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HomeMy WebLinkAboutLR Assessment of Electoral Feasibility of a Revenue Measure for New Library ProjectAGREEMENT FOR PROFESSIONAL SERVICES FOR ASSESSMENT OF ELECTORAL FEASIBILITY OF A REVENUE MEASURE FOR THE NEW LIBRARY PROJECT This Agreement is made and entered into this A day of ",.Apr )2022, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and TERRIS BARNES WALTERS BOIGON HEATH LESTER, INC. (hereinafter "CONSULTANT"). RECITALS WHEREAS, CITY operates the San Rafael Public Library ("Library"); and WHEREAS, CITY has a need for an assessment of the electoral feasibility of a revenue measure in connection with the New Library Project; and WHEREAS, CONSULTANT has the expertise required to provide the needed services and is willing to do so on the terms and conditions set forth in this Agreement; AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: PROJECT COORDINATION. A. CITY'S Project Manager. The Assistant Library and Recreation Director/City Librarian is hereby designated the PROJECT MANAGER for the CITY and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONSULTANT'S Project Director. CONSULTANT shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONSULTANT. Charles Heath is hereby designated as the PROJECT DIRECTOR for CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONSULTANT. CONSULTANT shall perform the duties and/or provide services described in "Exhibit A2: Scope of Services" attached hereto and incorporated herein by reference, as requested and directed by CITY. 3. DUTIES OF CITY. CITY shall pay the compensation as provided Section 4 of this Agreement and shall otherwise cooperate as necessary for the performance of CONSULTANT's services described herein. 4. COMPENSATION For the full performance of the services described herein by CONSULTANT, CITY shall pay CONSULTANT as detailed in "Exhibit 132: Compensation Schedule" attached hereto and incorporated herein by reference. The total compensation payable pursuant to this Agreement shall not exceed $50,000 including costs and expenses. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONSULTANT. 5. TERM OF AGREEMENT. The term of this Agreement shall be (12) months commencing on the date of this Agreement. Upon mutual written agreement of the parties, and subject to the approval of the City Manager the term of this Agreement may be extended for an additional period of six (6) months. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONSULTANT and any and all of CONSULTANT's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONSULTANT in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONSULTANT in connection with its performance of its duties under this Agreement. CONSULTANT shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONSULTANT shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONSULTANT's performance of services under this Agreement. Where CONSULTANT is a professional not required to have a professional license, CITY reserves the right to require CONSULTANT to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONSULTANT shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONSULTANT's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONSULTANT in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONSULTANT'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONSULTANT'S policies shall be at least as broad as ISO form CG20 01 04 13. 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONSULTANT hereby grants to CITY a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. CONSULTANT agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the CONSULTANT under this 4 agreement. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONSULTANT's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONSULTANT shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONSULTANT shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONSULTANT. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. CONSULTANT shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONSULTANT's performance of its obligations or conduct of its operations under this Agreement. The CONSULTANT's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the CONSULTANT's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONSULTANT's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONSULTANT's performance of or operations under this Agreement, CONSULTANT shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in anyway be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONSULTANT shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONSULTANT shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONSULTANT shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONSULTANT shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONSULTANT do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: 0 Department of Library & Recreation Attn: Henry Bankhead, Project Manager City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 TO CONSULTANT's Project Director: Terris Barnes Walters Boigon Heath Lester, Inc. Attn: Charles Heath California/Corporate Offices 50 Osgood Place, 4th Floor San Francisco, CA 94133 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONSULTANT and CITY expressly intend and agree that the status of CONSULTANT, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONSULTANT and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONSULTANT and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT under this Agreement, any monies which CONSULTANT owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 7 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONSULTANT shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONSULTANT has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. SURVIVAL OF TERMS. Any terms of this Agreement that termination) of this Agreement shall remain Parties' respective successors and assigns. 23. APPLICABLE LAW. by their nature extend beyond the term (or in effect until fulfilled and shall apply to both The laws of the State of California shall govern this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL JINI H TZ, Ci 7jer ATTEST; LINDSAY LARA, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, C Attorney A CONSULTANT By: Name: Title: [If CONSULTANT is a corporation, add signature of second corporate officer] Na€k: -D A,d % p -T—i C SG Title: C • F . 0 . Exhibit A-2: Scope of Services 1. Engagement of TBWBH. During the term of this Agreement, Client hereby engages TBWBH to perform the following services (collectively, "Services"): a. Feasibility Assessment. TBWBH shall perform any of the following services as needed to assess the electoral feasibility of the Revenue Measure for Client: 1) Develop potential Revenue Measure strategies to meet Client's funding needs to be tested in polling; 2) Collaborate with Godbe Research to design, conduct and analyze an opinion survey of voters within Client's jurisdiction to assess the electoral feasibility of a Revenue Measure; 3) Conduct a demographic analysis of voters within Client's jurisdiction and how they break into key sub -groups by age, ethnicity, political party, length of residency, and other key criteria; 4) Analyze past election results in the jurisdiction and region to understand voter turnout trends and other relevant voting patterns; 5) Research other local tax proposals that may be heading to an upcoming ballot that could compete with Client's Revenue Measure; and 6) Make a specific recommendation regarding type of revenue measure to pursue, optimal election date, tax rate, tax structure and other important Revenue Measure features. b. Ballot Measure Development. TBWBH shall perform any of the following services as needed to assist Client in preparing the Revenue Measure for the ballot: 1) Recommend a final tax type, tax rate, duration and tax structure; 2) Recommend the final the list of projects, programs and services to be funded by the measure and prepare messaging that clearly articulates how these programs will benefit from additional revenue provided by the measure; 3) Recommend procedures for the taxpayer accountability protections, such as a process for an independent citizens' oversight committee; 4) Work with legal counsel to develop a resolution or ordinance calling for the election; 5) Work with legal counsel to develop the 75 -word ballot question; 6) Work with legal counsel to develop and refine the full text of the measure and other materials that will appear in the ballot pamphlet mailed to all voters; 7) Present recommendations, documents and resolutions to Client's administration and City Council for approval; and 8) Work with the City Clerk and County Registrar of Voters Office as needed to assist Client in completing the process of qualifying for the ballot. c. Public Information. TBWBH shall perform any of the following services as needed to raise awareness of Client's funding needs and the Revenue Measure proposal: 1) Develop informational fact sheets to be distributed at community functions; 2) Provide content related to the Revenue Measure to be added to Client's website, included in email updates and added to newsletters; 3) Prepare PowerPoint presentations for community meetings; 4) Provide talking points, frequently asked questions and a message training for staff and elected leaders; 5) Write, design, and produce mailings to educate, inform and engage voters; 6) Develop strategies and plans to inform and engage key internal stakeholder groups; and 7) Develop strategies and plans to inform and engage influential external groups including elected leaders, business leaders, city leaders, ethnic community leaders, faith community leaders, taxpayer groups and others. Exhibit B-2: Compensation Schedule In consideration for the Services to be rendered by TBWBH pursuant to this Agreement, Client shall pay the following fees to TBWBH: a. Base Consulting Fee. TBWBH shall be paid a Base Consulting Fee of $10,000 per month, payable within 30 days of receipt of invoice. The Base Consulting Fee shall be calculated on a pro -rata basis for the initial and/or final month of service if less than a full calendar month. b. Reimbursement of Expenses. Client shall reimburse TBWBH for expenses incurred by TBWBH from time to time in connection with the performance of the Services described herein, which includes, but is not limited to, automobile mileage at the established IRS reimbursement rate at the time at the time of travel, parking fees, copying fees, telephone charges, postage and other out-of-pocket expenses. TBWBH shall submit a report of actual expenses, and within thirty (30) days thereafter, Client shall reimburse TBWBH in full. Expenses billed to Client shall not exceed $1,000 in the aggregate, per calendar month without the verbal or written approval of Client. Any verbal approval shall be confirmed in writing by either party. Client may designate in writing an individual(s) with authority to approve expenses on Client's behalf. c. Reimbursement for Media and Research Goods and Services . All media, advertising and public opinion research goods and services shall be purchased or rented from TBWBH by Client according to the agreed upon schedule of prices, which follows this section. The schedule of prices lists the entire cost of purchasing or renting media and research goods and services from TBWBH. TBWBH shall in turn subcontract the work to third party vendors. Payment for such items shall be made in advance by Client to TBWBH, or to the third party vendor at the discretion of TBWBH. Estimated cost to print and mail an 11x17 informational brochure to all registered voter households in the City of San Rafael (18,426 households): $17,504 Not to Exceed Limit: Total compensation under this agreement shall not exceed $50,000 without prior approval of Client. RAFq�f i s 2 Tr W.TH P .r CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Library & Recreation, Library Division Project Manager: Henry Bankhead Extension: 3436 Contractor Name: Terris Barnes Walters Boigon Heath Lester, Inc. Contractor's Contact: Charles Heath Contact's Email: cheath@propsandmeasures.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor n/a 3/28/2022 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 4/1/2022 -- ❑X LG 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager 4/1/2022 ® LG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to 4/12/2022 ❑X SLAW Project Manager contractor 4 Forward three (3) originals of final agreement to 4/15/2022 X❑ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ® N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed 7 / agreement 8 City Attorney Review and approve insurance in PINS, and bonds (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official iQ li 10 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager 7 g 0��L