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HomeMy WebLinkAboutAGENDA REPORT 1988 0323 CC ADJ ITEM 11BJOHN GALLOWAY Mayor ELOISE BROWN Mayor Pro Tern CLINT HARPER, Ph.D. Councilmember JOHN PATRICK LANE Councilmember MAUREEN W. WALL City Clerk THOMAS R GENOVESE City Treasurer MOORPARK. ITEM STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. MOORPARK, CALIFORNIA Director of Community Development City Council Meeting R. DENNIS DELZEIT of S —A 1982 City Engineer JOHN V. GILLESPIE �CLO "0.' h-t . Chief of Police ACTION OA-1 �e �.�,a -,. A,, .... , -Z�5 M E M O R A N D U M A4 1. TO: The Honorable City Council FROM: Patrick J. Richards, Director of Community Development DATE: March 10, 1988 (CC meeting of 3/16/88) SUBJECT: DRAFT DOWNTOWN PLAN - THE PLANNING CENTER CONTRACT Background On May 6, 1987 the City Council reviewed four (4) proposals to create a Downtown Plan for the City of Moorpark. The consultant selected was The Planning Center for a contract amount of $33,150. Also, at the May 6th meeting the Council authorized the Mayor to sign a contract with The Planning Center on behalf of the City. A contract was negotiated by staff and signed by all parties on August 17, 1987. The Planning Center started their work on the plan at the end of June 1987. niccuccinn Upon a recent review of the contract between the City and The Planning Center, the fact was disclosed that they have used almost all of their designated meetings. To date the Draft Downtown Plan is still being reviewed by the Planning Commission (their last meeting was February 29, 1988) . It is anticipated that more than one meeting may be needed to reach a resolution on the matter. In need for the extra meetings a request was made of the contractor to identify the costs per meeting (see attached 2/25/88 letter) . The Planning Center has estimated costs between $1,250 to $1,500 per meeting. PJR:crl 799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 DWNSTDYP /PCAGENDA March 10, 1988 Page 2 It is staff's opinion that one (1) more meeting before the Planning Commission and two (2) meetings before the City Council will be needed. According to the contract, the City has one more meeting towards it's credit. Staff would recommend that the Council authorize an additional $3,000 to be allocated towards the existing contract to pay for meeting costs. Another matter regarding the need to amend the contract scope of work is the latest Planning Commission requests at their February 29th meeting. Staff has requested from the contractor an estimate on the costs to perform the additional work, but as of this writing no reply has been received, but The Planning Center has indicated that they will have their revised costs estimates prior to the Council's March 16th meeting. A review of the Community Development Block Grant files was accomplished by staff in as much as the plan is being paid for by CDBG funds. The City originally identified to the State a cost of $30,000 to complete the plan. Since the original proposal there has been an intention by the City to raise this amount to $45,000. The City has yet to formally request an amendment to the State for an increase. Discussions with the State indicate that such an amendment would be favorably received. The City may end up paying out of general funds until the State can make it's adjustment. At this time the City Council may authorize the additional funds so as to complete the requested Planning Commission studies, or they may call the matter forward with the Planning Commission's recommendations on the draft plan as is. Conclusion The contract with the Planning Center will soon exhaust it's remaining meeting times. The additional requested studies by the Planning Commission will cause an increase in the original contract costs. Recommendation 1. Direct staff to amend the CDBG Entitlement Program to reflect $45,000 in the Professional Services line item. 2. Amend the contract with the Planning Center to add two (2) additional meetings to attend with a cost to be time and materials not to exceed $2,500 3. Direct the Planning Commission to forward their recommendations on the draft plan to the Council upon the conclusion of their March 21, 1988 meeting. Attachments: Contract Scope of Work The Planning Center letter dated 2/25/88 PJR:crl DWNSTDYP /PCAGENDA THE �J CENTER 1300 DOVE STREET, SUITE 100, NEWPORT BEACH, CALIFORNIA 92660 (714) 851 -9444 February 25, 1988 Mr. Patrick J. Richards Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Re: Moorpark Downtown Study (MPK -01) - Additional Meetings Dear Pat: In response to your request this morning, this letter con- firms that we have attended the number of meetings outlined in our contract. It is clear that additional meetings -- at least two City Council meetings -- will be required to fin- ish the contract. Our contract makes provision for this, stating that "additional meetings may be added to the budget on a time and materials basis." For budgeting purposes, we estimate that each meeting will require attendance by two representatives from The Planning Center, and that each meeting will require approximately 8 to 10 hours (including preparation and travel time). The hourly rate schedule in our contract can be used to estimate costs: Senior Project Manager $90 Project Manager $70 Senior Planner $60 Market Analyst $60 We therefore estimate that each additional meeting should average $1,250 to $1,500. We suggest you use the latter figure as a budget maximum per meeting and will bill you on a time and materials basis. We will attend additional meet- ings based on your prior approval. Should you have any questions, please do not hesitate to call. Sincerely, PLANNING CENTER Michael H. Nihan Project Manager MHN /lls 99.40 - RECEwLi - FEB ? 919,U OFFICES IN NEWPORT BEACH, CA, PHOENIX, AZ and TUCSON, AZ CITY OF MOORPARK • PLANNING & RESEARCH • ENVIRONMENTAL STUDIES • URBAN DESIGN • LANDSCAPE ARCHITECTURE • Notices Section 7.04. Any notice to be given hereunder by either party to the other shall be effected either by personal delivery in writing, or by certified mail, postage prepaid, return receipt requested. Mailed notices shall be addressed to the City in care of the City Manager, 799 Moorpark Avenue, Moorpark, California 93021 and to Contractor at 2140 Eastman Avenue, Ventura, California 93003; however, each party may change the address by written notice in accordance with this section. Notices delivered personally will be deemed served as of actual receipt; mailed notices will be deemed served as of the second (2nd) day after mailing. Entire Agreement of the Parties Section 7.05. This agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the rendering of services by Contractor to City and contains all of the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this agreement acknowledges that no representations, inducements, promises, or agreements, oral or otherwise, have been made by any party or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this agreement shall be valid or binding. Any modification of this agreement will be effective only if it is in writing signed by the party to be charged. Governing Law Section 7.06. This agreement shall be governed by and construed in accordance with the laws of the State of California. Attorney's Fees Section 7.07. Should either party hereto institute any action or proceeding of any nature whatsoever in a court of law, equity, or otherwise to enforce any provision of this agreement or for a declaration of such party's rights or obligations hereunder or for any other remedy, the prevailing party shall be entitled to receive from-the losing party its'costs, including such amount as the Court or arbitration panel may adjudge to be reasonable attorney's fees for the services rendered the party finally prevailing in any such action or proceeding. Unless judgment goes by default, the attorney fee award shall not be computed in accordance with any court schedule, but shall be such as to fully reimburse the prevailing party for all its /their attorney's fees actually incurred in good faith, regardless of the amount of such judgment, it being the intention of the parties to fully compensate the prevailing party for all attorney's fees paid or incurred in good faith. Venue Section 7.08. This agreement is made, entered into, executed and is to be performed in Moorpark, Ventura County, California, and any action filed in any court or for arbitration for the interpretation, enforcement and /or oth- erwise of the terms, covenants and conditions referred to herein shall be filed in the applicable court in Ventura County, California. City's Agent Section 7.09. The Moorpark Director of Community Development shall have the right to review, coordinate and approve all work to be performed by Contractor pursuant to the terms of this agreement and shall be the City's agent with respect to review, coordination, and approval of the services to be performed by the Contractor. EXECUTED in duplicate at Moorpark, California, on the date and year first herainabove written. THE PLANNING CENTER By Ti And by Title C O N T R A C T O R (Notarial Certificates Attached) CITY OF MOORPARK, CALIFORNIA a municipal corporation By Hall� Mayor of the City of Moorpark, California ATTEST: 15A.10 CERTIFICATE OF ACKNOWLEDGEMENT (Corporation) STATE OF CALIFORNIA COUNTY OF ORANGE On this _ /0 day of ,4 iX- 0—S _14� , 1987, before me, the undersigned, a Notary Public in and for said State, personally appeared evidence to be the Principal, The Planning Center of The Planning Center_, and whose name is subscribed to the within instrument, and acknowledged to me that the corporation exe- cuted it. (SEAL) WITNESS MY HAND AND OFFICIAL SEAL. O' GL SEAL MARY LYNN HARMON NOTARY PUBUC - CALIFORNIA ORANGECOUNTY MY Comm E■piml jo 7 1991 jaNry blic in and for County and State i A. SCOPE OF WORK The following Scope of Work states the tasks, products and budget allocations for the Moorpark Downtown Study. The at- tached schedule diagram illustrates the time relationships of the tasks, predicted on a six month project schedule be- ginning June 1, 1987. This Scope of Work statement is the result of City /consultant negotiations. A time schedule is attached for reference purposes. TASK 1: LAND USE ANALYSIS Determine study area boundary adjustments. Assemble, map and analyze existing land use information. Determine and compare general plan, zoning, existing land use and property ownership patterns. Identify land use conflicts and oppor- tunities for: new development, preservation of existing uses, expansion of existing uses, rehabilitation or improve- ment of existing uses, or redevelopment. Describe in summary map and narrative form to eventually become existing conditions section of the final report. Products: 1. Existing use, zoning, general plan comparison summary. 2. Opportunities and constraints map. 3. Potential parcel consolidation map. Time: 4 weeks Budget: $3,200 - TASK 2: RAILROAD USE Meet with railroad officials. Determine uses already com- mitted and opportunities for modification, if. any. Deter- -7 mine potential uses for excess railroad Iafid committed and describe any special site requirements they may have. Products: 1. Summary of existing uses and their status. 2. List of potential uses and site requirements. Time: 2 weeks Budget: $2,000 TASK 3: GUIDANCE PACKAGE Meet with key City officials and business community repre- sentatives. Draft guidance package, identifying problems and potentials for the planning area and principles for successful project completion. Review draft with staff, Planning Commission and City Council. 1 Products: 1. Draft guidance package. 2. Final guidance package. Time: 4 weeks Budget: $2,000 TASK 4: MARKET POTENTIAL Based on land use data from Task 1 and secondary market data for-Ventura County, identify the most probable land use potentials which could respond to market opportunities. Products: 1. List of optimum uses. 2. Back -up data. Time: 1 week Budget: $1,000 TASK 5: POTENTIAL INCENTIVE MEASURES Prepare a description of candidate incentive measures that could be considered in order to stimulate desired improve- ments in the study area. This will include ways to stimu- late more- efficient use of available land. The incentives should be reviewed by the City while land use recommenda- tions to arrive at an acceptable "short list" to include in the final report. Time: 1 week Budget: $1,200 - TASK 6: DRAFT LAND USE PLAN Based on all information to date, formulate a draft land use plan which takes maximum advantage of physical and market potentials identified to date. Describe %lie N+ai-I ;,, v-c , map and text forms. I- nclude circulation concepts to the extent that they reinforce the land use plan. Propose and describe design theme or themes for the commercial dis- tricts. This is to be based on a vision or image of what the downtown area's appearance should be. Review with staff, Planning Commission and City Council in workshop mode. Products: 1. Draft land use plan. 2. Plan revisions Time: 4 weeks Budget: $3,000 2 TASK 7: MARKET CRITIQUE Review draft land use plan and provide critique from market standpoint. Suggest plan modifications for optimum market potential. Product: 1. Memorandum report. Time: 1 week Budget: $1,000 TASK 8: STREETSCAPE PLAN Prepare suggested streetscape sections illustrating right - of -way and improvements, landscaping, street furniture, set- backs and building relationships. Prepare a recommended plant palette that reinforces existing positive streetscape features and contributes to the overall recommended theme(s). Product: 1. Streetscape plan Time: 2 weeks Budget: $2,800 TASK 9: SIGN PROGRAM Based on the design theme or themes, land use plan, street - scape plan and current sign ordinance, prepare a set of sign guidelines and illustrations. Product: 1. Sign program and design guidelines. Time: 1 week Budget: $1,000 TASK 10: PARKING NRUGkAM Based on the land use plan, streetscape concepts, and the current City parking ordinance, evaluate parking needs and prepare recommended parking design standards, ratios and location criteria, with an emphasis on High Street and Moorpark Avenue. Product: 1. Parking plan with design guidelines. Time: 1 week Budget: $1,600 TASK 11: DESIGN WORKBOOK Based on the products of Tasks 6 through 10, prepare a loose leaf notebook describing desirable design treatments, pri- marily along the major thoroughfares and, to the extent nec- 3 essary, in the residential neighborhoods. This will be a combination of narrative and illustrations in such a format that pages may be copied and given to property owners, busi- ness proprietors and developers to guide their project de- sign. Product: 1. Design workbook. Time: 3 weeks Budget: $3,200 TASK 12: IMPLEMENTATION PLAN Prepare a set of recommended implementation actions for car- rying out the plan. Include potential property owner, busi- ness community, neighborhood residents and City actions. List and describe the advantages and disadvantages of such financing alternatives as redevelopment project area desig- nation, use of community development block grant funds, specific plan cost recovery program and various improvement district approaches. Product: 1. Implementation plan. Time: 3 weeks Budget: $4,000 TASK 13: RECOMMENDED INCENTIVES Considering reactions to the list of candidate list of in- centives from Task 5, the land use plan from Task 6, the design guidelines from Task 11 and the implementing actions from Task 12, prepare a set of incentives measures to be incorporated in the draft report. Product: i. Recommended incentives. Time: 1 week Budget: $400 TASK 14: DRAFT REPORT Prepare and print 30 copies of the draft report incorporat- ing products of all previous task, either as a part of the recommended plan or appendix thereto. Review with the staff, Planning Commission and City Council. Product: 1. Draft report. Time: 2 weeks Budget: $1,000 4 TASK 15: FINAL REPORT Incorporate changes resulting from the draft review and pub- lish 30 copies of the final report. Unit costs are expected to range from $5 to $10, depending on size, graphics and cover stock. Product: 1. Final report Time: 3 weeks Budget: $750 TASK 16: MEETINGS This proposal includes provisions for a total of 13 meet- ings, presently distributed as follows: 1 Interview City Council /Planning Commission 1 Meeting with business community 5 Meetings with staff 1 Joint Planning Commission /Council workshop 1 Design Standards Committee meeting 2 Planning Commission meetings 2 City Council meetings The time and sequence of these meetings may vary at the mu- tual agreement of the planning director and the consultant. Additional meetings may be scheduled and added to the budget on a time and materials basis. Time: Throughout the study Budget: $5,000 5 B. BUDGET /TIME SUMMARY (See attached exhibit). Task Description Time in Weeks Fee 1 Land Use Analysis 4 $ 3,200 2 Railroad Use 2 2,000 3 Guidance Package 4 2,000 4 Market Potential 1 1,000 5 Potential Incentive Measures 1 1,200 6 Draft Land Use Plan 4 3,000 7 Market Critique 1 1,000 8 Streetscape Plan 2 2,800 9 Sign Program 1 1,000 10 Parking Program 1 1,600 11 Design Workbook 3 3,200 12 Implementation Plan 3 4,000 13 Recommended Incentives 1 400 14 Draft Report 2 1,000 15 Final Report 3 750 16 Meetings Ongoing 5,000 TOTAL ESTIMATED FEES: $33,150 This budget includes normal reimbursable costs (i.e., travel, printing, reproduction) in accordance with specifi - cations herein. Additional work outside the Scope of Work will be billed as additional expense upu.i ri _ -= proval. The hourly rate schedule is as follows: Principal Senior Project Manager* Project Manager Senior Planner Associate Planner Graphic Artist Word Processing $90.00 $90.00 $70.00 $60.00 $50.00 $35.00 to $50.00 $25.00 * Note: Mr. Al Bell is designated as project manager and will participate in scheduled public meetings. C. PROJECT BILLING Monthly billings will be for staff time and expenses in- curred during the period, to be payable within 30 days of invoice rate. The following benchmarks will be used for monthly billing purposes. Billing may not exceed the following percentages until the referenced product is submitted: A. Draft Land Use Plan 37.4% or $12,400 B. Design Workbook 29.0% or $ 9,600 C. Draft Report (30) 16.3% or $ 5,400 D. Final Report (30) 17.3% or $ 5,750 TOTAL: 100.0% or $33,150 7 D. ACKNOWLEDGEMENT If the foregoing arrangement is satisfactory to you, please indicate your agreement and formal authorization to proceed by executing the original of this proposal /agreement, where noted, and returning the signed copy to this office. The attached General Terms of Proposal is hereby made part of this proposal /agreement. If you would like to discuss our proposed approach to the project or desire any modifica- tions, please advise Al Bell or Mike Ni han. We will begin work immediately upon receipt of a signed copy. Respectfully submitted, THE PLANNING CE ER chard E. Ra ella Principal RER: AB/ 11s P9.22 Approved and consented to on this City of Moorpark / V-164 A Bell Project Manager day of , 1987 by: 0 BUS. /PC /CC MTG. STAFF MTG. MOORPARK DOWNTOWN STUDY • PRODUCTS TIME SCHEDULE DRAFT OR FINAL REPORT ne'r9=.Q .0 IMF= .JULY AUGUST SEPT. 'OCT. NOV. TASKS v^ w ..... 8 15 22 29 6 13 20 27 3 10 17 24 31"7 14 21 28 5 12 19 26 2 9 16 ASK 1 4 weeks) ♦Qlrite,� OB S. MTG. LandUse Analysis TASK 2_12 weeks) Railroad Uses TASK 3 Guidance Package TASK 4 (1 week) �• Market Potential TASK 5 (1 week) �.• Potential Incentives TASK 6 (4 weeks) ♦ O MINT FC /CC Draft Land Use Plan TASK 7 (1 week) Market Critique TASK 8 (2 weeks) �••�� O DESIGN T D COM. . Streetsca a Plan TASK 9 (1 week) mmme Sin Program TASK 10 (1 week) Parking Plan TASK 11 (3 weeks) Design Workbook TASK 12 (3 weeks) Implementation Plan TASK 13 (1 week) Recommended Incentives TASK 14 (2 weeks) O O Draft Report —PC cc TASK 15 (3 weeks) Final Report Task 16 (On gokV Meetinos (13) . GENERAL TERMS OF AGREEMENT These terms are generally applicable to the proposal to which they are attached. However, terms included in the proposal are specifically applicable and shall prevail it they conflict with these general terms. 1. EFFECTIVE DATES This proposal will remain in effect for a period of 30 days. The Schedule of Charges upon which the included estimates of cost are based will remain in effect for at least six months. 2. AUTHORIZATION TO PROCEED A signed copy of the proposal will be accepted as authorization to proceed with the work outlined. The copy that is returned for this purpose shall have been signed by one with the authority to accept the proposal and these terms. 3. UNANTICIPATED DELAYS The work proposed will begin as soon as authori- zation to proceed is received and will be completed as soon as practical. However, inclement weather, obstructions, changes of plans, and other fac- tors over which the consultant has no control can cause completion of the proposed work to be delayed and costs to rise beyond preliminary estimates. If such delays exceed ninety (90) days in duration, the client will be advised in writing and this agreement will be reviewed and renegotiated as required The Planning Center shall not be liable for time delays or damages resulting from the actions or inactions of government agencies, including but not limited to, permit processings, environmental impact reports, general plans and amendments Jhereto, zoning matters, etc Furthermore, changes in govern- ment plans, policies, programs or ordinances may be a basis for renegotiation of this agreement 4. COST OF WORK Preliminary estimates of cost included in the proposal are only estimates based upon prior experience with the type of work outlined. The cost or work performed will accrue in accordance with the current schedule of charges. However, work will be limited by the amount of the included total of estimated costs. Work will be conducted in an efficient manner with the estimated costs in mind. If any increase in scope or cost is considered necessary, client will be advised and asked to authorize the additional work Unless a specific plan is agreed to, in advance, and in writing, all extras will be invoiced on a time and materials basis using our standard billing rates, a copy of which will be supplied on request Billing rates are revised from time to time and the current version will be used for invoicing. 5. RESPONSIBILITY OF CONSULTANT The consultant will perform the work proposed utilizing personnel who are properly qualified by training and experi- ence to perform the tasks assigned to them, equipment that is suitable, and techniques that are appropriate. Work will be done by or under the direction of properly qualified professionals who endeavor to maintain high standards of professional competence, recognizing that the state -of- the-art is constantly improving. Reports that are provided will present the results of the work performed clearly, and explanations will be made if necessary. Additional copies of reports will - be provided at cost of reproduction. Supplementary reports or additional work not included in the scope of the pro- posal will be subject to future agreement between the client and the consul- tant, and costs will accrue in accordance with the schedule of charges in effect at the time. 6. INSTRUCTIONS AND APPROVALS The Planning Center shall act in full cooperation with the Client in providing services. The actions of The Planning Center shall be subject to the instructions and approvals of the Client signified through the Client's authorized official. Such officiat shall be available to The Planning Center at all reasonable times. 11. CONFIDENTIALITY Information that is obtained by The Planning Center in the course of performance of work proposed will be considered to be the pro- perty of the Client who authorizes and subsequently pays for the work Reports will be distributed as directed and release of any information held will be subject to the approval by the Client 12. TERMINATION If at anytime during conduct of work proposed, the Client or The Planning Center decides that the Consultant's services are no longer required those services may be terminated by 7 day written notice. An invoice for costs accrued prior to receipt of notice will be issued After payment of the amount of the invoice (and any other outstanding invoices) the Client may obtain copies of all notes and records accumulated to that date, for which payment has been received If the project is put on hold by the Client for a period of time in excess of thirty (30) days the Client shall, within 30 days, reimburse The Planning Center for all fees and expenses incurred up to the time the project was put on hold 13. WRONGFUL CLAIMS Client agrees to pay The Planning Center and to save The Planning Center harmless from all reasonable costs or attorneys fees incurred in defending against wrongful claims against the firm growing out of or caused by work done pursuant to this agreement 14. OWNERSHIP Following completion or termination of the contract, the Client is entitled to ownership of all relevant notes, exhibits and reports accumulated as part of said contract. However, subject to our Clients contrary directions, it is our policy to destroy files, maps and reports left in our possession five years after the final billing or conclusion of the project as signified by a final report or final Public hearing. Computer programs prepared by The Planning Center in connection with this project shall remain the property of The Planning Center. 15. EMPLOYEE SOLICITATION The Client shall not offer to employ or employ any employee of The Planning Center during the terms of this agreement or for a period of six (6) months after the completion of the services or work under this agreement Likewise, the client or his employees shall not seek employment with The Planning Center during this same period of time. 16. USE OF CLIENT NAME The Client agrees that The Planning Center has the authority to utilize its name as a Client and a general description of the project, work or service performed as a reference to other clients. 17. REIMBURSABLE EXPENSES Charges for out -of- pocket expenses for ser- vices, equipment and facilities not directly furnished by The Planning Center, and any unusual items of expense not customarily incurred in our normal operations, are computed on the basis of cost, plus 12'2 percent Such items include, but are not limited to, computer charges, living and travel out of town, printing and binding of reports, drawings and specifications, rental of equip- ment and vehicles, and photographic processing. 16. 7. BILLING AND PAYMENT Time is of the essence in payment of invoices, and timely payment is a material part of the consideration of any agreement be- tween the Consultant and Client. Itemized invoices for services rendered will be issued at the close of the calendar month during which they are provided or on completion of the work proposed. Any comments or discrepancies concerning the charges on a given invoice or the quality or completeness of the services rendered must be submitted in writing, within twenty -five (25) days. If no such comments are received, the invoice will he considered correct. If the Client fails to make any payment due The Planning Center for services and expenses within thirty (30) days from the date of The Planning Center's bill, the amounts due shall include a charge at the rate of 1 y2 percent per month from said thirtieth (30th) day. In addition, The Planning Center may, after giving seven (7) days written notice to the Client, suspend services or withhold documents until payment has been received in full for all amounts due for services and expenses that are sixty (60) days past due. If any legal action is necessary to enforce the terms of this agreement, the prevailing party shall be entitled to reasonable attorneys fees and for collec- tion charges in addition to any other relief to which he may be entitled. B. ACCESS Acceptance of the proposal confirms free access to subject site with the understanding that reasonable precautions will be taken to minimize 19 disturbance of occupants and improvements. Owners and occupants of the site shall be notified by the Client that the Consultant has been granted access and permission to perform the work proposed Permission to perform the work (and any permits that may be required) shall be secured by the Client. 9. PLANS AND SPECIFICATIONS If any plans that depict site conditions or plans and specifications that depict grading or construction on the site are accessible to the Client, copies should be provided for The Planning Center to use in performance of the work proposed. Copies provided shall be legible, at a suitable scale, and capable of being reproduced. LIABILITY The Planning Centers liability under this Agreement shall be limited to loss or damage attributable to acts of The Planning Center, its officers, employees or agents in contravention of instruction or approvals referred to in Paragraph 6, or to its willful misconduct or negligence; provided, however, (a) in no event shall The Planning Center be liable for loss or damage occasioned by delays beyond The Planning Centers control, and (b) in no event shall The Planning Center be liable for loss of earnings, loss of production or other con- sequential or incidental damages of any type or kind howsoever caused. The Planning Centers liability, it any, shall be further limited to the amount of such liability that is covered by professional indemnity insurance carried by The Planning Center from time to time and available to indemnify The Planning Center as to such liability. The Client agrees to The Planning Centers limitations of liability stated above. If the Client, because of its particular circumstances, desires to obtain any insurance to protect it against any risk beyond the limitations described above, The Planning Center will cooperate with the Client to obtain appro- priate insurance at the Client's expense. The extra premium shall be billed to the Client as a disbursement The Client shall have no right of setoff against any billings of The Planning Center under this Agreement person for damage to property or injury to or death of persons or for any other damage, injury or loss of any native whatsoever arising out of the negligence of any employees or agents of the Client who may participate with The Plan- ning Center in performing the work under our Agreement The Client shall indemnify and hold The Planning Center harmless for all loss and expense on account of claims or lawsuits for injury to or death of any person or damage to property or for any other damage, injury, or loss of any nature whatsoever aris- ing out of the negligence or alleged negligence of any Client, employees, or agents. Additionally, the Client shall indemnity and hold The Planning Center harmless from all loss and expense on account of claims or lawsuits arising out of injury to or death of any Client employee or agent from any cause while such employee or agent is participating in work under this agreement. ARBITRATION In the event that a disagreement arises on any issue (other than invoicing, already covered in Paragraph 7) which the parties cannot resolve themselves, it is understood and agreed that The Planning Center will have the right to submit the issue to binding arbitration. If The Planning Center chooses this course of action, the Client agrees to cooperate with The Planning Center in the selection of a single arbitrator. If the parties cannot agree on a single arbitrator, they will each name one and the two thus named will select a third. A majority opinion shall be conclusive. The arbitrator(s) shall also determine who will pay the fees for the arbitration. services. 10. PERTINENT REFERENCES Any reports in the possession of or subject to the control of the Client that pertain to the subject of the proposal shall be Authoriz €d on this day of made available to The Planning Center for use in performance of the work proposed. By: Authorized Agent 19