HomeMy WebLinkAbout2019-082Resolution No. 2019-82
RESOLUTION NO. 2019-82
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING THE AWARD OF PROFESSIONAL
SERVICES AGREEMENTS WITH FAIRBANK, MASLIN,
MAULLIN, METZ & ASSOCIATES (FM3 RESEARCH)
FOR PROFESSIONAL POLLING AND PUBLIC OPINON
RESARCH AND TERRIS BARNES WALTERS BOIGON
HEATH, INC. (TBWB STRATEGIES) FOR STRATEGIC
COMMUNICATION AND PUBLIC EDUCATION
SERVICES FOR A REVENUE MEASURE
WHEREAS, Measure Z was approved by the voters of San Bernardino on November 7,
2006 enacting a $0.25 sales tax for a period of fifteen (15) years, beginning April 1, 2007, raising
the total sales tax rate in the City from 7.75% to 8%; and
WHEREAS, Measure Z provided that proceeds be used to fund more police officers,
anti -gang and anti-crime operations, and other urgent general fund programs; and
WHEREAS, Measure Z has generated approximately $80M since 2007 and is projected
to generate $8.89M in FY2018/19 providing funding for police officers and support personnel,
and to fund anti -gang and anti-crime operations, including drug resistance education and
supervised after-school youth activities; and
WHEREAS, Measure Z will sunset on April 1, 2022; and
WHEREAS, State Law requires that ballot measures be placed on General Elections and
the next opportunity to place a ballot measure before voters to extend, make permanent, or
increase the $0.25 sales tax will be November 2020; and
WHEREAS, there is a need to engage a professional polling and public opinion research
firm to create a statistically -valid survey to measure San Bernardino voter's sentiments about tax
measures and on March 6, 2019 the City Council authorized staff to issue a Request for Proposal
(RFP) for such services; and
WHEREAS, on March 21, 2019 staff issued a RFP for professional polling and public
opinion research and following a detailed analysis of each proposal, including an evaluation of
cost, qualifications, staffing and understanding of the community, Fairbank, Maslin, Maullin,
Metz & Associates (FM3 Research) demonstrated the base capability to provide professional
polling and public opinion research services, attached hereto and incorporated herein as Exhibit
"A"; and
WHEREAS, there is a need to engage a strategic communications firm to educate and
inform the City of San Bernardino's residents on funding, benefits and needs related to the
Measure Z sales tax and on March 6, 2019 the City Council authorized staff to issue a RFP for
such services; and
Resolution No. 2019-82
WHEREAS, on March 21, 2019 staff issued a RFP for professional strategic
communication and education services and following a detailed analysis of each proposal,
including an evaluation of cost, qualifications, staffing and understanding of the community,
Terris Barnes Walters Boigon Heath, Inc. (TBWB Strategies) demonstrated the best capability to
provide strategic communication and education services, attached hereto and incorporated herein
as Exhibit `B."
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are incorporated herein by this
reference.
SECTION 2. The City Manager or designee is hereby authorized and directed to award
a consulting contract service agreement to Fairbank, Maslin, Maullin, Metz & Associates (FM3
Research), not to exceed $59,950.
SECTION 3. The City Manager or designee is hereby authorized and directed to award
a consulting contract service agreement to Terris Barnes Walters Boigon Heath, Inc. (TBWB
Strategies), not to exceed $225,364.
SECTION 4. The City Council finds this Resolution is not subject to the California
Environmental Quality Act (CEQA) in that the activity is covered by the general rule that CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty, as in this case, that there is no possibility that
the activity in question may have a significant effect on the environment, the activity is not
subject to CEQA.
SECTION 5. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
applications, and to this end the provisions of this Resolution are declared to be severable.
SECTION 6. Effective Date. This Resoluti shall become effective immediately.
APPROVED and ADOPTED by the City cil an si ed by the Mayor and attested
by the City Clerk this 5th day of June 2019.
John Valdivia, Mayor
City of San Bernardino
Attest:
j
Georgeann H.T na, MMC, City
Resolution No. 2019-82
Approved as to form:
Gary D. Saenz, City Attorney
Resolution No. 2019-82
CERTIFICATION
STATE OF CALIFORNIA)
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO)
I, Georgeann Hanna, MMC, City Clerk, hereby certify that the attached is a true copy of
Resolution No. 2019-82 adopted at a regular meeting held on the 5h day of June 2019 by the
following vote:
Council Members: AYES NAYS ABSTAIN ABSENT
SANCHEZ X
IBARRA X
FIGUEROA X
SHORETT _ X
NICKEL X
RICHARD X
MULVIHILL
WITNESS my hand and official seal of the City of San Bernardino this 5t' day of June 2019.
Georgeann a, MMC, City Clerk
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PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND FAIRBANK, MASLIN, MAULLIN, METZ & ASSOCIATES
This Agreement is made and entered into as of June 5, 2019 by and between the City of
San Bernardino, a charter city and municipal corporation organized and operating under the laws
of the State of California with its principal place of business at Vanir Tower, 290 North D Street,
San Bernardino, CA 92401 {"City"), and Fairbank, Maslin, Maullin, Metz & Associates, a
California S Corporation with its principal place of business at 12100 Wilshire Boulevard, Ste.,
350, Los Angeles, CA 90025 (hereinafter referred to as "Consultant)_ City and Consultant are
hereinafter sometimes referred to individually as "Party" and collectively as the "Parties."
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
Polling and Public Opinion Research Services (hereinafter referred to as "the Project').
B. Consultant is duly licensed and has the necessary qualifications to provide such
services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Incorporation of Recitals. The recitals above are true and correct and are hereby
incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the
Scope of Services attached hereto as Exhibit "A."
3. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel identified in their proposal.
Consultant warrants that Consultant is familiar with all laws that may affect its performance of
this Agreement and shall advise City of any changes in any laws that may affect Consultant's
performance of this Agreement. Consultant further represents that no City employee will
provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit `B."
b. In no event shall the total amount paid for services rendered by Consultant
under this Agreement exceed the sum of $59,950 (Fifty Nine Thousand Nine Hundred and Fifty
Dollars).
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C. Consultant may submit invoices to City for approval. Said invoice shall be
based on the total of all Consultant's services which have been completed to City's sole
satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City
receives said invoice. The invoice shall describe in detail the services performed and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City,
and informal consultations with the other party indicate that a change is warranted, it shall be
processed in the following manner: a letter outlining the changes shall be forwarded to the City
by Consultant with a statement of estimated changes in fee or time schedule. An amendment to
this Agreement shall be prepared by the City and executed by both Parties before performance of
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Term. This Agreement shall commence on the Effective Date and continue
through the completion of services as set forth in Exhibit "A," unless the Agreement is
previously terminated as provided for herein ("Term').
7. Maintenance of Records: Audits.
a. Records of Consultant's services relating to this Agreement shall be
maintained in accordance with generally recognized accounting principles and shall be made
available to City for inspection and/or audit at mutually convenient times for a period of four (4)
years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence
pertaining to costs incurred shall be maintained by Consultant and made available at all
reasonable times during the contract period and for four (4) years from the date of final payment
under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and
timely manner and shall commence performance upon receipt of written notice from the City to
proceed. Consultant shall complete the services required hereunder within Term.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this
Agreement for delays in performance caused by circumstances beyond the reasonable control of
the non-performing Party. For purposes of this Agreement, such circumstances include but are
not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war, riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b. Should such circumstances occur, the non performing Party shall, within a
reasonable time of being prevented from performing, give written notice to the other Party
describing the circumstances preventing continued performance and the efforts being made to
resume performance of th i,.; Agreement.
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10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
C. If applicable, Consultant is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of his or her services or operations
performed under this Agreement.
11. Standard of Care. Consultant's services will be performed in accordance with
generally accepted professional practices and principles and in a manner consistent with the level
of care and skill ordinarily exercised by members of the profession currently practicing under
similar conditions.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all
times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment
from or employment with any person or entity which will constitute a conflict of interest with the
City.
13. Cir v Business Certificate. Consultant shall, prior to execution of this Agreement,
obtain and maintain during the term of this Agreement a valid business registration certificate
from the City pursuant to Title 5 of the City's Municipal Code and any and all other licenses,
permits, qualifications, insurance, and approvals of whatever nature that are legally required of
Consultant to practice his/her profession, skill, or business.
14. Assit:imient and Subconsultant. Consultant shall not assign, sublet, or transfer
this Agreement or any rights under or interest in this Agreement without the written consent of
the City, which may be withheld for any reason. Any attempt to so assign or so transfer without
such consent shall be void and without legal effect and shall constitute grounds for termination.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in
this Agreement. Nothing contained herein shall prevent Consultant from employing independent
associates and subconsultants as Consultant may deem appropriate to assist in the performance
of services hereunder.
15. Indel endent Consultant. Consultant is retained as an independent contractor and
is not an employee of City. No employee or agent of Consultant shall become an employee of
City. The work to be performed shall be in accordance with the work described in this
Agreement, subject to such directions and amendments from City as herein provided.
16. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has secured all insurance required under this section.
a. Additional Insured
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The City of San Bernardino, its officials, officers, employees, agents, and
volunteers shall be named as additional insureds on Consultant's and its subconsultants' policies
of commercial general liability and automobile liability insurance using the endorsements and
forms specified herein or exact equivalents.
b. Commercial General Liabilivc
(i) The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion
deleted
(7) Contractual Liability with respect to this Contract
(8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability, (2) cross liability exclusion for claims or suits by one
insured against another, (3) products/completed operations liability, or (4) contain any other
exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials,
officers, employees, agents, and City -designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same
coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
C. Automobile Liability
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(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non -owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
d. Workers' Comensation/Empioyer's Liabiliit
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreement,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement, all in accordance with the
"Workers' Compensation and Insurance Act," Division N of the Labor Code of the State of
California and any acts amendatory thereof, and Employer's Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the
period required by this Agreement, workers' compensation coverage of the same type and limits
as specified in this section.
C. Professional LiabilitN (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant
shall maintain professional liability or Errors and Omissions insurance appropriate to its
profession, in a form and with insurance companies acceptable to the City and in an amount
indicated herein. This insurance shall be endorsed to include contractual liability applicable to
this Agreement and shalll be written on a policy form coverage specifically designed to protect
against acts, errors or omissions of the Consultant. "Covered Professional Services" as
designated in the policy must specifically include work performed under this Agreement. The
policy must "pay on behalf of the insured and must include a provision establishing the insurer's
duty to defend.
f. Minimum Policy Limits RNuired
(i) The following insurance limits are required for the Agreement:
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Commercial General Liability
Automobile Liability
Employer's Liability
Professional Liability
Combined Single Limit
$1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
$1,000,000 per occurrence for bodily injury and
property damage
$1,000,000 per occurrence
$1,000,000 per claim and aggregate (errors and
omissions)
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
g. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's
equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
b. Policx- Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of the premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement to the City at least ten (10)
days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant's policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any named insureds shall
not be called upon to contribute to any loss.
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(iii) The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement Consultant shall maintain such coverage continuously for a
period of at least three years after the completion of the work under this Agreement. Consultant
shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced
past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if
the policy is replaced by another claims -made policy with a retroactive date subsequent to the
effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the
City, its officials, officers, employees, agents, and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each
of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability
in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law.
i. Oualif3jU Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Bests rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code
or any federal law.
j. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is not
intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise
assumed by the Consultant pursuant to this Agreement, including, but not limited to, the
provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of
insurance required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant or City
will withhold amounts sufficient to pay premium from Consultant payments. In the alternative,
City may cancel this Agreement.
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(iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor the City Council, nor any member of the City
Council, nor any of the officials, officers, employees, agents or volunteers shall be personally
responsible for any liability arising under or by virtue of this Agreement.
k. 5ubconsultant Insurance Requirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have
provided evidence satisfactory to the City that they have secured all insurance required under
this section. Policies of commercial general liability insurance provided by such subcontractors
or subconsultants shall be endorsed to name the City as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by
Consultant, City may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with
counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed
officials, officers, employees, agents, and authorized volunteers free and harmless from any and
all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability,
judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to
property or persons, including wrongful death, (collectively, "Claims') in any manner arising out
of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of
Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection
with the performance of the Consultant's services, the Project, or this Agreement, including
without limitation the payment of all consequential damages, expert witness fees and attorneys'
fees and other related costs and. expenses. Notwithstanding the foregoing, to the extent
Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be
limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, the City Council, members of the City Council, its employees, or
authorized volunteers.
b. Additional Indemnia Obligations. Consultant shall defend, with counsel
of City's choosing and at Consultant's own cost, expense and risk, any and all Claims covered by
this section that may be brought or instituted against the City, its elected and appointed officials,
employees, agents, or authorized volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against the City, its elected and appointed officials,
employees, agents, or authorized volunteers as part of any such claim, suit, action or other
proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City,
its elected and appointed officials, employees, agents, or authorized volunteers as part of any
such claim, suit, action or other proceeding. Such reimbursement shall include.payment for the
City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse the
City, its elected and appointed officials, employees, agents, or authorized volunteers, for any and
all legal expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to
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insurance proceeds, if any, received by the City, its elected and appointed officials, employees,
agents, or authorized volunteers.
18. California Labor Code Requirements. Consultant is aware of the requirements of
California Labor Code Sections 1720 et sea. and 1770 et sea., as well as California Code of
Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on certain "public
works" and `maintenance" projects. If the Services are being performed as part of an applicable
`public works" or `maintenance" project, as defined by the Prevailing Wage Laws, Consultant
agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend,
indemnify and hold the City, its elected officials, officers, employees and agents free and
harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the
Consultant and all subconsultants to comply with all California Labor Code provisions, which
include but are not limited to prevailing wages, employment of apprentices, hours of labor and
debarment of contractors and subcontractors.
If the Services are being performed as part of an applicable "public works" or
`maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant
and all subconsultants performing such Services must be registered with the Department of
Industrial Relations. Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants, as applicable. This Project may also be subject to
compliance monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant's sole responsibility to comply with all applicable registration and labor compliance
requirements.
19. Verification of Enirloyment Eligibility. By executing this Agreement, Consultant
verifies that it fully complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the
Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall
require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Agreement, the action shall be brought in a state or federal court situated in the County of San
Bernardino, State of California.
21. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days' written notice to Consultant. In such
event, City shall be immediately given title and possession to all original field notes, drawings
and specifications, written reports and other documents produced or developed for that portion of
the work completed and/or being abandoned. City shall pay Consultant the reasonable value of
services rendered for any portion of the work completed prior to termination. If said termination
occurs prior to completion of any task for the Project for which a payment request has not been
received, the charge for services performed during such task shall be the reasonable value of
such services, based on an amount mutually agreed to by City and Consultant of the portion of
such task completed but not paid prior to said termination. City shall not be liable for any costs
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other than the charges or portions thereof which are specified herein. Consultant shall not be
entitled to payment for unperformed services, and shall not be entitled to damages or
compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days' written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Consultant.
22. Atio iqa-Fees. In the event that litigation is brought by any Party in connection
with this Agreement, the prevailing Party shall be entitled to recover from the opposing Party all
costs and expenses, including reasonable attorneys' fees, incurred by the prevailing Party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof. The costs, salary, and expenses of the City Attorney's Office in
enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the
purposes of this Agreement.
23. Responsibiliy, for Errors. Consultant shall be responsible for its work and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation
as may be required by the City's representative, regarding any services rendered under this
Agreement at no additional cost to City. In the event that an error or omission attributable to
Consultant's professional services occurs, Consultant shall, at no cost to City, provide all other
services necessary to rectify and correct the matter to the sole satisfaction of the City and to
participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of
City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and
negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
26. Documents. Except as otherwise provided in "Termination or Abandonment,"
above, all original field notes, written reports, Drawings and Specifications and other documents,
produced or developed for the Project shall, upon payment in full for the services described in
this Agreement, be furnished to and become the property of the City.
27. Orvanization. Consultant shall assign Adam Sonenshein as Project Manager.
The Project Manager shall not be removed from the Project or reassigned without the prior
written consent of the City.
28. Limitation of Agreement_ This Agreement is limited to and includes only the
work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this
Agreement may be given or delivered by depositing the same in any United States Post Office,
certified mail, return receipt requested, postage prepaid, addressed to the following addresses and
shall be effective upon receipt thereof:
DocuSign Envelope ID: 55E1CBAC-CFEA-4E2F-9611-7AOF66831C60
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Rebekah Kramer
City Manager's Office
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
John Fairbank
12100 Wilshire Blvd., Ste 350
Los Angeles, CA 90025bank
30. Third Party Rights. Nothing in this Agreement shall be construed to give any
rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other interests
protected by the State or Federal Constitutions. Such non-discrimination shall include, but not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement This Agreement, including Exhibit "A," represents the entire
understanding of City and Consultant as to those matters contained herein, and supersedes and
cancels any prior or contemporaneous oral or written understanding, promises or representations
with respect to those matters covered hereunder. Each Party acknowledges that no
representations, inducements, promises, or agreements have been made by any person which are
not incorporated herein, and that any other agreements shall be void. This is an integrated
Agreement.
33. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination
shall not affect the validity or enforceability of the remaining terms and provisions hereof or of
the offending provision in any other circumstance, and the remaining provisions of this
Agreement shall remain in full force and effect.
34. Successors and Assigns. This Agreement shall be binding upon and shall inure to
the benefit of the successors in interest, executors, administrators and assigns of each Party to
this Agreement. However, Consultant shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written consent
of City. Any attempted assignment without such consent shall be invalid and void.
35. Non -Waiver. The delay or failure of either Party at any time to require
performance or compliance by the other Party of any of its obligations or agreements shall in no
way be deemed a waiver of those rights to require such performance or compliance. No waiver
DocuSign Envelope ID: 55E1CBAC-CFEAAE2F-9611-7AOF66831C60
of any provision of this Agreement shall be effective unless in writing and signed by a duly
authorized representative of the Parry against whom enforcement of a waiver is sought. The
waiver of any right or remedy with respect to any occurrence or event shall not be deemed a
waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver
constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain, or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their
respective successors and assigns may amend this Agreement.
39. Cit._, 's RL- ]A to Em Flo,, Other Consultants. City reserves its right to employ other
consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no official, officer or employee of City, during the term of his or
her service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
41. Counte�Larts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original. All counterparts shall be construed together and shall
constitute one single Agreement.
42. Authorit•.. The persons executing this Agreement on behalf of the Parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that
by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID. 55E1COAC-CFEA4E2F-9611 7AOF6683lC6D
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGRr+:Ti.NTM
BETWEEN THE CITY OF SAN BERNARDINO
AND FAIRBANK, MASLIN, MAULLIN, METZ & ASSOCIATES
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN BERNARDINO CONSULTANT
Approved
City Manager Sigloatu>,e
john Fairbank
Approved as to Form: -
Name
****Approved Form ""
Partner
Gary D. Saenz-
City Attorney
Attested By:
r
Georgeann 146na, CMC
City Clerk
DocuSign Envelope ID: 55E1CBAC-CFEA-4E2F 9611-7AOF66831.C60
A. STATEMENT OF WORK: (Narrative of work to be performed)
To conduct professional research polling of San Bernardino voters to measure whether to
place a 2020 revenue measure on the November 2020 ballot.
B. CONSULTANT'S DUTIES AND RESPONSIBILITIES:
1) A baseline survey of likely voters. This survey will examine the viability of the
proposed measure and establish important parameters for the City's planning efforts
moving forward, such as the tax mechanism and rate that voters are willing to support;
identifying voters' top priorities for the uses of funds generated by the measure (which is
then utilized to refine the 75 word ballot label language); quantifying the most effective
non -advocacy themes and messages for the City to utilize in its public outreach efforts;
and determining which individuals and organizations have the greatest credibility with
the public when speaking out on the subject of a local finance measure. This survey
would include several open-ended questions.
2) Six In -Depth Interviews with baseline survey respondents. These interviews, which
would be conducted via telephone appointment, provide a thorough and wide-ranging
discussion with a senior member of FM3's research team on not only what the subject's
views are, but why and how they carne to hold those views. Each interview would be
approximately 15 minutes in length.
DocuSign Envelope ID: 55E1CBAC-CFEA-4E2F-9691-7AOF66831C60
3) A tracking survey among likely voters shortly before the City Council votes on
whether to place a (mance measure on the ballot. This survey would examine a
number of factors that may impact support for the proposed finance measure which may
have changed since the initial baseline survey, such as: (1) refinements to the measure's
75 -word ballot label language based on the baseline survey results, (2) the impacts of the
City's public outreach efforts as well as those of measure opponents, and (3) the presence
of other ballot measures that may impact support for the City's measure. The tracking
survey would provide the City Council members with current information regarding the
level of support for the finance measure to help inform their deliberation regarding
whether to move forward with placing the measure on the ballot. This survey would
include several open-ended questions.
C. CITY'S DUTIES AND RESPONSIBILITIES:
1. Provide staffing to discuss information on the City's current and future needs and
objectives.
2. Staff will be available to assist in the review and approval of the survey. Final
approval of survey questionnaire will be made by the City.
D. WORK PROGRAM/PROJECT SCHEDULE:
Phase 1: RESEARCH DESIGN (2-3 weeks)
-Kick-off meeting/conf rmation of research specifications
DocuSign Envelope ID: 55E1CBAC-CFEA-4E2F-9611-7AQF66831C60
-Review necessary background materials
-Draft, refine, and finalize survey questionnaire
-Draft, refine, and finalize invitation email
-Finalize sample parameters and order/prep sample
-Translate survey questionnaire
-program and test survey questionnaire
Phase 2: DATA COLLECTION (1 2 weeks)
-Send email invitations and email reminders (as necessary)
-Analyze demographics of online survey respondents
-Initiate and conduct telephone interviews
-Continually review responses and sample quotas
-Begin development of cross -tabulated report structure
Phase 3: DATA ANALYSIS & REPORTING (2-3 weeks)
-Generate topline survey results
-Generate cross -tabulated results
-Conduct statistical analysis
-Generate PowerPoint presentation of key findings, conclusions, and actionable
recommendations
-Present findings
i
DocuSign Envelope ID: 5MICaAC-CFEA4E2F-9611-7AOF66831C60
1A.A.11WIdol
Schedule of Charges (]Fixed Fee Payment)
21 Minutes English + Spanish $29,750
15 Minutes English $2,350
18 Minutes English + Spanish $27,850
N N%A $59,950
1. CONSULTANT shall be entitled to monthly progress payments toward the fixed
fee set fwth herein in accordance with the following progress and payment schedules.
2. Delivery of work product: A copy of every memorandum, letter, report,
calculation and other documentation prepared by CONSULTANT shall be submitted to CITY to
demonstrate progress toward completion of tasks. In the event CITY rejects or has
comments on any such product, CITY shall identify specific requirements for satisfactory
completion.
3. CONSULTANT shall submit to CITY an invoice for each monthly progress
payment due. Such invoice shall:
A) Reference this Agreement;
B) Describe the services performed;
C) Show the total amount of the payment due;
D) Include a certification by a principal member of CONSULTANTS firm
that the work has been performed in accordance with the provisions
of this
Agreement; and
E) For all payments include an estimate of the percentage of work completed-
Upon
ompleted
Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making
satisfactory progress toward completion of tasks m accordance with this Agreement, CITY shall
approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the
invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an
invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the
schedule of performance set forth in Exlnbit "A" may at the option of CITY be suspended until
the parties agree that past performance by CONSULTANT is in, or has been brought into
compliance, or until this Agreement has expired or is terminated as provided herein,
4. Any billings for extra work or additional services authorized in advance and
in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of ,'the
information required above, and in addition shall list the hours expended and hm* rate charged
for such time. Such invoices shall be approved by CITY if the work performed is in accordance
with the extra work or additional services requested, and if CITY is satisfied that the statement of
hours worked and costs incurred is accurate. Such approval shall not be mumsonamy
withheld. Any dispute between the parties concerning payment of such an invoice shall be treated
as separate and apart from the ongoing performance of the remainder of this Agreement.
rate Of Completion
Envelope ld:55E1CBACCFEA4E2F96117A0F6W31C60
SwImt Please OocuSign: FM3 Research 2019 conlre d San Bemanino.pdf
Source Envelope:
Document Pages: 17 Sgrmhaex 1
CeAi a to Pages: 2 Initials; 0
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Envelopeld StonWi : Enabled
Mum Zone. (UTC -06:00) Pacfic Tone (US & Canada)
Record Traddng
Slabs: Original
5222019 42M PM
Signer Events
John FaMrank
Panner
SeuwW Levet Email. Account Au on
(KOM)
Electronic Record and Signature Disclosure:
Not Offered via DocuSgn
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Jim Siobgan
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Not Offered via DocuSkgn
David Sokolove
com
Security Level: Email. Account Authentication
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Notary Events
Holden. John Travels
ilrave�
Signature
,�e6,a. faed►.rJe
3j3VAj)j_
Signature Adoption: Pre-aelected kyle
Using IP Address: 172.113.235.65
Signature
Status
Status
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CIfPIED
COPIED
Signature
Signature
Envelope Otighotor:
Jdm Travale
1999 Harmon Street
Suite 2020
Oakland. CA 94612
IP Address: 69.196.170.90
Timestamp
Sent 51222019 42622 PM
Viewed: 5222019 4:50:32 PM
Signed: 512=19 4:51:13 PM
Tlntestamp
Timestamp
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Sera 5122!2019 41:13 PM
V wsd: &241201911:24:11 AM
Sens: 5/222019 4:51:14 PM
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PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND TERRIS BARNES WALTERS BOIGON HEATH, INC.
This Agreement is made and entered into as of June 5, 2019 by and between the City of
San Bernardino, a charter city and municipal corporation organized and operating under the laws
of the State of California with its principal place of business at Vanir Tower, 290 North D Street,
San Bernardino, CA 92401 ("City"), and Terris Barnes Walters Boigon Heath, Inc., a California
Corporation (TBWBH) with its principal place of business at 400 Montgomery St., 7d' Floor, San
Francisco, CA 94101 (hereinafter referred to as "Consultant"). City and Consultant are
hereinafter sometimes referred to individually as "Party" and collectively as the "Parties."
RECITALS
A. City is a public agency of the State of California and is in need of professional
services for the following project:
Strategic Communications and Education Services (hereinafter referred to as "the Project' ).
B. Consultant is duly licensed and has the necessary qualifications to provide such
services.
C. The Parties desire by this Agreement to establish the terms for City to retain
Consultant to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Inconloration of Recitals. The recitals above are true and correct and are hereby
incorporated herein by this reference.
2. Services. Consultant shall provide the City with the services described in the
Scope of Services attached hereto as Exhibit "A."
3. Professional Practices. All professional services to be provided by Consultant
pursuant to this Agreement shall be provided by personnel identified in their proposal.
Consultant warrants that Consultant is familiar with all laws that may affect its performance of
this Agreement and shall advise City of any changes in any laws that may affect Consultant's
performance of this Agreement. Consultant further represents that no City employee will
provide any services under this Agreement.
4. Compensation.
a. Subject to paragraph 4(b) below, the City shall pay for such services in
accordance with the Schedule of Charges set forth in Exhibit 'T."
b. In no event shall the total amount paid for services rendered by Consultant
under this Agreement exceed the sum of $225,364 (Two Hundred Twenty Five Thousand Three
Hundred and Sixty Four Dollars).
C. Consultant may submit invoices to City for approval. Said invoice shall be
based on the total of all Consultant's services which have been completed to City's sole
satisfaction. City shall pay Consultant's invoice within forty-five (45) days from the date City
receives said invoice. The invoice shall describe in detail the services performed and the
associated time for completion. Any additional services approved and performed pursuant to this
Agreement shall be designated as "Additional Services" and shall identify the number of the
authorized change order, where applicable, on all invoices.
5. Additional Work. If changes in the work seem merited by Consultant or the City,
and informal consultations with the other party indicate that a change is warranted, it shall be
processed in the following manner: a letter outlining the changes shall be forwarded to the City
by Consultant with a statement of estimated changes in fee or time schedule. An amendment to
this Agreement shall be prepared by the City and executed by both Parties before performance of
such services, or the City will not be required to pay for the changes in the scope of work. Such
amendment shall not render ineffective or invalidate unaffected portions of this Agreement.
6. Term. This Agreement shall commence on the Effective Date and continue
through the completion of services as set forth in Exhibit "A," unless the Agreement is
previously terminated as provided for herein ("Term").
7. Maintenance of Records: Audits.
a. Records of Consultant's services relating to this Agreement shall be
maintained in accordance with generally recognized accounting principles and shall be made
available to City for inspection and/or audit at mutually convenient times for a period of four (4)
years from the Effective Date.
b. Books, documents, papers, accounting records, and other evidence
pertaining to costs incurred shall be maintained by Consultant and made available at all
reasonable times during the contract period and for four (4) years from the date of final payment
under the contract for inspection by City.
8. Time of Performance. Consultant shall perform its services in a prompt and
timely manner and shall commence performance upon receipt of written notice from the City to
proceed Consultant shall complete the services required hereunder within Terns.
9. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this
Agreement for delays in performance caused by circumstances beyond the reasonable control of
the non-performing Party. For purposes of this Agreement, such circumstances include but are
not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and
other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances;
sabotage or judicial restraint.
b. Should such circumstances occur, the non performing Party shall, within a
reasonable time of being prevented from performing, give written notice to the other Parry
describing the circumstances preventing continued performance and the efforts being made to
resume performance of this Agreement.
10. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and
regulations of the federal, state and local government, including Cal/OSHA requirements.
b. If required, Consultant shall assist the City, as requested, in obtaining and
maintaining all permits required of Consultant by federal, state and local regulatory agencies.
C. If applicable, Consultant is responsible for all costs of clean up and/ or
removal of hazardous and toxic substances spilled as a result of his or her services or operations
performed under this Agreement.
11. Standard of Care. Consultant's services will be performed in accordance with
generally accepted professional practices and principles and in a manner consistent with the level
of care and skill ordinarily exercised by members of the profession currently practicing under
similar conditions.
12. Conflicts of Interest. During the term of this Agreement, Consultant shall at all
times maintain a duty of loyalty and a fiduciary duty to the City and shall not accept payment
from or employment with any person or entity which will constitute a conflict of interest with the
City.
13. Cit% Business Certificate. Consultant shall, prior to execution of this Agreement,
obtain and maintain during the term of this Agreement a valid business registration certificate
from the City pursuant to Title 5 of the City's Municipal Code and any and all other licenses,
permits, qualifications, insurance, and approvals of whatever nature that are legally required of
Consultant to practice his/her profession, skill., or business.
14. Assh-,iiiiient and Subconsultant. Consultant shall not assign, sublet, or transfer
this Agreement or any rights under or interest in this Agreement without the written consent of
the City, which may be withheld for any reason_ Any attempt to so assign or so transfer without
such consent shall be void and without legal effect and shall constitute grounds for termination.
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in
this Agreement. Nothing contained herein shall prevent Consultant from employing independent
associates and subconsultants as Consultant may deem appropriate to assist in the performance
of services hereunder.
15. Inde ,endent Consultant. Consultant is retained as an independent contractor and
is not an employee of City. No employee or agent of Consultant shall become an employee of
City. The work to be performed shall be in accordance with the work described in this
Agreement, subject to such directions and amendments from City as herein provided.
16. Insurance. Consultant shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this section. In
addition, Consultant shall not allow any subcontractor to commence work on any subcontract
until it has secured all insurance required under this section.
a. Additional Insured
The City of San Bernardino, its officials, officers, employees, agents, and
volunteers shall be named as additional insureds on Consultant's and its subconsultants' policies
of commercial general liability and automobile liability insurance using the endorsements and
forms specified herein or exact equivalents.
b. Commercial General Liabilit
(i) The Consultant shall take out and maintain, during the
performance of all work under this Agreement, in amounts not less than specified herein,
Commercial General Liability Insurance, in a form and with insurance companies acceptable to
the City.
(ii) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
(iii) Commercial General Liability Insurance must include coverage
for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability
(5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCS exclusion
deleted
(7) Contractual Liability with respect to this Contract
(8) Broad Form Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting
coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one
insured against another; (3) products/completed operations liability; or (4) contain any other
exclusion contrary to the Agreement.
(v) The policy shall give City, its elected and appointed officials,
officers, employees, agents, and City -designated volunteers additional insured status using ISO
endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same
coverage.
(vi) The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject to written approval by the City, and
provided that such deductibles shall not apply to the City as an additional insured.
C. Automobile Liabilit v
(i) At all times during the performance of the work under this
Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and
property damage including coverage for owned, non -owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01 covering automobile liability
(Coverage Symbol 1, any auto).
(iii) The policy shall give City, its elected and appointed officials,
officers, employees, agents and City designated volunteers additional insured. status.
(iv) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles shall not apply to the City as an
additional insured, but not a self-insured retention.
d. Workers' Compensation/Employer's Liabilit %
(i) Consultant certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every employer to be insured against
liability for workers' compensation or to undertake self-insurance in accordance with the
provisions of that code, and he/she will comply with such provisions before commencing work
under this Agreement.
(ii) To the extent Consultant has employees at any time during the
term of this Agreement, at all times during the performance of the work under this Agreement,
the Consultant shall maintain full compensation insurance for all persons employed directly by
him(her to carry out the work contemplated under this Agreement, all in accordance with the
"Workers' Compensation and Insurance Act," Division IV of the Labor Code of the State of
California and any acts amendatory thereof; and Employer's Liability Coverage in amounts
indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the
period required by this Agreement, workers' compensation coverage of the same type and limits
as specified in this section.
e. Professional Liabilit)(Errors and Omissions
At all times during the performance of the work under this Agreement the Consultant
shall maintain professional liability or Errors and Omissions insurance appropriate to its
profession, in a form and with insurance companies acceptable to the City and in an amount
indicated herein. This insurance shall be endorsed to include contractual liability applicable to
this Agreement and shall be written on -a policy form coverage specifically designed to protect
against acts, errors or omissions of the Consultant. "Covered Professional Services" as
designated in the policy must specifically include work performed under this Agreement. The
policy must "pay on behalf of 'the insured and must include a provision establishing the insurer's
duty to defend.
f. Minimum Policy Limits Requi
(i) The following insurance limits are required for the Agreement:
Combined Sin ,1 a Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate
for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 per occurrence for bodily injury and
property damage
Employer's Liability $1,000,000 per occurrence
Professional Liability $1,000,000 per claim and aggregate (errors and
omissions)
(ii) Defense costs shall be payable in addition to the limits.
(iii) Requirements of specific coverage or limits contained in this
section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall be provided to
the parties required to be named as Additional Insured pursuant to this Agreement.
g. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City
evidence of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's
equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25-
S or equivalent), together with required endorsements. All evidence of insurance shall be
signed by a properly authorized officer, agent, or qualified representative of the insurer and
shall certify the names of the insured, any additional insureds, where appropriate, the type and
amount of the insurance, the location and operatio ri s to which the insurance applies, and the
expiration date of such insurance.
h. Police. Provisions KeLuired
(i) Consultant shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this Agreement, except that the
Consultant shall provide at least ten (10) days prior written notice of cancellation of any such
policy due to non-payment of the premium. If any of the required coverage is cancelled or
expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement to the City at least ten (10)
days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy
shall each contain a provision stating that Consultant's policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any named insureds shall
not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Consultant shall maintain such coverage continuously for a
period of at least three years after the completion of the work under this Agreements Consultant
shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced
past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if
the policy is replaced by another claims -made policy with a retroactive date subsequent to the
effective date of this Agreement.
(iv) All required insurance coverages, except for the professional
liability coverage, shall contain or be endorsed to provide waiver of subrogation in favor of the
City, its officials, officers, employees, agents, and volunteers or shall specifically allow
Consultant or others providing insurance evidence in compliance with these specifications to
waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery
against City, and shall require similar written express waivers and insurance clauses from each
of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured
against whom claims are made or suits are brought, except with respect to the limits of liability.
Further the limits set forth herein shall not be construed to relieve the Consultant from liability
in excess of such coverage, nor shall it limit the Consultant's indemnification obligations to the
City and shall not preclude the City from taking such other actions available to the City under
other provisions of the Agreement or law_
i. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies
with a current A.M. Best's rating of no less than A:VII and admitted to transact in the
business of insurance in the State of California, or otherwise allowed to place insurance
through surplus line brokers under applicable provisions of the California Insurance Code
or any federal law.
j. Additional Insurance Provisions
(i) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Consultant, and any approval of said insurance by the City, is not
intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise
assumed by the Consultant pursuant to this Agreement, including, but not limited to, the
provisions concerning indemnification.
(ii) if at any time during the life of the Agreement, any policy of
incimancc required under this Agreement does not comply with these specifications or is
canceled and not replaced, City has the right but not the duty to obtain the insurance it deems
necessary and any premium paid by City will be promptly reimbursed by Consultant or City
will withhold amounts sufficient to pay premium from Consultant payments. In the alternative,
City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of
all insurance policies in effect for the duration of the Project.
(iv) Neither the City nor the City Council, nor any member of the City
Council, nor any of the officials, officers, employees, agents or volunteers shall be personally
responsible for any liability arising under or by virtue of this Agreement.
k. Subconsultant Insurance Reguirements. Consultant shall not allow any
subcontractors or subconsultants to commence work on any subcontract until they have
provided evidence satisfactory to the City that they have secured all insurance required under
this section. Policies of commercial general liability insurance provided by such subcontractors
or subconsultants shall be endorsed to name the City as an additional insured using ISO form
CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by
Consultant, City may approve different scopes or minimum limits of insurance for particular
subcontractors or subconsultants.
17. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with
counsel reasonably approved by the City), indemnify and hold the City, its elected and appointed
officials, officers, employees, agents, and authorized volunteers free and harmless from any and
all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability,
judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to
property or persons, including wrongful death, (collectively, "Chums'l in any manner arising out
of pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of
Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection
with the performance of the Consultant's services, the Project, or this Agreement, including
without limitation the payment of all consequential damages, expert witness fees and attorneys'
fees and other related costs and expenses. Notwithstanding the foregoing, to the extent
Consultant's services are subject to Civil Code Section 2782.8, the above indemnity shall be
limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain
to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any,
received by the City, the City Council, members of the City Council, its employees, or
authorized volunteers.
b. Additional Indemnity OW ations. Consultant shall defend, with counsel
of City's choosing and at Consultant's own cost, expense and risk, any and all Claims covered by
this section that may be brought or instituted against the City, its elected and appointed officials,
employees, agents, or authorized volunteers. Consultant shall pay and satisfy any judgment,
award or decree that may be rendered against the City, its elected and appointed officials,
employees, agents, or authorized volunteers as part of any such claim, suit, action or other
proceeding. Consultant shall also reimburse City for the cost of any settlement paid by the City,
its elected and appointed officials, employees, agents, or authorized volunteers as part of any
such claim, suit, action or other proceeding. Such reimbursement shall include payment for the
City's attorney's fees and costs, including expert witness fees. Consultant shall reimburse the
City, its elected and appointed officials, employees, agents, or authorized volunteers, for any and
all legal expenses and costs incurred by each of them in connection therewith or in enforcing the
indemnity herein provided. Consultant's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its elected and appointed officials, employees,
agents, or authorized volunteers.
18. California Labor Code Requirements. Consultant is aware of the requirements of
California Labor Code Sections 1720 et seq. and 1770 et sea., as well as California Code of
Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which require the
payment of prevailing wage rates and the performance of other requirements on certain "public
works" and `maintenance" projects. If the Services are being performed as part of an applicable
"public works" or "maintenance" project, as defined by the Prevailing Wage Laws, Consultant
agrees to fully comply with such Prevailing Wage Laws, if applicable. Consultant shall defend,
indemnify and hold the City, its elected officials, officers, employees and agents free and
harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or
alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the
Consultant and all subconsultants to comply with all California Labor Code provisions, which
include but are not limited to prevailing wages, employment of apprentices, hours of labor and
debarment of contractors and subcontractors.
If the Services are being performed as part of an applicable `public works" or
"maintenance" project, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant
and all subconsuhmts performing such Services must be registered with the Department of
Industrial Relations. Consultant shall maintain registration for the duration of the Project and
require the same of any subconsultants, as applicable. This Project may also be subject to
compliance monitoring and enforcement by the Department of Industrial Relations. It shall be
Consultant's sole responsibility to comply with all applicable registration and labor compliance
requirements.
19. Verification of Eml)loyrnent Elinbility. By executing this Agreement, Consultant
verifies that it filly complies with all requirements and restrictions of state and federal law
respecting the employment of undocumented aliens, including, but not limited to, the
Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall
require all subconsultants and sub-subconsultants to comply with the same.
20. Laws and Venue. This Agreement shall be interpreted in accordance with the
laws of the State of California. If any action is brought to interpret or enforce any term of this
Agreement, the action shall be brought in a state or federal court situated in the County of San
Bernardino, State of California.
21. Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work
under this Agreement by giving ten (10) calendar days' written notice to Consultant. In such
event, City shall be immediately given title and possession to all original field notes, drawings
and specifications, written reports and other documents produced or developed for that portion of
the work completed and/or being abandoned City shall pay Consultant the reasonable value of
services rendered for any portion of the work completed prior to termination. If said termination
occurs prior to completion of any task for the Project for which a payment request has not been
received, the charge for services performed during such task shall be the reasonable value of
such services, based on an amount mutually agreed to by City and Consultant of the portion of
such task completed but not paid prior to said termination. City shall not be liable for any costs
other than the charges or portions thereof which are specified herein. Consultant shall not be
entitled to payment for unperformed services, and shall not be entitled to damages or
compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under
this Agreement upon thirty (30) calendar days' written notice to City only in the event of
substantial failure by City to perform in accordance with the terms of this Agreement through no
fault of Consultant.
22. Attorneys' Fees. In the event that litigation is brought by any Party in connection
with this Agreement, the prevailing Party shall be entitled to recover from the opposing Parry all
costs and expenses, including reasonable attorneys' fees, incurred by the prevailing Party in the
exercise of any of its rights or remedies hereunder or the enforcement of any of the terms,
conditions, or provisions hereof The costs, salary, and expenses of the City Attorney's Office in
enforcing this Agreement on behalf of the City shall be considered as "attorneys' fees" for the
purposes of this Agreement.
23. Res-onsibility_for Errors. Consultant shall be responsible for its work and results
under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation
as may be required by the City's representative, regarding any services rendered under this
Agreement at no additional cost to City. In the event that an error or omission attributable to
Consultant's professional services occurs, Consultant shall, at no cost to City, provide all other
services necessary to rectify and correct the matter to the sole satisfaction of the City and to
participate in any meeting required with regard to the correction.
24. Prohibited Employment. Consultant shall not employ any current employee of
City to perform the work under this Agreement while this Agreement is in effect.
25. Costs. Each Party shall bear its own costs and fees incurred in the preparation and
negotiation of this Agreement and in the performance of its obligations hereunder except as
expressly provided herein.
26. Documents. Except as otherwise provided in "Termination or Abandonment,"
above, all original field notes, written reports, Drawings and Specifications and other documents,
produced or developed for the Project shall, upon payment in full for the services described in
this Agreement, be furnished to and become the property of the City.
27. Organization. Consultant shall assign Joy Tatarka as Project Manager. The
Project Manager shall not be removed from the Project or reassigned without the prior written
consent of the City.
28. Limitation of Agreement. This Agreement is limited to and includes only the
work included in the Project described above.
29. Notice. Any notice or instrument required to be given or delivered by this
Agreement may be given or delivered by depositing the same in any United States Post Office,
certified mail, return receipt requested, postage prepaid, addressed to the following addresses and
shall be effective upon receipt thereof:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: Rebekah Kramer
City Manager's Office
With Copy To:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Attorney
CONSULTANT:
TBWBH, Inc.
Attn: Joy Tatarka
400 Montgomery Street, 7I' Floor
San Francisco, CA 94101
30. Third Party Rights. Nothing in this Agreementshall be construed to give any
rights or benefits to anyone other than the City and the Consultant.
31. Equal Opportunitployment Consultant represents that it is an equal
opportunity employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age or other interests
protected by the State or Federal Constitutions. Such non-discrimination shall include, but not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination.
32. Entire Agreement. This Agreement, including Exhibit "A," represents the entire
understanding of City and Consultant as to those matters contained herein, and supersedes and
cancels any prior or contemporaneous oral or written understanding, promises or representations
with respect to those matters covered hereunder. Each Party acknowledges that no
representations, inducements, promises, or agreements have been made by any person which are
not incorporated herein, and that any other agreements shall be void. This is an integrated
Agreement.
33. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such determination
shall not affect the validity or enforceability of the remaining terms and provisions hereof or of
the offending provision in any other circumstance, and the remaining provisions of this
Agreement shall remain in full force and effect
34. Successors and Assigrs. This Agreement shall be binding upon and shall inure to
the benefit of the successors in interest, executors, administrators and assigns of each Party to
this Agreement. However, Consultant shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written consent
of City. Any attempted assignment without such consent shall be invalid and void.
35. Non -Waiver. The delay or failure of either Party at any time to require
performance or compliance by the other Party of any of its obligations or agreements shall in no
way be deemed a waiver of those rights to require such performance or compliance. No waiver
of any provision of this Agreement shall be effective unless in writing and signed by a duly
authorized representative of the Party against whom enforcement of a waiver is sought. The
waiver of any right or remedy with respect to any occurrence or event shall not be deemed a
waiver of any right or remedy with respect to any other occurrence or event, nor shall any waiver
constitute a continuing waiver.
36. Time of Essence. Time is of the essence for each and every provision of this
Agreement.
37. Headings. Paragraphs and subparagraph headings contained in this Agreement
are included solely for convenience and are not intended to modify, explain, or to be a full or
accurate description of the content thereof and shall not in any way affect the meaning or
interpretation of this Agreement.
38. Amendments. Only a writing executed by all of the Parties hereto or their
respective successors and assigns may amend this Agreement.
39. City's Right to Employ Other Consultants. City reserves its right to employ other
consultants, including engineers, in connection with this Project or other projects.
40. Prohibited Interests. Consultant maintains and warrants that it has neither
employed nor retained any company or person, other than a bona fide employee working solely
for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not
paid nor has it agreed to pay any company or person, other than a bona fide employee working
solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration
contingent upon or resulting from the award or making of this Agreement. For breach or
violation of this warranty, City shall have the right to rescind this Agreement without liability.
For the term of this Agreement, no official, officer or employee of City, during the term of his or
her service with City, shall have any direct interest in this Agreement, or obtain any present or
anticipated material benefit arising therefrom.
41. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original_ All counterparts shall be construed together and shall
constitute one single Agreement.
42. Authority_ The persons executing tris Agreement on behalf of the Parties hereto
warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that
by doing so, the Parties hereto are formally bound to the provisions of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND TERRIS BARNES WALTERS BOIGON HEAT$, INC
IN VMNESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
CITY OF SAN BERNARDINO
City Manager
Approved as to Form:
""Approved Form""
Gary D. Saenz
City Attorney
Attested B)r
Georgeann Hanna, CMC
City Clerk
[CONLt 11a k u:V-41"
S' tE1Te
�Ay tP A _T-1cc�
Name
c ::-o
Title
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND TERRIS BARNES WALTERS BOIGON BEATH, INC
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date fust
written above.
CITY OF SAN BERNARDINO CONSULTANT
Approved By:
i
City Manager
Approved as to Form:
""Approved Form""
Gary D. Saenz
City Attorney
Attested
Attested By.
Georgeann: Hina, CMC
City Clerk
Signature
Name — - -
Title
EDIT A
A. STATEMENT OF WORK: (Narrative of work to be performed)
To develop and implement an informational communication and outreach effort to inform
and educate City of San Bernardino residents on funding, benefits, and needs related to
the Measure Z sales tax and its potential November 2020 renewal as well as any other
potential revenue related ballot measures.
B. CONSULTANT'S DUTIES AND RESPONSIBILMESI WORK PROGRAM/PROJECT
SCHEDULE:
July 2019: Planning
• TBWB and selected polling firm will work with the City to confirm timelines and
benchmarks and establish a strong partnership.
• TBWB and selected polling firm will review existing voter survey research,
outreach materials and other relevant background to determine all avenues
available to the City for revenue enhancement measures.
• TBWB will recommend a plan and budget for public engagement and outreach.
• The City will approve plan and budget.
August 2019: Public Engagement and Outreach
• TBWB will create initial outreach materials, including mail, digital, handouts,
online content and a public presentation.
• TBWB and the City will implement the approved plan for public engagement and
outreach, including:
1*42,11:31
A. STATEMENT OF WORK: (Narrative of work to be performed)
To develop and implement an informational communication and outreach effort to inform
and educate City of San Bernardino residents on funding, benefits, and needs related to
the Measure Z sales tax and its potential November 20?0 renewal as well as any other
potential revenue related ballot measures.
B. CONSULTANTS DUTIES AND RESPONSIBILITIES/ WORK PROGRAMIPROJECT
SCHEDULE:
July 2019: Planning
• TBWB and selected polling firm will work with the City to confirm timelines and
benchmarks and establish a strong partnership.
• TBWB and selected polling firm will review existing voter survey research,
outreach materials and other relevant background to determine all avenues
available to the City for revenue enhancement measures.
• TBWB will recommend a plan and budget for public engagement and outreach.
• The City will approve plan and budget.
August 2019: Public Engagement and Outreach
• TBWB will create initial outreach materials, including mail, digital, handouts,
online content and a public presentation.
• TBWB and the City will implement the approved plan for public engagement and
outreach, including:
o Potential mailers and/or digital and social outreach.
o Potential one-on-one and group presentations by the City to community
leaders and organizations.
September 2018: Scientific Voter Opinion Survey
• Selected polling firm will create draft survey questionnaire.
• TBWB and selected polling firm will recommend a sampling methodology.
• Field the approved survey.
• TBWB and selected polling firm will analyze results and prepare
recommendations for potential revenue enhancement ballot measures.
October 2019: Delivery of First Polling Results
• -Deadline for delivering results of a scientific opinion survey to the City.
November 2019 — March 2020: Second Round of Public Engagement and Outreach
• TBWB will create initial outreach materials, including mail, digital, handouts,
online content and a public presentation.
• TBWB and the City will implement the approved plan for public engagement and
outreach, including:
o Potential mailers and/or digital and social outreach
o Potential online and/or mail -back reply card community survey (non-
scientific).
o Potential one-on-one and group presentations by the City to community
leaders and organizations
di TBWB will prepare and provide regular updates to the City Council as needed.
April/May 2020: Scientific Voter Opinion Tracking Survey
6 Selected polling firm will create draft survey questionnaire.
a TBWB and selected polling firm will recommend a sampling methodology_
■ Field the approved survey.
• TBWB and selected polling firm will analyze results and prepare
recommendations_
June 2020: Delivery of Tracking Survey Results
Deadline for delivering results of a scientific opinion survey to the City.
June - August 2020: Public Engagement and Outreach Continues/Development of
Measure
• Refine existing materials as needed.
• Create ballot measure ordinance, resolution and other required materials for City
Council adoption.
0 TBWB will develop mailer and/or digital and social outreach.
• TBWB will assist city with the Ballot Argument and Rebuttal for any city
measures placed on the ballot.
88 Days Before November 2020 Election: City Council Votes to Place Measure
on the Ballot
C. CUTS DUTIES AND RESPONSIBILPTIES:
Provide staffmg to discuss information on the City's current and future needs and
objectives.
Staff will be available to assist in the review and approval of any and all informational
materials, online content messaging, and mail pieces. Final approval of artwork and
content of mailers, newsletters, online media messaging, and handouts, will be made by
the City.
Schedule of Charges (Fixed Fee Payment)
+ The City of San Bernardino standard consulting fee is $7,200 per month, all inclusive of
travel expenses. Partial months of services would be billed at a prorated amount.
■ For services from July of 2019 through October of 2020: $108,000
■ Hard costs associated with printing and postage for informational materials are billed
separately as follows:
o Informational newsletter to all voter households in San Bernardino (an
estimated 51,000 households) is $36,524. Translations services will be
separately.
0 3 informational mail pieces plus translation: $114,072
o Optional 5,000 Informational handout cards in 2 languages: $3,292
TBWB will design and help provide short messages for all online media as part of
standard fee. TBWB will work with the City to develop an appropriate budget for these
costs through the development of a public outreach plan.
Total not to exceed costs from July 2019 through October of 2020: $225,364.
1. CONSULTANT shall be entitled to monthly progress payments toward the fixed
fee set forth herein in accordance with the following progress and payment schedules.
2. Delivery of work product: A copy of every memorandum, letter, report,
calculation and other documentation prepared by CONSULTANT shall be submitted to CITY to
demonstrate progress toward completion of tasks. In the event CITY rejects or has
comments on any such product, CITY shall identify specific requirements for satisfactory
completion.
3. CONSULTANT shall submit to CITY an invoice for each monthly progress
payment due. Such invoice shall:
A) Reference this Agreement;
B) Describe the services performed;
C) Show the total amount of the payment due;
D) Include a certification by a principal member of CONSULTANrs firm
that the work has been performed in accordance with the provisions
of this
Agreement; and
E) For all payments include an estimate of the percentage of work completed.
Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making
satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall
approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the
invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an
invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the
schedule of performance set forth in Emit "A" -may at the option of CITY be suspended until
the parties agree that past performance by CONSULTANT is in, or has been brought into
compliance, or until this Agreement has expired or is terminated as provided herein.
4. Any billings for extra work or additional services authorized in advance and
in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the
information required above, and in addition shall list the hours expended and hourly rate charged_
for such time. Such invoices shall be approved by CITY if the work performed is in accordance
with the extra work or additional services requested, and if CITY is satisfied that the statement of
hours worked and costs incurred is accurate. Such approval shall not be unreasonably
withheld. Any dispute between the parties concerning payment of such an invoice shall be treated
as separate and apart from the ongoing performance of the remainder of this Agreement.