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HomeMy WebLinkAboutE-13 Staff Report - PSA and PSA Amendment for 415-435 S. Motor AveCONSENT ITEM E-13 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL VIA: SERGIO GONZALEZ, CITY MANAGER FROM: MATT MARQUEZ, ECONOMIC AND COMMUNITY DEVELOPMENT DIRECTOR DATE: SEPTEMBER 21, 2020 SUBJECT: REQUEST TO AMEND PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERING TO PROVIDE ENVIRONMENTAL CONSULTANT SERVICES AND APPROVE PROFESSIONAL SERVICES AGREEMENT WITH FEHR AND PEERS TO PROVIDE TRAFFIC ANALYSIS FOR THE CONSTRUCTION OF A NEW 97,200 SQUARE-FOOT INDUSTRIAL BUILDING LOCATED AT 415-435 S. MOTOR AVENUE BACKGROUND: The Planning Division is working on a large project that is requiring outside consultants to assist staff with their processing. The scope of the project is outlined below: The project consists of the construction of a new industrial building and the applicant is seeking approval of the following: 1. Construction of an approximately 97,200 square-foot industrial building, 2. Lot Merger to merge the two existing parcels into one, and 3. Use Permit for 24/7 operations. The consultants, both Willdan Engineering and Fehr & Peers, would work on the environmental and traffic analysis aspects of the project during the entitlement process. The applicant has executed a Reimbursement Agreement with the City. The Reimbursement Agreement did not require approval from City Council since the template agreement was approved on June 3, 2019. On May 18, 2020, City Council approved Professional Services Agreement with Willdan to provide environmental consultant services for the Motor Avenue project in an amount not to exceed $39,290.00. On September 27, 2013, Governor Jerry Brown signed SB 743 into law and started a process intended to fundamentally change how transportation impact analysis is conducted as part of the California Environmental Quality Act (CEQA) review of land use and transportation projects. SB 743 eliminates Level of Service (LOS) as the basis for determining transportation impacts under CEQA and requires the use of Vehicles Miles Traveled (VMT) instead. The State is shifting the focus of CEQA traffic analysis from measuring a project’s impact on automobile delay (LOS) to measuring the amount and APPROVED CITY COUNCIL 9/21/2020 1st Amendment PSA with Willdan Engineering & PSA with Fehr and Peers September 21, 2020 Page 2 of 3 distance of automobile travel that is attributable to a project (VMT). The State’s goal in changing the metric used to determine significant transportation impacts is to encourage land use and transportation decisions that reduce greenhouse gas emissions, encourage infill development, and improve public health through active transportation. Therefore, this new metric requires additional analysis from an environmental and traffic perspective. RECOMMENDATIONs: Staff recommends that the City Council take the following actions: 1) Approve Amendment #1 to Professional Service Agreement with Willdan Engineering to provide environmental consultant services for the Motor Avenue Project for a revised total amount not exceed $62,874.00 of which $23,584.00 is for the additional scope of work; AND 2) Approve Professional Service Agreement with Fehr and Peers to provide traffic analysis consultant services for the Motor Avenue Project in an amount not to exceed $29,060; and 3) Authorize the City Manager to prepare and execute the agreement, in a form acceptable to the City Attorney, on behalf of the City. ANALYSIS: The proposed scope of each project requires expertise and assistance from qualified consultants. The project has specific technical assistance that is not supported by the Planning Division. The scope of the project includes but not limited to environmental review services and technical studies, which includes a transportation analysis. Willdan Engineering scope of work will change from a IS/MND to a Focused EIR. Fehr and Peers is the leading transportation analysis firm and have better knowledge on SB 743. They established the VMT threshold for the City and have conducted other VMT analysis in the City. The estimate for the VMT analysis was lower when compared to Willdan’s estimate. The existing Reimbursement Agreement will be amended to include the revised scope and additional associated cost. FISCAL IMPACT: The proposed recommendation does not have any fiscal impact on the General Fund. Once the reimbursement agreement is executed and when the applicant makes a deposit with the City, all associated consultant costs will be paid through the Azusa Reimbursement Agreement. The applicant will make the appropriate required deposit and The Reimbursement Agreement Template was approved by City Council on June 3, 2019. 1st Amendment PSA with Willdan Engineering & PSA with Fehr and Peers September 21, 2020 Page 3 of 3 Prepared by: Reviewed by: Manuel Muñoz Matt Marquez Planning Manager Director of Economic and Community Development Fiscal Reviewed by: Reviewed and Approved by: Talika M. Johnson Sergio Gonzalez Director of Administrative Services City Manager Attachments: 1) 1st Amendment to Professional Service Agreement with Willdan Engineering – Motor Avenue Project 2) Professional Service Agreement with Fehr and Peers CITY OF AZUSA FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH WILLDAN ENGINEERING AND CITY OF AZUSA RE: 415-435 S. MOTOR AVENUE INDUSTRIAL PROJECT 1.PARTIES AND DATE. This Agreement is made and entered into this 21st day of September, 2020 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 Willdan Engineering a California Incorporated Company with its principal place of business at 13191 Crossroads Pkwy N Suite 405, City of Industry, CA 91746 (“Consultant”). City and Consultant are sometimes individually referred to herein as “Party” and collectively as “Parties.” 2.RECITALS. 2.1 Agreement. The Parties entered into that certain Agreement for the 415-435 S. Motor Ave. Project dated May 18, 2020. 3.AMENDMENT. Sections 3.1.1, 3.1.2, and 3.3.1 are hereby amended to read as follows: 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 consulting services necessary for the Project (“Services”). The Services have been revised and 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.” 3.1.2 Scope of Services and Term. “3.1.2 Term. The term of this Agreement shall be from September 21, 2020 to March 1, 2021, 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.” 3.3 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 “A” attached hereto and incorporated herein by reference. The total compensation Attachment 1 First Amendment to Professional Service Agreement – Willdan Engineering September 21, 2020 Page 2 of 4 shall not exceed ($62,874.00) without written approval of the City 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.” 4. REMAINING PROVISIONS OF AGREEMENT. Except as otherwise specifically set forth in this First Amendment, the remaining provisions of the Agreement shall remain in full force and effect. [SIGNATURES ON NEXT PAGE] First Amendment to Professional Service Agreement – Willdan Engineering September 21, 2020 Page 3 of 4 CITY OF AZUSA Willdan Engineering By: By: Mayor Name: Attest: Title: City Clerk Willdan Engineering Approved as to Form: Best Best & Krieger LLP By: Name: City Attorney Title: First Amendment to Professional Service Agreement – Willdan Engineering September 21, 2020 Page 4 of 4 EXHIBIT “A” SCOPE OF SERVICES, SCHEDULE OF SERVICES, COMPENSATION See Attached Document – Willdan Engineering Consulting Services 1 August 26, 2020 City of Azusa Attention: Manny Diaz, Dean Flores 213 East Foothill Boulevard Azusa, CA 91702 Subject: Finalization of Initial Study and Focused Environmental Impact Report for the Motor Avenue Industrial Warehouse Project Per the City’s request, Willdan Engineering (Willdan) has prepared this proposal to continue providing environmental consulting services for the Motor Avenue Industrial Warehouse Project (project), a proposed 97,200 square foot industria l building located at 415-435 S. Motor Avenue in the City of Azusa. The project will also include a Design Review application for the construction of the new building, a Lot Merger application to merge the two existing parcels into one parcel, and a Use Permit application for 24/7 operations. Willdan has substantially completed an Initial Study for this project, including the following technical studies: Air Quality/Greenhouse Gas Assessment (AQ/GHG), Phase I Environmental Site Assessment (Phase I ESA), and a trip generation memorandum. Although our intention was to provide California Environmental Quality Act (CEQA) clearance for the project via an Initial Study/Mitigated Negative Declaration (IS/MND), the trip generation memorandum determined that a Vehicle Miles Traveled (VMT) analysis would be requ ired due to the number of trips expected to be generated by the proposed use. Preliminary VMT discussions with City staff, including the City attorney, have indicated that the project would likely exceed the City’s VMT thresholds adopted by City Council in Summer 2020. As a result, Significant and Unavoidable Impacts under CEQA with respect to traffic would occur. This necessitates the preparation of a Focused Environmental Impact Report (Focused EIR) in lieu of an MND. Willdan proposes to update the already substantially completed Initial Study informed by the technical studies noted above which, following 30-day public circulation as required by CEQA, would lead to the preparation of a Focused EIR that would specifically address traffic analyses, including VMT (analysis prepared by Fehr and Peers). The following scope of work details our work plan to ensure efficient and cost -effective completion of the environmental review for this project. We sincerely appreciate the opportunity to continue our professional planning servic es to the City of Azusa and stand ready to proceed with the preparation of the required environmental documents upon your authorization. If you should have any questions concerning this proposal, please do not hesitate to contact me at (562) 364 -7600. Respectfully submitted, WILLDAN ENGINEERING Salvador Lopez , Jr. Director of Planning Proposal for Mixed -Use Specific Plan and Program EIR Preparation 2 City of Azusa Task 1 – Completion of Initial Study Willdan will finish the Initial Study for the project, which is already substantially complete. AQ/GHG, Phase I ESA, and trip generation studies have been finalized. The result of these is that a VMT analysis will be required as the project would exceed the trip genera tion thresholds adopted by the City. This task will include the finalization of the project description, creation of maps and exhibits, an updated traffic section, and updates to the document following review by City staff. This task also includes the completion of a Notice of Preparation (NOP) as required by CEQA, support to City staff in the circulation of the Initial Study to affected agencies and members of the community in the project vicinity, Assembly Bill 52 (AB 52) compliance, and aggregation and organization of all comments received during the 30-day public review period. Task 2 – Focused EIR 2.1 Prepare Draft Focused EIR Willdan will prepare the Draft Focused EIR for the project based on the Initial Study, further analysis, and any scoping comment s from public agencies. The draft will undergo an internal review before it becomes an external document; after which the comments will be incorporated prior to public review. Because the Initial Study is substantially complete and all technical studies ex cept VMT are finalized, Willdan and City staff have determined that the scope of the Focused EIR will be limited to analysis of potential traffic impacts as well as up to three project alternatives and an analysis of any potential cumulative project impact s . Deliverables: Draft Focused EIR 2.2 Public Comments and Response to Comments Once the mandatory 45-day public circulation period for the Focused EIR has ended, Willdan will meet with City staff to review the comment letters received on the Draft EIR and di scuss direction for responses to comments. Once approved, Willdan will deliver the Response to Comments document to the City for circulation to commenting public agencies prior to certification of the Final Focused EIR. Deliverables: Response to Comments document 2.3 Final Program EIR and City Council Willdan will prepare the Final Focused EIR after incorporating any revisions and comments obtained during the Draft Focused EIR review period. Willdan will also prepare any mitigation monitoring reporting program and statements of overriding consideration for Council consideration. Deliverables: Final EIR and Council documents Task 3 – Meetings and Coordination Willdan will meet with City staff either in person or via videoconference to discuss the progress of the project, as necessary. Proposal for Initial Study and Focused EIR Motor Avenue Industrial Warehouse Project 3 City of Azusa Fee TASK DESCRIPTION HOURS FEE 1 Initial Study 16 $2,816.00 2 Focused EIR 110 $19,360.00 3 Meetings and Coordination 8 $1,408.00 TOTAL $23,584.00 Schedule Tasks/Milestones Duration (Number of Weeks) Timeline Actio n Items Upon Comp letion of Tas k Complete Initial Study/NOP 2 Weeks 1-2 City staff review Initial Study Circulation 4 Weeks 3-6 30-day circulation, AB 52 compliance, and comments Prepare VMT Analysis (Fehr and Peers) 8 Weeks 3-10 Prepare VMT technical analysis Prepare Draft Focused EIR 6 We eks 6-11 Preparation of Draft Focused EIR , including alternatives and cumulative impacts for City review and public circulation Draft Focused EIR Circulation 7 Weeks 12-18 45-day circulation, collection of comments Prepare Final Focused EIR 2 We eks 19-20 Preparation of Final Focused EIR, Response to Comments, Statement of Overriding Considerations City Council Certification 1 We ek 21 Attendance at City Council public hearing File Notice of Determination and NED <1 We ek 22 CEQA process/docume ntation complete. CITY OF AZUSA PROFESSIONAL SERVICES AGREEMENT WITH FEHR AND PEERS AND CITY OF AZUSA RE: 415-435 S. MOTOR AVENUE INDUSTRIAL PROJECT 1.PARTIES AND DATE. This Agreement is made and entered into this 21st day of September, 2020 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 Fehr & Peers, Inc., a California Incorporated Company with its principal place of business at 600 Wilshire Boulevard, Suite 1050, Los Angeles, CA 90017 (“Consultant”). City and Consultant are sometimes individually referred to herein 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 mining 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 Design Review for the construction of a 97,200 square-foot industrial building, Lot Merger application to merge two existing parcels into one, and Use Permit for 24/7 operations, (“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 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. 3.1.2 Term. The term of this Agreement shall be from September 21, 2020 to October 19, 2020, 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. Attachment 2 Professional Service Agreement for Fehr & Peers, Inc. Page 2 of 17 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” 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: Miguel Núñez, Senior Associate. 3.2.5 City’s Representative. The City hereby designates Matt Marquez, Director of Economic and Community Development 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 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. Professional Service Agreement for Fehr & Peers, Inc. Page 3 of 17 3.2.6 Consultant’s Representative. Consultant hereby designates Miguel Núñez, or his/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/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; 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 Period of Performance Consultant shall perform and complete all Services under this Agreement within the term set forth in Section 3.1.2 above (“Performance Time”). Consultant shall also perform the Services in strict accordance with any completion schedule or Project milestones described in Exhibits “A” attached hereto, or which may be separately agreed upon in writing by the City and Consultant (“Performance Milestones”). Consultant agrees that if the Services are not completed within the aforementioned Performance Time and/or pursuant to any such Project Milestones developed pursuant to provisions of this Agreement, it is understood, acknowledged and agreed that the City will suffer damage. 3.2.10 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 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, Professional Service Agreement for Fehr & Peers, Inc. Page 4 of 17 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. 3.2.10.1 Employment Eligibility; Consultant. By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time. Such requirements and restrictions include, but are not limited to, examination and retention of documentation confirming the identity and immigration status of each employee of the Consultant. Consultant also verifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement. Consultant shall avoid any violation of any such law during the term of this Agreement by participating in an electronic verification of work authorization program operated by the United States Department of Homeland Security, by participating in an equivalent federal work authorization program operated by the United States Department of Homeland Security to verify information of newly hired employees, or by some other legally acceptable method. Consultant shall maintain records of each such verification, and shall make them available to the City or its representatives for inspection and copy at any time during normal business hours. The City shall not be responsible for any costs or expenses related to Consultant’s compliance with the requirements provided for in Section 3.2.10 or any of its sub-sections. 3.2.10.2 Employment Eligibility; Subcontractors, Consultants, Sub- subcontractors and Subconsultants. To the same extent and under the same conditions as Consultant, Consultant shall require all of its subcontractors, consultants, sub-subcontractors and subconsultants performing any work relating to the Project or this Agreement to make the same verifications and comply with all requirements and restrictions provided for in Section 3.2.10.1. 3.2.10.3 Employment Eligibility; Failure to Comply. Each person executing this Agreement on behalf of Consultant verifies that they are a duly authorized officer of Consultant, and understands that any of the following shall be grounds for the City to terminate the Agreement for cause: (1) failure of Consultant or its subcontractors, consultants, sub-subcontractors or subconsultants to meet any of the requirements provided for in Sections 3.2.10.1 or 3.2.10.2; (2) any misrepresentation or material omission concerning compliance with such requirements (including in those verifications provided to the Consultant under Section 3.2.10.2); or (3) failure to immediately remove from the Project any person found not to be in compliance with such requirements. 3.2.10.4 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 Workers’ 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. 3.2.10.5 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subconsultant, employee or applicant for employment because of race, religion, color, national origin, handicap, Professional Service Agreement for Fehr & Peers, Inc. Page 5 of 17 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. 3.2.10.6 Air Quality. To the extent applicable, Consultant must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the South Coast Air Quality Management District (SCAQMD) and/or California Air Resources Board (CARB). Although the SCAQMD and CARB limits and requirements are more broad, Consultant shall specifically be aware of their application to "portable equipment", which definition is considered by SCAQMD and CARB to include any item of equipment with a fuel-powered engine. Consultant shall indemnify City against any fines or penalties imposed by SCAQMD, CARB, or any other governmental or regulatory agency for violations of applicable laws, rules and/or regulations by Consultant, its subconsultants, or others for whom Consultant is responsible under its indemnity obligations provided for in this Agreement. 3.2.10.7 Water Quality. (A) Management and Compliance. To the extent applicable, Consultant’s Services must account for, and fully comply with, all local, state and federal laws, rules and regulations that may impact water quality compliance, including, without limitation, all applicable provisions of the Federal Water Pollution Control Act (33 U.S.C. §§ 1300); the California Porter-Cologne Water Quality Control Act (Cal Water Code §§ 13000-14950); laws, rules and regulations of the Environmental Protection Agency, the State Water Resources Control Board and the Santa Ana Regional Water Quality Control Board; the City’s ordinances regulating discharges of storm water; and any and all regulations, policies, or permits issued pursuant to any such authority regulating the discharge of pollutants, as that term is used in the Porter-Cologne Water Quality Control Act, to any ground or surface water in the State. (B) Liability for Non-compliance. Failure to comply with the laws, regulations and policies described in this Section is a violation of law that may subject Consultant or City to penalties, fines, or additional regulatory requirements. 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, from and against any and all fines, penalties, claims or other regulatory requirements imposed as a result of Consultant’s non-compliance with the laws, regulations and policies described in this Section, unless such non-compliance is the result of the sole established negligence, willful misconduct or active negligence of the City, its officials, officers, agents, employees or authorized volunteers. (C) Training. In addition to any other standard of care requirements set forth in this Agreement, Consultant warrants that all employees and subcontractors shall have sufficient skill and experience to perform the Services assigned to them without impacting water quality in violation of the laws, regulations and policies described in this Section. Consultant further warrants that it, its employees and subcontractors will receive adequate training, as determined by City, regarding the requirements of the laws, regulations and Professional Service Agreement for Fehr & Peers, Inc. Page 6 of 17 policies described in this Section as they may relate to the Services provided under this Agreement. Upon request, City will provide Consultant with a list of training programs that meet the requirements of this paragraph. 3.2.11 Insurance. 3.2.11.1 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 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. 3.2.11.2 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 Professional Service Agreement for Fehr & Peers, Inc. Page 7 of 17 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. 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 Project, errors and omissions liability insurance appropriate to their profession. Such insurance shall be in an amount not less $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). Professional Service Agreement for Fehr & Peers, Inc. Page 8 of 17 (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 (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. Professional Service Agreement for Fehr & Peers, Inc. Page 9 of 17 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 “A” attached hereto and incorporated herein by reference. The total compensation shall not exceed ($29,060.00) without written approval of the City 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 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 Professional Service Agreement for Fehr & Peers, Inc. Page 10 of 17 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 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 16000, 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 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. Professional Service Agreement for Fehr & Peers, Inc. Page 11 of 17 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 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 Project, 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 this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project 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 this Project, 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. Professional Service Agreement for Fehr & Peers, Inc. Page 12 of 17 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 entity in consequence of the use on the Project 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 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. 3.6 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: Fehr & Peers, Inc. Attn.: Miguel Núñez 600 Wilshire Blvd., Suite 1050, Los Angeles, CA 90017 City: City of Azusa Attn: Matt Marquez 213 E. Foothill Blvd. Azusa, CA 91702 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 Professional Service Agreement for Fehr & Peers, Inc. Page 13 of 17 persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any 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, the Project 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 this Project. 3.6.6 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties. Professional Service Agreement for Fehr & Peers, Inc. Page 14 of 17 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 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, Professional Service Agreement for Fehr & Peers, Inc. Page 15 of 17 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] Professional Service Agreement for Fehr & Peers, Inc. Page 16 of 17 CITY OF AZUSA Fehr & Peers, Inc. By: By: Mayor Name: Attest: Title: City Clerk Approved as to Form: Best Best & Krieger LLP City Attorney Professional Service Agreement for Fehr & Peers, Inc. Page 17 of 17 EXHIBIT “A” SCOPE OF SERVICES, SCHEDULE OF SERVICES, COMPENSATION See Attached Document – Fehr & Peers, Inc. Consulting Services SCOPE OF WORK AND FEE PROPOSAL AUGUST 10, 2020 VEHCILE MILES TRAVELED ANALYSIS AZUSA REXFORD INDUSTRIAL PROJECT AZUSA, CALIFORNIA (P6892) PROJECT DESCRIPTION The project site is located at 415-435 Motor Avenue in Azusa, California. The proposed project includes the development of 97,734 square feet of warehouse in one building with associated loading docks, surface, parking, and landscaping. The scope of services has been developed in response to the request for a VMT analysis. SCOPE OF SERVICES The State Office of Planning and Research (OPR) has finalized the revisions to the CEQA Guidelines in accordance with Senate Bill (SB) 743. The City has adopted a VMT methodology and impact criteria. Fehr & Peers will work with the City and project team to prepare VMT estimates for the project based on guidance provided by OPR. The current regional SCAG RTP/SCS model will be used to help develop VMT estimates for the project. The document that OPR released provides guidance for a methodology and impact threshold for commercial land uses that can be applied to employee trips associated with site employees and on-site administrative functions. This effort includes the development of VMT per employee and total VMT to be compared to the regional average VMT per employee that the City has determined through application of the OPR SB743 Technical Guidance. Aside from employee VMT, VMT associated with trucks traveling to/from the site is the other source of VMT that is proposed to be analyzed for this project for use in air quality and noise analyses. Estimating truck VMT is a process that requires obtaining additional data from the SCAG model about truck VMT. It may also require additional information from the applicant regarding the expected amount of daily truck activity and the locations trucks are traveling to/from, if that data is available. Because initial indications are that the applicant does not have detailed information, this portion of the project will require coordination with City staff and the project team to identify the parameters of the number and types of trucks, number of employees, and warehousing type that will directly inform the VMT estimates. This scope assumes that project trip generation estimates will be prepared by Fehr & Peers. The trip generation estimates delineate employee trips from truck trips for VMT analysis purposes. This scope does not include intersection analysis, site plan review, circulation analysis, or documentation beyond the VMT analysis. Should a VMT impact be determined, Fehr & Peers will advise the City on possible mitigation options and determine their effectiveness in mitigating project impacts for employee VMT. This scope of work does not include a quantitative analysis of impacts or mitigations for truck VMT, as the City of Azusa does not have a truck-specific VMT impact criterion. There is limited guidance and research regarding truck mitigations and this phase of the project may entail additional team coordination and additional tasks not included in this scope of work. The results of the analysis will be documented in a transportation memorandum that will be provided to the City. Up to two conference calls and two rounds of edits are assumed as part of this scope of work. FEE PROPOSAL AND SCHEDULE The estimated budget for the scope of services defined in this proposal is based on our normal hourly billing rates, plus reimbursement for direct expenses. The cost to complete the VMT analysis is estimated at $29,060. Fehr & Peers can provide employee and truck VMT estimates four weeks after receiving a signed contract. Once the City has reviewed, selected and/or approved the analysis parameters, VMT estimates and mitigation strategy, Fehr & Peers can provide a draft memorandum documenting the VMT impact analysis two weeks from receiving the City’s input and approval.