HomeMy WebLinkAboutE-16 - 2016 MIG Agreement amendmentCONSENT CALENDAR
E-16
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: TROY L. BUTZLAFF, ICMA-CM, CITY MANAGER
FROM: KURT E. CHRISTIANSEN, FAICP
ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR
DATE: JULY 18, 2016
SUBJECT: APPROVE PROFESSIONAL SERVICES AGREEMENT WITH MIG/HOGLE-
IRELAND TO PROVIDE SERVICES FOR THE DHAMMAKAYA
INTERNATIONAL MEDITATION CENTER SPECIFIC PLAN
SUMMARY:
On September 3, 2013, the City Council authorized the City Manager to enter into a Professional
Services Agreement (PSA) with MIG/Hogle-Ireland to provide consultant services for the
environmental impact report (EIR) preparation and Specific Plan review related to the Dhammakaya
International Meditation Center project. The initial term of the PSA was for one year, with the ability to
extend the agreement by mutual consent. On September 8, 2015, the City Council certified the EIR and
approved the Specific Plan. The MIG/Hogle-Ireland agreement has since expired. In May of this year,
the City was contacted by the consultant to Dhammakaya International Meditation Center regarding an
amendment to the Specific Plan in relation to the Site Plan. This action approves a PSA with
MIG/Hogle-Ireland for a one year term, expiring on June 30, 2017, in an amount not to exceed $56,000.
RECOMMENDATION:
Staff recommends that the City Council take the following actions:
1) Approve a Professional Services Agreement with MIG/Hogle-Ireland to provide services for the
the Dhammakaya International Meditation Center Specific Plan in an amount not to exceed
$56,000; and
2) Authorize the City Manager to execute the agreement, in a form acceptable to the City Attorney,
on behalf of the City.
DISCUSSION:
On September 3, 2013, the City Council authorized the City Manager to enter into a PSA with
MIG/Hogle-Ireland to provide consultant services for the environmental impact report (EIR) preparation
APPROVED
COUNCIL MEETING
7/18/2016
Request to Approve PSA with MIG/Hogle-Ireland
July 18, 2016
Page 2
and Specific Plan review related to the Dhammakaya International Meditation Center project. The
initial term of the contract was for one year, with the ability to extend the agreement by mutual consent.
On September 8, 2015, the City Council certified the EIR and approved the Specific Plan. The
MIG/Hogle-Ireland agreement has since expired. In late May of 2016, the Dhammakaya International
Meditation Center consultant contacted the City to discuss amending the Specific Plan in relation to the
Site Plan. Based on an initial review, the PSA could reduce grading impacts, protect historic resources,
and save mature trees on site.
Staff is recommending that MIG/Hogle-Ireland, who is most familiar with the project, be retained once
again for a one year term, expiring on June 30, 2017. The following is the proposed Scope of Services
to be performed:
Scope of Services:
Task
Estimated Amount, To be
Invoiced on a Time/ Materials
Basis
Review Admin Specific Plan Amendment, Review Draft Specific Plan
Amendment, Final Documents
$12,000.00
EIR Addendum $10,000.00
Prepare Staff Reports, Resolutions, Newspaper Notices, Hearing Documents,
etc.
$12,000.00
Public Hearings Preparation and Attendance $5,000.00
City of Azusa Coordination and Services $5,000.00
Project Coordination, SB 18, and Project Management $7,500.00
Direct Costs $4,500.00
Total $56,000.00
FISCAL IMPACT:
The consultant's compensation would be tied to a reimbursement agreement with the Dhammakaya
International Meditation Center. All costs associated with entitlement case processing will be paid
through the reimbursement account of the application fees set up for the project. It is anticipated that
the cost of the proposed scope of services will be approximately $56,000. In addition, the developer will
be required to pay an additional $11,200 in administrative costs to the City for a total amount of
$67,200. The Finance Department will adjust the fiscal year 2016-17 budget to reflect this change once
the agreement is fully executed and the consultant deposit funds with the City.
Prepared by: Reviewed and Approved
Kurt E. Christiansen, FAICP Louie F. Lacasella
Economic and Community Development Director Management Analyst
Reviewed and Approved:
Troy L. Butzlaff, ICMA-CM
City Manager
Attachment:
1) Professional Services Agreement with MIG/Hogle Ireland
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CITY OF AZUSA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this 20th day of July, 2016 by and between the City
of Azusa, a municipal organization organized under the laws of the State of California with its
principal place of business at 213 East Foothill Boulevard, Azusa, California 91702-1295 ("City")
and MIG/Hogle-Ireland, a CORPORATION with its headquarters in Berkeley, California with
branch offices throughout California, including Riverside and Pasadena offices, where work will be
performed at 160 Marengo Avenue, Pasadena, California, 91101 (Consultant"). City and Consultant
are sometimes individually referred to as “Party” and collectively as “Parties.”
2. RECITALS.
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 and environmental consultant
services to public clients, is licensed in the State of California, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the proposed Dhammakaya
International Meditation center project (“Project”) as set forth in this Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General 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 consultant services necessary for the Project
("Services"). The Services are more particularly described in Exhibit "A" (the “Proposal,” pages 29
through 36), attached hereto and incorporated herein by reference. All Services shall be subject to,
and performed in accordance with, this Agreement, the exhibits attached 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 1, 2016 to completion
of the Services or June 30, 2017, whichever is earlier, unless earlier terminated as provided herein.
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Consultant shall complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
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 “A” (Proposal, page 31), 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. Should one or more
of such personnel become unavailable, Consultant may substitute other personnel of at least equal
competence upon written approval of City. In the event that City and Consultant cannot agree as to
the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As
discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable to
the City, or who are determined by the City to be uncooperative, incompetent, a threat to the
adequate or timely completion of the Project or a threat to the safety of persons or property, shall be
promptly removed from the Project by the Consultant at the request of the City. The key personnel
for performance of this Agreement are as follows: Laura Stetson, Lisa Brownfield, and Christopher
Brown.
3.2.5 City’s Representative. The City hereby designates the Economic and
Community Development Director, or his or her 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 or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Laura Stetson, 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 his 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; Performance of Employees. 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. Consultant warrants that all employees and subcontractors shall have
sufficient skill and experience to perform the Services assigned to them. Finally, Consultant
represents that it, its employees and subcontractors have 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. Any employee of the Consultant or its sub-consultants who
is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property, or any employee who fails or
refuses to perform the Services in a manner acceptable to the City, shall be promptly removed from
the Project by the Consultant and shall not be re-employed to perform any of the Services or to work
on the Project.
3.2.9 Laws and Regulations. 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 Project or 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.
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3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not commence Work
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 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.
(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, 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.
3.2.10.3 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 Project, 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.
3.2.10.4 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 be endorsed
to state that: (1) the City, its directors, officials, officers, employees, agents and volunteers shall be
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covered as additional insured with respect to the Work or operations performed by or on behalf of
the Consultant, including materials, parts or equipment furnished in connection with such work; 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.
(B) Automobile Liability. The automobile liability policy shall be
endorsed 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.
(C) Workers’ Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against the City, its directors, 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 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.
3.2.10.5 Separation of Insureds; No Special Limitations. 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.
3.2.10.6 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.
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3.2.10.7 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.
3.2.10.8 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 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.
3.3 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 "B"
attached hereto and incorporated herein by reference. The total compensation shall not exceed One
Hundred Thirty-four Thousand, Seven Hundred Sixty-seven ($134,767.00) without written approval
of City's Economic and Community Development Director. Extra Work may be authorized, as
described below, and if authorized, will be compensated at the rates and manner set forth in this
Agreement.
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.
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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 Project, 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.
3.3.5 Prevailing Wages. Consultant is aware of the requirements of California
Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title
8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage
rates and the performance of other requirements on "public works" and "maintenance" projects. If
the Services are being performed as part of an applicable "public works" or "maintenance" project, as
defined by the Prevailing Wage Laws, and if the total compensation is $1,000 or more, Consultant
agrees to fully comply with such Prevailing Wage Laws. City shall provide Consultant with a copy
of the prevailing rates of per diem wages in effect at the commencement of this Agreement.
Consultant shall make copies of the prevailing rates of per diem wages for each craft, classification
or type of worker needed to execute the Services available to interested parties upon request, and
shall post copies at the Consultant's principal place of business and at the project site. Consultant
shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free
and harmless from any claim or liability arising out of any failure or alleged failure to comply with
the Prevailing Wage Laws.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. 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.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 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.
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3.5.1.2 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.
3.5.1.3 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.
3.5.2 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:
MIG/Hogle-Ireland
Laura Stetson
169 N. Marengo Avenue
Pasadena, California 91101
City:
City of Azusa
213 East Foothill Blvd.
Azusa, CA 91702-1295
Attn: Kurt Christiansen
Director of Economic and Community Development
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.
3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 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
Consultant under this Agreement (“Documents & Data”). 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
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professionals other than Consultant or provided to Consultant by the City. City shall not be limited
in any way in its use of the Documents and Data at any time, provided that any such use not within
the purposes intended by this Agreement shall be at City’s sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written information,
and other Documents and Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials shall not,
without the prior written consent of City, be used by Consultant for any purposes other than the
performance of the Services. Nor shall such materials be disclosed to any person or entity not
connected with the performance of the Services or the Project. 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 Project, or any publicity pertaining to the Services or the Project in any magazine, trade paper,
newspaper, television or radio production or other similar medium without the prior written consent
of City.
3.5.4 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.
3.5.5 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 reason-
able attorney's fees and all other costs of such action.
3.5.6 Indemnification. Consultant shall defend, indemnify and hold the City, its 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, in law or equity, to property or
persons, including wrongful death, in any manner arising out of or incident to any alleged acts,
omissions or willful misconduct of Consultant, its officials, officers, employees, agents, consultants
and contractors arising out of or in connection with the performance of the Services, the Project or
this Agreement, including without limitation the payment of all consequential damages and attorneys
fees and other related costs and expenses. Consultant shall defend, at Consultant’s own cost, expense
and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be
brought or instituted against City, its directors, officials, officers, employees, agents or volunteers.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or
its directors, officials, officers, employees, agents or volunteers, in any such suit, action or other legal
proceeding. 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
not be restricted to insurance proceeds, if any, received by the City, its directors, officials officers,
employees, agents or volunteers.
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3.5.7 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.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of
California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every provision of this
Agreement.
3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other
consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the successors
and assigns of the parties.
3.5.12 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.
3.5.13 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.
3.5.14 Amendment; Modification. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.15 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.
3.5.16 No Third Party Beneficiaries. There are no intended third party beneficiaries
of any right or obligation assumed by the Parties.
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3.5.17 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.
3.5.18 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. 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 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.
3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or applicant
for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such
non-discrimination shall include, but not be limited to, all activities related to initial employment,
upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City's Minority Business Enterprise
program, Affirmative Action Plan or other related programs or guidelines currently in effect or
hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is
aware of the provisions of Section 3700 of the California Labor Code which require every employer
to be insured against liability for Worker's Compensation or to undertake self-insurance in
accordance with the provisions of that Code, and agrees to comply with such provisions before
commencing the performance of the Services.
3.5.21 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.
3.5.22 Counterparts. This Agreement may be signed in counterparts, each of which
shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the
work required by this Agreement, except as expressly stated herein, without prior written approval of
City. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated
in this Agreement.
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[SIGNATURES ON FOLLOWING PAGE]
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CITY OF AZUSA MIG/Hogle-Ireland
By: By: ______________________________
Troy L. Butzlaff, ICMA-CM Laura R. Stetson
City Manager Principal
Attest: By: ______________________________
[Insert Name]
[Insert Title]
______________________________
Jeffery Lawrence Cornejo, Jr.
City Clerk
Approved as to Form:
______________________________
Best Best & Krieger LLP
City Attorney
A-1
RVPUB\NSTUBBS\752927.1
EXHIBIT "A"
SCOPE OF SERVICES; SCHEDULE OF SERVICES; PROPOSAL DOCUMENT
Scope of Services:
Task Estimated Amount, To be
Invoiced on a Time/
Materials Basis
Review Admin Specific Plan Amendment, Review Draft Specific Plan
Amendment, Final Documents
$12,000.00
EIR Addendum $10,000.00
Prepare Staff Reports, Resolutions, Newspaper Notices, Hearing
Documents, etc.
$12,000.00
Public Hearings Preparation and Attendance $5,000.00
City of Azusa Coordination and Serivces $5,000.00
Project Coordination, SB 18, and Project Management $7,500.00
Direct Costs $4,500.00
Total $56,000.00