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AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
FAIRBANK, MASLIN, MAULLIN, METZ & ASSOCIATES
This Agreement for Services (“Agreement”) is entered into as of this 5 day of September, 2022 by and between the City of Ca thedral City, a muni cipal corporation (“City”) and Fairbank, Maslin, Maullin, Metz & Associates, a California S Corporation (“Contractor”). City and Contractor are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
A. City has sought, by direct negotia tion the performance of the services defined and described particularly in Section 2 of this Agreement.
B. Contractor, following submission of a proposal for the performance of the services defined and described particularly in Section 2 of this Agreement, was selected by the City to perform those services.
C. The Parties desire to formalize the selection of Contractor for performance of those services defined and described particu larly in Section 2 of this Agreement and desire that the terms of that performance be as particularly defined and described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained here and other consideration, the value and adequacy of which are hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 20 "Termination of Ag reement" of this Agreement, the Term of this Agreement is for six (6) months commencing on September 5, 2022.
SECTION 2. SCOPE OF SERVIC ES & SCHEDULE OF PERFORMANCE.
Contractor agrees to perform the servic es set forth in Exhibit “A” “Scope of Services” (hereinafter, the “Services”) and made a part of this Agreement by this reference. The Services shall be completed pursuant to the schedule specified in Exhibit “A.” Should the Services not be completed pursuant to that schedule, the Service Provider shall be deemed to be in Default of this Agr eement. The City, in its sole discretion, may choose not to enforce the Default provisio ns of this Agreement and may instead allow Service Provider to continue performing the Services.
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SECTION 3. ADDITIONAL SERVICES.
Contractor shall not be compensated for any work rendered in connection with its performance of this Agreement that are in addi tion to or outside of the Services unless such additional services are authorized in adv ance and in writing in accordance with Section 26 “Administration and Implementation” or Sect ion 28 “Amendment” of this Agreement. If and when such additional work is authorized, such additional work shall be deemed to be part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Contractor the amounts specified in Exhibit “B” “Compensation” and made a part of this Agreement by this reference. The total compensation, including reimbursement for actual expenses, shall not exceed seventy-thousand dollars ($70,000.00), unless additional compensation is approved in writing in acco rdance with Section 26 “Administration and Implementation” or Section 28 “Amendment” of this Agreement. (b) Each month Contractor shall furnish to City an original invoice for all work performed and expenses incurred dur ing the preceding month. The invoice shall detail charges by the following categories: labor (by sub-category), travel, materials, equipment, supplies, and subcontractor contracts. Subc ontractor charges sha ll be detailed by the following categories: labor, travel, materials, equipment and supplies. If the compensation set forth in subsection (a) and Ex hibit “B” include payment of labor on an hourly basis (as opposed to labor and material s being paid as a lump sum), the labor category in each invoice shall include detai led descriptions of task performed and the amount of time incurred for or allocated to that task. City shall independently review each invoice submitted by the Contractor to determine whether the work performed and expenses incurred are in compliance with the provisions of this Agreement. In the event that no charges or expenses are disput ed, the invoice shall be approved and paid according to the terms set forth in subsection (c). In the event any charges or expenses are disputed by City, the original invoice s hall be returned by City to Contractor for correction and resubmission.
(c) Except as to any charges for work performed or expenses incurred by Contractor which are disputed by City, City will use its best efforts to cause Contractor to be paid within thirty (30) days of receipt of Contractor’s correct and undisputed invoice. (d) Payment to Contractor for work perf ormed pursuant to this Agreement shall not be deemed to waive any defects in work performed by Contractor.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Contractor’s work under this Agreement, either during performance or when co mpleted. City shall reject or finally accept Contractor’s work within sixty (60) days after submitted to City . City shall reject work by a timely written explanation, otherwise Contractor’s work shall be deemed to have been accepted. City’s acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any - 3 -
of Contractor’s work by City shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, Section 16 “Indemnification” and Section 17 “Insurance.”
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other docu ments prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such original maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any maps, models, designs, drawings, phot ographs, studies, surveys, reports, data, notes, computer files, files or other documents prepared, developed or discovered by Contractor in the course of providing the Services pursuant to this Agreement, Contractor’s guarantees and warranties in Section 9 “Standard of Performance” of this Agreement shall not extend to such use of the maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other documents.
All final work product developed by Contractor in the course of providing the Services pursuant to this Agreement shall become the sole property of City and may be used, reused or otherwise disposed of by City without the permission of the Contractor. Upon completion, expiration or termination of this Agreement, Contractor shall turn over to City all such final work product if paid for by the City. This provision specifically excludes Contractors’ work notes and drafts, which are owned by Contractor, not City.
SECTION 7. CONTRACTOR'S BOOKS AND RECORDS.
(a) Contractor shall maintain any and all documents and records demonstrating or relating to Contractor’s performance of t he Services. Contractor shall maintain any and all ledgers, books of account, invoices , vouchers, canceled checks, or other documents or records evidencing or relating to the Services, including expenditures and disbursements charged to City pursuant to this Agreement. Any and all such documents or records shall be maintained in acco rdance with generally accepted accounting principles and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the services pr ovided by Contractor pursuant to this Agreement. Any and all such documents or records shall be main tained for three (3) years from the date of execution of this Agreement and to the extent required by laws relating to audits of public agencies and their expenditures. In accor dance with California Government Code Section 8546.7, if the total compensation in Section 4 exceeds ten thousand dollars ($10,000.00), this Agreement a nd the Contractor's books and records related to this Agreement shall be subject to the examinat ion and audit of the State Auditor, at the - 4 -
request of City or as part of any audit of the City, for a period of three (3) years after final payment under the Agreement.
(b) Any and all records or documents requi red to be maintained pursuant to this section shall be made available for inspec tion, audit and copying, at any time during regular business hours, upon request by City or its designated representative. Copies of such documents or records shall be provided directly to the City for inspection, audit and copying when it is practical to do so; otherwise, unless an alte rnative is mutually agreed upon, such documents and records shall be m ade available at Contractor’s address indicated for receipt of notices in this Agreement.
(c) Where City has reason to believe that any of the documents or records required to be maintained pursuant to this section may be lost or discarded due to dissolution or termination of Contractor’s business, City may, by written request, require that custody of such documents or record s be given to the City. Access to such documents and records shall be granted to City, as well as to its successors-in-interest and authorized representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Contractor is and shall at all time s remain a wholly independent contractor and not an officer, employee or agent of City. Contractor shall have no authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on behalf of or against City, whether by contract or otherwise.
(b) The personnel performing the Servic es under this Agreement on behalf of Contractor shall at all times be under Contractor’s exclusive direction and control. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall have control over the conduct of Contra ctor or any of Contractor’s personnel.
Contractor shall not at any time or in any manner represent that C ontractor or any of Contractor’s personnel are in any manner officials, officers, or employees of City. (c) Neither Contractor, nor any of Cont ractor’s personnel shall obtain any rights to retirement, health care or any other benefits which may otherwise accrue to City’s employees. Contractor expressly waives an y claim Contractor, its officers, employees, agents or subcontractors, may have to any such rights. Contractor’s indemnity obligations in Section 16 “Indemnification” of this Agreement incl ude the obligation to indemnify the City from and against any liabilit y that may arise rela ted to claims that Contractor, its officers, employees, agents or subcontractors, are ent itled to retirement, health care or any other benefits that accrue to City employees. This provision shall survive the expiration or earlier termination of this Agreement.
SECTION 9. STANDA RD OF PERFORMANCE.
Contractor represents and wa rrants that it has the qual ifications, experience and facilities necessary to properly perform the Services requi red under this Agreement in a thorough, competent and professi onal manner. Contractor sha ll at all times faithfully, competently and to the best of its ability, exper ience and talent, perform all Services. In meeting its obligations under this Agreement, Contractor shall employ, at a minimum, - 5 -
generally accepted standards and practices ut ilized by persons engaged in providing services similar to the Services required of Contractor under this Agreement. In addition to the general standards of performance set forth this se ction, additional specific standards of performance and performance criteria may be set forth in Exhibit “A” “Scope of Work” that shall also be applicable to Contractor’s work under this Agreement. Where there is a conflict between a general an d a specific standard of performance or performance criteria, the specific standard or criteria shall prevail over the general.
SECTION 10. COMPLIANCE WITH APPLI CABLE LAWS; PERMITS AND LICENSES.
Contractor shall keep itself informed of and comply with all applicable federal, state and local laws, statutes, codes, ordinances, regulations and rules in effect during the term of this Agreement. Contractor shall obtain any and all li censes, permits and authorizations necessary to perform the Servic es set forth in this Agreement. Neither City, nor any elected or appointed boards, officers, officials, employees or agents of City, shall be liable, at law or in equit y, as a result of any failure of Contractor to comply with this section.
SECTION 11. PREVAI LING WAGE LAWS
It is the understanding of City and Contractor that California prevailing wage laws do not apply to this Agreement because the Agreement does not involve any of the following services subject to prevailing wage rates pursuant to the California Labor Code or regulations promulgated ther eunder: Construction, alteration, demolition, installation, or repair work performed on public buildings, facilities, streets or sewers done under contract and paid for in whole or in part out of public funds. In this context, “construction" includes work performed during the design and preconstruction phases of construction including, but not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Contractor shall not discrim inate, in any way, against any person on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic in formation, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status in connection with or related to the performance of this Agreement.
SECTION 13. UNAUTHORIZED ALIENS.
Contractor hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act, 8 U. S.C.A. §§ 1101, et se q., as amended, and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Contractor so employ such unauthorized aliens for the performance of the Services, and should the any liability or sanctions be imposed against City for such use of unauthorized aliens, Contractor hereby agrees to and shall reimburse City for the cost of all such liabilities or sanctions imposed, together with any and all costs, including attorneys' fees, incurred by City.
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SECTION 14. CONFLICTS OF INTEREST.
(a) Contractor covenants that neither it, nor any officer or principal of its firm, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contractor’s performance of the Services. Contractor further covenants that in the performance of this Agreement, no person having any such interest shall be empl oyed by it as an officer, employee, agent or subcontractor without the express written consent of the City Manager. Contractor agrees to at all times avoid conflicts of in terest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. (b) City understands and acknowledges that Contractor is, as of the date of execution of this Agreemen t, independently involved in the performance of non-related services for other governmental agencies and pr ivate parties. Contractor is unaware of any stated position of City relative to such pr ojects. Any future position of City on such projects shall not be considered a conflict of interest for purposes of this section. (c) City understands and acknowledges that Contractor will perform non- related services for other governmental agencies and private Parties following the completion of the Services under this Agreem ent. Any such future service shall not be considered a conflict of interest for purposes of this section.
SECTION 15. CONFIDENTIAL INFORMAT ION; RELEASE OF INFORMATION. (a) All information gain ed or work product produced by Contractor in performance of this Agreement shall be considered confidential, unless such information is in the public domain or al ready known to Contractor. C ontractor shall not release or disclose any such information or work produc t to persons or entities other than City without prior written authorization from the City Manager, except as may be required by law.
(b) Contractor, its officers, employees , agents or subcontractors, shall not, without prior written authorization from the City Manager or unless requested by the City Attorney of City, voluntarily provide dec larations, letters of support, testimony at depositions, response to interrogatories or other information concerning the work performed under this Agreement. Response to a subpoena or court order shall not be considered "voluntary" provi ded Contractor gives City not ice of such court order or subpoena.
(c) If Contractor, or any officer, employ ee, agent or subcontractor of Contractor, provides any information or work product in vi olation of this Agreement, then City shall have the right to reimbursem ent and indemnity from Contra ctor for any damages, costs and fees, including attorney's fees, caused by or incurred as a result of Contractor’s conduct.
Contractor shall promptly notify City s hould Contractor, its officers, employees, agents or subcontractors, be served with any summons, complaint, subpoena, notice of deposition, request for document s, interrogatories, request for admissions or other discovery request, court order or subpoena from any party regarding this Agreement and - 7 -
the work performed thereunder. City retains the right, but has no obligation, to represent Contractor or be present at any deposition, hearing or sim ilar proceeding. Contractor agrees to cooperate fully with City and to prov ide City with the opportunity to review any response to discovery requests provided by Contractor. However, this right to review any such response does not imply or mean the right by City to cont rol, direct, or rewrite said response. Contractor shall not be held crimi nally or civilly liabl e under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law or for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
SECTION 16. INDEMNIFICATION.
(a) Indemnification for Professional Liab ility. Where the law establishes a professional standard of care for Contractor’s services, to the fullest extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City and any and all of its officials, employees and agents (“Indemnified Parties”) from and against any and all liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, ex penses or costs of any kind, whether actual, alleged or threatened, including attorne ys’ fees and costs, court costs, interest, defense costs, and expert witness fees) arise out of, are a consequence of, or are in any way attributable to, in whole or in part, any negligent or wrongful act, error or omission of Contractor, or by any individua l or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor, in the performance of professional services under this Agreement. (b) Indemnification for Other than Profe ssional Liability. Other than in the performance of professional serv ices and to the full extent permitted by law, Contractor shall indemnify, protect, defend and hold harmless City, and any and all of its employees, officials and agents from and against any liabili ty (including liability for claims, suits, actions, arbitration proceedings, administr ative proceedings, regulatory proceedings, losses, expenses or costs of any kind, w hether actual, alleged or threatened, including attorneys’ fees and costs, court costs, interest, defense costs, and expert witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contractor, or by any individual or entity for which Contractor is legally liable, including but not limited to officers, agents, employees or subcontractors of Contractor.
(c) Indemnification from Subcontractors. Contractor agrees to obtain executed indemnity agreements with provisions identical to those set forth in this section from each and every subcontractor or any other person or entity involv ed by, for, with or on behalf of Contractor in the performance of this Agreement naming the I ndemnified Parties as additional indemnitees. In the event Contractor fails to obtain such indemnity obligations from others as required herein, Contractor agrees to be fully responsible according to the terms of this section. Failure of City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend City as set forth herein is binding on - 8 -
the successors, assigns or heirs of Contractor and shall survive the termination of this Agreement or this section.
(d) City’s Negligence. The provisions of this section do not apply to claims occurring as a result of City’s sole negligence. The provisions of this section shall not release City from liability arising from gross negligence or willful acts or omissions of City or any and all of its officials, employees and agents.
SECTION 17. INSURANCE.
Contractor agrees to obtain and maintain in full force and effect during the term of this Agreement the insurance policies set forth in Exhibit “C” “Insurance” and made a part of this Agreement. All insurance policies shal l be subject to approval by City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. Contractor agrees to provide City with copies of required policies upon request.
SECTION 18. ASSIGNMENT.
The expertise and experience of Contractor are material considerations for this Agreement. City has an interest in the qual ifications and capability of the persons and entities who will fulfill the duties and oblig ations imposed upon Contractor under this Agreement. In recognition of that interest, Contractor shall not assign or transfer this Agreement or any portion of th is Agreement or t he performance of any of Contractor’s duties or obligations under this Agreement without t he prior written consent of the City.
Any attempted assignment shall be ineffect ive, null and void, and shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of th is Agreement pursuant to Section 20 “Termination of Agreement.” City acknowledges, however, t hat Contractor, in the performance of its duties pursuant to this Agreement, may utilize subcontractors.
SECTION 19. CONTINUITY OF PERSONNEL.
Contractor shall make ever y reasonable effort to ma intain the stability and continuity of Contractor’s staff and subcontractors, if any, assigned to perform the Services. Contractor shall notify City of any changes in Contractor’s staff and subcontractors, if any, assigned to perform the Services prior to and during any such performance.
SECTION 20. TERMINAT ION OF AGREEMENT.
(a) City may terminate this Agreement, wi th or without cause, at any time by giving thirty (30) days written notice of termination to Contractor. In the event such notice is given, Contractor shall cease immediately all work in progress. (b) Contractor may terminate this Agreem ent for cause at any time upon thirty (30) days written notice of termination to City.
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(c) If either Contractor or City fail to perform any material obligation under this Agreement, then, in addition to any other re medies, either Contractor, or City may terminate this Agreement immediately upon written notice. (d) Upon termination of this Agreement by either Contractor or City, all property belonging exclusively to City which is in Contractor’s possession shall be returned to City.
Contractor shall furnish to City a final invoice for work performed and expenses incurred by Contractor, prepared as set forth in Section 4 “Compensation and Method of Payment” of this Agreement. This final invoice s hall be reviewed and paid in the same manner as set forth in Section 4 “Compensation and Method of Payment” of this Agreement.
SECTION 21. DEFAULT.
In the event that Contractor is in def ault under the terms of this Agreement, the City shall not have any obligation or duty to continue compensating Contractor for any work performed after the date of default. Instead, the City may give notice to Contractor of the default and the reasons for the default. The notice shall include the timeframe in which Contractor may cure the default. This timeframe is presumptively thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During the period of time that Contractor is in default, the City shall hold all invoices and shall, when the default is cured, proceed with payment on the invo ices. In the alternative, the City may, in its sole discretion, elect to pay some or all of the outstanding invoices during the period of default. If Contractor does not cure the default, the City may take necessary steps to terminate this Agreement under Section 20 “Termination of Agreement.” Any failure on the part of the City to give notice of the Contractor’s default shall not be deemed to result in a waiver of the City’s l egal rights or any rights arising out of any provision of this Agreement.
SECTION 22. EXCUSABLE DELAYS.
Contractor shall not be li able for damages, including liq uidated damages, if any, caused by delay in performance or failure to perform due to causes beyond the control of Contractor. Such causes include, but are not limited to, acts of God, acts of the public enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods, epidemics, strikes, embargoes, and unusually severe weather. The term and price of this Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 23. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to City as public records, and which are necessary for carrying out the Services shall be furnished to Contractor in every reasonable way to facilitate, without undue delay, the Services to be performed under this Agreement.
SECTION 24. NOTICES.
All notices required or permitted to be gi ven under this Agreement shall be in writing and shall be personally delivered, or sent by certified mail, postage prepaid and return receipt requested, addressed as follows:
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To City: City of Cathedral City
Attn: City Clerk
68700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Contractor: Fairbank, Maslin, Maullin,Metz & Associates Attn: Richard Bernard, Ph.D.
1999 Harrison St., Suite 2020
Oakland, CA 94612
Notice shall be deemed effective on the da te personally delivered or, if mailed, three (3) days after deposit of the same in the custody of the United States Postal Service.
SECTION 25. AUTHORITY TO EXECUTE.
Each of the signatories hereto represents and warrants that he or she is competent and authorized to enter into this Agreement on behalf of the Party for whom he or she purports to sign. Each Party hereto agrees to defend, indemnify, and hold harmless the other Parties hereto against all claims, suits, actions, and demands, including necessary expenses of investigation and reasonable attorneys' fees and costs, arising out of claims that its signatory was not competent or so authorized to execute this Agreement.
SECTION 26. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her designated representative. The City Manager shall have the authority to issue interpretations and to make amendments to this Agreement, including amendments that commit additional funds, consistent with Section 28 “Amendment” and the City Manager’s contracting authority under t he City of Cathedral City Municipal Code and its adopted policies and procedures.
SECTION 27. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the Parties.
SECTION 28. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in writing and approved by the Contractor and by the City. The City Manager shall have the authority to approve any amendment to this Agreement if it does not exceed the amount that may be approved administratively pursuant to the City Municipal Code. The Parties agree that the requirement fo r written modifications cannot be waived and that any attempted waiver shall be void. The City’s City Manager may, but is not required to, make minor amendments not affecting substantive terms without further authorization from the City Council. The City Council hereby authorizes the City Manager to execute any such amendments as required by this Agreement or that do not otherwise reduce City’s rights - 11 -
under this Agreement. All other amendments shall be approved by the City Council.
SECTION 29. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by any Party of any breach of the provisions of this Agreement shall not constitute a waiver of any other provisio n nor a waiver of any subsequent breach or violation of any provision of this Agreement. Acceptance by City of any work by Contractor shall not constitute a waiver of any of the provisions of this Agreement.
SECTION 30. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of the State of California. In the ev ent of litigation between the Parties, venue in state trial courts shall lie excl usively in the County of Riversid e, California. In the event of litigation in a U.S. District Court, venue shall lie exclusivel y in the Central District of California, in Riverside.
SECTION 31. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any provision of this Agreement, the prevailing Party in such litigation or other proceeding shall be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any other relief to which it may be entitled.
SECTION 32. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire, complete, final and exclusive expression of the Parties with res pect to the matters addressed therein and supersedes all other agreements or understandings, whether oral or written, or entered into between Contractor and City prio r to the execution of this Agreement. No statements, representations or other agreements, whether oral or written, made by any Party which are not embodied herein shall be valid and binding.
SECTION 33. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any court of competent jurisdiction to be in valid, void or unenforceable, the remaining provisions of this Agreem ent shall not be affected ther eby and the Agreement shall be read and construed without the invalid, void or unenforceable provision(s). - 12 -
SECTION 34. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the terms of any Exhibit hereto, or with the terms of any document incorporated by reference into this Agreement, the terms of this Agreement shall control.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first-above written.
[SIGNATURES ON FOLLOWING PAGE]
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CITY OF CATHEDRAL CITY
___________________________
Charlie McClendon
City Manager
ATTEST:
___________________________
Tracey R. Martinez
City Clerk
APPROVED AS TO FORM
_______________________________
Eric Vail
City Attorney
Fairbank, Maslin, Maullin, Metz &
Associates
____
Richard Bernard, Ph.D., Partner
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EXHIBIT "A"
SCOPE OF SERVICES
Focus Groups
Contractor shall begin the project by conducting qualitative research in the form of three (3) online focus groups as part of the Cathedral City Community Education and Outreach study. Contractor shall conduct one group each among the following three (3) populations:
Spanish-speaking Latino residents;
Seniors; and
Residents from an underserved geographi c area identified by the City The focus group process will take approximatel y 6 weeks from kick-off. The consultant will recruit approximately 11 residents for 8 re sidents to participate online. The specific steps are outlined below in the timeline. After the conclusion of all focus group research components, Contractor would remain available for ongoing consultation and any further analysis and presentation of the research as needed. Contractor will then use the focus group findings to help inform the proposed survey.
Weeks 1 - 2
Authorization to proceed
Review necessary background material s and input from partner organizations Kick-off meeting/confirmation of research specifications Determine screening criteria for the focus groups
Draft, refine, and finalize focus group screener
Translate focus group screener
Begin recruiting focus groups
Weeks 3 - 4
Draft, refine, and finalize focus group m oderator’s guide and any collateral to be presented in the focus groups
Translate moderator’s guide
Begin conducting focus groups
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Weeks 5 - 6
Finish conducting focus groups
Provide key findings from focus groups
Reporting and Deliverables
Upon conclusion of the Focus Group portion of the project, the City will receive from Contractor each of the following documents:
1. Screener Questionnaire;
2. Moderator Guide;
3. Transcripts from t he focus group discussion; and
4. A PowerPoint Report of Key Findings.
All documents can be provided in hard copy or electronic form (or both), depending on the City’s preference.
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Survey
The entire process shall take six to nine w eeks from kick-off meeting, as shown below.
Some of the survey research work can be conducted simultaneously to the work being conducted for the focus groups discussed above. At the conclusion, Contractor will remain available for ongoing consultation and any further analysis and presentation of the research, as needed.
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Contractor shall conduct a community surv ey to assess general attitudes of residents toward City services and programs, determine resident concerns, priorities and views on local issues, assess policy issues and pr oposals, and measure support and opposition for potential revenue options.
Phase 1 – Research Design
Sample Preparation
Contractor will construct a sample survey (“sample”) by randomly selecting addresses from a list of all residential addresses in the City. Contractor will analyze the sample and select which contact method to use for each address.
While the Contractor is acquiring and preparing the sample, Contractor will also establish demographic and geographic quotas of City residents ages 18+ using data provided by the U.S. Census Bureau. Contractor wi ll use those quotas and voter registration information as necessary during the data coll ection phase to ensure the final sample reflects the City’s overall adult population demographics, including age, gender, ethnicity/race, LGBTQ, registered voters, and homeownership.
Questionnaire Design
The Contractor shall hold an initial kickoff meeting between the Contractor and City staff members assigned to this proj ect, for a comprehensive discussi on of the topics the City would like to address, including major issues or challenges that should be explored in the survey.
Contractor will present a first draft of the survey to the City for review and comment. Once approved, the survey shall be translated into Spanish.
In addition, the survey instrument will gather relevant demographic information to allow for the analysis of responses by gender, age, race/ethnicity, LGBTQ, language of interview, education, homeownership, voter registration and other relevant demographic groupings.
Contact Method Preparation
Because subsets of the sample will be invited to take the survey online, Contractor will create initial drafts of email an d text invitations for the City’s review. The invitations will include the City seal, with a note explaini ng the City has hired an independent public opinion research firm to conduct a survey about local issues that are relevant to City residents, and will be electronically signed by the City Manager.
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Phase 2 – Data Collection
Online Interviews
Based upon the final sample specifications , Contractor will set a target number of interviews to be completed online and constr uct an estimate of how many of those respondents are likely to take the survey online after receiving an email invitation.
Contractor shall estimate the email invitation response rate based upon your community's demographics and send out invitation emails to a random selection of email addresses from the sample sufficient to achieve the ta rget number of online completes from email invitations. Contractor will send out a number of text message invitations to help reach the overall target number of online completes and complement the email contact method.
Telephone Interviewing
Within a week of the initial distribution of email and text messages, Contractor will compare the demographic and geographic characteristics of the online completes against our Census-derived quotas and begin conducting telephone interviews to balance out the sample and target underrepresented subgroups. Telephone interviewing is conducted on various days (weekdays and weekends) and ti mes (evenings on the weekdays and Sunday, late morning to the afternoon on Saturday and Sunday) and Contractor employs a system of call-backs (including booking appointments for those unable to complete the survey at the time they were first contac ted) to provide the gr eatest opportunity to participate as well as increase the survey yield.
Pre-test and Data Quality Control Monitoring
Once approved for fielding, the survey will be pre-tested with a sufficient number of respondents to assure ease of administration and flow. Such testing will also verify the length of the questionnaire and the clarity and comprehensibility of survey questions. The results of the pre-test will be reviewed with City staff to determine whether any adjustments need to be made before interviewing proceeds.
Throughout the data collection phase, the C ontractor’s Project Manager and Statistical Analyst will review responses daily to ensure data and sample integrity.
Phase 3 – Data Analysis and Reporting
Data Analysis
All survey responses will be analyzed by C ontractor’s Data Processing and Analysis Department staff using custom ized installations of Survey System and SAS software, both well documented and widely used dat a analysis software packages. Open-ended responses, if included in the survey questi onnaire, will be further reviewed, coded, and
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grouped into thematic categories. These resu lts will show the overall percentage of respondents who chose each answer option for all survey questions.
Contractor will complete a comprehensive se t of cross-tabulated results. The cross- tabulated results include a table for each question or demographic variable in the survey, with a series of up to 180 columns indi cating how various subgroups of residents responded to that question. The cross-tabulated results will make it possible to detect how responses differ, if at all, among various subsets of the sample.
Reporting and Deliverables
Contractor will review the preliminary survey results and data with City staff and generate a detailed PowerPoint and written report of the survey results, including demographic breakouts and summaries of key findings, conc lusions, and recommendations – first in draft form for the City’s review and input and provided within 30 days of the survey’s completion – before producing the final report.
Contractor will present the results to City staff for review and approval and in a public meeting to the City Council and other key stakeholders requested at the City’s convenience. Contractor will provide additional data analysis and develop summary memos or more focused presentations or reports to clarify survey re sults after the initial presentation, as requested by the City.
Upon the conclusion of the survey project, the City will receive from Contractor each of the following documents:
1. Final Survey Questionnaire;
2. Topline Survey Results;
3. A complete set of cross-tabulated results in an easy to read, comprehensive format (responses to every survey question, broken down by dozens of demographic, geographic and attitudinal subgroups of the electorate);
4. Verbatim responses to any open-ended questions;
5. PowerPoint presentation and written report (an analysis of survey results, including a detailed report of topline and demog raphic results, key survey findings, conclusions and actionable recommendations);
6. In-person presentation of results to City staff, elected officials and other stakeholders; and
7. Raw data from the survey in electronic fo rm for any future analysis the City would like to conduct internally.
All documents can be provided in hard copy or electronic form (or both), depending on the City’s preference.
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EXHIBIT "B"
COMPENSATION
The Contractor shall conduct three (3) focus groups and a 20-minute survey, with a sample of 500 adult residents for a total co st not to exceed seventy thousand dollars ($70,000.00), including travel costs. The focus groups will be conducted for a cost not to exceed twenty nine thousand seven hundred fifty dollars ($29,750.00) and the survey will be conducted for a cost of not to exceed forty thousand two hundred thousand fifty thousand dollars ($40,250.00).
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EXHIBIT "C"
INSURANCE
A. Insurance Requirements. Contractor shall provide and maintain insurance, acceptable to the City, in full force and e ffect throughout the term of this Agreement, against claims for injuries to persons or damages to property which may arise from or in connection with the performance of t he Services by Contractor, its agents, representatives or employees. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
Contractor shall provide the follow ing scope and limits of insurance:
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) Commercial General Liability. Insurance Services Office form Commercial General Liability coverage (Occurrence Form CG 0001).
(2) Automobile. Insurance Se rvices Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to the written approval of the City.
(3) Workers’ Compensation. Workers' Compensation insurance as required by the Labor Code of State of California covering all persons providing Services on behalf of the Contractor and all risks to such persons under this Agreement.
2. Minimum Limits of Insurance. Contractor shall maintain limits of insurance no less than:
(1) Commercial General Liability. One million dollars
($1,000,000) general aggregate for bodily injury, personal injury and property damage.
(2) Automobile. Automobile bodily injury and property damage liability insurance, the limits of which shall not be less than one million dollars ($1,000,000) combined single limit per occurrence, whichever is greater. Such insurance shall extend to owned, non-owned and hired aut omobiles used by Contractor in performance of this contract.
(3) Workers' Compensation. Workers' Compensation as required by the Labor Code of the State of California of not less than $1,000,000 per occurrence.
B. Other Provisions. Insurance polic ies required by this Agreement shall contain the following provisions:
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1. All Policies. Each insurance policy required by this Agreement shall be endorsed and state the coverage shall not be suspended, voided, cancelled by the insurer or either Party to this Agreement, reduced in coverage or in limits except after 30 days' prior written notice by certified mail , return receipt reques ted, has been given to City.
2. Commercial General Liability and Automobile Liability Coverages.
(1) City, and its respective elected and appointed officers, officials, and employees and volunteers are to be covered as additional insureds as respects: liability arising out of activiti es Contractor performs; products and completed operations of Contractor; premises owned, occupied or used by Contractor; or automobiles owned, leased, hired or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, and their respective elected and appointed officers, officials, or employees.
(2) Contractor’s insurance coverage shall be primary insurance with respect to City, and its respective el ected and appointed, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by City, and its respective elected and appointed officers, officials, employees or volunteers, shall apply in excess of, and not contribute with, Contractor’s insurance.
(3) Contractor’s insurance s hall apply separately to each insured against whom claim is made or su it is brought, except with respect to the limits of the insurer's liability.
(4) Any failure to comply with the reporting or other provisions of the insurance policies, including breaches of warranties, shall not affect coverage provided to City, and its respective elected and appointed officers, officials, employees or volunteers.
3. Workers' Compensation Co verage. Unless the City Manager otherwise agrees in writing, the insurer s hall agree to waive all rights of subrogation against City, and its respective elected and appointed officers, officials, employees and agents for losses arising from work performed by Contractor.
C. Other Requirements. Contractor agrees to deposit with City, at or before the effective date of this Agreement, certificat es of insurance necessary to satisfy City that the insurance provisions of this contract have been complied with. The City may require that Contractor furnish City with copies of original endorsements effecting coverage required by this Exhibit “C”. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on it s behalf. City reserves the right to inspect complete, certified copies of all required insurance policies, at any time.
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1. Contractor shall furnish ce rtificates and endor sements from each subcontractor identical to those Contractor provides.
2. Any deductibles or self-insur ed retentions must be declared to and approved by City. At the option of City, either the insurer shall reduce or eliminate such deductibles or self-insured retentions as res pects City or its respective elected or appointed officers, officials, employees and volunteers, or the Contractor shall procure a bond guaranteeing payment of losse s and related investigations, claim administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall not be construed to limit Contractor’s liabilit y hereunder nor to fulfil l the indemnification provisions and requirements of this Agreement.