Agenda packet, special meeting — South Pasadena City Council, April 24, 2024

City of South Pasadena Page 1
CALL TO ORDER: Mayor Evelyn G. Zneimer
ROLL CALL: Mayor Evelyn G. Zneimer
Mayor Pro Tem Jack Donovan
Councilmember Jon Primuth
Councilmember Michael A. Cacciotti
Councilmember Janet Braun

CITY OF SOUTH PASADENA

CITY COUNCIL
AGENDA

SPECIAL MEETING
WEDNESDAY, APRIL 24, 2024, AT 5:00 P.M.

AMEDEE O. “DICK” RICHARDS JR. COUNCIL CHAMBERS
1424 MISSION STREET, SOUTH PASADENA, CA 91030
South Pasadena City Council Statement of Civility
As your elected governing board, we will treat each other, members of the public, and City employees with patience, civility, and courtesy as a model of the same behavior we wish to reflect in South Pasadena for the conduct of all City business and community participation. The decisions made tonight will be for the benefit of the South Pasadena community and not for personal gain.

NOTICE ON PUBLIC PARTICIPATION & ACCESSIBILITY
The South Pasadena City Council Meeting will be conducted in-person from the Amedee O. “Dick” Richards, Jr. Council Chambers, located at 1424 Mission Street, South Pasadena, CA 91030.

Public participation may be made as follows:
• In Person – Council Chambers, 1424 Mission Street, South Pasadena, CA 91030. • Live Broadcast via the City website –
http://www.spectrumstream.com/streaming/south_pasadena/live.cfm • Via Zoom – Webinar ID: 825 9999 2830
• Written Public Comment – written comment must be submitted by 12:00 p.m. the day of the meeting by emailing to [email protected]. • Via Phone – +1-669-900-6833 and entering the Zoom Meeting ID listed above.

Meeting may be viewed at:

1. Go to the Zoom website, https://zoom.us/join and enter the Zoom Meeting information; or

2. Click on the following unique Zoom meeting link:
https://us06web.zoom.us/j/82599992830 or

3. By calling: +1-669-900-6833 and entering the Zoom Meeting ID listed above; and viewing the meeting via http://www.spectrumstream.com/streaming/south_pasadena/live.cfm Special City Council Meeting Agenda April 24, 2024

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PUBLIC COMMENT GUIDELINES
The City Council welcomes public input. Members of the public may comment on a non-agenda subject under the jurisdiction of the City Council or on an agenda item. Members of the public will have three minutes to address the City Council, however, the Mayor and City Council may adjust the time allotted, as needed.

Public Comments received in writing will not be read aloud at the meeting, but will be part of the meeting record. Written public comments will be uploaded to the City website for public viewing under Additional Documents. When submitting a public comment, please make sure to include the following:
1) Name (optional), and
2) Agenda item you are submitting public comment on.
3) Submit by no later than 12:00 P.M., on the day of the City Council meeting. Correspondence received after this time will be distributed the following business day.

PLEASE NOTE: The Mayor may exercise the Chair's discretion, subject to the approval of the majority of the City Council, to adjust public comment time limit to less than three minutes, as needed.

Pursuant to State law, the City Council may not discuss or take action on issues not on the meeting agenda, except that members of the City Council or staff may briefly respond to statements made or questions posed by persons exercising public testimony rights (Government Code Section 54954.2).

Staff may be asked to follow up on such items.

ACTION/DISCUSSION

1. CONSIDERATION OF APPROVAL OF APPOINTMENTS TO CITY COMMISSIONS Recommendation
It is recommended that the City Council authorize the Mayor’s appointments for the following City Boards, Commissions, and Committees:

1. Devin G. Robinson to the Finance Commission to a partial term ending December 31, 2026; and

2. Michelle L. Hammond to the Mobility and Transportation Infrastructure Commission (MTIC) to a partial term ending December 31, 2025.

2. OATH OF OFFICE – NEWLY APPOINTED COMMISSIONERS
Acting Deputy City Clerk to provide Oath of Office to newly appointed Commissioners.

3. CONSIDERATION OF THE APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS WITH FM3 RESEARCH AND TRIPEPI SMITH TO CONDUCT A SURVEY AND PREPARE

INFORMATIONAL MATERIALS REGARDING THE FRAMING OF A PROPOSED BALLOT

MEASURE RELATED TO ALLOWED BUILDING HEIGHTS FOR A TOTAL NOT-TO-EXCEED AMOUNT OF $59,500
Recommendation
It is recommended that the City Council consider the following:

1. Approve a Professional Services Agreement with Fairbank, Maslin, Maullin, Metz, and Associates to conduct a survey regarding the framing of a proposed ballot measure related to allowed building heights in the amount not-to-exceed $29,900 in the form approved by the City Attorney; and

2. Approve a Professional Services Agreement with Tripepi Smith to prepare informational materials related to the framing of a proposed ballot measure related to allowed building heights in the amount not- to-exceed $29,600 in the form approved by the City Attorney.

Special City Council Meeting Agenda April 24, 2024

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ADJOURNMENT

FOR YOUR INFORMATION

FUTURE CITY COUNCIL MEETINGS

PUBLIC ACCESS TO AGENDA DOCUMENTS AND BROADCASTING OF MEETINGS City Council meeting agenda packets, any agenda related documents, and additional documents are available online for public viewing on the City’s website:
www.southpasadenaca.gov/government/city-council-meetings/2024-council-meetings Regular meetings are live streamed via the internet at:
http://www.spectrumstream.com/streaming/south_pasadena/live.cfm

AGENDA NOTIFICATION SUBSCRIPTION
If you wish to receive an agenda email notification, please contact the City Clerk’s Division via email at [email protected] or call (626) 403-7230.

ACCOMMODATIONS
The City of South Pasadena wishes to make all of its public meetings accessible to the public. If special assistance is needed to participate in this meeting, please contact the City Clerk's Division at (626) 403-7230 or [email protected]. Upon request, this agenda will be made available in appropriate alternative formats to persons with disabilities. Notification at least 48 hours prior to the meeting will assist staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting (28 CFR 35.102-35.104 ADA Title II).

CERTIFICATION OF POSTING
I declare under penalty of perjury that I posted this notice of agenda for the meeting to be held on April 24, 2024, on the bulletin board in the courtyard of City Hall located at 1414 Mission Street, South Pasadena, CA 91030, and on the City, website as required by law, on the date listed below. 4/22/2024 /S/
Date Amber Tardif, Deputy City Clerk
April 24, 2024 Special Joint City Council and Finance Commission Meeting 5:15 P.M.

May 1, 2024 Regular City Council Meeting 7:00 P.M.

May 15, 2024 Special Joint City Council and Finance Commission Meeting 5:00 P.M.

June 5, 2024 Special Joint City Council and Finance Commission Meeting 5:00 P.M.

City Council
Agenda Report ITEM NO. ___
DATE:

FROM:

April 24, 2024
Evelyn G. Zneimer, Mayor
PREPARED BY: Tiara Solorzano, Management Assistant
SUBJECT: Consideration of Approval of Appointments to City Commissions
Recommendation
It is recommended that the City Council authorize the Mayor’s appointments for the following City Boards, Commissions, and Committees:

1. Devin G. Robinson to the Finance Commission to a partial term ending December 31, 2026; and

2. Michelle L. Hammond to the Mobility and Transportation Infrastructure Commission (MTIC) to a partial term ending December 31, 2025.

Discussion
The South Pasadena Municipal Code (SPMC) Section 2.23(a) states that, “Unless otherwise specified in this article, all Boards and Commissions shall consist of five adult members, all Board and Commission members to be appointed by the Mayor of the city with at least three affirmative votes of the city council.” Vacancies other than by expiration of a term shall be filled by the Mayor, with approval of the City Council, for the unexpired portion of the term SPMC Section 2.26(a). The term of office for Commissions is three years for a full term, running from January 1 through December 31 SPMC Section 2.25(a).

On January 17, 2024, and February 7, 2024, the City Council approved the Mayor’s appointments to the City’s Commissions, Boards, and Committees. With unexpected vacancies in the Finance and the Mobility and Transportation Infrastructure Commissions, the City continued community outreach to solicit applications to fill these vacancies.

For residents interested in serving on a City Advisory Body, the application is available on the City website: www.southpasadenaca.gov/government/boards-commissions or in the City Clerk’s Office located at 1414 Mission Street, South Pasadena, CA, 91030.

Applications are kept on file for two (2) years.

Fiscal Impact
The costs associated with Commission appointments are budgeted as part of the City Clerk’s Division operations expenses. No additional funding is being requested. 1 1 - 1
City Council
Agenda Report ITEM NO. ____
DATE: April 24, 2024
FROM: Arminé Chaparyan, City Manager
PREPARED BY: Angelica Frausto-Lupo, Community Development Director SUBJECT: Consideration of the Approval of Professional Services Agreements with FM3 Research and Tripepi Smith to Conduct a Survey and Prepare Informational Materials Regarding the Framing of a Proposed Ballot Measure Related to Allowed Building Heights for a Total Not-to-Exceed Amount of $59,500 Recommendation
It is recommended that the City Council consider the following:

Executive Summary
City Council is being asked to approve two separate agreements. One agreement is with Fairbank, Maslin, Maullin, Metz, and Associates (“FM3”) for surveying the community and the second agreement with Tripepi Smith is for the preparation of impartial informational materials to complement the survey effort regarding the framing of a proposed ballot measure related to allowing height beyond the currently 45-foot limit as contemplated by the City’s adopted Housing Element, and specifically, Program 2.n, within the Housing Element.

Background
In July 1983, at a special municipal election, a voter-led initiative established that no commercial, office, manufacturing, or residential building in the City of South Pasadena (“City”) would exceed a height of 45 feet, and that no variance or conditional use permit would be granted to allow such buildings to exceed the 45-foot limit. During the drafting of the City’s 6th Cycle 2021-2029 Housing Element, the California Department of Housing and Community Development (“HCD”) identified this 45-foot height limit as a potential constraint to housing development in the City. To address this issue, the City’s Housing Element includes Program 2.n., Citywide Height Limit Ballot Initiative, which requires the 3 3 - 1
Professional Services for Height Ballot Measure
April 24, 2024

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City to bring forward a ballot measure to the voters to address the current 45-foot building height limit. Additionally, the ballot measure is a requirement of the Housing Element litigation settlement agreement entered into by the City and Californians for Homeownership.

On April 15, 2024, the City Council conducted a study session to learn more about the ballot measure program and discussed next steps, including the benefits of surveying the community on the framing of a proposed ballot measure. In anticipation of that discussion, staff solicited bids from three consulting firms, two of which submitted proposals by the due date and time. At the study session, the City Council directed staff to review the proposals received and return with a recommendation at a Special City Council Meeting.

Analysis
As discussed at the study session on April 15, 2024, cities often retain professional consultants to conduct feasibility polls to explore voter support for city-initiated ballot measures. Pre-measure polling is an appropriate use of public funds. Due to the complexity of the Housing Element and, specifically, the height limit issues, staff is recommending the services of the consultants referenced above. The proposed polling would help the City refine and assisting with the framing of the ballot measure language and test various alternatives for addressing the requirements of Program 2.n. In conjunction with the polling and opinion surveys, the second consultant will develop impartial informational material to help voters understand the issues related to the current 45-height limit, the requirements of the Housing Element Program and the reasons for a ballot measure. The consultant will not provide any advocacy materials.

As previously mentioned, staff solicited bids from three consulting firms and received two proposals by the due date, 12:00 P.M. on April 15, 2024. A third proposal was submitted; however, it was late. The first proposal did not include any specifics with respect to the informational materials. When staff asked for clarification, the information received still lacked specificity regarding the materials for public information. They stated that the specifics would be discussed and adjusted during the initial kick-off strategy meeting with city staff. Their proposal included phone interviews in English and Chinese. When staff inquired about Spanish interviews, they said it could be done for an additional cost, but that fee was not provided.

The second proposal was from FM3 in partnership with Tripepi Smith. Staff recommends entering into two separate agreements with these two consulting firms as they were most responsive. It is important to note that both firms have experience in conducting research and outreach on Housing Element land use related ballot measures. FM3 will conduct the public opinion survey work and Tripepi Smith will be responsible for the public information component for a total project cost of $59,500. The proposals are attached as Attachments 1 and 2.

FM3 will be responsible for the questionnaire design (in consultation with city staff), sample acquisition (guaranteed 300 interviews) and preparation, programming, email and text invitations, survey hosting, telephone interviewing, data entry and analysis, and 3 - 2
Professional Services for Height Ballot Measure
April 24, 2024

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reporting. FM3 provided the cost for a 15-minute interview at $23,850 and a 20-minute interview at $25,900. Staff discussed the length of the interviews with the City Attorney’s Office. The recommended interview length is 20-minutes to provide the most flexibility and potential for more questions, which is important due to the potential complexity of the framing of the ballot measure. Staff also recommends that the City Council approve the option for the consultant to offer interviews in Chinese and Spanish for an additional fee of $4,000.

Tripepi Smith proposes to do a comprehensive public information campaign to explain the measure, starting before it is proposed, including developing frequently asked questions (FAQs), press releases, write two stories (articles) to send out as e-blast or in e-newsletter, social media posts, creation of a webpage on the City website with background and information on the policy need and related information, and create collateral materials, such as a four-page brochure and postcard. Additionally, the firm will host a virtual Question and Answer (Q&A) session which will be recorded and made available online.

FM3: $29,900
Tripepi Smith: $29,600
Total: $59,500
Fiscal Impact
The total cost for the consultants is $59,500, including the Spanish and Chinese translation options. Funding for Housing Element program implementation under ballot measure and height limit study, was previously included in the Fiscal Year 2023-2024 Community Development Department Budget under Professional Services Account Number 101-7010-7011-8170-000.

Key Performance Indicators and Strategic Plan
A ballot measure to revise or repeal the City’s existing 45-foot building height limit is required by the City’s adopted Housing Element and General Plan. Housing is foundational to the implementation of most of the City’s 2021-2026 Strategic Plan goals:
2) Economic Development, 3) Public Safety, 4) Infrastructure, and 5) Housing.

City Attorney Review
The City Attorney has reviewed this report.

Commission Review and Recommendation
This matter was not reviewed by a commission or board.

Attachments:

1. Fairbank, Maslin, Maullin, Metz, and Associates Proposal

2. Tripepi Smith Proposal

3. Fairbank, Maslin, Maullin, Metz, and Associates Draft PSA

4. Tripepi Smith Draft PSA
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ATTACHMENT 1
Fairbank, Maslin, Maullin, Metz, and Associates Proposal 3 - 5

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TO Alison Becker
City of South Pasadena
FROM Richard Bernard and Adam Sonenshein
FM3 Research
RE: Proposal to Conduct Opinion Research on a 2024 Ballot Measure for the City of South Pasadena DATE April 10, 2024
Fairbank, Maslin, Maullin, Metz & Associates (FM3) is pleased to submit this short scope of work to conduct a public opinion survey on a 2024 ballot measure regarding building height limits in the City of South Pasadena.

Our proposal includes FM3’s scope for the survey, as well as a recommended partnership with Tripepi Smith to develop informational materials based on the survey’s findings.

About FM3
FM3 has extensive experience conducting research related to land use and housing issues, many of which have centered around city clients’ needs to certify state-mandated housing elements. In fact, we are currently working with the cities of Yorba Linda and Monterey Park on related issues, as well as a charter issue that would affect land use in the City of Bellflower. In 2022, we conducted a survey to examine the feasibility of a land use measure on behalf of Costa Mesa, prior to the City successfully passing Costa Mesa’s Measure K in November 2022. The aforementioned measure has allowed the City to move forward with its affordable development housing plans and help in its efforts to meet California’s Regional Housing Needs Allocation (RHNA) requirements. Some of our other clients for housing-related issues have included the cities of Los Angeles and Lemon Grove, the Los Angeles County Office of the Chief Executive, Humboldt County and Sacramento County, and more.

We have also conducted research for the City of South Pasadena before (the successful Measure UT) and myriad clients in the San Gabriel Valley, which has provided us with a comprehensive understanding of the region’s residents and voters. As a result, our team is deeply familiar with not only the local electorate but also the issues, cycles, and rhythms of local public opinion and its evolution over time. Some of our past clients in the region have included the cities of Alhambra, Arcadia, La Cañada Flintridge, Monterey Park, San Gabriel, San Marino, South El Monte, and Temple City, to name just a few.

Recommended Research Plan
For this project, FM3 recommends conducting a 15-to 20-minute dual-mode (telephone and online) survey among a randomized sample of 300 likely November 2024 voters within South Pasadena. Given the size of the City’s Latino and Chinese populations (approximately 16% and 12% of likely November 2024 voters, respectively), as an 3 - 7
FM3

RESEARCH

FAIRBANK, MASLIN,

MAU LLI N, METZ
& ASSOCIATES

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option, we could offer telephone interviews in Spanish and/or Chinese. To maintain maximum cost efficiency, online interviews will be offered in English only.

We recommend utilizing three different contact methods (telephone calls, emails, and text messages) to provide an array of ways for potential respondents to participate in the survey. Providing multiple forms of contact also helps us engage historically disadvantaged communities that may not have adequate broadband access and/or access to computers or smart phones. Additionally, different demographic groups often have varying communication preferences—some may be more likely to answer a phone call than open an email or text message, and vice versa.

Figure 1: Research Specs at a Glance
Methodology Dual-mode voter survey using a combination of online and telephone (cellular and landline) interviews
Respondent
Contact Method
Telephone calls, email invitations, and text invitations Population &
Sample
300 likely November 2024 voters in the City of South Pasadena Margin of
Sampling Error*
±5.7% for a sample of 300 interviews
*At the 95% confidence level (i.e., in 95 out of 100 cases) Survey Length 15-20 minutes
Language(s) Telephone interviews will be conducted in English and (optional) Spanish and/or Chinese; online interviews will be conducted in English only.

Deliverables Following the completion of the survey, we will provide:
• A questionnaire with the topline results of the survey for easy reference • A complete analysis of survey results in PowerPoint
• A presentation of the survey results (if requested)
FM3 will also be available for ongoing consultation and any further analysis of the research.
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FM3

RESEARCH

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Estimated Costs
Figure 2 contains the total estimated costs for this research. These prices are comprehensive and include all costs for questionnaire design, sample acquisition and preparation, programming, email and text invitations, survey hosting, telephone interviewing, data entry and analysis, and reporting.

Figure 2: Survey Costs
Survey Length 300 Interviews
15 minutes $23,850
20 minutes $25,900
If the City wishes to offer telephone interviews in Spanish and/or Chinese, there will be an additional translation cost of $2,000 per language.

Public Informational Materials
FM3 recognizes that the City has an interest in hiring a consultant to develop materials for public information related to this topic. To accomplish this, we propose partnering with Tripepi Smith, a Southern California-based community engagement company with whom FM3 has worked many times. Their services are unique from those provided by FM3, but our firms will collaborate to ensure that the survey reflects the experience and expertise of both firms, and the materials developed for the City accurately reflect the findings of the survey. Tripepi Smith’s scope and costs are presented under separate cover.
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FM3

RESEARCH
ATTACHMENT 2
Tripepi Smith Proposal
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TO: Alison Becker, City of South Pasadena
FR: Ryder Todd Smith, Tripepi Smith and Associates
RE: Outreach for Ballot Measure on Building Height Restrictions DATE: April 10, 2024
Executive summary
Tripepi Smith provides marketing, outreach and communications services to over 200 public agencies throughout California. The firm is active with local governments throughout the San Gabriel Valley and has experience with ballot measure outreach. Most recently, Tripepi Smith has been collaborating with FM3 on a land use ballot measure outreach effort related to a Southern California city’s Housing Element. Additionally, Tripepi Smith has an existing time and material agreement in place with the City of South Pasadena that the City has yet to leverage.

We are providing a quote for services related to the City’s ask for community education and outreach materials.

Proposed Scope
Tripepi Smith is familiar with the issues and complexities associated with passing land userelated ballot measures that are primarily driven by State of California housing mandates. We have spent the last year working on similar policy issues in other communities in California addressing issues such as Builder’s Remedy, state lawsuits, local resident initiatives and community anger over forced land use policies the community disagrees with. Tripepi Smith understands the policy issues with State housing mandates and the politics of those issues, particularly as they affect suburban bedroom communities. Additionally, even with a welleducated electorate, we also recognize the complexity of land use policy changes and the need for deep dive community conversations to bring the residents along for the policy ride. 3 - 12
2 ) end of June 2024 (Now until Scope Council Resolution - Pre Conduct a kickoff meeting with City Staff •
weekly check in calls with City Staff - Conduct bi •
brochure explaining the policy and related legal matters and state page - four Create a • limit restrictions in the City. - mandates generating the need to modify height web page on City website with background and information on the policy need a Create • and related information for the community
Create frequently asked questions •
direct housing element and a part of the Develop 5 social media posts that explain • people to the web page to learn more
based Q&A session with key City Staff to discuss the policy issue. Promote - Host a Zoom • the Zoom meeting, record it and make it available online. title, ballot language on the ballot , City Attorney and City Staff Collaborate with FM3 • survey results review of the and
Assist the City with a press release on the Resolution to declare a ballot measure and • release on key community outreach efforts. one
Craft two stories for City use on email or magazines to share updated with the • community
to community to inform them about the issue and direct postcard design for mailer 1 • (fees for postage and printing paid by City directly to preferred them to web resources print shop)
,600 92 Flat Fee: $
Payment Schedule
. and June at the end of the month in April, May, d % of total agreed to fees invoice 33.33 Smith will provide supplemental notes on the invoice explaining the type of work Tripepi we did during the month.
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ATTACHMENT 3
Fairbank, Maslin, Maullin, Metz, and Associates Draft PSA 3 - 15

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Professional Services Agreement – Consultant Services

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PROFESSIONAL SERVICES AGREEMENT

FOR CONSULTANT SERVICES
(City of South Pasadena / Fairbank, Maslin, Maullin, Metz, and Associates)

1. IDENTIFICATION
This PROFESSIONAL SERVICES AGREEMENT (“Agreement”) is entered into by and between the City of South Pasadena, a California municipal corporation (“City”), and Fairbank, Maslin, Maullin, Metz, and Associates (“Consultant”).

2. RECITALS

2.1. City has determined that it requires the following professional services from a consultant to conduct a survey regarding the framing of a proposed ballot measure related to allowed building heights.

2.2. Consultant represents that it is fully qualified to perform such professional services by virtue of its experience and the training, education and expertise of its principals and employees. Consultant further represents that it is willing to accept responsibility for performing such services in accordance with the terms and conditions set forth in this Agreement.

2.3. Consultant represents that it has no known relationships with third parties, City Council members, or employees of City which would (1) present a conflict of interest with the rendering of services under this Agreement under Government Code Section 1090, the Political Reform Act (Government Code Section 81000 et seq.), or other applicable law, (2) prevent Consultant from performing the terms of this Agreement, or (3) present a significant opportunity for the disclosure of confidential information.

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:

3. DEFINITIONS

3.1. “Scope of Services”: develop a dual-mode voter survey using a combination of online and telephone (cellular and landline) 20-minute interviews, Exhibit A.

3.2. “Agreement Administrator”: The Agreement Administrator for this project is Richard Bernard, Partner. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for completion of services and any interim milestones. City reserves the right to change this designation upon written notice to Consultant 3 - 17
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3.3. “Approved Fee Schedule”: Consultant’s compensation rates are set forth in the fee schedule attached hereto as Exhibit B and incorporated herein by this reference. This fee schedule shall remain in effect for the duration of this Agreement unless modified in writing by mutual agreement of the parties.

3.4. “Maximum Amount”: The highest total compensation and costs payable to Consultant by City under this Agreement. The Maximum Amount under this Agreement is twenty nine thousand and nine hundred Dollars ($29,900).

3.5. “Commencement Date”: April 25, 2024.

3.6. “Termination Date”: Upon completion of the work.

4. TERM
The term of this Agreement shall commence at 12:00 a.m. on the Commencement Date and shall expire at 11:59 p.m. on the Termination Date unless extended by written agreement of the parties or terminated earlier under Section 18 (“Termination”) below. Consultant may request extensions of time to perform the services required hereunder. Such extensions shall be effective if authorized in advance by City in writing and incorporated in written amendments to this Agreement.

5. CONSULTANT’S DUTIES

5.1. Services. Consultant shall perform the services identified in the Scope of Services. City shall have the right to request, in writing, changes in the Scope of Services. Any such changes mutually agreed upon by the parties, and any corresponding increase or decrease in compensation, shall be incorporated by written amendment to this Agreement.

5.2. Coordination with City. In performing services under this Agreement, Consultant shall coordinate all contact with City through its Agreement Administrator.

5.3. Budgetary Notification. Consultant shall notify the Agreement Administrator, in writing, when fees and expenses incurred under this Agreement have reached eighty percent (80%) of the Maximum Amount. Consultant shall concurrently inform the Agreement Administrator, in writing, of Consultant’s estimate of total expenditures required to complete its current assignments before proceeding, when the remaining work on such assignments would exceed the Maximum Amount.

5.4. Business License. Consultant shall obtain and maintain in force a City business license for the duration of this Agreement.

5.5. Professional Standards. Consultant shall perform all work to the standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules, and regulationsin any manner affecting the performance of this Agreement, 3 - 18
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including all Cal/OSHA requirements, the conflict of interest provisions of Government Code § 1090 and the Political Reform Act (Government Code § 81000 et seq.).

5.6. Avoid Conflicts. During the term of this Agreement, Consultant shall not perform any work for another person or entity for whom Consultant was not working at the Commencement Date if such work would present a conflict interfering with performance under this Agreement. However, City may consent in writing to Consultant’s performance of such work.

5.7. Appropriate Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Richard Bernard shall be Consultant’s project administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement. No change shall be made in Consultant’s project administrator without City’s prior written consent.

5.8. Substitution of Personnel. Any persons named in the proposal or Scope of Services constitutes a promise to the City that those persons will perform and coordinate their respective services under this Agreement. Should one or more of such personnel become unavailable, Consultant may substitute other personnel of at least equal competence upon written approval of City. If City and Consultant cannot agree as to the substitution of key personnel, City may terminate this Agreement for cause.

5.9. Permits and Approvals. Consultant shall obtain, at its sole cost and expense, all permits and regulatory approvals necessary for Consultant’s performance of this Agreement. This includes, but shall not be limited to, professional licenses, encroachment permits and building and safety permits and inspections.

5.10. Notification of Organizational Changes. Consultant shall notify the Agreement Administrator, in writing, of any change in name, ownership or control of Consultant’s firm or of any subcontractor. Change of ownership or control of Consultant’s firm may require an amendment to this Agreement.

5.11. Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or 3 - 19
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as part of any audit of City, for a period of three (3) years after final payment under this Agreement.

6. SUBCONTRACTING

6.1. General Prohibition. This Agreement covers professional services of a specific and unique nature. Except as otherwise provided herein, Consultant shall not assign or transfer its interest in this Agreement or subcontract any services to be performed without amending this Agreement.

6.2. Consultant Responsible. Consultant shall be responsible to City for all services to be performed under this Agreement.

6.3. Identification in Fee Schedule. All subcontractors shall be specifically listed and their billing rates identified in the Approved Fee Schedule, Exhibit B. Any changes must be approved by the Agreement Administrator in writing as an amendment to this Agreement.

6.4. Compensation for Subcontractors. City shall pay Consultant for work performed by its subcontractors, if any, only at Consultant’s actual cost plus an approved mark-up as set forth in the Approved Fee Schedule, Exhibit B. Consultant shall be liable and accountable for any and all payments, compensation, and federal and state taxes to all subcontractors performing services under this Agreement. City shall not be liable for any payment, compensation, or federal and state taxes for any subcontractors.

7. COMPENSATION

7.1. General. City agrees to compensate Consultant for the services provided under this Agreement, and Consultant agrees to accept payment in accordance with the Fee Schedule in full satisfaction for such services. Compensation shall not exceed the Maximum Amount. Consultant shall not be reimbursed for any expenses unless provided for in this Agreement or authorized in writing by City in advance.

7.2. Invoices. Consultant shall submit to City an invoice, on a monthly basis or as otherwise agreed to by the Agreement Administrator, for services performed pursuant to this Agreement. Each invoice shall identify the Maximum Amount, the services rendered during the billing period, the amount due for the invoice, and the total amount previously invoiced. All labor charges shall be itemized by employee name and classification/position with the firm, the corresponding hourly rate, the hours worked, a description of each labor charge, and the total amount due for labor charges.

7.3. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall be solely responsible for calculating, withholding, and paying all taxes. 3 - 20
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7.4. Disputes. The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant.

7.5. Additional Work. Consultant shall not be reimbursed for any expenses incurred for work performed outside the Scope of Services unless prior written approval is given by the City through a fully executed written amendment. Consultant shall not undertake any such work without prior written approval of the City.

7.6. City Satisfaction as Precondition to Payment. Notwithstanding any other terms of this Agreement, no payments shall be made to Consultant until City is satisfied that the services are satisfactory.

7.7. Right to Withhold Payments. If Consultant fails to provide a deposit or promptly satisfy an indemnity obligation described in Section 11, City shall have the right to withhold payments under this Agreement to offset that amount.

8. PREVAILING WAGES
Consultant is aware of the requirements of California Labor Code Section 1720, et seq., and 1770, et seq., as well as California Code of Regulations, Title 8, Section 16000, et seq., (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Consultant shall defend, indemnify, and hold the City, tis elected officials, officers, employees, and agents free and harmless form any claim or liability arising out of any failure or alleged failure of Consultant to comply with the Prevailing Wage Laws.

9. OWNERSHIP OF WRITTEN PRODUCTS
All reports, documents or other written material (“written products” herein) developed by Consultant in the performance of this Agreement shall be and remain the property of City without restriction or limitation upon its use or dissemination by City except as provided by law. Consultant may take and retain copies of such written products as desired, but no such written products shall be the subject of a copyright application by Consultant.

10. RELATIONSHIP OF PARTIES

10.1. General. Consultant is, and shall at all times remain as to City, a wholly independent contractor.

10.2. No Agent Authority. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not 3 - 21
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represent that it is, or that any of its agents or employees are, in any manner employees of City.

10.3. Independent Contractor Status. Under no circumstances shall Consultant or its employees look to the City as an employer. Consultant shall not be entitled to any benefits. City makes no representation as to the effect of this independent contractor relationship on Consultant’s previously earned California Public Employees Retirement System (“CalPERS”) retirement benefits, if any, and Consultant specifically assumes the responsibility for making such a determination. Consultant shall be responsible for all reports and obligations including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers’ compensation, and other applicable federal and state taxes.

10.4. Indemnification of CalPERS Determination. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or CalPERS to be eligible for enrollment in CalPERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for CalPERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.

11. INDEMNIFICATION

11.1 Definitions. For purposes of this Section 11, “Consultant” shall include Consultant, its officers, employees, servants, agents, or subcontractors, or anyone directly or indirectly employed by either Consultant or its subcontractors, in the performance of this Agreement. “City” shall include City, its officers, agents, employees and volunteers.

11.2 Consultant to Indemnify City. To the fullest extent permitted by law, Consultant shall indemnify, hold harmless, and defend City from and against any and all claims, losses, costs or expenses for any personal injury or property damage arising out of or in connection with Consultant’s alleged negligence, recklessness or willful misconduct or other wrongful acts, errors or omissions of Consultant or failure to comply with any provision in this Agreement.

11.3 Scope of Indemnity. Personal injury shall include injury or damage due to death or injury to any person, whether physical, emotional, consequential or otherwise, Property damage shall include injury to any personal or real property. Consultant shall not be required to indemnify City for such loss or damage as is caused by the sole active negligence or willful misconduct of the City.

11.4 Attorneys Fees. Such costs and expenses shall include reasonable attorneys’ fees for counsel of City’s choice, expert fees and all other costs and fees of litigation.

Consultant shall not be entitled to any refund of attorneys’ fees, defense costs or expenses in the event that it is adjudicated to have been non-negligent. 3 - 22
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11.5 Defense Deposit. The City may request a deposit for defense costs from Consultant with respect to a claim. If the City requests a defense deposit, Consultant shall provide it within 15 days of the request.

11.6 Waiver of Statutory Immunity. The obligations of Consultant under this Section 11 are not limited by the provisions of any workers’ compensation act or similar act.

Consultant expressly waives its statutory immunity under such statutes or laws as to City.

11.7 Indemnification by Subcontractors. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth here in this Section 11 from each and every subcontractor or any other person or entity involved in the performance of this Agreement on Consultant’s behalf.

11.8 Insurance Not a Substitute. City does not waive any indemnity rights by accepting any insurance policy or certificate required pursuant to this Agreement. Consultant’s indemnification obligations apply regardless of whether or not any insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense.

12. INSURANCE

12.1. Insurance Required. Consultant shall maintain insurance as described in this section and shall require all of its subcontractors, consultants, and other agents to do the same.

Approval of the insurance by the City shall not relieve or decrease any liability of Consultant Any requirement for insurance to be maintained after completion of the work shall survive this Agreement.

12.2. Documentation of Insurance. City will not execute this agreement until it has received a complete set of all required documentation of insurance coverage. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. Consultant shall file with City:
• Certificate of Insurance, indicating companies acceptable to City, with a Best's Rating of no less than A:VII showing. The Certificate of Insurance must include the following reference: survey regarding proposed ballot measure. • Documentation of Best’s rating acceptable to the City. • Original endorsements effecting coverage for all policies required by this Agreement.
• City reserves the right to obtain a full certified copy of any Insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to exercise later.

12.3. Coverage Amounts. Insurance coverage shall be at least in the following minimum amounts:
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• Professional Liability Insurance: $2,000,000 per occurrence, $4,000,000 aggregate
• General Liability:
• General Aggregate: $4,000,000
• Products Comp/Op Aggregate $4,000,000
• Personal & Advertising Injury $2,000,000
• Each Occurrence $2,000,000
• Fire Damage (any one fire) $ 100,000
• Medical Expense (any 1 person) $ 10,000
• Workers' Compensation:
• Workers' Compensation StatutoryLimits
• EL Each Accident $1,000,000
• EL Disease - Policy Limit $1,000,000
• EL Disease - Each Employee $1,000,000
• Automobile Liability
• Any vehicle, combined single limit $1,000,000
Any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements or limits shall be available to the additional insured.

Furthermore, the requirements for coverage and limits shall be the greater of (1) the minimum coverage and limits specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured

12.4. General Liability Insurance. Commercial General Liability Insurance shall be no less broad than ISO form CG 00 01. Coverage must be on a standard Occurrence form.

Claims-Made, modified, limited or restricted Occurrence forms are not acceptable.

12.5. Worker’s Compensation Insurance. Consultant is aware of the provisions of Section 3700 of the Labor Code which requires every employer to carry Workers' Compensation (or to undertake equivalent self-insurance), and Consultant will comply with such provisions before commencing the performance of the work of this Agreement. If such insurance is underwritten by any agency other than the State Compensation Fund, such agency shall be a company authorized to do business in the State of California.

12.6. Automobile Liability Insurance. Covered vehicles shall include owned if any, nonowned, and hired automobiles and, trucks.

12.7. Professional Liability Insurance or Errors & Omissions Coverage. The deductible or self-insured retention may not exceed $50,000. If the insurance is on a Claims-Made basis, the retroactive date shall be no later than the commencement of the work. 3 - 24
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Coverage shall be continued for two years after the completion of the work by one of the following: (1) renewal of the existing policy; (2) an extended reporting period endorsement; or (3) replacement insurance with a retroactive date no later than the commencement of the work under this Agreement.

12.8. Claims-Made Policies. If any of the required policies provide coverage on a claimsmade basis the Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. Claims-Made Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work.

12.9. Additional Insured Endorsements. The City, its City Council, Commissions, officers, and employees of South Pasadena must be endorsed as an additional insured for each policy required herein, other than Professional Errors and Omissions and Worker’s Compensation, for liability arising out of ongoing and completed operations by or on behalf of the Consultant. Consultant’s insurance policies shall be primary as respects any claims related to or as the result of the Consultant’s work. Any insurance, pooled coverage or self-insurance maintained by the City, its elected or appointed officials, directors, officers, agents, employees, volunteers, or consultants shall be noncontributory. All endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. General liability coverage can be provided using an endorsement to the Consultant’s insurance at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10 and CG 20 37.

12.10. Failure to Maintain Coverage. In the event any policy is canceled prior to the completion of the project and the Consultant does not furnish a new certificate of insurance prior to cancellation, City has the right, but not the duty, to obtain the required insurance and deduct the premium(s) from any amounts due the Consultant under this Agreement. Failure of the Consultant to maintain the insurance required by this Agreement, or to comply with any of the requirements of this section, shall constitute a material breach of this Agreement.

12.11. Notices. Contractor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self-insured retention is increased. Consultant shall provide no less than 30 days’ notice of any cancellation or material change to policies required by this Agreement. Consultant shall provide proof that cancelled or expired policies of insurance have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages. The name and address for Additional Insured Endorsements, Certificates of Insurance and Notices of Cancellation is: City of South 3 - 25
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Pasadena, Attn: Angelica Frausto-Lupo, Community Development Director, South Pasadena, CA 95945.

12.12. Consultant’s Insurance Primary. The insurance provided by Consultant, including all endorsements, shall be primary to any coverage available to City. Any insurance or self-insurance maintained by City and/or its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.

12.13. Waiver of Subrogation. Consultant hereby waives all rights of subrogation against the City. Consultant shall additionally waive such rights either by endorsement to each policy or provide proof of such waiver in the policy itself.

12.14. Report of Claims to City. Consultant shall report to the City, in addition to the Consultant’s insurer, any and all insurance claims submitted to Consultant's insurer in connection with the services under this Agreement.

12.15. Premium Payments and Deductibles. Consultant must disclose all deductibles and self-insured retention amounts to the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within retention amounts. Ultimately, City must approve all such amounts prior to execution of this Agreement.

City has no obligation to pay any premiums, assessments, or deductibles under any policy required in this Agreement. Consultant shall be responsible for all premiums and deductibles in all of Consultant’s insurance policies. The amount of deductibles for insurance coverage required herein are subject to City’s approval.

12.16. Duty to Defend and Indemnify. Consultant’s duties to defend and indemnify City under this Agreement shall not be limited by the foregoing insurance requirements and shall survive the expiration of this Agreement.

13. MUTUAL COOPERATION

13.1. City Cooperation in Performance. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for the proper performance of Consultant’s services under this Agreement.

13.2. Consultant Cooperation in Defense of Claims. If any claim or action is brought against City relating to Consultant’s performance in connection with this Agreement, Consultant shall render any reasonable assistance that City may require in the defense of that claim or action.

14. NOTICES
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Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on: (i) the day of delivery if delivered by hand, facsimile or overnight courier service during Consultant’s and City’s regular business hours; or (ii) on the third business day following deposit in the United States mail if delivered by mail, postage prepaid, to the addresses listed below (or to such other addresses as the parties may, from time to time, designate in writing).

If to City
Angelica Frausto-Lupo,
Community Development Director
City of South Pasadena
1414 Mission Street
South Pasadena, CA 91030
Telephone: (626) 403-7222
Facsimile: (626) 403-7241
If to Consultant
Richard Bernard,
Partner
Fairbank, Maslin, Maullin, Metz, and
Associates
12100 Wilshire Blvd., Ste. 350
Los Angeles, CA
(310) 828-1183
With courtesy copy to:

Roxanne Diaz
South Pasadena City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, CA 90071
Telephone: (213) 626-8484
Facsimile: (213) 626-0078

15. SURVIVING COVENANTS
The parties agree that the covenants contained in paragraph 5.11 (Records), paragraph

10.4 (Indemnification of CalPERS Determination), Section 11 (Indemnity), paragraph

12.8 (Claims-Made Policies), paragraph 13.2 (Consultant Cooperation in Defense of Claims), and paragraph 18.1 (Confidentiality) of this Agreement shall survive the expiration or termination of this Agreement, subject to the provisions and limitations of this Agreement and all otherwise applicable statutes of limitations and repose.

16. TERMINATION

16.1. City Termination. City may terminate this Agreement for any reason on five calendar days’ written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be returned to City upon the termination or expiration of this Agreement.
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16.2. Consultant Termination. Consultant may terminate this Agreement for a material breach of this Agreement upon 30 days’ notice.

16.3. Compensation Following Termination. Upon termination, Consultant shall be paid based on the work satisfactorily performed at the time of termination. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement. The City shall have the benefit of such work as may have been completed up to the time of such termination.

16.4. Remedies. City retains any and all available legal and equitable remedies for Consultant’s breach of this Agreement.

17. INTERPRETATION OF AGREEMENT

17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.

17.2. Integration of Exhibits. All documents referenced as exhibits in this Agreement are hereby incorporated into this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. This instrument contains the entire Agreement between City and Consultant with respect to the transactions contemplated herein. No other prior oral or written agreements are binding upon the parties. Amendments hereto or deviations herefrom shall be effective and binding only if made in writing and executed on by City and Consultant.

17.3. Headings. The headings and captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are descriptive only and for convenience in reference to this Agreement. Should there be any conflict between such heading, and the section or paragraph thereof at the head of which it appears, the language of the section or paragraph shall control and govern in the construction of this Agreement.

17.4. Pronouns. Masculine or feminine pronouns shall be substituted for the neuter form and vice versa, and the plural shall be substituted for the singular form and vice versa, in any place or places herein in which the context requires such substitution(s).

17.5. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and shall be enforceable in its amended form. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 3 - 28
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17.6. No Presumption Against Drafter. Each party had an opportunity to consult with an attorney in reviewing and drafting this agreement. Any uncertainty or ambiguity shall not be construed for or against any party based on attribution of drafting to any party.

18. GENERAL PROVISIONS

18.1. Confidentiality. All data, documents, discussion, or other information developed or received by Consultant for performance of this Agreement are deemed confidential and Consultant shall not disclose it without prior written consent by City. City shall grant such consent if disclosure is legally required. All City data shall be returned to City upon the termination or expiration of this Agreement.

18.2. Conflicts of Interest. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further agrees to file, or shall cause its employees or subcontractor to file, a Statement of Economic Interest with the City’s Filing Officer if required under state law in the performance of the services. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer, or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.

18.3. Non-assignment. Consultant shall not delegate, transfer, subcontract or assign its duties or rights hereunder, either in whole or in part, without City’s prior written consent, and any attempt to do so shall be void and of no effect. City shall not be obligated or liable under this Agreement to any party other than Consultant.

18.4. Binding on Successors. This Agreement shall be binding on the successors and assigns of the parties.

18.5. No Third-Party Beneficiaries. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.

18.6. Time of the Essence. Time is of the essence for each and every provision of this Agreement.

18.7. Non-Discrimination. Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Employment actions to which this provision applies shall include, but not be limited to, the 3 - 29
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following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; or in terms, conditions or privileges of employment, and selection for training. Consultant agrees to post in conspicuous places, available to employees and applicants for employment, the provisions of this nondiscrimination clause.

18.8. Waiver. No provision, covenant, or condition of this Agreement shall be deemed to have been waived by City or Consultant unless in writing signed by one authorized to bind the party asserted to have consented to the waiver. The waiver by City or Consultant of any breach of any provision, covenant, or condition of this Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provision, covenant, or condition.

18.9. Excused Failure to Perform. Consultant shall not be liable for any failure to perform if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to causes beyond the control and without the fault or negligence of Consultant.

18.10. Remedies Non-Exclusive. Each right, power and remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise shall be cumulative and shall be in addition to every other right, power, or remedy provided for herein or now or hereafter existing at law, in equity, by statute, or otherwise. The exercise, the commencement of the exercise, or the forbearance from the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers or remedies.

18.11. Attorneys’ Fees. If legal action shall be necessary to enforce any term, covenant or condition contained in this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys’ fees and costs expended in the action.

18.12. Venue. The venue for any litigation shall be Los Angeles County, California and Consultant hereby consents to jurisdiction in Los Angeles County for purposes of resolving any dispute or enforcing any obligation arising under this Agreement.

TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City”
City of South Pasadena
By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
“Consultant”
Fairbank, Maslin, Maullin, Metz, and
Associates
By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
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Date:______________________ Date:______________________ Attest:

By:__________________________________
Amber Tarif
Deputy City Clerk
Date:________________________

Approved as to form:

By:__________________________________
Roxanne Diaz, City Attorney

Date:________________________
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Exhibit A: Scope of Services
Fairbank, Maslin, Maullin, Metz, and Associates will develop the questionnaire (in consultation with city staff), sample acquisition (guaranteed 300 interviews) and preparation, programming, email and text invitations, survey hosting, telephone interviewing, data entry and analysis, and reporting. Consultant will conduct 300, 20-minute interviews and conduct phone interviews in Chinese and Spanish.
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Exhibit B: Fee Schedule
Flat fee of $29,900 to be paid at completion of project. 3 - 33

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ATTACHMENT 4
Tripepi Smith Draft PSA
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PROFESSIONAL SERVICES AGREEMENT

FOR CONSULTANT SERVICES
(City of South Pasadena / Tripepi Smith)

2. RECITALS

2.1. City has determined that it requires the following professional services from a consultant to prepare impartial informational materials regarding the framing of a proposed ballot measure related to allowed building heights.

NOW, THEREFORE, for and in consideration of the mutual covenants and conditions herein contained, City and Consultant agree as follows:

3. DEFINITIONS

3.1. “Scope of Services”: prepare impartial informational materials for ballot measure, Exhibit A.

3.2. “Agreement Administrator”: The Agreement Administrator for this project is Ryder Todd Smith, President. The Agreement Administrator shall be the principal point of contact at the City for this project. All services under this Agreement shall be performed at the request of the Agreement Administrator. The Agreement Administrator will establish the timetable for completion of services and any interim milestones. City reserves the right to change this designation upon written notice to Consultant
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3.5. “Commencement Date”: April 25, 2024.

3.6. “Termination Date”: Upon completion of the work.

5. CONSULTANT’S DUTIES

5.2. Coordination with City. In performing services under this Agreement, Consultant shall coordinate all contact with City through its Agreement Administrator.

5.4. Business License. Consultant shall obtain and maintain in force a City business license for the duration of this Agreement.

5.5. Professional Standards. Consultant shall perform all work to the standards of Consultant’s profession and in a manner reasonably satisfactory to City. Consultant shall keep itself fully informed of and in compliance with all local, state, and federal laws, rules, and regulationsin any manner affecting the performance of this Agreement, 3 - 38
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including all Cal/OSHA requirements, the conflict of interest provisions of Government Code § 1090 and the Political Reform Act (Government Code § 81000 et seq.).

5.7. Appropriate Personnel. Consultant has, or will secure at its own expense, all personnel required to perform the services identified in the Scope of Services. All such services shall be performed by Consultant or under its supervision, and all personnel engaged in the work shall be qualified to perform such services. Ryder Todd Smith shall be Consultant’s project administrator and shall have direct responsibility for management of Consultant’s performance under this Agreement. No change shall be made in Consultant’s project administrator without City’s prior written consent.

5.11. Records. Consultant shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such documents shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of City. In addition, pursuant to Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds ten thousand dollars, all such documents and this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or 3 - 39
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as part of any audit of City, for a period of three (3) years after final payment under this Agreement.

6. SUBCONTRACTING

6.2. Consultant Responsible. Consultant shall be responsible to City for all services to be performed under this Agreement.

7. COMPENSATION

7.3. Taxes. City shall not withhold applicable taxes or other payroll deductions from payments made to Consultant except as otherwise required by law. Consultant shall be solely responsible for calculating, withholding, and paying all taxes. 3 - 40
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7.4. Disputes. The parties agree to meet and confer at mutually agreeable times to resolve any disputed amounts contained in an invoice submitted by Consultant.

10. RELATIONSHIP OF PARTIES

10.1. General. Consultant is, and shall at all times remain as to City, a wholly independent contractor.

10.2. No Agent Authority. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise to act on behalf of City as an agent. Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s employees, except as set forth in this Agreement. Consultant shall not 3 - 41
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represent that it is, or that any of its agents or employees are, in any manner employees of City.

11. INDEMNIFICATION

11.4 Attorneys Fees. Such costs and expenses shall include reasonable attorneys’ fees for counsel of City’s choice, expert fees and all other costs and fees of litigation.

Consultant shall not be entitled to any refund of attorneys’ fees, defense costs or expenses in the event that it is adjudicated to have been non-negligent. 3 - 42
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11.6 Waiver of Statutory Immunity. The obligations of Consultant under this Section 11 are not limited by the provisions of any workers’ compensation act or similar act.

Consultant expressly waives its statutory immunity under such statutes or laws as to City.

12. INSURANCE

12.1. Insurance Required. Consultant shall maintain insurance as described in this section and shall require all of its subcontractors, consultants, and other agents to do the same.

12.2. Documentation of Insurance. City will not execute this agreement until it has received a complete set of all required documentation of insurance coverage. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’s obligation to provide them. Consultant shall file with City:
• Certificate of Insurance, indicating companies acceptable to City, with a Best's Rating of no less than A:VII showing. The Certificate of Insurance must include the following reference: informational materials for ballot measure. • Documentation of Best’s rating acceptable to the City. • Original endorsements effecting coverage for all policies required by this Agreement.
• City reserves the right to obtain a full certified copy of any Insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to exercise later.

12.3. Coverage Amounts. Insurance coverage shall be at least in the following minimum amounts:
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12.4. General Liability Insurance. Commercial General Liability Insurance shall be no less broad than ISO form CG 00 01. Coverage must be on a standard Occurrence form.

Claims-Made, modified, limited or restricted Occurrence forms are not acceptable.

12.6. Automobile Liability Insurance. Covered vehicles shall include owned if any, nonowned, and hired automobiles and, trucks.

12.7. Professional Liability Insurance or Errors & Omissions Coverage. The deductible or self-insured retention may not exceed $50,000. If the insurance is on a Claims-Made basis, the retroactive date shall be no later than the commencement of the work. 3 - 44
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12.11. Notices. Contractor shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self-insured retention is increased. Consultant shall provide no less than 30 days’ notice of any cancellation or material change to policies required by this Agreement. Consultant shall provide proof that cancelled or expired policies of insurance have been renewed or replaced with other policies providing at least the same coverage. Such proof will be furnished at least two weeks prior to the expiration of the coverages. The name and address for Additional Insured Endorsements, Certificates of Insurance and Notices of Cancellation is: City of South 3 - 45
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Pasadena, Attn: Angelica Frausto-Lupo, Community Development Director, South Pasadena, CA 95945.

13. MUTUAL COOPERATION

14. NOTICES
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If to City
Angelica Frausto-Lupo,
Community Development Director
City of South Pasadena
1414 Mission Street
South Pasadena, CA 91030
Telephone: (626) 403-7222
Facsimile: (626) 403-7241
If to Consultant
Ryder Todd Smith,
President
Tripepi Smith
P.O. Box 52152
Irvine, CA
(626) 536-2173
With courtesy copy to:

Roxanne Diaz
South Pasadena City Attorney
Richards, Watson & Gershon
350 South Grand Avenue, 37th Floor
Los Angeles, CA 90071
Telephone: (213) 626-8484
Facsimile: (213) 626-0078

15. SURVIVING COVENANTS
The parties agree that the covenants contained in paragraph 5.11 (Records), paragraph

10.4 (Indemnification of CalPERS Determination), Section 11 (Indemnity), paragraph

16. TERMINATION

16.1. City Termination. City may terminate this Agreement for any reason on five calendar days’ written notice to Consultant. Consultant agrees to cease all work under this Agreement on or before the effective date of any notice of termination. All City data, documents, objects, materials or other tangible things shall be returned to City upon the termination or expiration of this Agreement.
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16.2. Consultant Termination. Consultant may terminate this Agreement for a material breach of this Agreement upon 30 days’ notice.

16.4. Remedies. City retains any and all available legal and equitable remedies for Consultant’s breach of this Agreement.

17. INTERPRETATION OF AGREEMENT

17.1. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California.

17.5. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then such term or provision shall be amended to, and solely to the extent necessary to, cure such invalidity or unenforceability, and shall be enforceable in its amended form. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 3 - 48
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18. GENERAL PROVISIONS

18.4. Binding on Successors. This Agreement shall be binding on the successors and assigns of the parties.

18.5. No Third-Party Beneficiaries. Except as expressly stated herein, there is no intended third-party beneficiary of any right or obligation assumed by the parties.

18.6. Time of the Essence. Time is of the essence for each and every provision of this Agreement.

18.7. Non-Discrimination. Consultant shall not discriminate against any employee or applicant for employment because of race, sex (including pregnancy, childbirth, or related medical condition), creed, national origin, color, disability as defined by law, disabled veteran status, Vietnam veteran status, religion, age (40 and above), medical condition (cancer-related), marital status, ancestry, or sexual orientation. Employment actions to which this provision applies shall include, but not be limited to, the 3 - 49
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TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. “City”
City of South Pasadena
By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
“Consultant”
Tripepi Smith
By:________________________________
Signature
Printed:_____________________________
Title:_______________________________
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Date:______________________
Date:______________________
Attest:

By:__________________________________
Amber Tarif
Deputy City Clerk
Date:________________________

Approved as to form:

By:__________________________________
Roxanne Diaz, City Attorney

Date:________________________

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Exhibit A: Scope of Services
Tripepi Smith will develop impartial informational materials and conduct outreach for ballot measure. Scope of services includes the following items:
• Conduct a kickoff meeting with City Staff;
• Conduct bi-weekly check in calls with City Staff;
• Create a four-page brochure explaining the policy and related legal matters and state mandates generating the need to modify height-limit restrictions in the City; • Create a web page on City website with background and information on the policy need and related information for the community;
• Create frequently asked questions;
• Develop 5 social media posts that explain a part of the housing element and direct people to the web page to learn more;
• Host a Zoom-based Q&A session with key City Staff to discuss the policy issue. Promote the Zoom meeting, record it and make it available online; • Collaborate with FM3, City Attorney, and City Staff on the ballot title, ballot language and review of the survey results;
• Assist the City with a press release on the Resolution to declare a ballot measure and one release on key community outreach efforts;
• Craft two stories for City use on email or magazines to share updated with the community; and
• One postcard design for mailer to community to inform them about the issue and direct them to web resources (fees for postage and printing paid by City directly to preferred print shop).
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Exhibit B: Fee Schedule
Flat fee: $29,600
Payment Schedule: 33.33% of total agreed to fees invoiced at the end of the month in April, May, and June.
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South Pasadena City CouncilApril 24, 2024

South Pasadena City Council
April 24, 2024