AGREEMENT FOR PROFESSIONAL SERVICES
This agreement ("Agreement") entered into this 16th day of January, 2024, is between the City of Marysville, a charter city and municipal corporation of the State of California located at 526 C Street, Marysville, CA 95901, ("City") and William Barry Campaigns, with its primary office located at 967 Jenooke Lane, Chico, CA 95926 ("Consultant").
RECITALS
1. The City has determined it is necessary and desirable to secure certain technical and professional services to assist with community support assessment, public engagement, community outreach and messaging materials for a potential ballot measure preparation. The scope of work for said service (hereinafter "Project") is attached hereto as "Exhibit A" and is hereby incorporated by reference; and
2. Whereas, Consultant represents it is qualified and willing to provide such services pursuant to the terms and conditions of this Agreement;
Now, therefore, it is agreed by and between City and Consultant as follows:
AGREEMENT
1. Incorporation of Recitals. The recitals set forth above, and all defined terms set forth in such recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as if set forth herein in full.
2. Scope of Service.
(a) Services to be Furnished. Subject to such policy direction and approvals as City through its staff may determine from time to time, Consultant shall perform the services set forth in Exhibit A attached hereto and incorporated herein by reference. (b) Schedule for Performance. Consultant shall perform the services identified in Exhibit A in accordance with the schedule described in Exhibit B and as expeditiously as is consistent with generally accepted standards of professional skill and care and the orderly progress of work.
(c) Standard of Quality. All work performed by Consultant under this Agreement shall be in accordance with all applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant’s field of expertise. (d) Compliance With Laws. Consultant shall comply with all applicable federal, state, and local laws, codes, ordinances, regulations, orders, and decrees. Consultant represents and warrants to City that Consultant shall, at its own cost and expense, keep in effect or obtain at all times during the term of this Agreement any licenses, permits, insurance and approvals which are legally required for Consultant to practice its profession or are necessary and incident to the due and lawful prosecution of the services it performs under this Agreement. Consultant shall maintain a City of Marysville business license. Consultant shall at all times during the term of this Agreement, and for one year thereafter, provide written proof of such licenses, permits, insurance, and approvals upon request by City. City is not responsible or liable for Consultant’s failure to comply with any or all of the requirements contained in this paragraph.
3. Compensation.
(a) Schedule of Payment. The compensation to be paid by City to Consultant for the services rendered hereunder shall be $4,500 per month, with payment of two months due upon execution of this agreement. Total compensation, including both fees and expenses, for services rendered by Consultant to City shall not exceed the $36,000. (c) Additional Services. City shall make no payment to Consultant for any extra, further, or additional services unless such services and payment have been mutually agreed to and this Agreement has been formally amended in accordance with Section 7. Consultant shall not commence any work exceeding the Scope of Services in Section 2 without prior written authorization from City.
(d) Invoicing and Payment. Consultant shall submit periodic invoices, not more frequently than monthly, for the services rendered during the preceding period. Invoices must be submitted in duplicate or electronically transmitted and must indicate the hours actually worked by describing the task(s) performed, the employee(s) performing the task(s), and the hours (or fractions of hours in tenths of an hour) spent on the task(s). The invoice shall also show all other directly related costs by line item in accordance with Exhibit C. City shall approve or disapprove the invoice within fifteen (15) calendar days following receipt thereof and shall pay all approved invoices and billings within thirty (30) calendar days. City reserves the right to withhold payment of disputed specific items and shall give notice to the Consultant, pursuant to Section 11, of all such disputed specific items within fifteen (15) business days following receipt of an invoice. The parties shall exercise good faith and diligence in the resolution of any disputed invoice amounts.
4. Product Review and Comment. Consultant shall provide City with required copies of each product described in Exhibits A and C. Upon the completion of each product, Consultant shall be available to meet with City. If additional review and/or revision is required by City, City shall conduct reviews in a timely manner.
5. Term of Agreement. This Agreement shall be effective immediately and shall remain in effect until completed, amended pursuant to Section 7, or terminated pursuant to Section 6.
6. Termination.
(a) City shall have the right to terminate this Agreement for any reason, at any time, by serving upon Consultant thirty (30) calendar days advance written notice of termination. The notice shall be deemed served and effective for all purposes on the date it is deposited in the U.S. mail, certified, return receipt requested, addressed to Consultant at the address indicated in Section
11. (b) If City issues a notice of termination:
(i) Consultant shall immediately cease rendering services pursuant to this Agreement;
(ii) Consultant shall deliver to City copies of all writings, whether or not completed, which were prepared by Consultant, its employees, or its subcontractors, if any, pursuant to this Agreement and for which Consultant has been paid in accordance with Section 6(b)(iii). The term ”writings” shall include, but not be limited to, handwriting, typewriting, computer files and records, drawings, blueprints, printing, copying, photographs, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, symbols, or combinations thereof; (iii) City shall pay Consultant for work actually performed up to the effective date of the notice of termination, subject to the limitations prescribed by Section 3 of this Agreement, less any compensation to City for damages suffered as a result of Consultant’s failure to comply with the terms of this Agreement. Such payment shall be in accordance with Exhibit C. However, if this Agreement is terminated because the work of Consultant does not meet the terms or standards specified in this Agreement, then City shall be obligated to compensate Consultant only for that portion of Consultant’s services which are of benefit to City.
7. Amendments. Modifications or amendments to the terms of this Agreement shall be in writing and executed by both parties.
8. Nondisclosure of Confidential Information. Consultant shall not, either during or after the term of this Agreement, disclose to any third party any confidential information relative to the work of City without the prior written consent of City.
9. Inspection. City representatives shall, with reasonable notice, have access to the work and work records of Consultant, including time records, for purposes of inspecting same and determining that the work is being performed in accordance with the terms of this Agreement.
10. Independent Contractor. In the performance of the services in this Agreement, Consultant is an independent contractor and is not an agent or employee of City. Consultant, its officers, employees, agents, and subcontractors, if any, shall have no power to bind or commit City to any decision or course of action, and shall not represent to any person or business that they have such power. Consultant has and shall retain the right to exercise full control of the supervision of the services and over the employment, direction, compensation, and discharge of all persons assisting Consultant in the performance of said service hereunder. Consultant shall be solely responsible for all matters relating to the payment of its employees, including compliance with social security and income tax withholding, workers' compensation insurance, and all other regulations governing such matters.
11. Notice. Any notices or other communications to be given to either party under this Agreement shall be in writing, shall be delivered to the addresses set forth below, and shall be effective, as follows:
a. by personal delivery, effective upon receipt by the addressee; b. by facsimile, effective upon receipt by the addressee, so long as a copy is provided by certified U.S. mail, return receipt requested, postmarked the same day as the facsimile; c. by certified U.S. mail, return receipt requested, effective 72 hours after deposit in the mail.
City: City of Marysville
526 C Street
Marysville, California 95901
Attn: City Manager
Phone: (530) 749-3901
Fax: (530) 749-3992
Consultant: William Berry Campaigns
967 Jenooke Lane
967 Jenooke Lane
Chico, CA 95926
Phone: (916)508-8215
Fax: (916) 553-4981
Either party may change its address for notices by complying with the notice procedures in this Section.
12. Ownership of Materials. City is the owner of all records and information created, produced, or generated as part of the services performed under this Agreement. At any time during the term of this Agreement, at the request of City, Consultant shall allow the City to inspect all writings, records, and information created or maintained pursuant to this Agreement and for which Consultant has been paid in accordance with this Agreement. The Consultant shall be allowed to retain its original work papers, provided the City may have copies thereof at its request. The term ”writings” in this Section has the same definition as provided in Section 6(b)(ii).
13. Assignment; Subcontracting; Employees.
(a) Assignment. Consultant shall not assign, delegate, or transfer its duties, responsibilities, or interests in this Agreement without the prior express written consent of City.
Any assignment without such approval shall be void and, at City’s option, shall terminate this Agreement and any license or privilege granted herein.
(b) Subcontracting. Consultant shall not subcontract or otherwise assign any portion of the work to be performed under this Agreement without the prior express written consent of City. If City consents to Consultant’s hiring of subcontractors, all subcontractors are deemed to be employees of Consultant and Consultant agrees to be responsible for their performance.
Consultant shall give its personal attention to the fulfillment of the provisions of this Agreement by all of its employees and subcontractors, if any, and shall keep the work under its control.
14. Binding Agreement. This Agreement shall bind the successors of City and Consultant in the same manner as if they were expressly named herein.
15. Waiver.
(a) Effect of Waiver. Waiver by either party of any default, breach, or condition precedent shall not be construed as a waiver of any other default, breach, or condition precedent or any other right under this Agreement.
(b) No Implied Waivers. The failure of either party at any time to require performance by the other party of any provision hereof shall not affect in any way the right to require such performance at a later time.
16. Nondiscrimination.
(a) Consultant shall not discriminate in the conduct of the work under this Agreement against any employee, applicant for employment, or volunteer because of race, color, creed, religion, national origin, sex, age, marital status, sexual orientation, medical condition, or physical or mental disability.
(b) Consultant shall comply with all federal and state anti-discrimination and civil rights laws.
(c) Consultant agrees to post in conspicuous places, available to all employees and applicants for employment, notices that Consultant shall provide an atmosphere for employees, clients, and volunteers that is free from harassment or discrimination on the bases set forth in subsection 16(a).
17. Indemnity. To the fullest extent allowed by law, Consultant specifically agrees to indemnify, defend, and hold harmless the City, its officers, agents, and employees (hereinafter collectively the "City") from and against any and all actions, claims, demands, losses, expenses (including attorneys' fees and expert witness expenses), damages, and liabilities resulting from injury or death of a person or injury to property or any other claim , arising out of or in any way connected with the performance of this Agreement, however caused regardless of any negligence of the City, whether active or passive, excepting only such claims as may be caused by the sole active negligence or willful misconduct of the City . The Consultant shall pay all costs that may be incurred by the City in enforcing this indemnity, including reasonable attorneys' fees .
Consultant shall provide indemnity to the City pursuant to this paragraph in the event the Claimant and/or the City allege conduct on Consultant's part which renders Consultant fully or partially responsible for the alleged claim or otherwise obligated to provide a defense and/or indemnity to the City. Consultant's obligations of defense and indemnity arise even if the claim is frivolous or lacking in merit. Consultant shall defend and indemnify the City pursuant to this section unless and until it is finally established by a court of law that the City's sole active negligence or willful misconduct caused the alleged claim. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this Agreement. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Consultant or its agents under workers' compensation acts, disability benefit acts or other employee benefit acts. The indemnity provisions of this section survive the termination and/or expiration of the Agreement.
Consultant's duty to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the City may be liable without fault or be strictly liable. The duty to defend applies regardless of whether the issues of negligence, strict liability, fault, default or other obligation on the part of the City has been determined. The duty to defend applies immediately regardless of whether the City has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims. Notwithstanding the foregoing, the City on behalf of itself reserves the right to assume the defense of any action, arbitration or proceeding against which Consultant may have an obligation to defend pursuant to this Agreement including the right to appoint counsel of its choice, without affecting Consultant's obligation to indemnify for the cost of such defense.
Consultant shall be liable to the City for any loss of or damage to City property arising from or in connection with Consultant's performance hereunder.
18. Insurance Requirement. Consultant, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this Agreement, the insurance coverage and policies as set forth in Exhibit “D” attached hereto.
19. Workers’ Compensation.
(a) Covenant to Provide. Consultant warrants that it is aware of the provisions of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code.
Consultant further agrees that it will comply with such provisions before commencing the performance of the work under this Agreement.
(b) Waiver of Subrogation. Consultant and Consultant’s insurance company agree to waive all rights of subrogation against City, its elected or appointed officials, agents, and employees for losses paid under Consultant’s workers' compensation insurance policy which arise from the work performed by Consultant for City.
20. Financial Records. Consultant shall retain all financial records, including but not limited to documents, reports, books, and accounting records which pertain to any work or transaction performed pursuant to this Agreement for three (3) years after the expiration of this Agreement.
City or any of its duly authorized representatives shall, with reasonable notice, have access to and the right to examine, audit, and copy such records.
21. Conflict of Interest. Consultant shall exercise reasonable care and diligence to prevent any actions or conditions which could result in a conflict with City’s interest. During the term of this Agreement, Consultant shall not accept any employment or engage in any consulting work which creates a conflict of interest with City or in any way compromises the services to be performed under this Agreement. Consultant shall immediately notify City of any and all violations of this Section upon becoming aware of such violation.
22. Time of the Essence. Consultant understands and agrees that time is of the essence in the completion of the work and services described in Section 2.
23. Severability. If any court of competent jurisdiction or subsequent preemptive legislation holds or renders any of the provisions of this Agreement unenforceable or invalid, the validity and enforceability of the remaining provisions, or portions thereof, shall not be affected.
24. Governing Law and Choice of Forum. This Agreement shall be administered and interpreted under California law as if written by both parties. Any litigation arising from this Agreement shall be brought in the Consolidated Municipal and Superior Court of Yuba County.
25. Costs and Attorney’s Fees. If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
26. Authority. The parties to this Agreement warrant and represent that they have the power and authority to enter into this Agreement in the names, titles, and capacities herein stated and on behalf of any entities, persons, estates or firms represented or purported to be represented by such entity(s), person(s), estate(s), or firm(s) and that all formal requirements necessary or required by any state and/or federal law in order to enter into this Agreement have been fully complied with.
Further, by entering into this Agreement, neither party hereto shall have breached the terms or conditions of any other contract or agreement to which such party is obligated, which such breach would have a material effect hereon.
27. Force Majeure. Except as otherwise provided in this Agreement, if the performance of any act required by this Agreement by either City or Consultant is prevented or delayed by reason of any act of God, strike, act of terrorism, lockout, labor trouble, inability to secure materials, restrictive governmental laws or regulations or any other cause not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused.
28. Integration. This Agreement represents the entire understanding of City and Consultant as to those matters contained herein and supersedes all prior negotiations, representations, or agreements, both written and oral. This Agreement may not be modified or altered except in accordance with Section 7.
**SIGNATURES ON FOLLOWING PAGE**
Executed by City and Consultant on the date shown next to their respective signatures. The effective date of this Agreement shall be the date of execution by the City as shown below.
City of Marysville William Berry Campaigns
By: By:
Jim Schaad, City Manager
Title:
Approved as to Form:
By: Business License #:
Brant Bordsen, City Attorney
Tax ID No.:
Attest:
By:
Nicole Moe, City Clerk
Attachments: Exhibit A – Scope of Services
Exhibit B – Timeline Requirements
Exhibit C – Fee Schedule
Exhibit D – Insurance Requirements
EXHIBIT A
SCOPE OF SERVICES
The Consultant shall provide Lead Consultant services in accordance with the terms and conditions stated herein, and any specifically referenced attachments hereto.
Generally speaking, the Consultant shall collaborate with City staff, and provide high level Lead Consulting services to facilitate a coordinated strategy to assess the feasibility of and engage/communicate with the public around City needs. The City is aware that NO public resources can be spent advocating for or against a given measure, however, factual information can be provided throughout the process within certain parameters.
Should a ballot proposal be determined to be feasible, Consultant shall also confer with City Counsel in preparing items for the ballot and providing factual policy information to the public.
No legal or advocacy services shall be provided through this contract.
Consultant'S services include, but are not limited to, the following:
1) Provide efficient, supportive, and responsive Project Management throughout the project duration.
2) Provide essential advice that adds essential value to any Public Opinion Research. 3) Provide overall strategic direction and a public outreach plan to support the efforts of City staff.
4) Schedule planning teleconferences with the City. With the input of the City Manager’s Office, develop meeting agendas, facilitate sessions, and support the timely deployment of all tasks and assignments.
5) Conduct a study to determine viability of any potential revenue ballot measure and to develop the parameters of a measure in a manner that is responsive to the public's perspective.
• Facilitate the development of a tailored questionnaire to meet the City's unique project needs.
• Upon completion of the City's opinion research, independently evaluate survey results and advise the City on the viability of a potential revenue ballot measure and recommend a timetable and activities based on review and interpretation of the data.
6) Assist the City in developing factual informational messages that inform its constituents about the policies the measure is designed to address. • Develop information that effectively informs and responds to questions from the public about the City's policies and the measure. • Provide structure and copy for communications materials to educate residents about policy and measure information.
• Develop and refine messages for inclusion in existing City communications vehicles to deliver its informational message, including the City's social media platforms, guest columns in media outlets, copy for links on the City website, and Power Point Presentations for informational Stakeholder, Key Influential, and community presentations. Consultant will provide first drafts of all materials, for the review and approval of the City. • Recommend methods to engage existing networks and organizations throughout the City to provide factual information and respond to questions from the public. Consultant will provide Message Training for the appropriate City messengers.
• Implement an earned (non-paid) media press and Internet/social program on these issues with the City Public Information Officer. • Recommend an informational direct mail program to the public-atlarge to highlight timely policy issues, including those the City’s measure is designed to address.
• Draft and/or refine informational articles, press information, text for mailings, and website/Internet and social media copy to communicate information that informs residents. Provide content text copy for any informational mailings associated with this project, along with a representative sample. This agreement assumes costs other than the monthly consulting fee will be invoiced directly to the City by 3rd party vendors and the City will pay these third party vendors directly.
• Collaborate with the City’s Community Development Director to review and maximize earned (non-paid) media press opportunities. Balanced press coverage will build additional awareness throughout the process. • Be available to craft appropriate rapid responses as necessary to address changing external nuances and/or correct misinformation. 7) Should a ballot proposal be determined to be feasible, Consultant shall:
• Confer with City Counsel on with City or Special Counsel and City staff on the recommended wording and structure of any potential measure. • Collaborate with City or Special Counsel to refine the ballot question and develop other submittals so that they are understandable to the average person. This addresses specific documents such asthe measure ordinance, ballot question, and other materials to ensure that all voter handbook materials are understandable to the average person.
• Recommend and draft text copy for legally permissible Public Information for the duration of the project.
EXHIBIT B
ESTIMATED TIMELINE
Write, design, and conduct a statistically valid opinion survey.
01/2024 to 02/2024
Build community leader database. 02/2024 to 03/2024
Prepare a public outreach plan. 02/ 2024 to 02/2024
Develop public outreach materials. 02/2024 to 04/2024
Evaluate survey results and advise the City on
viability and messaging.
.
02/2024 to 02/2024
Implement earned (non-paid) media, press, and Internet
strategies.
03/2024 to 05/2024
Implement a direct mail program. 03/24 to 06/2024
Community meetings and presentations throughout
Marysville.
03/2024 to 06/2024
Opinion leader outreach. 03/2024 to 06/2024
Host town hall meetings. 03/ 2024 to 06/2024
Informational digital & social media advertising. 03/2024 to 05/2024 Draft resolution calling for tax measure presented to
City Council.
05/024 to 06//2024
City Council calls for election; passes ballot language. 07/2024 to 07/2024 Ballot arguments, rebuttals and impartial analysis due
to Registrar of Voters.
08/2024 to 08/2024
EXHIBIT C
ESTIMATED BUDGET
WBC Consulting Fee $36,000 (Paid to WBC)
Voter Data & Lists/Match $1,100 Paid directly by City
Opinion Survey $27,000 Paid directly by City
Direct Mail $20,000 Paid directly by City
Handouts & Material $680 Paid directly by City
Web Design $2,800 Paid directly by City
Social and Digital ads $6,000 Paid directly by City
TOTAL ESTIMATED COST $93,580
EXHIBIT D
INSURANCE REQUIREMENTS
Required Coverage. Consultant, at its sole cost and expense, shall obtain and maintain in full force and effect throughout the entire term of this Agreement the following described insurance coverage. This coverage shall insure not only Consultant, but also, with the exception of workers' compensation and employer's liability insurance, shall name as additional insureds City, its officers, agents, employees, and volunteers, and each of them:
Policy Minimum Limits of Coverage
(i) Workers' Compensation and Statutory and
Employer’s Liability $2,000,000 per accident for bodily injury or disease, respectively
(ii) Comprehensive Automobile Bodily Injury/Property Damage Insurance Services Office, $2,000,000 each accident
form #CA 0001 (Ed 1/87
covering auto liability code 1
(any auto)
(iii) General Liability Insurance $2,000,000 per occurrence. If Services Office Commercial Commercial General Liability General Liability coverage Insurance or other form with a on an occurrence basis general aggregate limit shall
(occurrence form CG 0001) apply separately to this Project or location, the general aggregate
limit shall be twice the required
occurrence limit
(iv) Errors and Omissions/ $1,000,000 per occurrence
Professionals' Liability, errors
and omissions liability
insurance appropriate to the
Consultant’s profession.
If the Consultant maintains higher limit, then the minimum shown above, Client shall be entitled to coverage for the higher limits maintained by the Consultant. (b) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respect City or Consultant shall provide a financial guarantee satisfactory to Client guaranteeing payment of losses and related investigations, claim administration, and defense expenses. (c) Required Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions:
(i) For any claims related to this Project, the Consultant’s insurance coverage shall be primary insurance as respects City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be in excess of the Consultant’s insurance and shall not contribute with it; (ii) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to City, its officers, officials, employees, or volunteers;
(iii) The Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; (iv) Each insurance policy required by this Section shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after giving City 30 days' prior written notice by certified mail, return receipt requested.
(d) Acceptability of Insurers. Consultant shall place insurance with insurers that have a current A.M. Best's rating of no less than A:VII unless Consultant requests and obtains City’s express written consent to the contrary.