HomeMy WebLinkAboutContract 1639 ORIGINAL
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CATHEDRAL CITY, CALIFORNIA
AND
Fairbank, Maslin, Mauilin, Metz and Associates, INC ("FM3")
This Agreement for Services ("Agreement") is entered into as of March 9, 2016
("Effective Date") by and between the City of Cathedral City, a municipal corporation ("City")
and Fairbank, Maslin, Mauilin, Metz and Associates, Inc., a California Corporation ("Service
Provider"). City and Service Provider are sometimes hereinafter individually referred to as
"Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. City has sought, by request for proposal and direct negotiation the performance
of the services defined and described particularly in Section 2 of this Agreement.
B. Service Provider, following submission of a proposal for the performance of the
services defined and described particularly in Section 2 of this Agreement, was selected by
the City to perform those services.
C. Pursuant to the City of Cathedral City's Municipal Code, City has authority to
enter into this Services Agreement and the City Manager has authority to execute this
Agreement.
D. The Parties desire to formalize the selection of Service Provider for
performance of those services defined and described particularly in Section 2 of this
Agreement and desire that the terms of that performance be as particularly defined and
described herein.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the mutual promises and covenants made by
the Parties and contained here and other consideration, the value and adequacy of which are
hereby acknowledged, the Parties agree as follows:
SECTION 1. TERM OF AGREEMENT.
Subject to the provisions of Section 19 "Termination of Agreement" of this Agreement,
the Term of this Agreement is for 6 months commencing on the Effective Date.
SECTION 2. SCOPE OF SERVICES & SCHEDULE OF PERFORMANCE.
(a) Scope of Services. Service Provider agrees to perform the services set forth in
Exhibit "A" "Scope of Services" (hereinafter, the "Services") and made a part of this
Agreement by this reference.
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(b) Schedule of Performance. The Services shall be completed pursuant to the
schedule specified in Exhibit "A." Should the Services not be completed pursuant to that
schedule, the Service Provider shall be deemed to be in Default of this Agreement. The City,
in its sole discretion, may choose not to enforce the Default provisions of this Agreement and
may instead allow Service Provider to continue performing the Services.
SECTION 3. ADDITIONAL SERVICES.
Service Provider shall not be compensated for any work rendered in connection with
its performance of this Agreement that are in addition to or outside of the Services unless
such additional services are authorized in advance and in writing in accordance with Section
25 "Administration and Implementation" or Section 27 "Amendment" of this Agreement. If
and when such additional work is authorized, such additional work shall be deemed to be
part of the Services.
SECTION 4. COMPENSATION AND METHOD OF PAYMENT.
(a) Subject to any limitations set forth in this Agreement, City agrees to pay Service
Provider the amounts specified in Exhibit "B" "Compensation" and made a part of this
Agreement by this reference. The total compensation, including reimbursement for actual
expenses, shall not exceed thirty five thousand dollars and no cents dollars ($35,000), unless
additional compensation is approved in writing in accordance with Section 25 "Administration
and Implementation" or Section 27 "Amendment" of this Agreement.
(b) As compensation for Services under this Agreement, Client agrees to pay FM3
an amount equal to fifty (50) percent of the final project cost upon the signing of this
agreement. The remaining balance of the final cost agreed upon by both parties in writing,
will be due and payable 30 days after completion of survey. Client shall pay FM3's invoices
for Services rendered within fifteen (15) days after each invoice's date. In the event that any
invoice remains unpaid on the sixtieth (60) day after the date on the invoice, interest of 1.5
percent per month shall be payable on the unpaid balance.
(c) Except as to any charges for work performed or expenses incurred by Service
Provider which are disputed by City, City will use its best efforts to cause Service Provider to
be paid within forty-five (45) days of receipt of Service Provider's correct and undisputed
invoice.
(d) Payment to Service Provider for work performed pursuant to this Agreement
shall not be deemed to waive any defects in work performed by Service Provider.
SECTION 5. INSPECTION AND FINAL ACCEPTANCE.
City may inspect and accept or reject any of Service Provider's work under this
Agreement, either during performance or when completed. City shall reject or finally accept
Service Provider's work within sixty (60) days after submitted to City. City shall reject work by
a timely written explanation, otherwise Service Provider's work shall be deemed to have been
accepted. City's acceptance shall be conclusive as to such work except with respect to
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latent defects, fraud and such gross mistakes as amount to fraud. Acceptance of any of
Service Provider's work by City shall not constitute a waiver of any of the provisions of this
Agreement including, but not limited to, Section 15 "Indemnification" and Section 16
"Insurance."
SECTION 6. OWNERSHIP OF DOCUMENTS.
All original maps, models, designs, drawings, photographs, studies, surveys, reports,
data, notes, computer files, files and other documents prepared, developed or discovered by.
Service Provider in the course of providing the Services pursuant to this Agreement shall
become the sole property of City and may be used, reused or otherwise disposed of by City
without the permission of the Service Provider. Upon completion, expiration or termination of
this Agreement, Service Provider shall turn over to City all such original maps, models,
designs, drawings, photographs, studies, surveys, reports, data, notes, computer files, files
and other documents.
If and to the extent that City utilizes for any purpose not related to this Agreement any
maps, models, designs, drawings, photographs, studies, surveys, reports, data, notes,
computer files, files or other documents prepared, developed or discovered by Service
Provider in the course of providing the Services pursuant to this Agreement, Service
Provider's guarantees and warranties in Section 9 "Standard of Performance; Familiarity
With Work" of this Agreement shall not extend to such use of the maps, models, designs,
drawings, photographs, studies, surveys, reports, data, notes, computer files, files or other
documents.
SECTION 7. SERVICE PROVIDER'S BOOKS AND RECORDS.
(a) Service Provider shall maintain any and all documents and records
demonstrating or relating to Service Provider's performance of the Services. Service
Provider shall maintain any and all ledgers, books of account, invoices, vouchers, canceled
checks, or other documents or records evidencing or relating to work, services, expenditures
and disbursements charged to City pursuant to this Agreement. Any and all such documents
or records shall be maintained in accordance with generally accepted accounting principles
and shall be sufficiently complete and detailed so as to permit an accurate evaluation of the
services provided by Service Provider pursuant to this Agreement. Any and all such
documents or records shall be maintained for three (3) years from the date of execution of
this Agreement and to the extent required by laws relating to audits of public agencies and
their expenditures.
(b) Any and all records or documents required to be maintained pursuant to this
section shall be made available for inspection, audit and copying, at any time during regular
business hours, upon request by City or its designated representative. Copies of such
documents or records shall be provided directly to the City for inspection, audit and copying
when it is practical to do so; otherwise, unless an alternative is mutually agreed upon, such
documents and records shall be made available at Service Provider's address indicated for
receipt of notices in this Agreement.
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(c) Where City has reason to believe that any of the documents or records
required to be maintained pursuant to this section may be lost or discarded due to dissolution
or termination of Service Provider's business, City may, by written request, require that
custody of such documents or records be given to the City. Access to such documents and
records shall be granted to City, as well as to its successors-in-interest and authorized
representatives.
SECTION 8. INDEPENDENT CONTRACTOR.
(a) Service Provider is and shall at all times remain a wholly independent
contractor and not an officer, employee or agent of City. Service Provider shall have no
authority to bind City in any manner, nor to incur any obligation, debt or liability of any kind on
behalf of or against City, whether by contract or otherwise, unless such authority is expressly
conferred under this Agreement or is otherwise expressly conferred in writing by City.
(b) The. personnel performing the Services under this Agreement on behalf of
Service Provider shall at all times be under Service Provider's exclusive direction and control.
Neither City, nor any elected or appointed boards, officers, officials, employees or agents of
City, shall have control over the conduct of Service Provider or any of Service Provider's
officers, employees, or agents except as set forth in this Agreement. Service Provider shall
not at any time or in any manner represent that Service Provider or any of Service Provider's
officers, employees, or agents are in any manner officials, officers, employees or agents of
City.
(c) Neither Service Provider, nor any of Service Provider's officers, employees or
agents, shall obtain any rights to retirement, health care or any other benefits which may
otherwise accrue to City's employees. Service Provider expressly waives any claim Service
Provider may have to any such rights.
SECTION 9. . STANDARD OF PERFORMANCE; FAMILIARITY WITH WORK.
(a) Service Provider represents and warrants that it has the qualifications,
experience and facilities necessary to properly perform the Services required under this
Agreement in a thorough, competent and professional manner. Service Provider shall at all
times faithfully, competently and to the best of its ability, experience and talent, perform all
Services. In meeting its obligations under this Agreement, Service Provider shall employ, at
a minimum, generally accepted standards and practices utilized by persons engaged in
providing services similar to the Services required of Service Provider under this Agreement.
In addition to the general standards of performance set forth this section, additional specific
standards of performance and performance criteria may be set forth in Exhibit "A" "Scope of
Work" that shall also be applicable to Service Provider's work under this Agreement. Where
there is a conflict between a general and a specific standard of performance or performance
criteria, the specific standard or criteria shall prevail over the general.
(b) Service Provider warrants that (1) it has thoroughly investigated and considered
the work to be performed, (2) it has investigated the issues, regarding the scope of services
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to be provided, (3) it has carefully considered how the work should be performed, and (4) it
fully understands the facilities, difficulties and restrictions attending performance of the work
under this Agreement.
SECTION 10. COMPLIANCE WITH APPLICABLE LAWS; PERMITS AND LICENSES.
Service Provider shall keep itself informed of and comply with all applicable federal,
state and local laws, statutes, codes, ordinances, regulations and rules in effect during the
term of this Agreement. Service Provider shall obtain any and all licenses, permits and
authorizations necessary to perform the Services set forth in this Agreement. Neither City,
nor any elected or appointed boards, officers, officials, employees or agents of City, shall be
liable, at law or in equity, as a result of any failure of Service Provider to comply with this
section.
SECTION 11. PREVAILING WAGE LAWS
It is the understanding of City and Service Provider that California prevailing wage
laws do not apply to this Agreement because the Agreement does not involve any of the
following services subject to prevailing wage rates pursuant to the California Labor Code or
regulations promulgated thereunder: Construction, alteration, demolition, installation, or
repair work performed on public buildings, facilities, streets or sewers done under contract
and paid for in whole or in part out of public funds. In this context, "construction" includes
work performed during the design and preconstruction phases of construction including, but
not limited to, inspection and land surveying work.
SECTION 12. NONDISCRIMINATION.
Service Provider shall not discriminate, in any way, against any person on the basis of
race, color, religious creed, national origin, ancestry, sex, age, physical handicap, medical
condition or marital status in connection with or related to the performance of this Agreement.
SECTION 13. CONFLICTS OF INTEREST.
(a) Service Provider covenants that neither it, nor any officer or principal of its firm,
has or shall acquire any interest, directly or indirectly, which would conflict in any manner with
the interests of City or which would in any way hinder Service Provider's performance of the
Services. Service Provider further covenants that in the performance of this Agreement, no
person having any such interest shall be employed by it as an officer, employee, agent or
subcontractor without the express written consent of the City Manager. Service Provider
agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest
with the interests of City in the performance of this Agreement.
(b) City may determine that Service Provider must disclose its financial interests by
completing and filing a Fair Political Practices Commission Form 700, Statement of
Economic Interests. If such a determination is made, Service Provider shall file the subject
Form 700 with the City Clerk's Office pursuant to the written instructions provided by the
Office of the City Clerk within ten (10) days of the request.
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(c) City understands and acknowledges that Service Provider is, as of the date of
execution of this Agreement, independently involved in the performance of non-related
services for other governmental agencies and private parties. Service Provider is unaware of
any stated position of City relative to such projects. Any future position of City on such
projects shall not be considered a conflict of interest for purposes of this section.
(d) City understands and acknowledges that Service Provider will perform non-
related services for other governmental agencies and private Parties following the completion
of the Services under this Agreement. Any such future service shall not be considered a
conflict of interest for purposes of this section.
SECTION 14. CONFIDENTIAL INFORMATION; RELEASE OF INFORMATION.
(a) All information gained or work product produced by Service Provider in
performance of this Agreement shall be considered confidential, unless such information is in
the public domain or already known to Service Provider. Service Provider shall not release
or disclose any such information or work product to persons or entities other than City without
prior written authorization from the City Manager, except as may be required bylaw.
(b) Service Provider, its officers, employees, agents or subcontractors, shall not,
without prior written authorization from the City Manager or unless requested by the City
Attorney of City, voluntarily provide declarations, letters of support, testimony at depositions,
response to interrogatories or other information concerning the work performed under this
Agreement. Response to a subpoena or court order shall not be considered "voluntary"
provided Service Provider gives City notice of such court order or subpoena.
(c) If Service Provider, or any officer, employee, agent or subcontractor of Service
Provider, provides any information or work product in violation of this Agreement, then City
shall have the right to reimbursement and indemnity from Service Provider for any damages,
costs and fees, including attorney's fees, caused by or incurred as a result of Service
Provider's conduct.
(d) Service Provider shall promptly notify City should Service Provider, its officers,
employees, agents or subcontractors, be served with any summons, complaint, subpoena,
notice of deposition, request for documents, interrogatories, request for admissions or other
discovery request, court order or subpoena from any party regarding this Agreement and the
work performed thereunder. City retains the right, but has no obligation, to represent Service
Provider or be present at any deposition, hearing or similar proceeding. Service Provider
agrees to cooperate fully with City and to provide City with the opportunity to review any
response to discovery requests provided by Service Provider. However, this right to review
any such response does not imply or mean the right by City to control, direct, or rewrite said
response.
SECTION 15. INDEMNIFICATION.
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(a) Indemnification for Professional Liability. Where the law establishes a
professional standard of care for Service Provider's services, to the fullest extent permitted
by law, Service Provider shall indemnify, protect, defend and hold harmless City and any and
all of its officials, employees and agents ("Indemnified Parties") from and against any and all
liability (including liability for claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual,
alleged or threatened, including attorney's fees and costs, court costs, interest, defense
costs, and expert witness fees) arise out of, are a consequence of, or are in any way
attributable to, in whole or in part, any negligent or wrongful act, error or omission of Service
Provider, or by any individual or entity for which Service Provider is legally liable, including
but not limited to officers, agents, employees or subcontractors of Service Provider, in the
performance of professional services under this Agreement.
(b) Indemnification for Other than Professional Liability. Other than in the
performance of professional services and to the full extent permitted by law, Service Provider
shall indemnify, protect, defend and hold harmless City, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits, actions,
arbitration proceedings, administrative proceedings, regulatory proceedings, losses,
expenses or costs of any kind, whether actual, alleged or threatened, including attorney's
fees and costs, court costs, interest, defense costs, and expert witness fees), where the
same arise out of, are a consequence of, or are in any way attributable to, in whole or in part,
the performance of this Agreement by Service Provider, or by any individual or entity for
which Service Provider is legally liable, including but not limited to officers, agents,
employees or subcontractors of Service Provider.
(c) Indemnification from Sub-Service Providers. Service Provider agrees to obtain
executed indemnity agreements with provisions identical to those set forth in this section
from each and every sub-Service Provider or any other person or entity involved.by, for, with
or on behalf of Service Provider in the performance of this Agreement naming the
Indemnified Parties as additional indemnitees. In the event Service Provider fails to obtain
such indemnity obligations from others as required herein, Service Provider agrees to be fully
responsible according to the terms of this section. Failure of City to monitor compliance with
these requirements imposes no additional obligations on City and will in no way act as a
waiver of any rights hereunder. This obligation to indemnify and defend City as set forth
herein is binding on the successors, assigns or heirs of Service Provider and shall survive the
termination of this Agreement or this section.
(d) Limitation of Indemnification. Notwithstanding any provision of this section to
the contrary, design professionals are required to defend and indemnify the City only to the
extent permitted by Civil Code Section 2782.8, which limits the liability of a design
professional to claims, suits, actions, arbitration proceedings, administrative proceedings,
regulatory proceedings, losses, expenses or costs that arise out of, pertain to, or relate to the
negligence, recklessness, or willful misconduct of the design professional. The term "design
professional," as defined in Section 2782.8, is limited to licensed architects, licensed
landscape architects, registered professional engineers, professional land surveyors, and the
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business entities that offer such services in accordance with the applicable provisions of the
California Business and Professions Code.
(e) City's Negligence. The provisions of this section do not apply to claims
occurring as a result of City's sole negligence. The provisions of this section shall not release
City from liability arising from gross negligence or willful acts or omissions of City or any and
all of its officials, employees and agents.
SECTION 16. INSURANCE.
Service Provider agrees to obtain and maintain in full force and effect during the term
of this Agreement the insurance policies set forth in Exhibit "C" "Insurance" and made a part
of this Agreement. All insurance policies shall be subject to approval by City as to form and
content. These requirements are subject to amendment or waiver if so approved in writing
by the City Manager. Service Provider agrees to provide City with copies of required policies
upon request.
SECTION 17. ASSIGNMENT.
The expertise and experience of Service Provider are material considerations for this
Agreement, City has an interest in the qualifications and capability of the persons and
entities who will fulfill the duties and obligations imposed upon Service Provider under this
Agreement. In recognition of that interest, Service Provider shall not assign or transfer this
Agreement or any portion of this Agreement or the performance of any of Service Provider's
duties or obligations under this Agreement without the prior written consent of the, City. Any
attempted assignment shall be ineffective, null and void, and shall constitute a material
breach of this Agreement entitling City to any and all remedies at law or in equity, including
termination of this Agreement pursuant to Section 19 "Termination of Agreement." City
acknowledges, however, that Service Provider, in the performance of its duties pursuant to
this Agreement, may utilize subcontractors.
SECTION 18. CONTINUITY OF PERSONNEL.
Service Provider shall make every reasonable effort to maintain the stability and
continuity of Service Provider's staff and subcontractors, if any, assigned to perform the
Services. Service Provider shall notify City of any changes in Service Provider's staff and
subcontractors, if any, assigned to perform the Services prior to and during any such
performance.
SECTION 19. TERMINATION OF AGREEMENT.
(a) City may terminate this Agreement, with or without cause, at any time by giving
thirty (30) days written notice of termination to Service Provider. In the event such notice is
given, Service Provider shall cease immediately all work in progress.
(b) Service Provider may terminate this Agreement for cause at any time upon
thirty (30) days written notice of termination to City.
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(c) If either Service Provider or City fail to perform any material obligation under
this Agreement, then, in addition to any other remedies, either Service Provider, or City may
terminate this Agreement immediately upon written notice.
(d) Upon termination of this Agreement by either Service Provider or City, all
property belonging exclusively to City which is in Service Provider's possession shall be
returned to City. Service Provider shall furnish to City a final invoice for work performed and
expenses incurred by Service Provider, prepared as set forth in Section 4 "Compensation
and Method of Payment" of this Agreement. This final invoice shall be reviewed and paid in
the same manner as set forth in Section 4 "Compensation and Method of Payment" of this
Agreement.
SECTION 20. DEFAULT.
In the event that Service Provider is in default under the terms of this Agreement, the
City shall not have any obligation or duty to continue compensating Service Provider for any
work performed after the date of default. Instead, the City may give notice to Service
Provider of the default and the reasons for the default. The notice shall include the
timeframe in which Service Provider may cure the default. This timeframe is presumptively
thirty (30) days, but may be extended, though not reduced, if circumstances warrant. During
the period of time that Service Provider is in default, the City shall hold all invoices and shall,
when the default is cured, proceed with payment on the invoices. In the alternative, the City
may, in its sole discretion, elect to pay some or all of the outstanding invoices during the
period of default. If Service Provider does not cure the default, the City may take necessary
steps to terminate this Agreement under Section 19 "Termination of Agreement." Any failure
on the part of the City to give notice of the Service Provider's default shall not be deemed to
result in a waiver of the City's legal rights or any rights arising out of any provision of this
Agreement.
SECTION 21. EXCUSABLE DELAYS.
Service Provider shall not be liable for damages, including liquidated damages, if any,
caused by delay in performance or failure to perform due to causes beyond the control of
Service Provider. Such causes include, but are not limited to, acts of God, acts of the public
enemy, acts of federal, state or local governments, acts of City, court orders, fires, floods,
epidemics, strikes, embargoes, and unusually severe weather. The term and price of this
Agreement shall be equitably adjusted for any delays due to such causes.
SECTION 22. COOPERATION BY CITY.
All public information, data, reports, records, and maps as are existing and available to
City as public records, and which are necessary for carrying out the Services shall be
furnished to Service Provider in every reasonable way to facilitate, without undue delay, the
Services to be performed under this Agreement.
SECTION 23. NOTICES.
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All notices required or permitted to be given under this Agreement shall be in writing
and shall be personally delivered, or sent by telecopier or certified mail, postage prepaid and
return receipt requested, addressed as follows:
To City: City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
To Service Provider: Fairbank, Maslin, Maullin, Metz &Associates
ATTN: John Fairbank
12100 Wilshire Blvd Ste 350
Los Angeles, CA 90025
Notice shall be deemed effective on the date personally delivered or transmitted by
facsimile or, if mailed, three (3) days after deposit of the same in the custody of the United
States Postal Service.
SECTION 24. AUTHORITY TO EXECUTE.
The person or persons executing this Agreement on behalf of Service Provider
represents and warrants that he/she/they has/have the authority to so execute this
Agreement and to bind Service Provider to the performance of its obligations hereunder.
SECTION 25. ADMINISTRATION AND IMPLEMENTATION.
This Agreement shall be administered and executed by the City Manager or his or her
designated representative. The City Manager shall have the authority to issue interpretations
and to make amendments to this Agreement, including amendments that commit additional
funds, consistent with Section 27 "Amendment" and the City Manager's contracting authority
under the Cathedral City Municipal Code.
SECTION 26. BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators, successors
and assigns of the Parties.
SECTION 27. AMENDMENT.
No amendment to or modification of this Agreement shall be valid unless made in
writing and approved by the Service Provider and by the City. The City Manager shall have
the authority to approve any amendment to this Agreement if the total compensation under
this Agreement, as amended, would not exceed the City Manager's contracting authority
under the Cathedral City Municipal Code. All other amendments shall be approved by the
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City Council. The Parties agree that the requirement for written modifications cannot be
waived and that any attempted waiver shall be void.
SECTION 28. WAIVER.
Waiver by any Party to this Agreement of any term, condition, or covenant of this
Agreement shall not constitute a waiver of any other term, condition, or covenant. Waiver by
any Party of any breach of the provisions of this Agreement shall not constitute a waiver of
any other provision nor a waiver of any subsequent breach or violation of any provision of
this Agreement. Acceptance by City of any work or services by Service Provider shall not
constitute a waiver of any of the provisions of this Agreement.
SECTION 29. LAW TO GOVERN; VENUE.
This Agreement shall be interpreted, construed and governed according to the laws of
the State of California. In the event of litigation between the Parties, venue in state trial
courts shall lie exclusively in the County of Riverside, California. In the event of litigation in a
U.S. District Court, venue shall lie exclusively in the Central District of California, in Riverside.
SECTION 30. ATTORNEYS FEES, COSTS AND EXPENSES.
In the event litigation or other proceeding is required to enforce or interpret any
provision of this Agreement, the prevailing Party in such litigation or other proceeding shall
be entitled to an award of reasonable attorney's fees, costs and expenses, in addition to any
other relief to which it may be entitled.
SECTION 31. ENTIRE AGREEMENT.
This Agreement, including the attached Exhibits "A" through "C", is the entire,
complete, final and exclusive expression of the Parties with respect to the matters addressed
therein and supersedes all other agreements or understandings, whether oral or written, or
entered into between Service Provider and City prior to the execution of this Agreement. No
statements, representations or other agreements, whether oral or written, made by any Party
which are not embodied herein shall be valid and binding.
SECTION 32. SEVERABILITY.
If any term, condition or covenant of this Agreement is declared or determined by any
court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions
of this Agreement shall not be affected thereby and the Agreement shall be read and
construed without the invalid, void or unenforceable provision(s).
SECTION 33. CONFLICTING TERMS.
Except as otherwise stated herein, if the terms of this Agreement conflict with the
terms of any Exhibit hereto, or with the terms of any document incorporated by reference into
this Agreement, the terms of this Agreement shall control.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the
date and year first-above written.
CITY OF CATHEDRAL CITY FAIRBANK, MASLIN, MAULLIN, METZ &
A - CIATES r
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Charles P. McClendon • � •a mac'
City Manager /Its: ,
ATTES MINE'S:
Gary F. Howell Printed Name: , j UL- klAS LiN
City Clerk Its: P ,t-fiV-
APPROVED AS TO F
Eric S. Vail
City Attorney
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Fairbank
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Metz &
Associates
Public Opinion Research
&Strategy
TO: Tami Scott,Administrative Services Director
City of Cathedral City
FROM: John Fairbank,Adam Sonenshein&David Sokolove
Fairbank,Maslin,Maullin,Metz&Associates
RE: Proposal to Conduct Opinion Research for the City of Cathedral City
DATE: February 23,2015
Thank you for the opportunity to discuss the opinion research services that FM3 can provide for Cathedral
City as the City evaluates its options regarding whether to place a city charter before voters in the
upcoming 2016 election. As you know,FM3 is well-versed in the issues and attitudes of Cathedral City
residents; our research helped inform the City's efforts to secure voter approval for successful local
revenue measures in 2008, 2010 and most recently in 2014. The forthcoming memo outlines FM3's
proposed research approach for the current project and associated costs.
Research Approach & Methodology
To increase the likelihood that the City's charter measure will be approved by voters, FM3 strongly
suggests that Cathedral City consider utilizing a protocol in developing the measure's ballot label language
similar to the one used for its three successful tax measures —Measure L, Measure H and Measure B,
respectively. Specifically, we recommend that the City Attorney use survey research data to inform the
terminology and phrasing of the 75-word ballot label statement to highlight the provisions of the proposed
charter that voters report are most important to them.
To provide the City with the information necessary to make these informed decisions, FM3 proposes to
conduct a survey of 400 Cathedral City registered voters who are likely to participate in the November
2016 general election using our firm's innovative dual mode(telephone and internet)survey methodology.
As incidence rates for telephone surveys have declined throughout the polling industry,FM3 has led our
industry by developing methodological tools which ensure our continued ability to produce extremely
accurate survey results among relatively small populations, such as those the size of the likely voter
universe of Cathedral City. Using our dual mode approach, interviews with Cathedral City voters will be
conducted both by telephone and online, rather than via telephone alone.
12100 Wilshire Boulevard Suite 350 1999 Harrison Street Suite 2020
Los Angeles, CA 90025 Oakland, CA 94612
Phone: (310)828-1183 Phone: (510)451-9521
Fax: (310)453-6562 Fax: (510)451-0384
Page 2
Although the design of the survey questionnaire itself would be conducted in close coordination with City
staff,we envision that the final survey may address some,if not all,of the following issues,among others:
✓ Do voters feel that Cathedral City is headed in the right direction, or off on the wrong track?
V What are voters' perceptions of City government, its management practices and the quality of the
services it provides?
✓ How do voters respond to various potential ballot label language options for the charter measure?
✓ Do voters want their City government to have greater authority than it has now? If so, in what
specific areas?
✓ Are voters receptive to instituting political and/or management reforms in City government? If
so,what specific reforms are they most supportive of?
✓ Of the specific provisions of the proposed city charter,how do voters respond to each one?
✓ How to voters respond to various legally permissible, non-advocacy informational statements
about the proposed charter?
✓ What are the impact of various oppositional messages against the charter measure that are likely
to be utilized by charter opponents?
✓ Who/what are the specific individuals and organizations that would have the greatest credibility to
speak out publically regarding the proposed charter?
In addition, given that the City is currently establishing a new Lighting&Landscaping District with the
intention of using the Proposition 218 property owner vote-by-mail election process to obtain
authorization for levying a street repair assessment on Cathedral City property owners,FM3 suggests that
the City may wish to consider adding a handful of additional questions addressing this topic to the survey
as well. Any such questions would of course be developed in close coordination with City staff,but may
address such issues as:
✓ Do voters perceive the City as having a need for additional funds to provide the level of City
services that Cathedral City residents want and deserve generally, and/or for street repairs and
maintenance specifically?
✓ How do voters view the current condition of Cathedral City's streets, and how do they rate
improvements to street repair and maintenance as a priority for city government compared to other
basic services?
✓ How do voters respond to various potential ballot label language options and annual dollar
amounts for a Cathedral City street repair assessment measure?
The survey instrument will also gather relevant demographic information from respondents to analyze
responses by gender, age,party registration, ethnicity and other pertinent demographic groupings. This
data will help identify consistent supporters and opponents of the charter measure (and potentially an
assessment measure as well), as well as those who can potentially be persuaded to support the measure
after receiving additional non-advocacy information. Relevant geographic data about survey respondents
will be provided by the voter file, as all voters are required to provide a current residential address when
they register to vote.
Fairbank,
Maslin,.
Mau rin,
Metz
Associates.
FM3
Page 3
Research Costs:
Table 1 below provides the costs for FM3's recommended research options as described in this proposal,
at an average interview lengths of 15 and 20 minutes. All costs in the table below reflect bilingual,
English-Spanish surveys to ensure the proper inclusion of the City's Latino voter population.
Table 1:
Cathedral City Survey Costs by Average Interview Length
;Average Interview Length tiCost
15 Minutes $28,500
20 Minutes $31,850
All prices shown in the table above are comprehensive — reflecting all costs for sample acquisition,
questionnaire development,programming and pre-testing the survey, online survey hosting and emailing
Spanish translation, bilingual telephone interviewing, data entry, cross-tabulation, data analysis, and
preparation and presentation of survey results. Direct incidental expenses, such as extra reproduction of
reports and travel, are not included but would be billed at cost only if incurred.'
Of course, any number of alternative survey structures are possible, which may result in higher or lower
costs. FM3 is committed to working with you to tailor the research plan to fit your budget and meet your
research needs. If you have any questions or would like more information,please do not hesitate to contact
us at our Los Angeles office as follows:
John Fairbank Adam Sonenshein David Sokolove
12100 Wilshire Boulevard 12100 Wilshire Boulevard 12100 Wilshire Boulevard
Suite 350 Suite 350 Suite 350
Los Angeles, CA 90025 Los Angeles, CA 90025 Los Angeles, CA 90025
(310) 828-1183 (Office) (310) 828-1183 (Office) (310) 828-1183 (Office)
(310)463-2230 (Cell) (310) 569-3653 (Cell) (617) 512-7656(Cell)
John@FM3research.com Adam @FM3research.com Sokolove@FM3research.com
We would welcome the opportunity to work with you to craft a successful measure. Thank you for your
consideration.
•
'FM3 charges for travel based on the IRS 2016 business mileage allowance of 0.54/mile. Fairbank,
Maslin,
Maullin;
Met &..
Associates
FM3 .
EXHIBIT "B"
COMPENSATION
I. Service Provider shall use the following rates of pay in the performance of the
Services:
15 Minute Survey - $28,500 plus eligible reimburseables
20 Minute Survey - $31,850 plus eligible reimburseables
B-1
EXHIBIT "C"
INSURANCE
A. Insurance Coverages. Service Provider shall provide and maintain
insurance, acceptable to the City, in full force and effect throughout the term of this
Agreement, against claims for injuries to persons or damages to property which may
arise from or in connection with the performance of the Services by Service Provider, its
agents, representatives or employees. Service Provider shall procure and maintain the
following scope and limits of insurance:
Only the following "marked" requirements are applicable:
X Commercial General Liability (CGL): Insurance written on an occurrence
basis to protect Service Provider and City against liability or claims of liability which may
arise out of this Agreement in the amount of one million dollars ($1,000,000) per
occurrence and subject to an annual aggregate of two million dollars ($2,000,000).
Coverage shall be at least as broad as Insurance Services Office form Commercial
General Liability coverage (Occurrence Form CG 0001). There shall be no
endorsement or modification of the CGL limiting the scope of coverage for either
insured vs. additional insured claims or contractual liability. All defense costs shall be
outside the limits of the policy.
X Vehicle Liability Insurance: Vehicle liability insurance in an amount not less
than $1,000,000 for injuries, including accidental death, to any one person, and subject
to the same minimum for each person, in an amount not less than one million dollars
($1,000,000) for each accident, and property damage insurance in an amount of not
less than one million dollars ($1,000,000). A combined single limit policy with
aggregate limits in an amount of not less than $2,000,000 shall be considered
equivalent to the said required minimum limits. Coverage shall be at least as broad as
Insurance Services Office form number CA 0001 covering Automobile Liability,
including code 1 "any auto" and endorsement CA 0025, or equivalent forms subject to
the approval of the City.
X Workers' Compensation Insurance: Workers' Compensation insurance that
includes a minimum of one million dollars ($1,000,000) of employers' liability coverage.
Service Provider shall provide an endorsement that the insurer waives the right of
subrogation against the City and its respective elected officials, officers, employees,
agents and representatives. In the event a claim under the provisions of the California
Workers' Compensation Act is filed against City by a bona fide employee of Service
Provider participating under this Agreement, Service Provider is to defend and
indemnify the City from such claim.
C-1
a n
X Professional Liability Insurance: Professional liability insurance appropriate
to the Service Provider's profession in an amount not less than one million dollars
$1,000,000 per occurrence. This coverage may be written on a "claims made" basis,
and must include coverage for contractual liability. The professional liability insurance
required by this Agreement must be endorsed to be applicable to claims based upon,
arising out of or related to Services performed under this Agreement. The insurance
must be maintained for at least three (3) consecutive years following the completion of
Service Provider's services or the termination of this Agreement. During this additional
three (3) year period, Service Provider shall annually and upon request of the City
submit written evidence of this continuous coverage.
B. Other Provisions. Insurance policies required by this Agreement shall
contain the following provisions:
1. All Coverages.
a. Each insurance policy required by this Agreement shall be
endorsed and state the coverage shall not be suspended, voided, cancelled by the
insurer or either Party to this Agreement, reduced in coverage or in limits except after
30 days' prior written notice by certified mail, return receipt requested, has been given
to City.
b. Insurance is to be placed with insurers with a current A.M.
Best's rating of no less than A:VII.
2. Commercial General Liability and Automobile Liability Coverages.
a. City, and its respective elected and appointed officers,
officials, and employees and volunteers are to be covered as additional insureds as
respects: liability arising out of activities Service Provider performs; products and
completed operations of Service Provider; premises owned, occupied or used by
Service Provider; or automobiles owned, leased, hired or borrowed by Service Provider.
The coverage shall contain no special limitations on the scope of protection afforded to
City, and their respective elected and appointed officers, officials, or employees.
b. Service Provider's insurance coverage shall be primary
insurance with respect to City, and its respective elected and appointed, its officers,
officials, employees and volunteers. Any insurance or self-insurance maintained by
City, and its respective elected and appointed officers, officials, employees or
volunteers, shall apply in excess of, and not contribute with, Service Provider's
insurance.
C-2
r R
c. Service Provider'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.
d. Any failure to comply with the reporting or other provisions of
the insurance policies, including breaches of warranties, shall not affect coverage
provided to City, and its respective elected and appointed officers, officials, employees
or volunteers.
e. The insurer waives all rights of subrogation against the City,
its elected or appointed officers, officials, employees or agents.
3. Workers' Compensation Coverage. Unless the City Manager
otherwise agrees in writing, the insurer shall agree to waive all rights of subrogation
against City, and its respective elected and appointed officers, officials, employees and
agents for losses arising from work performed by Service Provider.
C. Other Requirements. Service Provider agrees to deposit with City, at or
before the effective date of this Agreement, certificates of insurance necessary to
satisfy City that the insurance provisions of this contract have been complied with. The
City may require that Service Provider furnish City with copies of original endorsements
effecting coverage required by this Exhibit "C". The certificates and endorsements are
to be signed by a person authorized by that insurer to bind coverage on its behalf. City
reserves the right to inspect complete, certified copies of all required insurance policies,
at any time.
1. Service Provider shall furnish certificates and endorsements from
each subcontractor identical to those Service Provider provides.
2. 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 respects City or its respective elected or
appointed officers, officials, employees and volunteers, or the Service Provider shall
procure a bond guaranteeing payment of losses and related investigations, claim
administration, defense expenses and claims.
3. The procuring of such required policy or policies of insurance shall
not be construed to limit Service Provider's liability hereunder nor to fulfill the
indemnification provisions and requirements of this Agreement.
C-3
EXHIBIT "A"
SCOPE OF SERVICES
See attached Proposal By Fairbank, Maslin, Maullin, Metz & Associates
A-1