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AMENDMENT NO. 2 TO AGREEMENT FOR CONSULTING
SERVICES BY AND BETWEEN THE CITY OF ARCADIA
AND DONNA BUTLER.
This Amendment No. 2 ( "Amendment No. 2 ") is hereby entered into by and
between the City of Arcadia, a charter city organized under the Constitution and laws
of the State of California, and Donna Butler, an individual, with respect to that certain
Professional Services Agreement between the parties dated December 27, 2005
( "Agreement ").
The parties agree as follows:
1. Pursuant to Section 3.1.2 of the Professional Services Agreement, the term is
extended to December 31, 2007.
2.. All of the remaining terms and provisions of the Agreement- are - hereby
reaffirmed.
In witness whereof the parties have executed this Amendment No. 2 on the date set
forth below.
U CITY OF ARCADIA
By ►X Y l
City Manager
Dated: k • 1 .2007
P . ,
City Attorney
Q
Title
CONCUR:
Assistant City Manager/Development
Services Director
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AMENDMENT NO. 1 TO AGREEMENT FOR PLANNING
CONSULTING SERVICES BY AND BETWEEN THE CITY OF
ARCADIA AND DONNA BUTLER
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This Amendment No. 1 ( "Amendment No. I") is hereby entered into by and
between the City of Arcadia, a municipal organization of the State of California,
and Donna Butler, an individual with respect to that certain Professional Services
Agreement between the parties dated December 27, 2005 ( "Agreement ").
The parties agree as follows:
1. Section 2.2 and "Exhibit A" of the Agreement is hereby amended by
adding other planning services for the City of Arcadia.
2. All of the remaining terms and provisions of the Agreement are hereby
reaffirmed.
In witness whereof the parties have executed this Amendment No. 1 on the date
set forth below.
CITY OF ARCADIA
By _um_ w
City Manager
Dated: , 2006
APPROVED AS TO FORM:
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City Attorney
CONSULTANT
CONCUR:
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Assistant City Manager/Development
Services Director
EXHIBIT "All
SCOPE OF SERVICES
Consultant shall provide planning services to the City for the proposed expansion of the
Westfield Santa Anita Mall. Consultant shall represent the City in meetings and discussions with
Westfield regarding the proposed project and will coordinate her work with other City
departments and public agencies as needed under the supervision of the Assistant City Manager.
Consultant shall also provide planning services on the proposed Santa Anita Park Specific Plan,
also known as the Caruso project. Services shall include all related services on the project,
including but not limited to the Specific Plan, Environmental Impact Report, Design Guidelines
and Architectural Design Review, Zone Change and General Plan Amendments. Consultant
shall participate and represent the City in meetings with the developer, property owner and other
interested parties.
City shall provide office space, use of computer, telephone and fax machine and any other
materials and supplies required to provide the needed services under this agreement, at no cost to
the Consultant. The Consultant may also provide such services as needed at an off -site location
upon approval of the Assistant City Manager.
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CITY OF ARCADIA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this Z day of 2005 by
and between the City of Arcadia, a municipal organization organized under the laws of the State
of California with its principal place of business at 240 West Huntington Drive, Arcadia,
California 91066 -6021 ( "City ") and Donna Butler, an individual with her principal place of
business at 1281 Highland Drive, La Verne, California 91750 ( "Consultant "). City and
Consultant are sometimes individually referred to as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of certain
professional services required by the City on the terms and conditions set forth in this
Agreement. Consultant represents that it is experienced in providing planning services to public
clients, and is familiar with the plans of City.
2.2 Project.
City desires to engage Consultant to render such services for the Westfield Santa Anita
Mall expansion and Santa Anita Specific Plan/Caruso project ( "Project') as set forth in this
Agreement.
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to furnish to
the City all labor, materials, tools, equipment, services, and incidental and customary work
necessary to fully and adequately supply the professional planning 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 January 2, 2006 to
December 31, 2006, 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.
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3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor. The
Services shall be performed by Consultant or under its supervision. Consultant will determine
the means, methods and details of performing the Services subject to the requirements of this
Agreement. City retains Consultant on an independent contractor basis and not as an employee.
Consultant retains the right to perform similar or different services for others during the term of
this Agreement. Any additional personnel performing the Services under this Agreement on
behalf of Consultant shall also not be employees of City and shall at all times be under
Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other
amounts due such personnel in connection with their performance of Services under this
Agreement and as required by law. Consultant shall be responsible for all reports and
obligations respecting such additional personnel, including, but not limited to: social security
taxes, income tax withholding, unemployment insurance, disability insurance, and workers'
compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to perform the
Services in conformance with such conditions. In order to facilitate Consultant's conformance
with the Schedule, City shall respond to Consultant's submittals in a timely manner. Upon
request of City, Consultant shall provide a more detailed schedule of anticipated performance to
meet the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the prior written 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 prior 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: Donna Butler.
3.2.5 City's Representative. The City hereby designates Don Penman, Assistant
City Manager/Development Services Director, or his 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.
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3.2.6 Consultant's Representative. Consultant hereby designates Donna Butler,
or her designee, to act as its representative for the performance of this Agreement ( "Consultant's
Representative "). Consultant's Representative shall have full authority to represent and act on
behalf of the Consultant for all purposes under this Agreement. The Consultant's Representative
shall supervise and direct the Services, using his best skill and attention, and shall be responsible
for all means, methods, techniques, sequences and procedures and for the satisfactory
coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City
staff in the performance of Services and shall be available to City's staff, consultants and other
staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall perform
all Services under this Agreement in a skillful and competent manner, consistent with the
standards generally recognized as being employed by professionals in the same discipline in the
State of California. Consultant represents and maintains that it is skilled in the professional
calling necessary to perform the Services. Finally, Consultant represents that it, its employees
and subcontractors have all licenses, permits, qualifications and approvals of whatever nature
that are legally required to perform the Services, including a City Business License, and that
such licenses and approvals shall be maintained throughout the term of this Agreement. As
provided for in the indemnification provisions of this Agreement, Consultant shall perform, at its
own cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant's failure to comply with the
standard of care provided for herein. Any employee of the Consultant or its sub - consultants who
is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely
completion of the Project, a threat to the safety of persons or property, or any employee who fails
or refuses to perform the Services in a manner acceptable to the City, shall be promptly removed
from the Project by the Consultant and shall not be re- employed to perform any of the Services
or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of and
in compliance with all local, state and federal laws, rules and regulations in any manner affecting
the performance of the Project or the Services, including all Cal /OSHA requirements, and shall
give all notices required by law. Consultant shall be liable for all violations of such laws and
regulations in connection with Services. If the Consultant performs any work knowing it to be
contrary to such laws, rules and regulations and without giving written notice to the City,
Consultant shall be solely responsible for all costs arising therefrom. Consultant shall defend,
indemnify and hold City, its officials, directors, officers, employees and agents free and
harmless, pursuant to the indemnification provisions of this Agreement, from any claim or
liability arising out of any failure or alleged failure to comply with such laws, rules or
regulations.
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3.2.10 Insurance. (Intentionally Omitted)
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3.2.11 Safety. Consultant shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out its Services, the Consultant
shall at all times be in compliance with all applicable local, state and federal laws, rules and
regulations, and shall exercise all necessary precautions for the safety of employees appropriate
to the nature of the work and the conditions under which the work is to be performed. Safety
precautions as applicable shall include, but shall not be limited to: (A) adequate life protection
and life saving equipment and procedures; (B) instructions in accident prevention for all
employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges,
gang planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to prevent
accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all
safety measures.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
reimbursements which receive the City's prior written authorization, for all Services rendered
under this Agreement at the rates set forth in Exhibit "C" attached hereto and incorporated herein
by reference. The compensation shall be paid at the hourly rate of $100. 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 forty -five (45) days of receiving such
statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed for any
expenses unless prior written authorization is obtained from the 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 prior written
authorization from City's Representative.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete and
accurate records with respect to all costs and expenses incurred under this Agreement. All such
records shall be clearly identifiable. Consultant shall allow a representative of City during
normal business hours to examine, audit, and make transcripts or copies of such records and any
other documents created pursuant to this Agreement. Consultant shall allow inspection of all
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work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. City may, by written notice to
Consultant, terminate the whole or any part of this Agreement at any time and without cause by
giving written notice to Consultant of such termination, and specifying the effective date thereof,
at least seven (7) days before the effective date of such termination. Upon termination,
Consultant shall be compensated only for those services which have been adequately rendered to
City, and Consultant shall be entitled to no further compensation. Consultant may not terminate
this Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated as provided
herein, City may require Consultant to provide all finished or unfinished Documents and Data
and other information of any kind prepared by Consultant in connection with the performance of
Services under this Agreement. Consultant shall be required to provide such document and other
information within fifteen (15) days of the request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in
whole or in part as provided herein, City may procure, upon such terms and in such manner as it
may determine appropriate, services similar to those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such other
address as the respective parties may provide in writing for this purpose:
Consultant:
City:
Donna Butler
1281 Highland Drive
La Verne, CA 91750
City of Arcadia
240 West Huntington drive
Arcadia, CA 91066 -6021
Attn: Don Penman, Assistant City Manager /Development Services
Director
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.
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3.5.3 Ownership of Materials and Confidentialitv.
3.5.3.1 Documents & Data; Licensing of Intellectual Property. This
Agreement creates a non - exclusive and perpetual license for City to copy, use, modify, reuse, or
sublicense any and all copyrights, designs, and other intellectual property embodied in plans,
specifications, studies, drawings, estimates, and other documents or works of authorship fixed in
any tangible medium of expression, including but not limited to, physical drawings or data
magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be
prepared by Consultant under this Agreement ( "Documents & Data "). Consultant shall require
all subcontractors to agree in writing that City is granted a non - exclusive and perpetual license
for any Documents & Data the subcontractor prepares under this Agreement. Consultant
represents and warrants that Consultant has the legal right to license any and all Documents &
Data. Consultant makes no such representation and warranty in regard to Documents & Data
which were prepared by design professionals other than Consultant or provided to Consultant by
the City. City shall not be limited in any way in its use of the Documents and Data at any time,
provided that any such use not within the purposes intended by this Agreement shall be at City's
sole risk.
3.5.3.2 Confidentialitv. All ideas, memoranda, specifications, plans,
procedures, drawings, descriptions, computer program data, input record data, written
information, and other Documents and Data either created by or provided to Consultant in
connection with the performance of this Agreement shall be held confidential by Consultant.
Such materials shall not, without the prior written consent of City, be used by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to
any person or entity not connected with the performance of the Services or the Project. Nothing
furnished to Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall not use
City's name or insignia, photographs of the Project, or any publicity pertaining to the Services or
the Project in any magazine, trade paper, newspaper, television or radio production or other
similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with one
another, and shall take any additional acts or sign any additional documents as may be necessary,
appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Indemnification. (Intentionally Omitted)
3.5.6 Entire Agreement. This Agreement contains the entire Agreement of the
Parties with respect to the subject matter hereof, and supersedes all prior negotiations,
understandings or agreements. This Agreement may only be modified by a writing signed by
both Parties.
3.5.7 Governing Law. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Los Angeles County.
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3.5.8 Time of Essence. Time is of the essence for each and every provision of
this Agreement.
3.5.9 City's Right to Employ Other Consultants. City reserves right to employ
other consultants in connection with this Project.
3.5.10 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
3.5.11 Assignment or Transfer. Consultant shall not assign, hypothecate, or
transfer, either directly or by operation of law, this Agreement or any interest herein without the
prior written consent of the City. Any attempt to do so shall be null and void, and any assignees,
hypothecates or transferees shall acquire no right or interest by reason of such attempted
assignment, hypothecation or transfer.
3.5.12 Construction; References; Captions. Since the Parties or their agents have
participated fully in the preparation of this Agreement, the language of this Agreement shall be
construed simply, according to its fair meaning, and not strictly for or against any Party. Any
term referencing time, days or period for performance shall be deemed calendar days and not
work days. All references to Consultant include all personnel, employees, agents, and
subcontractors of Consultant, except as otherwise specified in this Agreement. All references to
City include its elected officials, officers, employees, agents, and volunteers except as otherwise
specified in this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe the scope,
content, or intent of this Agreement.
3.5.13 Amendment; Modification. No supplement, modification, or amendment
of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.5.14 Waiver. No waiver of any default shall constitute a waiver of any other
default or breach, whether of the same or other covenant or condition. No waiver, benefit,
privilege, or service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
3.5.15 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.16 Invalidity; Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions shall continue in full force and effect.
3.5.17 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
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contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no member, officer or employee of City, during the term of his
or her service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
3.5.18 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex, sexual orientation or age. Such non - discrimination shall include, but not be limited to, all
activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination. Consultant shall also comply with all relevant provisions of
City's Minority Business Enterprise program, Affirmative Action Plan or other related programs
or guidelines currently in effect or hereinafter enacted.
3.5.19 Labor Certification. By its signature hereunder, Consultant certifies that it
is aware of the provisions of Section 3700 of the California Labor Code which require every
employer to be insured against liability for Worker's Compensation or to undertake self -
insurance in accordance with the provisions of that Code, and agrees to comply with such
provisions before commencing the performance of the Services.
3.5.20 Authority to Enter Agreement. Consultant has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and bind each respective Party.
3.5.21 Counterparts. This Agreement may be signed in counterparts, each of
which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of
the work required by this Agreement, except as expressly stated herein, without prior written
approval of City. Subcontracts, if any, shall contain a provision making them subject to all
provisions stipulated in this Agreement.
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CITY OF ARCADIA
By: s_
William R. Kelly
City Manager
Dated: W , 2005
AT E
Ci Clerk
APPROVED AS TO FORM:
C�CM'"�M Y" • l�7'i�L
Stephen P. Deitsch
City Attorney
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NSIMMINA
avl �
Department Head
(A /A- Lo S
Date
EXHIBIT "A"
SCOPE OF SERVICES
Consultant shall provide planning services to the City for the proposed expansion of the
Westfield Santa Anita Mall. Consultant shall represent the City in meetings and discussions with
Westfield regarding the proposed project and will coordinate her work with other City
departments and public agencies as needed under the supervision of the Assistant City Manager.
Consultant shall also provide planning services on the proposed Santa Anita Park Specific Plan,
also known as the Caruso project. Services shall include all related services on the project,
including but not limited to the Specific Plan, Environmental Impact Report, Design Guidelines
and Architectural Design Review, Zone Change and General Plan Amendments. Consultant
shall participate and represent the City in meetings with the developer, property owner and other
interested parties.
City shall provide office space, use of computer, telephone and fax machine and any other
materials and supplies required to provide the needed services under this agreement, at no cost to
the Consultant. The Consultant may also provide such services as needed at an off -site location
upon approval of the Assistant City Manager.
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Exhibit "B"
SCHEDULE OF SERVICES
11
Consultant shall provide services as identified in the Scope of Services commencing January 2,
2006 and terminating December 31, 2006, unless terminated earlier pursuant to Section 3.5.1 of
this Agreement, or extended by mutual consent of both parties.
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Exhibit "C"
COMPENSATION
•
Consultant shall be compensated at the hourly rate of one - hundred dollars ($100). Consultant
may also be reimbursed for out -of- pocket expenses such as long distance telephone calls, faxes
and overnight delivery services. Consultant shall not be reimbursed for mileage from her home
to City Hall, but can claim mileage reimbursement for use of her personal vehicle at the City
approved mileage rate for attendance at meetings at developer's offices or developer's
consultants' offices and other locations other than City Hall.
C -1