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HomeMy WebLinkAboutI- 6 Torti-Gallas AgrmtFIRST AMENDMENT TO AN AGREEMENT BY AND BETWEEN THE CITY OF AZUSA AND TORTI GALLAS AND PARTNERS FOR THE MONROVIA NURSERY SITE PROCESS This Agreement is made and entered into this 17th day of December, 2001 by and between the City of Azusa; a municipal organization 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 Torti Gallas and Partners, PC, a Professional Corporation, with its principal place of business at 1300 Spring Street, 4"' Floor, Silver Spring, Maryland 20910 ("Consultant"). RECITALS The City and Consultant have entered into an agreement dated September 17, 2001 for design charrette services in connection with the Monrovia Nursery site as part of the General Plan Update program. 2. As described in the original scope of work, upon completion of the design charrette for the Monrovia Nursery site, the City and the Monrovia Nursery Company would select a design team to prepare a subsequent plan for the Monrovia Nursery site. The City and Monrovia Nursery Company has selected a design team comprised of EDAW who shall preform professional planning services for the residential component of the site and Torti Gallas and Partners who shall preform professional planning services for the transit oriented component of the site. AGREEMENT This Agreement enter into this 17th day of December, 2001, by and between the City and Consultant amends the original agreement as detailed below: 1. Exhibit A, Scope of Services, is hereby amended as follows: The text within the Introduction and the Charette Structure sections remain unchanged. Immediately following the last paragraph of the Charette Structure section, the following is added: DRAFT FINAL PLAN STRUCTURE Task 1 Review work done by EDAW, City of Azusa staff, and Monrovia Nursery Prior to the First Design Session, Torti Gallas and Partners will review the reports, timelines, and graphics produced as a result of discussions between City staff, property owner and EDAW to discuss results of the October 27, 2001 public workshop and the process for evaluating alternative plans and identifying potential new plan elements. Torti Gallas and Partners will also review a matrix, prepared by EDAW, of the 10-12 elements that should be considered and identify potential components that could be incorporated in the Preferred Plan. We will also provide independent identification of plan elements/issues to be discussed at first session. Task 2 Evaluate Alternative Plans/First Design Session and Public Meeting Torti Gallas and Partners will send two people, including Neal Payton, to a design session, tentatively scheduled for January 8'b and 9'. While this session will be led by EDAW, Torti Gallas and Partners will play an active and energetic role in brainstorming ideas for the Preferred Plan. The City staff and the Property Owner will also discuss their concerns and issues regarding the design. At the end of the Design Session, direction will be given for development of the Preferred Plan, including the specific location of the Transit Oriented Center. At this event, Torti Gallas and Partners is also prepared to lead a discussion on determining an overarching strategy for preparing and developing design guidelines and or regulations consistent with the City of Azusa's requirements for the General Plan, and the owner's requirement to secure the value of the land. Torti Gallas and Partners will participate in a public meeting to be held in Azusa tentatively scheduled on the evening of January 9'h. Task 3 Plan Refinement / Second Design Session Torti Gallas and Partners will incorporate ideas and directions generated at the first Design Session and at the public meeting with respect to the Transit Oriented Center and develop several alternative plan variations. These will be reviewed during interim phone meetings and presented at the Second Design session, tentatively scheduled for February 13, at EDAW's, Irvine, CA office. The refined plan will include the following conceptual design elements: • Program Matrix and density • Product types including a mix of housing, office and retail uses • Street sections • 3 - 4 Plan variations • Community amenities and open space including parks, plazas and markets Design guidelines will be initiated for neighborhood design, architecture and landscape for the Transit Oriented Center. Image boards and sketch diagrams will be developed to explore primary guideline components. It is assumed guidelines during this stage are for purposes of communicating intended community character and do not need to be at a builders package level of detail or documentation. Torti Gallas and Partners will send one person to the second Design Session tentatively scheduled for February 13' to present the plan variations, design guideline components and related drawings and diagrams. At this time, we will also participate in discussions on general plan topics and requirements as presented by EDAW including the overall Design Guidelines package. Task 4 Plan Refinement/Third Design Session The Transit Oriented Center Plan and related design guidelines will be further refined on the basis of the Second Design Session. A single plan will be developed at a higher level of detail. Concept grading and detailed statistical summaries will be prepared. Architectural elevations, public facilities will be illustrated. Two (2) preliminary ground level perspectives will be prepared to communicate neighborhood character to residents. These can be discussed as to appropriateness of view angle and subject matter. Torti Gallas and Partners will also provide review and written comment on design guidelines proffered by EDAW in to date. Drawings to be produced for this meeting include: • Refined Program Matrix • Refined product types including a mix of housing, office and retail uses • Refined Street Sections • Plan at 1: = 50' • Community amenities and open space including parks, plazas and markets • Circulation Diagram • Urban Sequence Diagrams • Ground Floor Land Use Diagram • Street Hierarchy • Building Height Diagram ■ Parking location and Access Diagram • Focal elements • Detail of proposed rail station and/or commuter bus stop • Two (2) refined ground level perspective renderings. In addition, Torti Gallas and Partners will provide refined guidelines Transit Center Guidelines, in both illustrated and narrative form, in conformance with the format agreed upon at the first design session. Torti Gallas and Partners will send one person to the third Design Session tentatively scheduled for March 13`h and the morning of March 14' to present the refined plan (and options) and design guideline components. At this time, we will also participate in discussions on general plan topics and requirements as presented by EDAW including the overall Design Guidelines package. Task 5 Prepare General Plan Exhibits and Final Presentation Torti Gallas and Partners, in cooperation with EDAW, will prepare illustrative general plan exhibits for inclusion in the Draft General Plan. Two types of General Plan documents will be developed. The first type will include illustrative images that demonstrate possible development scenarios permitted under the General Plan. The second type of document will include the specific exhibits and text that will be included in the General Plan. Torti Gallas and Partners will also send one person to attend Open House Meeting. Task 6 Revisions to General Plan Torti Gallas and Partners expects minor revisions to the plan after the Citizens Congress Meeting and is prepared to make such revisions at this time. However substantial changes to the plan and or the perspective renderings would be considered an additional service and be billed at our Standard Hourly Rates or, in the case of the perspective renderings at $5,000 each Assumptions 1. Reimbursable expenses including the cost of travel (economy air fare), and lodging, printing and reproduction are not included in these fees and will be reimbursed at cost. Torti Gallas and Partners will provide all drawings to EDAW, Monrovia Nursery and the City of Azusa in print form as well as electronically as TIFFS. 2. EDAW design efforts and traffic and engineering services are not part of the Torti Gallas and Partners scope. 3. All Design Sessions and team meetings will be held at the EDAW, Irvine offices. 4. The EIR alternatives will be the four development concepts prepared as part of the Phase I efforts. 5. The General Plan design guidelines will be approximately 10-15 pages long. Color will be provided. 2. Exhibit B, Schedule of Services is amended as follows: INTRODUCTION AND CHARETTE STRUCTURE Preparation for Event 1 September 2001 Event 1 - Azusans Meet Consultant Team September 2001 Conceptual Plan Development and Event 2 - Plans Revealed, October 2001 Preferred Concepts(s) Selected DRAFT FINAL PLAN STRUCTURE Review work done by EDAW, City of Azusa Staff, and Monrovia Nursery Evaluate Alternative Plans/First Design Session and Public Meeting Plan Refinement / Second Design Session Plan Refinement/Third Design Session Prepare General Plan Exhibits and Final Presentation Revisions to General Plan 3. Exhibit C, Compensation, is amended as follows: The first sentence should read as follows: December 2001 January 2002 February 2002 March 2002 March/April 2002 April 2002 Total compensation for professional labor, direct expenses, materials, and other miscellaneous costs shall not exceed 50,000.00 for the Introduction and Charette Structure and shall not exceed $80,500.00 for the Draft Final Plan Structure as follows: INTRODUCTION AND CHARETTE STRUCTURE Introduction and Charette Structure $50,000.00 DRAFT FINAL PLAN STRUCTURE Review work done by EDAW, City of Azusa Staff, and $ 9,000.00 Monrovia Nursery and Evaluate Alternative Plans/First Design Session and Public Meeting Plan Refinement / Second Design Session $17,000.00 Plan Refinement/Third Design Session $20,000.00 Prepare General Plan Exhibits and Final Presentation $18,000.00 Revisions to General Plan $ 4,000.00 Expenses $12,500.00 Draft Final Plan Structure Subtotal $80,500.00 Total Cost $130,500.00 CI' Lm Cristina Cruz - Madrid Mayor Attest: Vera Mendoza City Clerk Approved as t Form: Best Best & Krieger LLP City Attorney TORTI GALLAS AND PARTNERS A 'rill Pall Mortensen Secretary CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT 1. PARTIES AND DATE. This Agreement is made and entered into this 17th day of September, 2001 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 trading as Torti-Gallas and Partners, PC, a Professional Corporation with its principal place of business at 1300 Spring Street 4t'' Floor, Silver Spring, Maryland 20910 ("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 urban design services to public clients and is familiar with the plans of City as provided by the City to the Consultant. 2.2 Project. City desires to engage Consultant to render such services for the Monrovia Nursery Charette Process as part of the General Plan Update project ("Project") as set fourth in 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 and urban design consulting services necessary for the 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 hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations. RVPUB\NGS\544364 3.1.2 Term. The term of this Agreement shall be from September 2001 to November 2001, 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. 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 in accord with the program and submission requirements provided by the City and shall be subject to the reasonable 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 is Paul Mortensen. RVPUB\NGS\544364 3.2.5 City's &Ppresentative. The City hereby designates Lisa Brownfield, or her designee, to act as its representative for the performance of this Agreement ("City's Representative"). City's Representative shall have the 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 her designee. 3.2.6 Consultant's Representative. Consultant hereby designates Paul Mortensen, or his 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 professional 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 as documented in the Schedule. 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 represents 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 applicable 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 applicable 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 and employees 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 applicable laws, rules or regulations. RVPUB\NGS\544364 3 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. 3.2.10.4 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, and volunteers shall be 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. RVPUB\NGS\544364 (B) Automobile Liabili The automobile liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, and volunteers shall be covered as additional insured 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. 3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than ANIII, 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. 3.3 Fees and Payments. RVPUB\NGS\544364 5 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 shall not exceed Fifty Thousand Dollars ($50,000.00) without written approval of City's General Plan Project Manager. 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 Pent of Compensation. Consultant shall submit to City a monthly itemized statement which indicates work completed 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. Not withstanding the foregoing, if consultant is selected to continue with Task 2, the Consultant shall be reimbursed for authorized expenses as outlined in the Fee schedule up to $21,427 including, but limited to expenses occurred in Task 1, 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. 3.4 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 are reasonably determined to have been adequately rendered to City, and Consultant shall be entitled to no further compensation. Consultant may not terminate this Agreement except for cause. RVPUB\NGS\544364 6 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 only after final payment has been received. 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: City: Torti- Gallas and Partners, PC 1300 Spring Street, 4' Floor Silver Springs, MD 20910 Attn: PAUL MORTENSEN, RA City of Azusa 213 East Foothill Blvd. Azusa, CA 91702-1295 Attn: LISA A. BROWNFIELD, AICP 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 Confidentialit . 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 RVPUB\NGS\544364 which were prepared by design 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 as long as they accurately reflect the services and do not increase the liabilities of the Consultant. 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 reasonable 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, and employees 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. 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, RVPUB\NGS\544364 p 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 Consultauts. 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, 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. 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 RVPUB\NGS\544364 n 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. 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 _Agree ment. 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. RVPUB\NGS\544364 10 CITY OF AZUSA Torti-Gallas and Partners, PC J � n By; t By. Ri6k Cole Paul Mortensen City Manager Att Vera Mendoza City Clerk Approved as to Form: . A"k-cmt'x Best Best & Krieger LLP City Attorney RVPUB\NGS\544364 11 Secretary EXHIBIT "A" SCOPE OF SERVICES INTRODUCTION The City of Azusa is embarking on one of the most exciting planning opportunities in Southern California history: the creation of a plan for one of the largest remaining potential development sites in the Los Angeles County, known as the Monrovia Nursery property. A master planning effort by the landowner with a major developer led to a decisive rejection in a referendum election in 1999, spearheaded by two members of the City Council who voted against the plan approved by their colleagues. It is the intent of this effort for the City of Azusa, with citizen participation, to take the lead in master planning the site for an exemplary project that takes into consideration community needs, protects the sensitive historic and environmental resources on the site, and creates a major economic and social benefit to the overall development of the community. To this end, Torti-Gallas and Partners will participate in a design charrette, which is one of the many public participation opportunities being conducted as part of the City's General Plan and Development Code Update. The 520 acre site, located adjacent to and within the San Gabriel Mountains, was the subject of a recent development application that included a specific plan, development guidelines, and significant environmental review. This project's review and the subsequent referendum necessitates that Azusans, the landowner, and the City work together to create a vision for the site's ultimate development and to prepare a site plan (land use pattern, circulation routes, etc.) and development guidelines that support the vision. Through the Citizen's Congress sessions (a series of community outreach events), Azusans envisioned a mix of uses on this site, including a light rail transit center, business or institutional office campus, residential, parks, open space and related uses. While Azusans are beginning to know and embrace certain "new urbanist," "smart growth" or "livable communities" philosophies and concepts, there is no consensus on the specific character of development at this site. It is the City's intent that the result of this workshop process will be a land use/circulation site plan, illustratives, graphics, and design criteria, guidelines, and standards to be included in the General Plan Update. It is also the City's intent that the General Plan policy and its environmental review document (prepared separately and independently from this charette process) will be sufficient to enable a future development application for the Monrovia Nursery property to be processed without a General Plan amendment, if the development application complies with the General Plan. CHARETTE STRUCTURE The proposed charette structure includes: Preparation for Event 1 Prior to the first public event, Torti-Gallas and Partners will review materials given to them by the city, participate in a site tour on September 19, 2001. Event 1- Azusans Meet Consultant Teams Thursday, September 20, 2001 Torti-Gallas and Partners will participate in the first public event, an informal evening meeting that will introduce the consultant teams to the community. Torti-Gallas and Partners will have a few minutes to introduce the firm and its representatives, describe its design philosophy, and describe salient thoughts about the site. The public will be asked to identify what is important about the site, what concerns they may have, and what opportunities the site may provide to the community. Concept Development and Event 2- Plans Revealed, Preferred Concept(s) Selected - Saturday, October 27, 2001 Based on the community input and instructions given by the City, Torti-Gallas and Partners will return to its office to consider the site, the instructions, and the public's thoughts and to prepare site plans and accompanying illustrations and graphics. An economist, engineer, and other technical consultants may review the plans for feasibility. Torti-Gallas and Partners will present its land use/circulation site plan concept. The presentations should include an overall site plan, a series of sketches, illustrations, photo simulations, and other graphics to convey the character of the various neighborhoods, centers, corridors, streets, and individual land uses. The presentation should also describe access and relationship between the surrounding areas and the site, and briefly quantify a gross number of residential units, commercial square feet, acres of park or open space and other details. The public will be led through a selection process where it will rank or vote for the preferred design concept. The participants may be asked to select an entire concept as proposed, or to select elements from each of the concepts that may be married to create a preferred concept. After this event, Torti-Gallas and Partners may be asked to revise the design to include comments or concerns raised by the participants. If Torti-Gallas and Partners is selected for subsequent plan preparation, a second contract or a contract amendment will be prepared. EXHIBIT `B" SCHEDULE OF SERVICES The anticipated schedule for the Monrovia Nursery Charette process is: Preparation for Event 1 Event 1 - Azusans Meet Consultant Team Conceptual Plan Development and Event 2 - Plans Revealed, Preferred Concept(s) Selected September 2001 September 2001 September 2001 October 2001 EXHIBIT "C" COMPENSATION Total compensation for professional labor, direct expenses, materials, and other miscellaneous costs shall not exceed 50,000.00 as follows: Torti- Total compensation for professional labor, direct expenses, materials, and other miscellaneous costs shall not exceed 50,000.00 for Preparation for Event 1, Event 1, Concept Development, and Event 2.