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Home My WebLink AboutCA Strategic Planning and Public Information SvcsAgenda Item No: 3 Meeting Date: June 15, 2009 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: City Attorney Prepared by: Lisa A. Goldfien, Deputy City Attorney II City Manager Approval: en Nordhoff SUBJECT: RESOLUTION AUTHORIZING EXECUTION OF REVISED FORM OF AGREEMENT WITH SIDEWALK STRATEGIES (TRAMUTOLA LLC) FOR STRATEGIC PLANNING AND PUBLIC INFORMATION SERVICES RECOMMENDATION: Adopt Resolution Authorizing Execution of Revised Form of Agreement with Sidewalk Strategies (Tramutola LLC) For Strategic Planning and Public Information Services BACKGROUND: At the City Council meeting of May 4, 2009, the Council adopted Resolution No. 12727 authorizing the City Manager to execute a specified form of agreement with Sidewalk Strategies (Tramutola LLC) for services to assess the feasibility of public facilities ballot measure options. After adoption of the resolution, staff discovered that the form of agreement attached to the resolution and approved by the City Council was not the final form of agreement negotiated by staff and Tramutola, but rather an earlier form. The attached resolution would authorize the City Manager to execute the correct form of agreement. ANALYSIS: The scope of work to be done by Sidewalk Strategies, and other essential terms of the agreement, were presented to the Council at the May 4 meeting, and are unchanged. This action would ensure that the correct form of agreement is signed by the City Manager. FOR CITY CLERK ONLY UJIM Council Meeting: Disposition: SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 This action would not affect the City's agreement with Godbe Research also approved on May 4 by Resolution No. 12727 for the related voter survey. FISCAL IMPACT: The fiscal impacts remain as stated in the staff report for the May 4 meeting, as follows: "The Phase II assessment work covered by the attached agreement with Sidewalk Strategies (Tramutola LLC) is estimated to be, and is not to exceed, $30,000. Per their proposal, work commences immediately and continues through August. The total cost of this work does not require new appropriations from the General Fund. Funding of the $30,000 agreement with Sidewalk Strategies (Tramutola LLC) is recommended to be provided by a reallocation of appropriations from the Public Works administrative budget due to staff vacancy savings." ACTION REQUIRED: Adopt Resolution as presented. ATTACHMENTS: Resolution and attached Agreement with Sidewalk Strategies RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING EXECUTION OF REVISED FORM OF AGREEMENT WITH SIDEWALK STRATEGIES (TRAMUTOLA LLC) FOR STRATEGIC PLANNING AND PUBLIC INFORMATION SERVICES WHEREAS, on April 20, 2009, the City Council was presented with a Phase lI Facilities Feasibility Assessment process, the purpose of which would be to educate our residents, businesses and other stakeholders about essential facility needs, and directed City staff to return with a formal proposal for the consulting and polling services necessary to complete this Phase II work; and WHEREAS, on May 4, 2009, the City Council adopted Resolution No. 12727 which, in part, authorized the City Manager and City Clerk to execute an agreement with Sidewalk Strategies, a division of Tramutola LLC, for services in connection with the Phase II process; and WHEREAS, due to a clerical error, Resolution No. 12727 approved a form of agreement with Sidewalk Strategies that was not the final form of agreement negotiated by staff; and WHEREAS, the City Council wishes to authorize the City Manager and City Clerk to execute the correct form of agreement with Sidewalk Strategies, a copy of which revised agreement is attached hereto as Exhibit A. NOW, THEREFORE, IT IS HEREBY RESOLVED that the City Council does hereby authorize the City Clerk and City Manager to execute an Agreement for Strategic Planning and Public Information Services with Sidewalk Strategies, in the form attached hereto as Exhibit A. I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of said City held on the 15'b day of June, 2009, by the following vote, to wit: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ESTHER C. BEIRNE, City Clerk S T R A T E G I E S AGREEMENT FOR STRATEGIC PLANNING AND PUBLIC INFORMATION SERVICES THIS AGREEMENT FOR STRATEGIC PLANNING AND PUBLIC INFORMATION SERVICES ("Agreement") is effective as of the below Effective Date (as defined below) by and between Sidewalk Strategies, a division of TRAMUTOLA LLC ("Consultant") and City of San Rafael, 1400 Fifth Avenue, San Rafael, CA 94901 ("Client"). Basic Terms Consultant shall, as an independent contractor, provide the services set forth below during the Term (as defined in the attached Terms and Conditions) pursuant to the terms and conditions set forth in this Agreement. Services: Consultant shall, as an independent contractor, with consultation from Client and for the direct benefit of Client, perform the following services, as needed, towards assessing feasibility of placing a measure on the ballot, and building community awareness of Client's needs and the ballot measure proposal: Phase II: Pre -Electoral Strategic Planning and Public Information Phase • Implementation of the City -funded public information program to inform and educate voters • Coordinate city communication efforts to ensure a unified message Assist in the development of a tracking survey to measure the impact of outreach efforts and fine tune ballot measure proposals • Finalize the appropriate taxing mechanism and tax rate • Prepare the official 75 -word Ballot Statement and Argument • Review resolutions prepared by legal counsel Compensation: Seven Thousand Five Hundred Dollars ($7,500.00) per month. Compensation shall be due on the last day of each month during the term, commencing May 31, 2009. Total compensation shall not exceed Thirty Thousand Dollars ($30,000.00). Effective Date: May 4, 2009 Expiration Date: Phase II shall expire not later than August 31, 2009 or 88 days prior to another qualifying election date. This Services Agreement, including the attached Terms and Conditions collectively, constitute the "Agreement" as that term is used herein. This Agreement is hereby executed by duly authorized representatives of Consultant and Client as of the Effective Date. 191 Ridgeway Avenue, Oakland CA 94611 Ph: (510) 658-7003 Fx: (510) 658-7302 Web: www.tramutola.com E-mail: info@tramutola.com City of San Rafael, 1400 Fifth Avenue, San Rafael, CA 94901 UA Name: Title: SIDEWALK STRATEGIES, 191 Ridgeway Avenue, Oakland, CA 94611 Larry Tramutota, Managing Member APPROVED AS TO FORM: ROBERT F. EPSTEIN, City Attorney ATTEST: ESTHER C. BEIRNE, City Clerk 2 Terms and Conditions 1. Client's Obligations. At all times while Consultant is providing the Services (as defined in the Basic Terms) ("Services") or otherwise assisting Client, Client shall promptly provide Consultant with access to the facilities, personnel and other resources reasonably necessary for Consultant to provide the Services. 2. Compensation. As compensation for the Services, Client shall pay to Consultant the Compensation set forth in the Basic Terms (the "Compensation"). 3. Consultant's Expenses. Client shall separately reimburse Consultant for Consultant's reasonable and necessary expenses (the "Expenses") including, without limitation, travel, meals, lodging; long distance telephone charges, teleconferencing, and/or cellular telephone toll charges; photocopying and faxes; express mail, messenger or delivery service incurred in performing the Services hereunder. These expenses shall be charged by Consultant and Consultant shall be reimbursed by Client within thirty (30) days following presentation of Consultant's invoice or statement. Expenses will not exceed $300.00 per month without Client's prior approval. 4. Vendor Costs and Payments. Subject to prior approval of Client, Consultant is authorized to enter into third party contracts on behalf of Client for Client's public information efforts. Payment of vendor for all good, services, and costs shall be Client's sole responsibility, and shall be in addition to the Compensation or any other fees for the Services. Such third party contracts include, without limitation, contracts for printing, graphic art work, demographic data, opinion research, mailing services, and postage. 5. LIMITED WARRANTY; LIMITATION ON LIABILITY. CONSULTANT WARRANTS THAT IT SHALL COMPLY WITH THE APPLICABLE STANDARD OF PROFESSIONAL CARE IN THE PERFORMANCE OF THE SERVICES. CONSULTANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE RESULTS OF THE SERVICES. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND, TO THE FULL EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES ARE HEREBY EXCLUDED. CONSULTANT'S SOLE AND MAXIMUM LIABILITY FOR A BREACH OF THIS AGREEMENT, INCLUDING ANY WARRANTY, SHALL BE A REFUND OF THE COMPENSATION ACTUALLY PAID TO CONSULTANT UNDER THIS AGREEMENT. IN NO EVENT SHALL CONSULTANT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR ANY OTHER TYPE OF DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT. SUCH LIMITATION APPLIES REGARDLESS OF WHETHER SUCH DAMAGES ARE CAUSED BY BREACH OF CONTRACT, WILLFUL MISCONDUCT, NEGLIGENT ACT OR OMISSION, OR OTHER WRONGFUL ACT OR OMISSION. 6. Indemnification. (a) Each party agrees to indemnify, defend and save harmless from all loss, liability, damage, claim, cost or expense (including reasonable attorney fees or court costs) to the extent caused by the actual or alleged infringement of any patent, copyright, trade secret, or other proprietary right arising from or related to any material it famished to such other party pursuant to this Agreement. (b) Each party (the "Indemnifying Party") agrees to indemnify, defend, and save harmless the other party from all loss, liability, damage, claim, cost or expense (including reasonable attorney fees or court costs) arising from or relating to any personal injury, death, damage to property, or economic loss to the extent caused by the Indemnifying Party's sole negligent act or omission, intentional misconduct, or other breach of duty. In the event both Consultant and Client are at fault, indemnification shall be proportionate to their respective shares of fault. In the event neither party is at fault, each party shall bear responsibility for its own losses, expenses and liabilities. 7. Term: Termination (a) The term of this Agreement shall commence on the Effective Date and continue through the Expiration Date as those terms are defined in the Basic Terms of this Agreement (the "Term"). (b) In the event Consultant is in default of one or more of its obligations under this Agreement, Client shall have the right to terminate this Agreement if within thirty (30) days of written notice to Consultant a detailed description of Client's basis for such termination, Consultant fails to cure any such breach, or commence to cure such breach if the breach will in good faith take a larger period to cure. (c) Failure by Client to make timely payments of the Compensation, or other expenses arising from performance of this Agreement by Consultant shall entitle Consultant to immediately terminate or suspend performance of this Agreement by sending written notice of termination to Client. In the event of a termination by Consultant under this subsection, Client will be obligated to pay the entire Compensation and shall pay the outstanding balance of all fees due to Consultant provided in this Agreement within ten (10) days of the termination. 8. Ownership of Work Product. All work product of Consultant, including but not limited to print copy, audio or video tapes, slogans, themes, designs, are and shall be the exclusive property of Consultant. Consultant grants Client a limited, non-exclusive, non -transferable, revocable license to use such work product solely in connection with the Services. Subject to Consultant's prior written permission, Client may reuse Consultant's work product only for Client's own benefit. 9. Agreement Is Confidential. Client agrees that Client shall not during, or at any time following termination of Agreement with Consultant, disclose or divulge to other parties, the specific terms of this Agreement, except as required by law. 10. Protection of Confidential Information. Consultant has and will develop, compile, and own certain proprietary techniques and confidential information and data that have great value in its business (such techniques, and information and data are referred to in this Agreement collectively as "Confidential Information"). Confidential Information includes, without limitation, (a) all information that has or could have commercial value or other utility in the business in which Consultant is engaged or in which it contemplates engaging and (b) all information of which the unauthorized disclosure could be detrimental to the interests of Consultant, whether or not such information is identified as Confidential Information by Consultant. Except as required by law, Client shall keep confidential any and all Confidential Information regardless of means of transmission and storage. Failure to mark any of the Confidential Information as confidential or proprietary shall not affect its status as Confidential Information under the terms of this Agreement. Client shall take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Client shall take at least those measures that Client takes to protect its own most highly confidential information. Client acknowledges that it is impossible to measure fully, in money, the injury that will be caused in the event of a breach or threatened breach of this provision and Consultant shall be entitled to injunctive relief to enforce the provisions of this Agreement, without prejudice to any other remedy that such party may have at law or in equity. 11. Late Charees. Consultant may charge a late fee of 1.5% per month on any payment due under this Agreement and not paid in full on the date due, and on any balance due and unpaid more than thirty (30) days after presentation of any statement or invoice from Consultant. 12. Notice. All notices required or permitted under this Agreement must be in writing and will be deemed given (a) when delivered personally, (b) two (2) days after having been sent by commercial express courier with written verification of receipt, (c) on transmission by facsimile, provided that receipt is confirmed by a report generated by the facsimile machine transmitting such notice, or (d) on the earlier of receipt or seven (7) business days after having been sent by U.S. first class mail, return receipt requested, postage prepaid. The delivery address for any such notice shall be as follows: Consultant: Sidewalk Strategies Attn: Larry Tramutola 191 Ridgeway Avenue Oakland, CA 94611 Client: City of San Rafael Attn: Ken Nordhoff 1400 Fifth Avenue San Rafael, CA 94901 13. Survival. All terms and provisions hereof intended to be observed and performed by the parties after the termination hereof, shall survive such expiration or termination and shall continue thereafter in full force and effect, subject to applicable statutes of limitations. Provisions that shall survive include, without limitation, Sections 2, 5, 6, 8 through 18, inclusive. 14. Severability. If a court of competent jurisdiction finds any provision of this Agreement void, illegal, invalid or unenforceable as applied to any person or circumstance, the remainder of this Agreement and the application of such provision to other persons or circumstances shall be interpreted so as best to effect the intent of the parties hereto. The parties further agree to replace any such void, illegal, invalid or unenforceable provision with a valid and enforceable provision that will achieve, to the fullest extent possible, the economic, business, and other purposes of such provision. 15. Assignment Prohibited; Binding Effect: No Third Party Rights. No party to this Agreement may assign any right or obligation pursuant to this Agreement. Any attempt to assign such rights or obligations shall be null and void. Notwithstanding the prior limitation, this Agreement shall be binding on and inure to the benefit of the parties hereto, their successors and assigns. This Agreement shall not create any rights or benefits to parties other than Client and Consultant. No third party shall have the right to rely on Consultant opinions rendered in connection with the Services without the prior written consent of Consultant. 16. Attorney Fees and Expenses. In the event of any action or proceeding arising from or related to this Agreement, the prevailing party shall be entitled to recover its costs including, without limitation, reasonable attorney fees and expenses. 17. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to any conflicts of law doctrine. In any action or proceeding brought to enforce this Agreement or any other claim arising out of or related to this Agreement, the exclusive venue shall be Alameda County, California. Each party submits to the exclusive jurisdiction of any state or federal court sitting in Alameda County, California and waives, to the maximum extent permitted by law, any and all rights, either substantive or procedural, which in any way limit or prevent enforcement of the terms of this Agreement. 18. Entire Understanding; Waiver; Modification. This Agreement constitutes the complete and exclusive statement of the agreement among the parties about the described subject matter. It supersedes all prior written and oral statements, including any prior representation or statement. No waiver or indulgence of any failure to keep or perform any promise or condition of this Agreement shall be a waiver of any preceding or succeeding breach of the same or any other promise or condition. No waiver of any right shall be construed as a waiver of any other right. Neither party shall be required to give notice to enforce strict adherence to all terms of this Agreement. No waiver or modification of any of the terms of this Agreement shall be valid unless in writing, signed by the party to be bound.