HomeMy Public PortalAbout08) 7D_Award of Contract Onyx_Staff Report_SR edits_v2 w attachmentCOMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
DATE: October 19, 2021
TO: The Honorable City Council
FROM: Bryan Cook, City Manager
Via: Scott Reimers, Community Development Director
By: Hesty Liu, AICP, Associate Planner
SUBJECT: APPROVAL OF AGREEMENT WITH ONYX ARCHITECTS FOR
ARCHITECTURAL REVIEW SERVICES
RECOMMENDATION:
The City Council is requested to:
1.Review and approve the Design Professional Services Agreement (Attachment “A”)
with Onyx Architects. This agreement is based on a term of five years (with an initial
three-year term and an automatic renewal for up to two more years), and an annual
budget not to exceed $20,000 with a total not to exceed $100,000; and
2.Authorize the City Manager to execute the agreement with Onyx Architects.
BACKGROUND:
1.On April 1, 2021, upon the coming expiration of the previous contract for architectural
review services, staff sent out a request for proposals seeking qualified architectural
consulting firms to provide on-call services. The deadline to submit a proposal was
May 6, 2021. Three proposals were received, and staff selected RRM Design Group
and Onyx Architects.
2.On June 15, 2021, the City Council adopted the budget for Fiscal Year (FY) 2021-
2022 allocating an annual budget of $20,000 for architectural review services.
3.On September 7, 2021, the City Council approved a contract for RRM Design Group
to perform architectural reviews. Approving a contract with an additional architecture
firm has worked in previous years to give the public better customer service by
ensuring that the firms can meet deadlines and to help provide alignment with one
architecture firm’s skillsets with the appropriate applications. Staff will actively
manage the contract to ensure that the budget is not exceeded.
AGENDA
ITEM 7.D.
City Council
October 19, 2021
Page 2 of 2
ANALYSIS:
Like RRM Design Group, Onyx Architects is also a reputable firm with an extensive
experience in design reviews. The proposal Onyx Architect submitted indicates that the
firm has provided design review services for cities in the San Gabriel Valley such as the
City of Arcadia, City of San Gabriel, and City of Duarte. The sample review letter also
demonstrated that the firm is able to effectively use drawings and illustrations to convey
the issues that need resolution. This approach will improve the clarity of the review
comments and be more effective in producing responsive changes for the revisions. The
fee proposed by Onyx Architects is comparable to that of the RRM Design Group.
Using two consultants will have the benefit of allowing staff to match a project with a
consultant based on the firm’s areas of expertise. For this reason, the City in the past had
used two consultants. Signing this agreement will not increase the total annual budget as
the consultant will be paid based on the assigned projects and staff will track the
expenses. Staff therefore recommends that the City Council approve this agreement so
that Onyx Architects can start conducting architectural reviews for the City.
CITY STRATEGIC GOALS:
Approval of the Agreement for Services will further the City’s Strategic Goals of Economic
Development and Quality of Life.
FISCAL IMPACT:
The FY 2021-2022 budget has designated $20,000 for architectural consultant services.
Therefore, sufficient funds are available to fund this contract. Spending under the two
contracts will not exceed this amount.
ATTACHMENT:
A. Agreement for Services between the City of Temple City and Onyx Architects
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DESIGN PROFESSIONAL SERVICES AGREEMENT
By and Between
THE CITY OF TEMPLE CITY,
a municipal corporation
and
ONYX ARCHITECTS
ATTACHMENT A
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AGREEMENT FOR DESIGN PROFESSIONAL SERVICES
BETWEEN
THE CITY OF TEMPLE CITY, CALIFORNIA
AND
ONYX ARCHITECTS
This Agreement for Design Professional Services (“Agreement”) is entered into
as of this 19th day of October, 2021 by and between the City of Temple City, a
municipal corporation (“City”) and Onyx Architects, an incorporation (“Design
Professional”). City and Design Professional are sometimes hereinafter individually
referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by request for proposals, the performance of the services
defined and described particularly in Section 2 of this Agreement.
B. Design Professional, following submission of a proposal for the
performance of the services defined and described particularly in Section 2 of this
Agreement, was selected by the City to perform those services.
C. Design Professional was selected by the City on the basis of Design
Professional’s demonstrated competence and the professional qualifications necessary
for the satisfactory performance of the services required.
D. Pursuant to the City of Temple City’s Municipal Code, City has authority to
enter into this Design Professional Services Agreement and the City Manager has
authority to execute this Agreement.
E. The Parties desire to formalize the selection of Design Professional for
performance of those services defined and described particularly in Section 2 of this
Agreement and desire that the terms of that performance be as particularly defined and
described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants
made by the Parties and contained here and other consideration, the value and
adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "Termination of Agreement" of this
Agreement, the Term of this Agreement is for three years with an automatic renewal of
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two years for a total of five years commencing on the date first ascribed above. Unless
either party gives express written notice of its intent not to renew this agreement at least
sixty (60) days prior to June 30, 2024, this Agreement shall automatically renew for an
additional two (2) years Term on July 1, 2024.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services. Design Professional agrees to perform the services
set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part
of this Agreement by this reference.
(b) Schedule of Performance. The Services shall be completed pursuant to
the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to
that schedule, the Consultant shall be deemed to be in Default of this Agreement. The
City, in its sole discretion, may choose not to enforce the Default provisions of this
Agreement and may instead allow Design Professional to continue performing the
Services.
SECTION 3. ADDITIONAL SERVICES.
Design Professional shall not be compensated for any work rendered in
connection with its performance of this Agreement that are in addition to or outside of
the Services unless such additional services are authorized in advance and in writing in
accordance with Section 26 “Administration and Implementation” or Section 28
“Amendment” of this Agreement. If and when such additional work is authorized, such
additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay
Design Professional the amounts specified in Exhibit “B” “Compensation” and made a
part of this Agreement by this reference. The total compensation, including
reimbursement for actual expenses, shall not exceed one-hundred thousand dollars
($100,000) with an annual amount of twenty thousand dollars ($20,000), unless
additional compensation is approved in writing in accordance with Section 26
“Administration and Implementation” or Section 28 “Amendment” of this Agreement.
(b) Each month Design Professional shall furnish to City an original invoice
for all work performed and expenses incurred during the preceding month. The invoice
shall detail charges by the following categories: labor (by sub-category), travel,
materials, equipment, supplies, and subcontractor contracts. Sub-consultant charges
shall be detailed by the following categories: labor, travel, materials, equipment and
supplies. If the compensation set forth in subsection (a) and Exhibit “B” include
payment of labor on an hourly basis (as opposed to labor and materials being paid as a
lump sum), the labor category in each invoice shall include detailed descriptions of task
performed and the amount of time incurred for or allocated to that task. City shall
independently review each invoice submitted by the Design Professional to determine
whether the work performed and expenses incurred are in compliance with the
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provisions of this Agreement. In the event that no charges or expenses are disputed,
the invoice shall be approved and paid according to the terms set forth in subsection
(c). In the event any charges or expenses are disputed by City, the original invoice
shall be returned by City to Design Professional for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by
Design Professional which are disputed by City, City will use its best efforts to cause
Design Professional to be paid within forty-five (45) days of receipt of Design
Professional’s correct and undisputed invoice.
(d) Payment to Design Professional for work performed pursuant to this
Agreement shall not be deemed to waive any defects in work performed by Design
Professional.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Design Professional’s work under
this Agreement, either during performance or when completed. City shall reject or
finally accept Design Professional’s work within sixty (60) days after submitted to City.
City shall reject work by a timely written explanation, otherwise Design Professional’s
work shall be deemed to have been accepted. City’s acceptance shall be conclusive as
to such work except with respect to latent defects, fraud and such gross mistakes as
amount to fraud. Acceptance of any of Design Professional’s work by City shall not
constitute a waiver of any of the provisions of this Agreement including, but not limited
to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files and other documents prepared, developed or
discovered by Design Professional in the course of providing the Services pursuant to
this Agreement shall become the sole property of City and may be used, reused or
otherwise disposed of by City without the permission of the Design Professional. Upon
completion, expiration or termination of this Agreement, Design Professional shall turn
over to City all such original maps, models, designs, drawings, photographs, studies,
surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this
Agreement any maps, models, designs, drawings, photographs, studies, surveys,
reports, data, notes, computer files, files or other documents prepared, developed or
discovered by Design Professional in the course of providing the Services pursuant to
this Agreement, Design Professional’s guarantees and warranties in Section 9
“Standard of Performance” of this Agreement shall not extend to such use of the maps,
models, designs, drawings, photographs, studies, surveys, reports, data, notes,
computer files, files or other documents.
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SECTION 7. DESIGN PROFESSIONAL'S BOOKS AND RECORDS.
(a) Design Professional shall maintain any and all documents and records
demonstrating or relating to Design Professional’s performance of the Services. Design
Professional shall maintain any and all ledgers, books of account, invoices, vouchers,
canceled checks, or other documents or records evidencing or relating to work,
services, expenditures and disbursements charged to City pursuant to this Agreement.
Any and all such documents or records shall be maintained in accordance with
generally accepted accounting principles and shall be sufficiently complete and detailed
so as to permit an accurate evaluation of the services provided by Design Professional
pursuant to this Agreement. Any and all such documents or records shall be
maintained for three (3) years from the date of execution of this Agreement and to the
extent required by laws relating to audits of public agencies and their expenditures.
(b) Any and all records or documents required to be maintained pursuant to
this section shall be made available for inspection, audit and copying, at any time during
regular business hours, upon request by City or its designated representative. Copies
of such documents or records shall be provided directly to the City for inspection, audit
and copying when it is practical to do so; otherwise, unless an alternative is mutually
agreed upon, such documents and records shall be made available at Design
Professional’s address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records
required to be maintained pursuant to this section may be lost or discarded due to
dissolution or termination of Design Professional’s business, City may, by written
request, require that custody of such documents or records be given to the City.
Access to such documents and records shall be granted to City, as well as to its
successors-in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Design Professional is and shall at all times remain a wholly independent
contractor and not an officer, employee or agent of City. Design Professional shall
have no authority to bind City in any manner, nor to incur any obligation, debt or liability
of any kind on behalf of or against City, whether by contract or otherwise, unless such
authority is expressly conferred under this Agreement or is otherwise expressly
conferred in writing by City.
(b) The personnel performing the Services under this Agreement on behalf of
Design Professional shall at all times be under Design Professional’s exclusive direction
and control. Neither City, nor any elected or appointed boards, officers, officials,
employees or agents of City, shall have control over the conduct of Design Professional
or any of Design Professional’s officers, employees, or agents except as set forth in this
Agreement. Design Professional shall not at any time or in any manner represent that
Design Professional or any of Design Professional’s officers, employees, or agents are
in any manner officials, officers, employees or agents of City.
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(c) Neither Design Professional, nor any of Design Professional’s officers,
employees or agents, shall obtain any rights to retirement, health care or any other
benefits which may otherwise accrue to City’s employees. Design Professional
expressly waives any claim Design Professional may have to any such rights.
SECTION 9. STANDARD OF PERFORMANCE.
Design Professional represents and warrants that it has the qualifications,
experience and facilities necessary to properly perform the Services required under this
Agreement in a thorough, competent and professional manner. Design Professional
shall at all times faithfully, competently and to the best of its ability, experience and
talent, perform all Services. In meeting its obligations under this Agreement, Design
Professional shall employ, at a minimum, generally accepted standards and practices
utilized by persons engaged in providing services similar to the Services required of
Design Professional under this Agreement, and shall use such skill, prudence, and
diligence as other members of Design Professional’s profession commonly possess
and exercise. In addition to the general standards of performance set forth this section,
additional specific standards of performance and performance criteria may be set forth
in Exhibit “A” “Scope of Work” that shall also be applicable to Design Professionals
work under this Agreement. Where there is a conflict between a general and a specific
standard of performance or performance criteria, the specific standard or criteria shall
prevail over the general.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND
LICENSES.
Design Professional shall keep itself informed of and comply with all applicable
federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect
during the term of this Agreement. Design Professional shall obtain any and all
licenses, permits and authorizations necessary to perform the Services set forth in this
Agreement. Neither City, nor any elected or appointed boards, officers, officials,
employees or agents of City, shall be liable, at law or in equity, as a result of any failure
of Design Professional to comply with this section.
SECTION 11. PREVAILING WAGE LAWS.
It is the understanding of City and Design Professional that California prevailing
wage laws do not apply to this Agreement because the Agreement does not involve any
of the following services subject to prevailing wage rates pursuant to the California
Labor Code or regulations promulgated thereunder: Construction, alteration, demolition,
installation, or repair work performed on public buildings, facilities, streets or sewers
done under contract and paid for in whole or in part out of public funds. In this context,
“construction" includes work performed during the design and preconstruction phases
of construction including, but not limited to, inspection and land surveying work.
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SECTION 12. NONDISCRIMINATION.
Design Professional shall not discriminate, in any way, against any person on the
basis of race, color, religious creed, national origin, ancestry, sex, age, physical
handicap, medical condition or marital status in connection with or related to the
performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Design Professional hereby promises and agrees to comply with all of the
provisions of the Federal Immigration and Nationality Act, 8 U.S.C.A. §§ 1101, et seq.,
as amended, and in connection therewith, shall not employ unauthorized aliens as
defined therein. Should Design Professional so employ such unauthorized aliens for
the performance of the Services, and should the any liability or sanctions be imposed
against City for such use of unauthorized aliens, Design Professional hereby agrees to
and shall reimburse City for the cost of all such liabilities or sanctions imposed, together
with any and all costs, including attorneys' fees, incurred by City.
SECTION 14. CONFLICTS OF INTEREST.
(a) Design Professional covenants that neither it, nor any officer or principal
of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in
any manner with the interests of City or which would in any way hinder Design
Professional’s performance of the Services. Design Professional further covenants that
in the performance of this Agreement, no person having any such interest shall be
employed by it as an officer, employee, agent or subcontractor without the express
written consent of the City Manager. Design Professional agrees to at all times avoid
conflicts of interest or the appearance of any conflicts of interest with the interests of
City in the performance of this Agreement.
(b) City understands and acknowledges that Design Professional is, as of the
date of execution of this Agreement, independently involved in the performance of non-
related services for other governmental agencies and private parties. Design
Professional is unaware of any stated position of City relative to such projects. Any
future position of City on such projects shall not be considered a conflict of interest for
purposes of this section.
(c) City understands and acknowledges that Design Professional will, perform
non-related services for other governmental agencies and private Parties following the
completion of the Services under this Agreement. Any such future service shall not be
considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All information gained or work product produced by Design Professional in
performance of this Agreement shall be considered confidential, unless such
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information is in the public domain or already known to Design Professional. Design
Professional shall not release or disclose any such information or work product to
persons or entities other than City without prior written authorization from the City
Manager, except as may be required by law.
(b) Design Professional, its officers, employees, agents or subcontractors,
shall not, without prior written authorization from the City Manager or unless requested
by the City Attorney of City, voluntarily provide declarations, letters of support,
testimony at depositions, response to interrogatories or other information concerning
the work performed under this Agreement. Response to a subpoena or court order
shall not be considered "voluntary" provided Design Professional gives City notice of
such court order or subpoena.
(c) If Design Professional, or any officer, employee, agent or subcontractor of
Design Professional, provides any information or work product in violation of this
Agreement, then City shall have the right to reimbursement and indemnity from Design
Professional for any damages, costs and fees, including attorneys fees, caused by or
incurred as a result of Design Professional’s conduct.
(d) Design Professional shall promptly notify City should Design Professional
, its officers, employees, agents or subcontractors be served with any summons,
complaint, subpoena, notice of deposition, request for documents, interrogatories,
request for admissions or other discovery request, court order or subpoena from any
party regarding this Agreement and the work performed thereunder. City retains the
right, but has no obligation, to represent Design Professional or be present at any
deposition, hearing or similar proceeding. Design Professional agrees to cooperate
fully with City and to provide City with the opportunity to review any response to
discovery requests provided by Design Professional. However, this right to review any
such response does not imply or mean the right by City to control, direct, or rewrite said
response.
SECTION 16. INDEMNIFICATION.
(a) Indemnification by Design Professional. As provided under Civil Code
Section 2782.8, Design Professional shall indemnify, protect, defend and hold harmless
City and any and all of its officials, employees and agents (“Indemnified Parties”) from
and against any and all claims. actions and proceedings (whether at law or equity,
administrative or judicial), demands, orders, judgments, losses, liabilities, damages,
costs and expenses, including attorney’s fees and costs, (collectively "Claims") ”) but
only to the extent actually caused by the negligence, recklessness, or willful misconduct
of the Design Professional, its officers, agents, employees or subcontractors (or any
entity or individual that Design Professional shall bear the legal liability thereof) in the
performance of professional services under this Agreement, with the understanding that
in the event Claims are found by the trier of fact to have been caused by the joint or
concurrent negligence of the City and its contractors and Design Professionals, and
Design Professional, damages and expenses from both indemnity and duty to defend
obligations shall be borne by each party in proportion to its negligence.
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(b) Indemnification from Sub-Consultants. Design Professional agrees to
obtain executed indemnity agreements with provisions identical to those set forth here
in this section from each and every sub-consultant / contract or any other person or
entity involved by, for, with or on behalf of Design Professional in the performance of
this Agreement naming the Indemnified Parties as additional indemnitees. In the event
Design Professional fails to obtain such indemnity obligations from others as required
here, Design Professional agrees to be fully responsible according to the terms of this
section. Failure of City to monitor compliance with these requirements imposes no
additional obligations on City and will in no way act as a waiver of any rights hereunder.
This obligation to indemnify and defend City as set forth herein is binding on the
successors, assigns or heirs of Design Professional and shall survive the termination of
this Agreement or this section.
(c) City's Negligence. The provisions of this section do not apply to Claims
occurring as a result of City’s sole negligence. The provisions of this section shall not
release City from liability arising from gross negligence or willful acts or omissions of
City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Design Professional agrees to obtain and maintain in full force and effect during
the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance”
and made a part of this Agreement. All insurance policies shall be subject to approval
by City as to form and content. These requirements are subject to amendment or
waiver if so approved in writing by the City Manager. Design Professional agrees to
provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Design Professional are material considerations
for this Agreement. City has an interest in the qualifications and capability of the
persons and entities who will fulfill the duties and obligations imposed upon Design
Professional under this Agreement. In recognition of that interest, Design Professional
shall not assign or transfer this Agreement or any portion of this Agreement or the
performance of any of Design Professional’s duties or obligations under this Agreement
without the prior written consent of the City. Any attempted assignment shall be
ineffective, null and void, and shall constitute a material breach of this Agreement
entitling City to any and all remedies at law or in equity, including termination of this
Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges,
however, that Design Professional, in the performance of its duties pursuant to this
Agreement, may utilize subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Design Professional shall make every reasonable effort to maintain the stability
and continuity of Design Professional’s staff and subcontractors, if any, assigned to
perform the Services. Design Professional shall notify City of any changes in Design
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Professional’s staff and subcontractors, if any, assigned to perform the Services prior to
and during any such performance.
SECTION 20. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by
giving thirty (30) days written notice of termination to Design Professional. In the event
such notice is given, Design Professional shall cease immediately all work in progress.
(b) Design Professional may terminate this Agreement for cause at any time
upon thirty (30) days written notice of termination to City.
(c) If either Design Professional or City fail to perform any material obligation
under this Agreement, then, in addition to any other remedies, either Design
Professional, or City may terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Design Professional or City,
all property belonging exclusively to City which is in Design Professional’s possession
shall be returned to City. Design Professional shall furnish to City a final invoice for
work performed and expenses incurred by Design Professional, prepared as set forth in
Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice
shall be reviewed and paid in the same manner as set forth in Section 4 “Compensation
and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Design Professional is in default under the terms of this
Agreement, the City shall not have any obligation or duty to continue compensating
Design Professional for any work performed after the date of default. Instead, the City
may give notice to Design Professional of the default and the reasons for the default.
The notice shall include the timeframe in which Design Professional may cure the
default. This timeframe is presumptively thirty (30) days, but may be extended, though
not reduced, if circumstances warrant. During the period of time that Design
Professional is in default, the City shall hold all invoices and shall, when the default is
cured, proceed with payment on the invoices. In the alternative, the City may, in its sole
discretion, elect to pay some or all of the outstanding invoices during the period of
default. If Design Professional does not cure the default, the City may take necessary
steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any
failure on the part of the City to give notice of the Design Professional’s default shall not
be deemed to result in a waiver of the City’s legal rights or any rights arising out of any
provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Design Professional shall not be liable for damages, including liquidated
damages, if any, caused by delay in performance or failure to perform due to causes
beyond the control of Design Professional. Such causes include, but are not limited to,
acts of God, acts of the public enemy, acts of federal, state or local governments, acts
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of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe
weather. The term and price of this Agreement shall be equitably adjusted for any
delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and
available to City as public records, and which are necessary for carrying out the
Services shall be furnished to Design Professional in every reasonable way to facilitate,
without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be given under this Agreement shall be in
writing and shall be personally delivered, or sent by telecopier or certified mail, postage
prepaid and return receipt requested, addressed as follows:
To City: City of Temple City
Attn: City Manager
9701 Las Tunas Dr.
Temple City, CA 91780
To Design Professional: Onyx Architect, Inc.
__________________________
__________________________
__________________________
Notice shall be deemed effective on the date personally delivered or transmitted
by facsimile or, if mailed, three (3) days after deposit of the same in the custody of the
United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Design
Professional represents and warrants that he/she/they has/have the authority to so
execute this Agreement and to bind Design Professional to the performance of its
obligations hereunder.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his
or her designated representative. The City Manager shall have the authority to issue
interpretations and to make amendments to this Agreement, including amendments that
commit additional funds, consistent with Section 28 “Amendment” and the City
Manager’s contracting authority under the Temple City Municipal Code.
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SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators,
successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made
in writing and approved by the Design Professional and by the City. The City Manager
shall have the authority to approve any amendment to this Agreement if the total
compensation under this Agreement, as amended, would not exceed the City
Manager’s contracting authority under the Temple City Municipal Code. All other
amendments shall be approved by the City Council. The Parties agree that the
requirement for written modifications cannot be waived and that any attempted waiver
shall be void.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant.
Waiver by any Party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision nor a waiver of any subsequent breach or
violation of any provision of this Agreement. Acceptance by City of any work or
services by Design Professional shall not constitute a waiver of any of the provisions of
this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the
laws of the State of California. In the event of litigation between the Parties, venue in
state trial courts shall lie exclusively in the County of Los Angeles, California. In the
event of litigation in a U.S. District Court, venue shall lie exclusively in the Central
District of California, in Los Angeles.
SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any
provision of this Agreement, the prevailing Party in such litigation or other proceeding
shall be entitled to an award of reasonable attorney's fees, costs and expenses, in
addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire,
complete, final and exclusive expression of the Parties with respect to the matters
addressed therein and supersedes all other agreements or understandings, whether
oral or written, or entered into between Design Professional and City prior to the
execution of this Agreement. No statements, representations or other agreements,
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whether oral or written, made by any Party which are not embodied herein shall be valid
and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by
any court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Agreement shall not be affected thereby and the Agreement shall be
read and construed without the invalid, void or unenforceable provision(s).
SECTION 34. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the
terms of any Exhibit hereto, or with the terms of any document incorporated by
reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date and year first-above written.
CITY OF TEMPLE CITY
__________________________
Bryan Cook
City Manager
ATTEST APPROVED AS TO FORM
__________________________ __________________________
Peggy Kuo Greg Murphy
City Clerk City Attorney
By: By:
_________________________________
Its: ______________________________ Its: ___________________________
NOTE: DESIGN PROFESSIONAL’S SIGNATURES SHALL BE DULY
NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE
INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF
INCORPORATION, OR OTHER RULES OR REGULATIONS
APPLICABLE TO DESIGN PROFESSIONAL’S BUSINESS ENTITY.
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On , 20__, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”)
personally appeared , Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
Signer's Name:
¨ Individual ¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
A notary public or other officer completing this certificate verifies only the identity of the individual who
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signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
ALL-PURPOSE ACKNOWLEDGMENT NOTARY FOR CALIFORNIA
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On , 20__, before me, , Date Name And Title Of Officer (e.g. “Jane Doe, Notary Public”)
personally appeared , Name of Signer(s)
who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though this section is optional, completing this information can deter alternation of the document or fraudulent
reattachment of this form to an unintended document.
CAPACIT(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
Signer's Name:
¨ Individual ¨ Corporate Officer
Title(s) Title or Type of Document
¨ Partner(s) ¨ Limited
¨ General
¨ Attorney-In-Fact Number Of Pages
¨ Trustee(s)
¨ Guardian/Conservator
¨ Other:
Signer is representing:
Name Of Person(s) Or Entity(ies)
Date Of Document
Signer(s) Other Than Named Above
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A-1
EXHIBIT "A"
SCOPE OF SERVICES
I. Service Provider will perform architectural reviews for the followings:
A. Single-family developments
B. Small to large Multi-family development projects
C. Commercial, industrial, and mixed-use developments
II. As part of the Services, Service Provider will prepare and deliver the following
tangible work products to the City:
A. Teleconference with staff
B. Review memos
III. Based upon the design guidelines of the City, the consultant is expected to
conduct reviews to include subjects such as:
A. Compliance with required findings
B. Site planning
C. Landscaping
D. Building design
E. Context and compatibility
F. Authenticity and consistency in architectural style
G. Massing, scale, and articulation
H. Colors, materials, and finishes
I. Semi-private and public spaces
J. Pedestrian elements
K. Off-site or on-site amenities
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A-2
IV. On call design assistance
May include informal teleconference, correspondence, research, sketches, images, and
graphics preparation
V. Service Provider will utilize the following personnel to accomplish the
Services:
A. Dale Brown, Principal
B. Steve Kuchenski, Principal /Project Manager
C. Doug Joyce, Principal Emeritus/Urban Planner
D. Daniel Sanchez, Senior Job Captain
E. Eric Martinez, Technical Support
F. Anna Armstrong, Landscape Architect
G. Others as needed
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B-1
EXHIBIT "B"
COMPENSATION
I. Design Professional shall use the following rates of pay in the performance
of the Services:
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B-2
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B-3
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C-1
EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Design Professional shall provide and maintain
insurance, acceptable to the City, in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Services by Design
Professional, its agents, representatives or employees. Insurance is to be placed with
insurers with a current A.M. Best's rating of no less than A:VII. Design Professional
shall provide the following scope and limits of insurance:
1. Minimum Scope of Insurance. Design Professional shall maintain
professional liability insurance appropriate to the Design Professional’s profession.
This coverage may be written on a “claims made” basis, and must include coverage for
contractual liability. The professional liability insurance required by this Agreement
must be endorsed to be applicable to claims based upon, arising out of or related to
Services performed under this Agreement. The insurance must be maintained for at
least three (3) consecutive years following the completion of Design
Professional’s services or the termination of this Agreement. During this
additional three (3) year period, Design Professional shall annually and upon
request of the City submit written evidence of this continuous coverage.
2. Minimum Limits of Insurance. Design Professional shall maintain
limits of professional liability insurance no less than $1,000,000 per occurrence.
B. Other Provisions. Each insurance policy required by this Agreement shall
be endorsed and state the coverage shall not be suspended, voided, cancelled by the
insurer or either Party to this Agreement, reduced in coverage or in limits except after
30 days' prior written notice by certified mail, return receipt requested, has been given
to City.
C. Other Requirements. Design Professional agrees to deposit with City, at
or before the effective date of this Agreement, certificates of insurance necessary to
satisfy City that the insurance provisions of this contract have been complied with. The
City Attorney may require that Design Professional furnish City with copies of original
endorsements effecting coverage required by this Exhibit “C”. The certificates and
endorsements are to be signed by a person authorized by that insurer to bind coverage
on its behalf. City reserves the right to inspect complete, certified copies of all required
insurance policies, at any time.
1. Design Professional shall furnish certificates and endorsements
from each subcontractor identical to those Design Professional provides.
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C-2
2. Any deductibles or self-insured retentions must be declared to and
approved by City. At the option of City, either the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City or its respective elected or
appointed officers, officials, employees and volunteers or the Design Professional shall
procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall
not be construed to limit Design Professional’s liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.