AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREE1\1ENT is made and entered into this __rt day of ' ( M V , 2022, by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18th Street, Merced, California 95340, (hereinafter referred to as "City") and Fairbank, Maslin, Maullin, Metz & Associates, Inc., a California Corporation, whose address of record is 1999 Harrison Street, Suite 2020, Oakland, California 94612 (hereinafter referred to as "Consultant").
WHEREAS, City is undertaking a project to evaluate the viability of extending Measure C (Vital City Services Protection General Sales Tax Revenue Measure); and,
WHEREAS, Consultant represents that it possesses the professional skills to provide ballot measure feasibility survey services in connection with said project.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Consultant shall furnish the following services: Consultant shall provide the ballot measure feasibility evaluation services described in Exhibit "A" attached hereto.
No additional services shall be performed by Consultant unless approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time. All such services are to be coordinated with City and the results of the work shall be monitored by the City Manager or designee. However, the means by which the work is accomplished shall be the sole responsibility of the Consultant.
2. TI1\1E OF PERFORMANCE. All of the work outlined in the Scope of Services shall be completed in accordance with the Schedule outlined in Exhibit "A" attached hereto and incorporated herein by reference. By mutual agreement and written addendum to this Agreement, the City and the Consultant may change the requirements in said Schedule.
3. TERM OF AGREE1\1ENT. The term of this Agreement shall commence upon the day first above written and end on November 30, 2022.
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1 4. COMPENSATION. Payment by the City to the Consultant for actual services rendered under this Agreement shall be made upon presentation of an invoice detailing services performed under the Scope of Services, in accordance with the fee schedule set forth in Exhibit "A" attached hereto and incorporated herein by reference. The Consultant agrees to provide all services required under the Scope of Services in Exhibit "A" within the compensation amount set forth in Exhibit "A". For Consultant's services rendered under this Agreement, City shall pay Consultant the not to exceed sum of Thirty-Three Thousand Dollars ($33,000.00).
5. METHOD OF PAYMENT. Compensation to Consultant shall be paid by the City after submission by Consultant of an invoice delineating the services performed.
6. RECORDS. It is understood and agreed that all plans, studies, specifications, data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Consultant relating to the matters covered by this Agreement shall be the property of the City, and Consultant hereby agrees to deliver the same to the City upon termination of the Agreement. It is understood and agreed that the documents and other materials including but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
7. CONSULTANT'S BOOKS AND 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 the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Consultant to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City.
8. INDEPENDENT CONTRACTOR. It is expressly understood that Consultant is an independent contractor and that its employees shall not be employees of or have any contractual relationship with the City. Consultant shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Consultant desire any insurance protection, the Consultant is to acquire same at its expense.
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2 In the event Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, protect, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS 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.
9. INDEMNITY. Consultant shall indemnify, protect, defend (with legal counsel selected by the City), save and hold City, its officers, employees, and agents, harmless from any and all claims or causes of action for death or injury to persons, or damage to property resulting from intentional or negligent acts, errors, or omissions of Consultant or Consultant's officers, employees, volunteers, and agents during performance of this Agreement; Consultant shall indemnify, protect, defend (with counsel selected by the City) save and hold City, its officers, employees and agents harmless from any and claims or causes of action for any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct, negligent acts, or omissions of Consultant or its employees, subcontractors, or agents, or by the quality or character of Consultant's work, or resulting from the negligence of the City, its officers, employees, volunteers and agents, except for loss caused by the sole negligence or willful misconduct of the City or its officers, employees, volunteers or agents. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall survive the termination of this Agreement and shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration.
10. INSUR
A
NCE. During the term of this Agreement, Consultant shall maintain in full force and effect at its own cost and expense, the following msurance coverage:
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3 a. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City. b. General Liability.
(i) Consultant shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Consultant shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage.
(iii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects liability arising out of work or operations performed by or on behalf of the Consultant.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
(v) Consultant shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees, agents and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal. c. Automobile Insurance.
(i) Consultant shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
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4 (ii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects automobiles owned, leased, hired or borrowed by the
Consultant.
(iii) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Consultant and its sub-contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
d. Professional Liability Insurance. Consultant shall carry professional liability insurance appropriate to Consultant's profession in the minimum amount of One Million Dollars ($1,000,000). Architects and engineers' coverage is to be endorsed to include contractual liability.
e. Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and,
(ii) An insurance carrier with a current A.M. Best Rating of A:VII or better ( except for workers' compensation provided through the California State Compensation Fund).
f. Certificate of Insurance. Consultant shall complete and file with the City prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage as set forth above and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation-including cancellation for nonpayment of premium. In addition to any other remedies City may have, City reserves the right to withhold payment if Consultant's insurance policies are not current.
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5 11. PREY AILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1720(a)(l) definition of a "public works" the Vendor agrees to comply with all of the applicable provisions of the Labor Code including, those provisions requiring the payment of not less than the general prevailing rate of wages. The Consultant further agrees to the penalties and forfeitures provided in said Code in the event a violation of any of the provisions occurs in the execution of this Agreement.
B. These wage rate determinations are made a specific part of this Agreement by reference pursuant to Labor Code Section 1773 .2. General Prevailing Wage Rate Determinations may be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov/.
C. After award of the Agreement, and prior to commencing work, all applicable General Prevailing Wage Rate Determinations, if applicable, are to be obtained by the Vendor from the Department of Industrial Relations. Theses wage rate determinations are to be posted by the Consultant at the job site in accordance with Section 1773 .2 of the California Labor Code.
D. Consultant agrees to include prevailing wage requirements, if applicable, in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720(a)(l) and Labor Code Section 1771.
12. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Consultant and is based upon a determination of its unique personal competence and experience and upon its specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of the City.
13. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Consultant that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Consultant. If the Agreement is so terminated, the Consultant shall be paid for that percentage of the phase of work actually completed, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
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6 14. CONFORMANCE TO APPLICABLE LAWS. Consultant shall
comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Consultant in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Consultant 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 seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Consultant so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Consultant hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
15. W AIYER. In the event that either City or Consultant shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
16. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached document(s) or exhibit(s) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
17. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of X:\Agreements\City Manager\2022\PSA - FM3.docx
7 similar effect, that would require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived.
18. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
19. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
20. INTEGRATION. This Agreement constitutes the entire
understanding and agreement of the parties and supersedes all previous and/or contemporaneous understanding or agreement between the parties with respect to all or any part of the subject matter hereof.
21. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/have the authority to bind their party to the performance of its obligations hereunder.
22. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
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CITY OF MERCED
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9 X:\Agreements\City Manager\2022\PSA - FM3.docx
CONSULTANT
FAIRBANK, MASLIN, MA ULLIN,
METZ & ASSOCIATES, INC.,
A California Corporation
BY: ----------
(Signature)
(Typed Name)
Its: ----------
(Title)
BY: ----------
(Signature)
(Typed Name)
Its: ----------
(Title)
Taxpayer I.D. No. _____ _
ADDRESS: 1999 Harrison Street
Suite 2020
Oakland, CA 94612
TELEPHONE: (510) 451-9521
FAX: ----------
E-MAIL: --------
EXHIBIT A FM3
ZEPHYR
Supporting Media Response and Maximizing Media Opportunities LEG will review earned (non-paid) media press opportunities with the City PIO. Balanced press coverage will build additional community and stakeholder engagement throughout the process, which is critical to informing your public about your needs. While LEG does not function as a spokesperson, our team can support the City's communications efforts by developing additional collaterals such as project-related press releases, media backgrounders, talking and rapid response needs, as necessary.
Balfot Measure Development and Post-Placement Communications Should the Oty's potential ballot measure/s be viable, LEG will collaborate with the City Attorney, City Clerk, and staff on ballot measure structure and wording to address the public and stakeholders' interests and priorities.
As LEG did in Measure Y, LEG will collaborate closely with the City Attorney's Office to refine the ballot question and add value to other ballot measure components so that they are understandable to the average person. This addresses specific documents such as the measure ordinance/s, ballot question/s, city resolution/s, and staff report/s to ensure that all voter handbook and related materials are understandable to the average person, not just lawyers.
Following placement of the measure/s on the ballot, LEG will recommend a Public Education approach that includes materials that address generational ways of receiving information. Towards this end, USPS mailings are still one component of a multi-disciplinary, cross-generational communications toolkit. In 2022, LEG strongly advises a more robust spectrum of communications than the City implemented in 2022, including paid digital advertising. As in the past, the City Attorney will review all recommended content including printed material and online copy.
G. COST PROPOSAL
Based on the RFP's description of the project scope, below is the list of proposed costs required for the total contributions of LEG, FM3, and Zephyr staff for this proposal.
LEG Professional Consulting Fees NTE $6,000/month = NTE $72,000 • If launching In January 2022 as the RFP suggests, for a term through November 30"', 2022. • As the City may recall, without exception and consistent with previous collaborations LEG does not invoice or track work on an hourly or time and materials basis.
FM3 Baseline Survey NTE$33,000
• Survey of voters In the City of Merced. Approximately 20 minutes, up to 400 dual-mode interviews conducted in English and Spanish.
• Also consistent with past collaborations, FM3 bills on a fixed price basis, per project. • Direct incidental expenses, such as extra reproduction of reports or travel, are not included but would be billed at-cost If Incurred.
Zephyr Medlng Fac/1/totlon/Engagement NTE $33,000
<ll
ZEPHYR
FM3
• To participate in selected planning sessions, assist in outreach, conduct process design, and facilitate up to six qualitative focus groups, support qualitative online engagement, and document/report on engagement outcomes.
• Estimates approximately 153 hours at Zephyr professional hourly rates or $200 and youth ambassadors at $SO/hour. Invoices will reflect hourly billing for this line item. Additional specifics on this line Item can be found in Appendix A.
Optional Services
LEG Design Fees ond Malling Doto $2,000 -$3,000 per layout/data e • Cost range is dependent on design specification.
• In 2018, the City printed and mailed each item using LEG's designs and up-to-date vendor mailing data, with the City's existing print/mail vendors.
• Whether the City should utilize graphic design services and mailing data depends on your current in-house design capacity, if any.
• Irrespective of which party produces these Items, a range of designs should be planned for. The number of Items necessary will be jointly determined following review of polling results.
Assumptions
The costs cited above do •not• include hard project costs such as:
• Paid digital media. These costs are not included, as those services are performed by highly specialized vendors, and we have yet to determine whether staff and the City Attorney concur this is an appropriate toolkit item in your case. Should the City concur this is a necessary toolkit addition, LEG would recommend a credible professional speclallzlng In these services. For a City your size, LEG recommends budgeting $25,000 per tranche and two tranches are recommended. • Any additional legal costs necessary, or the County Registrar's election cost invoice.
In closing, the team of LEG-FM3-Zephyr thanks the City for its consideration of a continued successful collaboratlon into 2022. We would be thrilled to be your chosen partner for this critical work!