and Regulations; Employee/Labor Certifications. Consultant shall
keep itself fully informed of and in compliance with all local, state and federal laws, rules and
regulations in any manner affecting the performance of the Services, including all Cal/OSHA
requirements, and shall give all notices required by law. Consultant shall be liable for all
violations of such laws and regulations in connection with Services. If the Consultant performs
any work knowing it to be contrary to such laws, rules and regulations and without giving
written notice to the City, Consultant shall be solely responsible for all costs arising therefrom.
Consultant shall defend, indemnify and hold City, its officials, directors, officers, employees and
agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any
claim or liability arising out of any failure or alleged failure to comply with such laws, rules or
regulations.
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not commence
Services under this Agreement until it has provided evidence satisfactory to the City that it has
secured all insurance required under this section. In addition, Consultant shall not allow any
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subcontractor to commence work on any subcontract until it has provided evidence satisfactory
to the City that the subcontractor has secured all insurance required under this section.
3.2.10.2 Minimum Requirements. Consultant shall, at its expense,
procure and maintain for the duration of the Agreement insurance against claims for injuries to
persons or damages to property which may arise from or in connection with the performance of
the Agreement by the Consultant, its agents, representatives, employees or subcontractors.
Consultant shall also require all of its subcontractors to procure and maintain the same insurance
for the duration of the Agreement. Such insurance shall meet at least the following minimum
levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be at least as
broad as the latest version of the following: (1) General Liability: Insurance Services Office
Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability:
Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto);
and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as
required by the State of California and Employer’s Liability Insurance. The policy shall not
contain any exclusion contrary to the Agreement, including but not limited to endorsements or
provisions limiting coverage for (1) contractual liability (including but not limited to ISO CG 24
26 or 21 29); or (2) cross liability for claims or suits by one insured against another.
(B) Minimum Limits of Insurance. Consultant shall maintain
limits no less than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal
injury and property damage. If Commercial General Liability Insurance or other form with
general aggregate limit is used including, but not limited to, form CG 2503, either the general
aggregate limit shall apply separately to this Agreement/location or the general aggregate limit
shall be twice the required occurrence limit; (2) Automobile Liability: $1,000,000 per accident
for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of
California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease.
Defense costs shall be paid in addition to the limits.
(C) Notices; Cancellation or Reduction of Coverage. At least
fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance
coverage has been renewed or extended shall be filed with the City. If such coverage is
cancelled or materially reduced, Consultant shall, within ten (10) days after receipt of written
notice of such cancellation or reduction of coverage, file with the City evidence of insurance
showing that the required insurance has been reinstated or has been provided through another
insurance company or companies. In the event any policy of insurance required under this
Agreement does not comply with these specifications or is canceled and not replaced, the City
has the right but not the duty to obtain the insurance it deems necessary and any premium paid
by the City will be promptly reimbursed by Consultant or the City may withhold amounts
sufficient to pay premium from Consultant payments. In the alternative, the City may suspend or
terminate this Agreement.
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3.2.11.3 Professional Liability. Consultant shall procure and
maintain, and require its sub-consultants to procure and maintain, for a period of five (5) years
following completion of the Services, errors and omissions liability insurance appropriate to their
profession. Such insurance shall be in an amount not less than $1,000,000 per claim, and shall
be endorsed to include contractual liability. Defense costs shall be paid in addition to limits.
3.2.11.4 Insurance Endorsements. The insurance policies shall
contain the following provisions, or Consultant shall provide endorsements on forms supplied or
approved by the City to add the following provisions to the insurance policies:
(A) General Liability. The general liability policy shall include
or be endorsed (amended) to state that: (1) using ISO CG forms 20 10 and 20 37, or
endorsements providing the exact same coverage, the City of Azusa, its directors, officials,
officers, employees, agents and volunteers shall be covered as additional insured with respect to
the Services or ongoing and complete operations performed by or on behalf of the Consultant,
including materials, parts or equipment furnished in connection with such work; and (2) using
ISO form 20 01, or endorsements providing the exact same coverage, the insurance coverage
shall be primary insurance as respects the City, its directors, officials, officers, employees, agents
and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the
Consultant’s scheduled underlying coverage. Any excess insurance shall contain a provision that
such coverage shall also apply on a primary and noncontributory basis for the benefit of the City,
before the City’s own primary insurance or self-insurance shall be called upon to protect it as a
named insured. Any insurance or self-insurance maintained by the City, its directors, officials,
officers, employees, agents and volunteers shall be excess of the Consultant’s insurance and shall
not be called upon to contribute with it in any way. Notwithstanding the minimum limits set
forth in Section 3.2.11.2(B), any available insurance proceeds in excess of the specified
minimum limits of coverage shall be available to the parties required to be named as additional
insureds pursuant to this Section 3.2.11.4(A).
(B) Automobile Liability. The automobile liability policy shall
include or be endorsed (amended) to state that: (1) the City, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect to the
ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the Consultant or for which the Consultant is responsible; and (2) the insurance
coverage shall be primary insurance as respects the City, its directors, officials, officers,
employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage
excess of the Consultant’s scheduled underlying coverage. Any insurance or self-insurance
maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be
excess of the Consultant’s insurance and shall not be called upon to contribute with it in any
way. Notwithstanding the minimum limits set forth in Section 3.2.11.2(B), any available
insurance proceeds in excess of the specified minimum limits of coverage shall be available to
the parties required to be named as additional insureds pursuant to this Section 3.2.11.4(B).
(C) Workers’ Compensation and Employers’ Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors,
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officials, officers, employees, agents and volunteers for losses paid under the terms of the
insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced
or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written
notice by certified mail, return receipt requested, has been given to the City; and (B) any failure
to comply with reporting or other provisions of the policies, including breaches of warranties,
shall not affect coverage provided to the City, its directors, officials, officers, employees, agents
and volunteers. Any failure to comply with reporting or other provisions of the policies
including breaches of warranties shall not affect coverage provided to the City, its officials,
officers, employees, agents and volunteers, or any other additional insureds.
3.2.11.5 Separation of Insureds; No Special Limitations; Waiver of
Subrogation. All insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the scope of
protection afforded to the City, its directors, officials, officers, employees, agents and volunteers.
All policies shall waive any right of subrogation of the insurer against the City, its officials,
officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically
allow Consultant or others providing insurance evidence in compliance with these specifications
to waive their right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, its officials, officers, employees, agents, and volunteers, or any other
additional insureds, and shall require similar written express waivers and insurance clauses from
each of its subconsultants.
3.2.11.6 Deductibles and Self-Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City. Consultant
shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate
such deductibles or self-insured retentions as respects the City, its directors, officials, officers,
employees, agents and volunteers; or (2) the Consultant shall procure a bond guaranteeing
payment of losses and related investigation costs, claims and administrative and defense
expenses.
3.2.11.7 Subconsultant Insurance Requirements. Consultant shall
not allow any subconsultants to commence work on any subcontract relating to the work under
the Agreement until they have provided evidence satisfactory to the City that they have secured
all insurance required under this Section. If requested by Consultant, the City may approve
different scopes or minimum limits of insurance for particular subconsultants. The Consultant
and the City shall be named as additional insureds on all subconsultants’ policies of Commercial
General Liability using ISO form 20 38, or coverage at least as broad.
3.2.11.8 Acceptability of Insurers. Insurance is to be placed with
insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in
California, and satisfactory to the City.
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3.2.11.9 Verification of Coverage. Consultant shall furnish City
with original certificates of insurance and endorsements effecting coverage required by this
Agreement on forms satisfactory to the City. The certificates and endorsements for each
insurance policy shall be signed by a person authorized by that insurer to bind coverage on its
behalf, and shall be on forms provided by the City if requested. All certificates and
endorsements must be received and approved by the City before work commences. The City
reserves the right to require complete, certified copies of all required insurance policies, at any
time.
3.2.11.9 Reporting of Claims. Consultant shall report to the City, in
addition to Consultant’s insurer, any and all insurance claims submitted by Consultant in
connection with the Services under this Agreement.
3.2.12 Safety. Consultant shall execute and maintain its work so as to avoid
injury or damage to any person or property. In carrying out its Services, the Consultant shall at
all times be in compliance with all applicable local, state and federal laws, rules and regulations,
and shall exercise all necessary precautions for the safety of employees appropriate to the nature
of the work and the conditions under which the work is to be performed. Safety precautions as
applicable shall include, but shall not be limited to: (A) adequate life protection and life saving
equipment and procedures; (B) instructions in accident prevention for all employees and
subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang planks,
confined space procedures, trenching and shoring, equipment and other safety devices,
equipment and wearing apparel as are necessary or lawfully required to prevent accidents or
injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety
measures.
3.2.13 Accounting Records. Consultant shall maintain complete and accurate
records with respect to all costs and expenses incurred under this Agreement. All such records
shall be clearly identifiable. Consultant shall allow a representative of City during normal
business hours to examine, audit, and make transcripts or copies of such records and any other
documents created pursuant to this Agreement. Consultant shall allow inspection of all work,
data, documents, proceedings, and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates set forth
in Exhibit “C” attached hereto and incorporated herein by reference. The total compensation for
On-Call Planning Services shall not exceed Twenty-Five Thousand Dollars ($25,000) without
written approval of the City Council. The total compensation for services for the Reimbursable
Project shall not exceed Twenty-Five Thousand Dollars ($25,000) without written approval of
the City Council.Extra Work may be authorized, as described below, and if authorized, will be
compensated at the rates and manner set forth in this Agreement.
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3.3.2 Payment of Compensation. Consultant shall submit to City a monthly
itemized statement which indicates work completed and hours of Services rendered by
Consultant. The statement shall describe the amount of Services and supplies provided since the
initial commencement date, or since the start of the subsequent billing periods, as appropriate,
through the date of the statement. City shall, within 45 days of receiving such statement, review
the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless authorized in writing by City.
3.3.4 Extra Work. At any time during the term of this Agreement, City may
request that Consultant perform Extra Work. As used herein, “Extra Work” means any work
which is determined by City to be necessary for the proper completion of the Services, but which
the parties did not reasonably anticipate would be necessary at the execution of this Agreement.
Consultant shall not perform, nor be compensated for, Extra Work without written authorization
from City’s Representative.
3.4 Termination of Agreement.
3.4.1 Grounds for Termination. City may, by written notice to Consultant,
terminate the whole or any part of this Agreement at any time and without cause by giving
written notice to Consultant of such termination, and specifying the effective date thereof, at
least seven (7) days before the effective date of such termination. Upon termination, Consultant
shall be compensated only for those services which have been adequately rendered to City, and
Consultant shall be entitled to no further compensation. Consultant may not terminate this
Agreement except for cause.
3.4.2 Effect of Termination. If this Agreement is terminated as provided herein,
City may require Consultant to provide all finished or unfinished Documents and Data and other
information of any kind prepared by Consultant in connection with the performance of Services
under this Agreement. Consultant shall be required to provide such document and other
information within fifteen (15) days of the request.
3.4.3 Additional Services. In the event this Agreement is terminated in whole
or in part as provided herein, City may procure, upon such terms and in such manner as it may
determine appropriate, services similar to those terminated.
3.5 Ownership of Materials and Confidentiality.
3.5.1 Documents & Data; Licensing of Intellectual Property. This Agreement
creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense
any and all copyrights, designs, and other intellectual property embodied in plans, specifications,
studies, drawings, estimates, and other documents or works of authorship fixed in any tangible
medium of expression, including but not limited to, physical drawings or data magnetically or
otherwise recorded on computer diskettes, which are prepared or caused to be prepared by
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Consultant under this Agreement (“Documents & Data”). All Documents & Data shall be and
remain the property of City, and shall not be used in whole or in substantial part by Consultant
on other projects without the City's express written permission. Within thirty (30) days
following the completion, suspension, abandonment or termination of this Agreement,
Consultant shall provide to City reproducible copies of all Documents & Data, in a form and
amount required by City. City reserves the right to select the method of document reproduction
and to establish where the reproduction will be accomplished. The reproduction expense shall be
borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of
compensation to which the Consultant is entitled under the termination provisions of this
Agreement, Consultant shall provide all Documents & Data to City upon payment of the
undisputed amount. Consultant shall have no right to retain or fail to provide to City any such
documents pending resolution of the dispute. In addition, Consultant shall retain copies of all
Documents & Data on file for a minimum of fifteen (15) years following completion of the
Services, and shall make copies available to City upon the payment of actual reasonable
duplication costs. Before destroying the Documents & Data following this retention period,
Consultant shall make a reasonable effort to notify City and provide City with the opportunity to
obtain the documents.
3.5.2 Subcontractors. Consultant shall require all subcontractors to agree in
writing that City is granted a non-exclusive and perpetual license for any Documents & Data the
subcontractor prepares under this Agreement. Consultant represents and warrants that
Consultant has the legal right to license any and all Documents & Data. Consultant makes no
such representation and warranty in regard to Documents & Data which were prepared by design
professionals other than Consultant or its subcontractors, or those provided to Consultant by the
City.
3.5.3 Right to Use. City shall not be limited in any way in its use or reuse of the
Documents and Data or any part of them at any time for purposes of the Services or another
project, provided that any such use not within the purposes intended by this Agreement or on a
project other than the Services without employing the services of Consultant shall be at City’s
sole risk. If City uses or reuses the Documents & Data on any project other than the Services, it
shall remove the Consultant’s seal from the Documents & Data and indemnify and hold harmless
Consultant and its officers, directors, agents and employees from claims arising out of the
negligent use or re-use of the Documents & Data on such other project. Consultant shall be
responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only
with respect to the condition of the Documents & Data at the time they are provided to the City
upon completion, suspension, abandonment or termination. Consultant shall not be responsible
or liable for any revisions to the Documents & Data made by any party other than Consultant, a
party for whom the Consultant is legally responsible or liable, or anyone approved by the
Consultant.
3.5.4 Indemnification. Consultant shall defend, indemnify and hold the City, its
directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the
indemnification provisions of this Agreement, for any alleged infringement of any patent,
copyright, trade secret, trade name, trademark, or any other proprietary right of any person or
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entity in consequence of the use on the Services by City of the Documents & Data, including any
method, process, product, or concept specified or depicted.
3.5.5 Confidentiality. All Documents & Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held confidential by
Consultant. All Documents & Data shall not, without the prior written consent of City, be used
or reproduced by Consultant for any purposes other than the performance of the Services.
Consultant shall not disclose, cause or facilitate the disclosure of the Documents & Data to any
person or entity not connected with the performance of the Services. Nothing furnished to
Consultant which is otherwise known to Consultant or is generally known, or has become
known, to the related industry shall be deemed confidential. Consultant shall not use City’s
name or insignia, photographs of the Services, or any publicity pertaining to the Services in any
magazine, trade paper, newspaper, television or radio production or other similar medium
without the prior written consent of City.
3.6 General Provisions.
3.6.1 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such other
address as the respective parties may provide in writing for this purpose:
Consultant:
Morse Planning Group
Collette L. Morse, AICP
145 North C Street
Tustin, CA 92780
City:
City of Azusa
213 E. Foothill Blvd.
Azusa, CA 91702
Attn: Economic & Community Development Director
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to
the party at its applicable address. Actual notice shall be deemed adequate notice on the date
actual notice occurred, regardless of the method of service.
3.6.2 Indemnification.
3.6.2.1 Scope of Indemnity. To the fullest extent permitted by law,
Consultant shall defend, indemnify and hold the City, its directors, officials, officers, employees,
volunteers and agents free and harmless from any and all claims, demands, causes of action,
costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or
persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any
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alleged acts, errors or omissions of Consultant, its officials, officers, employees, subcontractors,
consultants or agents in connection with the performance of the Consultant’s Services, or this
Agreement, including without limitation the payment of all consequential damages, expert
witness fees and attorneys fees and other related costs and expenses. Notwithstanding the
foregoing, to the extent Consultant's Services are subject to Civil Code Section 2782.8, the above
indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to claims that
arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant.
3.6.2.2 Additional Indemnity Obligations. Consultant shall defend, with
legal counsel chosen by City, at Consultant’s own cost, expense and risk, any and all claims,
actions or other proceedings of every kind covered by Section 3.6.2.1 that may be brought or
instituted against City or its directors, officials, officers, employees, volunteers and agents.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered against
City or its directors, officials, officers, employees, volunteers and agents as party of any such
claim, suit, action or other proceeding. Consultant shall also reimburse City for the cost of any
settlement paid by City or its directors, officials, officers, employees, agents, or volunteers as
part of any such claim, suit, action or other proceeding. Such reimbursement shall include
payment for City’s attorneys’ fees and costs, including expert witness fees. Consultant shall
reimburse City and its directors, officials, officers, employees, agents, and/or volunteers, for any
and all legal expenses and costs incurred by each of them in connection therewith or in enforcing
the indemnity herein provided. Consultant’s obligation to indemnify shall survive expiration or
termination of this Agreement and shall not be restricted to insurance proceeds, if any, received
by the City, its directors, officials officers, employees, agents, or volunteers.
3.6.3 Governing Law; Government Code Claim Compliance. This Agreement
shall be governed by the laws of the State of California. Venue shall be in Los Angeles County.
In addition to any and all contract requirements pertaining to notices of and requests for
compensation or payment for extra work, disputed work, claims and/or changed conditions,
Consultant must comply with the claim procedures set forth in Government Code sections 900 et
seq. prior to filing any lawsuit against the City. Such Government Code claims and any
subsequent lawsuit based upon the Government Code claims shall be limited to those matters
that remain unresolved after all procedures pertaining to extra work, disputed work, claims,
and/or changed conditions have been followed by Consultant. If no such Government Code
claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as
specified herein, Consultant shall be barred from bringing and maintaining a valid lawsuit
against the City.
3.6.4 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.6.5 City’s Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with the Services.
3.6.6 Successors and Assigns. This Agreement shall be binding on the
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successors and assigns of the parties.
3.6.7 Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any assignees,
hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
3.6.8 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any
term referencing time, days or period for performance shall be deemed calendar days and not
work days. All references to Consultant include all personnel, employees, agents, and
subcontractors of Consultant, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content, or intent of this Agreement.
3.6.9 Amendment; Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.6.10 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.6.11 No Third Party Beneficiaries. Except to the extent expressly provided for
in Section 3.6.7, there are no intended third party beneficiaries of any right or obligation assumed
by the Parties.
3.6.12 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
3.6.13 Prohibited Interests. Consultant maintains and warrants that it has not
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. Consultant further
agrees to file, or shall cause its employees or subconsultants to file, a Statement of Economic
Interest with the City’s Filing Officer as required under state law in the performance of the
Services. For breach or violation of this warranty, City shall have the right to rescind this
Agreement without liability. For the term of this Agreement, no member, officer or employee of
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City, during the term of his or her service with City, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.6.14 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.6.15 Attorney’s Fees. If either party commences an action against the other
party, either legal, administrative or otherwise, arising out of or in connection with this
Agreement, the prevailing party in such litigation shall be entitled to have and recover from the
losing party reasonable attorney’s fees and all other costs of such action.
3.6.16 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.6.17 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.6.18 Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both parties.
[SIGNATURES ON NEXT PAGE]
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CITY OF AZUSA MORSE PLANNING GROUP
By: By:
Daniel Bobadilla Collette L. Morse, AICP
Acting City Manager Principal
Attest:
Jeffrey Lawerance Cornejo, Jr.
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
A-1
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EXHIBIT “A”
SCOPE OF SERVICES
B-1
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EXHIBIT “B”
SCHEDULE OF SERVICES
C-1
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EXHIBIT “C”
COMPENSATION