HomeMy WebLinkAboutItem 2f - Supplemental Budget Appropriation and Professinal Consulting Services and related public outreach.
DATE: September 19, 2017 TO: Honorable Mayor and City Council
FROM: Dominic Lazzaretto, City Manager
By: Michael Bruckner, Assistant to the City Manager
Hue Quach, Administrative Services Director
SUBJECT: SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF
$94,250 FROM THE GENERAL FUND RESERVE AND PROFESSIONAL
SERVICES AGREEMENT WITH THE LEW EDWARDS GROUP FOR
PROFESSIONAL CONSULTING SERVICES AND RELATED PUBLIC OUTREACH
Recommendation: Approve
SUMMARY During the Fiscal Year 2017-18 Budget Study Session on May 16, 2017, the City
Council requested staff review revenue enhancements in order to address the long-term
fiscal stress the City will be facing as a result of the increasing costs of service. At the
City Council Study Session on August 1, 2017, a discussion of revenue enhancements
through a voter approved sales tax measure was presented to the City Council. Due to time constraints, this item was continued to the City Council Study Session on August
15, 2017, where the City Council voted unanimously to begin exploring a sales tax
measure for the next General City election.
Due to the complex nature of placing a sales tax measure on a general election ballot, it is necessary to retain professional consulting services to guide the City’s strategic
planning, communication, outreach, and survey efforts. The Lew Edwards Group
(“LEG”) is uniquely qualified in this regard, and has extensive experience and a proven
track record of success in assisting cities with similar measures, including the City of
Arcadia, in years past. In 2010, LEG led the City’s public outreach efforts for the formation of the City’s Lighting Assessment District, and supported the Arcadia Unified
School District’s recent voter approved revenue enhancement efforts. Because of their
familiarity with City and specific area of expertise, LEG services are in high demand and
they have communicated to the City that they only work with return clients on a sole
source basis. Therefore, it is recommended the City Council approve a supplemental budget appropriation in the amount of $94,250 from the General Fund Reserve,
Budget Appropriation and Agreement with The Lew Edwards Group for Professional Consulting Services
September 19, 2017
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including a Professional Services Agreement with the Lew Edwards Group for professional consulting services in an amount not to exceed $79,250, and an additional
$15,000 for related public outreach.
BACKGROUND Over the years, City of Arcadia has taken several steps to manage costs without
sacrificing the quality of services. This includes pension and benefit reforms in 2011,
budgetary adjustments, competitive bidding practices, and efficiencies through
innovation over time. Even with these practical and ongoing approaches to effective municipal management, the long-term fiscal outlook for the City is daunting. Due to recent policy changes from CalPERS (“PERS”), the City is facing a $2 million per year
increase in payments to PERS beginning in FY 2018-19 through FY 2024-25. As a
result of these increases, the City is faced with two options: 1) Reduce services and
expenses by $2 million per year in order to offset increasing costs, or 2) Seek additional revenue enhancements. Given the scale of the cost impacts to the City, the City Council has recommended that revenue enhancement through a voter approved sales tax
measure be presented to Arcadia voters at the upcoming general election in April 2018.
DISCUSSION The ballot measure process in California can be quite complex, with multiple deadlines,
filings, and reporting requirements. In addition to navigating complicated rules and
regulations, it is imperative that the City provide Arcadia residents and the voting public
with timely and accurate information in order to ensure informed opinions on any proposed ballot measure. The preferred consultant for this effort is The Lew Edwards Group. LEG is a California leader in providing cutting edge public engagement and
fiscal sustainability planning services to public agencies throughout the state. LEG has
supported enactment of more than $35 billion in California bond or revenue measures
with a 95% success rate, and their extensive experience on behalf of local governments makes them uniquely qualified to serve the City of Arcadia’s needs. LEG has significant expertise with all types of revenue measures, including parcel taxes, general fund set-
asides, transient occupancy and business license measures, and assessments. LEG
is also a California leader in supporting sales tax measures, having successfully
completed 93 enactments. Among other goals, LEG services are designed to: 1. Provide efficient, supportive, and responsive project management for the City’s
fiscal sustainability efforts;
2. Assess and analyze constituent satisfaction, priorities, and views through public
opinion research; 3. Implement a public information program to inform and engage constituents around timely issues; and
4. Provide additional strategic services as needed.
Budget Appropriation and Agreement with The Lew Edwards Group for Professional Consulting Services
September 19, 2017
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During the City Council Study Sessions on August 1, 2017 and August 15, 2017, it was recommended that both a communications/messaging consultant and a polling
consultant be retained to support the City in reviewing potential revenue enhancements.
In order to streamline this effort and reduce overhead costs, LEG will serve as the lead
consultant and they have retained the services of a polling consultant as a sub-contractor. This is the preferred approach to this effort to ensure that the messaging is consistent with the polling data. By allowing LEG to be the lead in this effort, it will allow
for constant contact with their polling consultant. For this engagement, LEG is
recommending Fairbank, Maslin, Maullin, Metz, & Associates (“FM3”) as their preferred
polling firm. FM3 has over 30 years of experience providing custom designed quantitative and qualitative opinion research. Arcadia Unified School District utilized the services of FM3 for their successful bond efforts in 2016, and the firm is very familiar
with Arcadia. As part of their opinion research, FM3 will provide the following services:
1. Determine residents’ current satisfaction with the quality of life; 2. Rank the seriousness of a variety of problems facing residents; 3. Evaluate current satisfaction with City services;
4. Gauge residents’ overall attitudes toward fiscal issues and the City’s
management;
5. Identify voters’ priorities for revenue and interest, if any, in revenue options; and 6. Identify effective information in communicating with constituents regarding City policies.
FM3 will be conducting their polling through a series of telephone and internet based
surveys of Arcadia residents. Surveys will be conducted in English, Mandarin (simplified Chinese), and Spanish to ensure broad participation from the entire community. The survey size will include approximately 400 Arcadia residents to ensure that the survey
responses are valid, reliable, and statistically significant.
LEG will also be developing informational materials for the City’s website, traditional media, and social media, in addition to collateral for direct mailing. As has been the City’s traditional approach, translation services will be provided for the direct mail
component into simplified Chinese using our translation services vendor. In addition, the
City will be responsible for the printing and mailing of any collateral produced to engage
and inform Arcadia residents. It is estimated that an additional $15,000 will be needed for this effort which will service two citywide mailers. Should the City Council wish to forgo this funding, the existing budget for the City’s newsletter and hot sheet can be
reprogrammed for this purpose.
FISCAL IMPACT A supplemental budget appropriation is necessary to approve this agreement. The
contract with the Lew Edwards group is proposed at $79,250 with an additional $15,000
requested for public outreach services, for a total supplemental appropriation of
Budget Appropriation and Agreement with The Lew Edwards Group for Professional Consulting Services
September 19, 2017
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$94,250. Sufficient funds are available in the FY 2017-18 General Fund Reserve to fund this project. A successful effort will potentially enhance the City’s sales tax
revenue by approximately $8 million per year beginning in FY 2019-20.
RECOMMENDATION It is recommended the City Council approve a supplemental budget appropriation in the
amount of $94,250 from the General Fund Reserve, including a Professional Services
Agreement with the Lew Edwards Group for professional consulting services in an
amount not to exceed $79,250, and an additional $15,000 for related public outreach. Attachment: Proposed Professional Services Agreement
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CITY OF ARCADIA PROFESSIONAL SERVICES AGREEMENT REGARDING
PROFESSIONAL CONSULTING SERVICES-COMMUNICATIONS/REVENUE
1. PARTIES AND DATE. This Agreement is made and entered into this 20th day of September 2017 by
and between the City of Arcadia, a charter city organized under the Constitution and
laws of the State of California with its principal place of business at 240 West
Huntington Drive, Arcadia, California 91066-6021 ("City") and The Lew Edwards Group, a California Corporation with its principal place of business at 5454 Broadway, Oakland CA 94618 ("Consultant"). City and Consultant are sometimes individually referred to as
“Party” and collectively as “Parties.”
2. RECITALS. 2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
certain professional services required by the City on the terms and conditions set forth in this Agreement. Consultant represents that it is experienced in providing Ballot Measure Preparation and Communications services to public clients, is registered in the
State of California, and is familiar with the plans of City.
2.2 Project. City desires to engage Consultant to render such services for the Fiscal
Sustainability/Revenue Generation project (“Project”) as set forth in this Agreement.
3. TERMS. 3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the City all labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately supply the professional assessment, communications, and ballot measure consulting services necessary for the Project
("Services"). The Services are more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference. All Services shall be subject to, and
performed in accordance with, this Agreement, the exhibits attached hereto and incorporated herein by reference, and all applicable local, state and federal laws, rules and regulations.
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3.1.2 Term. The term of this Agreement shall be from September 20, 2017 through March 31, 2018, unless earlier terminated as provided herein. Consultant
shall complete the Services within the term of this Agreement, and shall meet any other
established schedules and deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant will
determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Consultant on an independent contractor basis and not as an employee. Consultant retains the right to perform similar or
different services for others during the term of this Agreement. Any additional personnel
performing the Services under this Agreement on behalf of Consultant shall also not be
employees of City and shall at all times be under Consultant's exclusive direction and control. Consultant shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and
as required by law. Consultant shall be responsible for all reports and obligations
respecting such additional personnel, including, but not limited to: social security taxes,
income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "B" attached hereto and incorporated herein by reference. Consultant represents that it has the professional and technical personnel required to perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, City shall respond to Consultant's
submittals in a timely manner. Upon request of City, Consultant shall provide a more
detailed schedule of anticipated performance to meet the Schedule of Services. 3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the prior written approval of City. The parties agree that
email approval shall suffice.
3.2.4 Substitution of Key Personnel. Consultant has represented to City that certain key personnel will perform and coordinate the Services under this
Agreement. Should one or more of such personnel become unavailable, Consultant
may substitute other personnel of at least equal competence upon prior written approval
of City. In the event that City and Consultant cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. As discussed below, any personnel who fail or refuse to perform the Services in a manner acceptable
to the City, or who are determined by the City to be uncooperative, incompetent, a
threat to the adequate or timely completion of the Project or a threat to the safety of
persons or property, shall be promptly removed from the Project by the Consultant at
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the request of the City. The key personnel for performance of this Agreement are as follows: Catherine Lew, Ross Miletich, Emily Salgado, John Fairbank.
3.2.5 City’s Representative. The City hereby designates Dominic
Lazzaretto, City Manager, or his or her designee, to act as its representative for the performance of this Agreement (“City’s Representative”). City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract.
Consultant shall not accept direction or orders from any person other than the City’s
Representative or his or her designee.
3.2.6 Consultant’s Representative. Consultant hereby designates Catherine Lew, or his or her designee, to act as its representative for the performance
of this Agreement (“Consultant’s Representative”). Consultant’s Representative shall
have full authority to represent and act on behalf of the Consultant for all purposes
under this Agreement. The Consultant’s Representative shall supervise and direct the Services, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination
of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with City staff in the performance of Services and shall be available to City's staff, consultants and other staff at all reasonable times.
3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services. Finally,
Consultant represents that it, its employees and subcontractors have all licenses,
permits, qualifications and approvals of whatever nature that are legally required to perform the Services, including a City Business License, and that such licenses and approvals shall be maintained throughout the term of this Agreement. As provided for in
the indemnification provisions of this Agreement, Consultant shall perform, at its own
cost and expense and without reimbursement from the City, any services necessary to
correct errors or omissions which are caused by the Consultant’s failure to comply with the standard of care provided for herein. Any employee of the Consultant or its sub-consultants who is determined by the City to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Project, a threat to the safety of persons or
property, or any employee who fails or refuses to perform the Services in a manner
acceptable to the City, shall be promptly removed from the Project by the Consultant and shall not be re-employed to perform any of the Services or to work on the Project.
3.2.9 Laws and Regulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Consultant shall be liable for all
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violations of such laws and regulations in connection with Services. If the Consultant performs any work knowing it to be contrary to such laws, rules and regulations and
without giving written notice to the City, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold City, its officials,
directors, officers, and employees free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations.
3.2.9.1 Immigration Reform and Control Act. Consultant
acknowledges that Consultant, and all subcontractors hired by Consultant to perform services under this Agreement, are aware of and understand the Immigration Reform and Control Act ("IRCA"). Consultant is and shall remain in compliance with the IRCA
and shall ensure that any subcontractors hired by Consultant to perform services under
this Agreement are in compliance with the IRCA. In addition, Consultant agrees to
indemnify, defend and hold harmless the City, its directors, officials, officers and employees, from any liability, damages or causes of action arising out of or relating to any claims that Consultant's employees, or the employees of any subcontractor hired by
Consultant, are not authorized to work in the United States for Consultant or its
subcontractor and/or any other claims based upon alleged IRCA violations committed
by Consultant or Consultant's subcontractor(s). 3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not
commence Work under this Agreement until it has provided evidence satisfactory to the City that 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
provided evidence satisfactory to the City that the subcontractor has secured all
insurance required under this section; provided, however, that in lieu thereof, the
Consultant may provide evidence to the City that all subcontractors are additional insureds under the Consultant’s policies of insurance.
3.2.10.2 Minimum Requirements. Consultant shall, at its
expense, procure and maintain for the duration of the Agreement insurance against
claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agreement by the Consultant, its agents, representatives, employees, subcontractors and volunteers. Consultant shall also
name and obtain insurer’s consent to naming City, its directors, officials, officers, and
employees as an additional insured with proof of certificate of insurance that they are an
additional insured. Such insurance shall meet at least the following minimum levels of coverage:
(A) Minimum Scope of Insurance. Coverage shall be
when commercially available (occurrence based) at least as broad as the latest version
of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage for premises and operations, contractual liability, personal injury,
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bodily injury, independent contractors, broadform property damage, explosion, collapse, and underground, products and completed operations ; (2) Automobile Liability:
Insurance Services Office Business Auto coverage for any auto owned, leased, hired,
and borrowed by Consultant or for which Consultant is responsible; and (3) Workers’
Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
The City, its directors, officials, officers, and employees shall be listed as additional
insured. Any deductibles or self-insured retentions must be declared to and approved
by City and conform to the requirements provided in Section 3.2.10.6 herein. (B) Minimum Limits of Insurance. Consultant shall
maintain limits no less than: (1) General Liability: $1,000,000 combined single limit per
occurrence for bodily injury, personal injury and property damage, with an aggregate
limit of $2,000,000. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limit; (2) Automobile Liability: $1,000,000 combined single limit per accident
for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s
Liability: Workers’ Compensation limits as required by the Labor Code of the State of California. Employer’s Liability limits of $1,000,000 per accident for bodily injury or disease.
3.2.10.4 Insurance Endorsements. The insurance policies shall contain the following provisions, or Consultant shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance
policies:
(A) General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, and employees shall be covered as additional insured with respect to liability arising out of Services
operations and for completed operations performed by or on behalf of the Consultant,
including materials, parts or equipment furnished in connection with such work; and (2)
the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or
self-insurance maintained by the City, its directors, officials, officers, employees and
volunteers shall be excess of the Consultant’s insurance and shall not be called upon to
contribute with it in any way. (B) Automobile Liability. The automobile liability policy
shall be endorsed to state that: (1) the City, its directors, officials, officers, and
employees shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Consultant or for which the Consultant is responsible; and (2) the
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insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, and employees, or if excess, shall stand in an unbroken chain of
coverage excess of the Consultant’s scheduled underlying coverage. Any insurance or
self-insurance maintained by the City, its directors, officials, officers, and employees
shall be excess of the Consultant’s insurance and shall not be called upon to contribute with it in any way.
(C) Workers’ Compensation and Employers Liability
Coverage. The insurer shall agree to waive all rights of subrogation against the City, its
directors, officials, officers, and employees for losses paid under the terms of the insurance policy which arise from work performed by the Consultant.
(D) All Coverages. Each insurance policy required by this
Agreement shall be endorsed to state that: (A) coverage shall not be, reduced or
canceled except after thirty (30) days prior written notice by certified mail, return receipt requested of cancellation, of intended non-renewal or endorsement reduction in limit or scope of coverage; provided, however, that in the event of cancellation due solely to
non-payment of premium, ten (10) days notice of cancellation for non-payment of
premium may instead be given to the City.; and (B) any failure to comply with reporting
or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, and employees.
3.2.10.5 Separation of Insureds; No Special Limitations. All
insurance required by this Section shall contain standard separation of insureds
provisions. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, and employees.
3.2.10.6 Deductibles and Self-Insurance Retentions. Any
deductibles or self-insured retentions must be declared to and approved by the City.
Consultant shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its directors, officials, officers, and employees; or (2) the Consultant shall procure a bond
guaranteeing payment of losses and related investigation costs, claims and
administrative and defense expenses.
3.2.10.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VII, admitted or approved
to do business in California, and satisfactory to the City.
3.2.10.8 Verification of Coverage. Consultant shall furnish City with complete and accurate copies of current certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to
the City. The certificates and endorsements for each insurance policy shall be signed
by a person authorized by that insurer to bind coverage on its behalf, and shall be on
forms provided by the City if requested. Copies of all certificates and endorsements must be received and approved by the City before work commences. The City reserves
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the right to require complete, certified copies of all required insurance policies, at any time.
3.2.10.9 Safety. Consultant shall execute and maintain its
work so as to avoid injury or damage to any person or property. In carrying out its Services, the Consultant shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary
precautions for the safety of employees appropriate to the nature of the work and the
conditions under which the work is to be performed. Safety precautions as applicable
shall include, but shall not be limited to: (A) adequate life protection and life saving equipment and procedures; (B) instructions in accident prevention for all employees and subcontractors, such as safe walkways, scaffolds, fall protection ladders, bridges, gang
planks, confined space procedures, trenching and shoring, equipment and other safety
devices, equipment and wearing apparel as are necessary or lawfully required to
prevent accidents or injuries; and (C) adequate facilities for the proper inspection and maintenance of all safety measures.
3.2.10.10 Material Breach. Lack of insurance does not negate
Consultant’s obligations under this Agreement. Maintenance of proper insurance
coverage is a material element of this Agreement and failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material breach of the Agreement.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including reimbursements which receive the City’s prior written authorization, for all Services
rendered under this Agreement at the rates set forth in Exhibit "C" attached hereto and
incorporated herein by reference. The total compensation shall not exceed Seventy-
Nine Thousand, two hundred and fifty dollars ($79,250) without written approval of the City Manager. Extra Work may be authorized, as described below, and if authorized, will be compensated at the rates and manner set forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to City a
monthly itemized statement which indicates a description of work completed by Consultant for the invoicing period. City shall, within forty-five (45) days of receiving such statement, review the statement and pay all approved charges thereon.
3.3.3 Reimbursement for Expenses. Aside from the travel, mailing data,
and graphics expenses specified in this Agreement, Consultant shall not be reimbursed for any other expenses unless prior written authorization is obtained from the City.
3.3.4 Extra Work. At any time during the term of this Agreement, City
may request that Consultant perform Extra Work. As used herein, "Extra Work" means
any work which is determined by City to be necessary for the proper completion of the Project, but which the parties did not reasonably anticipate would be necessary at the
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execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without prior written authorization from City's Representative.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of City during normal business hours to examine, audit, and make
transcripts or copies of such records and any other documents created pursuant to this Agreement. Consultant shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of
final payment under this Agreement.
3.5 General Provisions. 3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. Either party may, by
written notice to the other , terminate the whole or any part of this Agreement at any time and without cause by giving written notice to the other of such termination, and specifying the effective date thereof, at least seven (7) days before the effective date of
such termination. Upon termination, Consultant shall be compensated only for those
services which have been adequately rendered to City, and Consultant shall be entitled
to no further compensation. A termination without cause by City shall not act as or be deemed a waiver of any potential known or unknown City claims associated with Consultant’s performance prior to the date of termination.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, City may require Consultant to provide all finished or unfinished Documents and Data and other information of any kind prepared by Consultant in connection with the performance of Services under this Agreement. Consultant shall be
required to provide such document and other information within fifteen (15) days of the
request.
3.5.1.3 Additional Services. In the event this Agreement is terminated in whole or in part as provided herein, City may procure, upon such terms
and in such manner as it may determine appropriate, services similar to those
terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Consultant:
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The Lew Edwards Group 5454 Broadway
Oakland, CA 94618
Attn: Lloyd A. Edwards, Secretary-Treasurer
City: City of Arcadia
240 West Huntington drive
Arcadia, CA 91007
Attn: Michael Bruckner, Assistant to the City Manager Such notice shall be deemed made when personally delivered or when mailed, forty-
eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service. 3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property.
This Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other
documents or works of authorship fixed in any tangible medium of expression, including
but not limited to, physical drawings or data magnetically or otherwise recorded on
computer diskettes, which are prepared or caused to be prepared by Consultant under this Agreement (“Documents & Data”) as Final Work Product. Consultant shall require all subcontractors to agree in writing that City is granted a non-exclusive and perpetual
license for any such Final Work Product Documents & Data the subcontractor prepares
under this Agreement. Consultant represents and warrants that Consultant has the
legal right to license any and all Documents & Data that are designated as Final Work Product. Consultant’s drafts and working notes are specifically excluded from this provision. Consultant makes no such representation and warranty in regard to Final
Work Product Documents & Data which were prepared by design professionals other
than Consultant or provided to Consultant by the City. City shall not be limited in any
way in its use of the Final Work Product Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at City’s sole risk.
3.5.3.2 Confidentiality. Except as otherwise required by
California law, all ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents and Data either created by or provided to Consultant in connection with the
performance of this Agreement shall be held confidential by Consultant. Such materials
shall not, without the prior written consent of City, be used by Consultant for any
purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or
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the Project. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed
confidential. Consultant shall not use City's name or insignia, photographs of the
Project, or any publicity pertaining to the Services or the Project in any magazine, trade
paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement. 3.5.5 Indemnification.
3.5.5.1 To the fullest extent permitted by law, Consultant shall
defend, indemnify and hold the City, its officials, officers, and employees free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death,
in any manner arising out of or incident to any alleged acts, omissions or willful
misconduct of Consultant, its officials, officers, employees, agents, consultants and
contractors arising out of or in connection with the performance of the Services, the Project or this Agreement, including without limitation the payment of all consequential damages and attorney’s 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 shall defend with Legal Counsel of City’s choosing, at Consultant’s own cost, expense and risk, any and
all such aforesaid suits, actions or other legal proceedings of every kind that may be
brought or instituted against City, its directors, officials, officers, and employees.
Consultant shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, officials, officers, and employees, in any such suit, action or other legal proceeding arising from Consultant’s performance of the Services, the
Project or this Agreement; except to the extent that liability is caused by the active
negligence or willful misconduct by the City or its directors, officials, officers, and
employees. Consultant shall reimburse City and its directors, officials, officers, and employees, 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 directors, officials, officers, and employees, and shall take effect
immediately upon execution of this Agreement. 3.5.5.2 The duty to defend and to hold harmless, as set forth
above, shall include the duty to defend as established by Section 2778 of the California
Civil Code, and the duty to defend shall arise upon the making of any claim or demand
against the City, its respective officials, officers, agents, employees and representatives,
Revised 04/13 11
notwithstanding that no adjudication of the underlying facts has occurred, and whether or not Consultant has been named in the claim or lawsuit.
3.5.6 Entire Agreement. This Agreement contains the entire Agreement
of the Parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements. This Agreement may only be modified by a writing signed by both Parties.
3.5.7 Attorney’s Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all other costs of such
action.
3.5.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County.
3.5.9 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.10 City's Right to Employ Other Consultants. City reserves right to employ other consultants in connection with this Project.
3.5.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties. 3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the City. Any attempt to do so shall be null and void,
and any assignees, hypothecates or transferees shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subcontractors of Consultant, except as otherwise
specified in this Agreement. All references to City include its elected officials, officers,
and employees except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.5.14 Amendment; Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
Revised 04/13 12
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise. 3.5.16 No Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties.
3.5.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Consultant maintains and warrants that it has
not 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 member, 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.
3.5.19 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex, sexual orientation or age. 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. Consultant shall also comply with all relevant provisions of City's Minority Business
Enterprise program, Affirmative Action Plan or other related programs or guidelines
currently in effect or hereinafter enacted.
3.5.20 Labor Certification. By its signature hereunder, Consultant certifies that it is aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Worker's Compensation or to
undertake self-insurance in accordance with the provisions of that Code, and agrees to
comply with such provisions before commencing the performance of the Services. 3.5.21 Authority to Enter Agreement. Consultant has all requisite power
and authority to conduct its business and to execute, deliver, and perform the
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each respective Party.
Revised 04/13 13
3.5.22 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.5.23 Exhibits and Recitals. All Exhibits and Recitals contained herein are hereby incorporated into this Agreement by this reference.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior written approval of City. Subcontracts, if any, shall contain a provision
making them subject to all provisions stipulated in this Agreement.
In witness whereof the Parties have executed this Professional Services Agreement on the date set forth below.
CITY OF ARCADIA THE LEW EDWARDS GROUP
By __ By ____________________________ Dominic Lazzaretto Signature
City Manager
Date: ______________________ ______________________________ Catherine Lew, President
ATTEST: Date: _________________________
___________________________ By____________________________ City Clerk Signature
APPROVED AS TO FORM: ______________________________ Lloyd A. Edwards, Secretary-Treasurer
___________________________ Date: _________________________
Stephen P. Deitsch
City Attorney CONCUR: ______________________________
[INSERT DEPT. HEAD NAME HERE]
A-1
EXHIBIT "A" SCOPE OF SERVICES
Consultant shall provide the following professional consulting services:
• Assist the City with Project Management in preparing for a potential April 2018
ballot measure.
• Oversee the development of public opinion research conducted by City-approved subcontractor FM3 Research.
• Analyze research findings and make recommendations on viability.
• Recommend and update preparation and project action plan and timeline.
• Develop text copy and graphics for informational mailings (City’s vendors to
translate, print and mail).
• Recommend strategies to disseminate information, consistent with the City’s practices and advise on additional communications avenues to disseminate its information, such as use of its website and other Internet and traditional
approaches as appropriate.
• Provide press releases or other text copy for the Internet, traditional Earned
Media and/or Social Media.
• Work with the City to provide clarifying or correct information to the public on a
rapid response basis as needed. (Consultant does not function as a
spokesperson for the City)
• Provide ongoing advice as needed, including added value to the development of staff reports, city resolutions, and ballot materials.
Legal services/advice are not within Consultant’s scope of work. Consultant’s services
will conclude on March 31st, 2018.
B-1
Exhibit "B"
SCHEDULE OF SERVICES
CITY OF ARCADIA – RECOMMENDED PROJECT TIMETABLE
As of 8/28/17
This is a sample timeline subject to revisions based on project needs and the agreement of both
parties.
SEPT-
OCT 2017
LAUNCH PROJECT, ASSESS VIABILITY
Formalize and execute Consultant contracts (City)
Review all archival background, media clips, budget/service delivery information
Conduct audit of public city information/media coverage
Conduct Kickoff Planning Session
Update Key Influential/Community Organization and Stakeholder databases
(City)
Assess City’s current communications vehicles (communications channels,
social media vehicles, Email lists/e-News, website, utility stuffers, counter
information, etc.)
Develop and conduct Community Survey
Analyze survey results, develop strategic recommendations
NOV-DEC 2017 ENGAGE INFLUENTIALS, PREPARE FOR MEASURE PLACEMENT
Present findings to City (if viable to proceed…)
Reach consensus on project approach
Conduct initial outreach to influentials and key community organizations (City)
Solicit additional input, respond to community questions (City)
Refine ballot measure plan as needed
Develop ballot measure package: resolution, ordinance, staff report (City Attorney is lead, with input from Consultants)
Prepare for City Council placement vote
City Council acts to place measure on April 2018 ballot (City)
Address Rapid Response, as needed
Draft Opinion Leader Update #1
Submit Impartial Analysis (City Attorney)
Develop Speaker’s Bureau target list (City)
Prepare Community Information Plan and Content/Events Calendar
o Develop Communications Toolkit/Suite (such as FAQs, Fact Sheet, PPT
presentation) o Identify City Informational Messengers
o Conduct Message Training
o Contact Organizations to schedule 2018 presentations (City)
The City of Arcadia can proceed with factual, informational efforts following placement
of a measure on the ballot, but cannot engage in any partisan activities.
JANUARY
2018
LAUNCH PUBLIC INFORMATION PROGRAM
Update City website with Measure Information drafted by Consultant (City)
Launch informational Speakers’ Bureau (City)
Draft Opinion Leader Update #2
Embed information drafted by Consultant in all social and traditional media
B-1
vehicles such as news media, Facebook, Twitter, and more (City)
Address Rapid Response, as needed
Assess initial community questions/reactions, adjust program information accordingly
FEB-MARCH
2018
Continue informational Speakers’ Bureau (City)
Continue to embed information drafted by Consultant in all social and
traditional media vehicles (City))
Implement three citywide informational mailings (Consultant and City)
Disseminate information at community events (City)
Address Rapid Response, as needed
APRIL
2018
Draft Election Day talking points for City
Election Day – remind the community to participate / thank them for doing so
C-1
Exhibit "C"
COMPENSATION
The contract amount of Seventy-Nine Thousand, Two Hundred and Fifty Dollars
($79,250) shall be payable as follows:
• Professional Consulting Fees in the amount of Thirty-Five Thousand Dollars
($35,000) in seven payments of Five Thousand Dollars ($5,000) per payment
due and payable by close of business on the last business day of each month
commencing September 29th, 2017 with the final payment on March 30th, 2018.
• Public Opinion Research Study Not to Exceed Thirty-One Thousand, Seven
Hundred and Fifty Dollars ($34,250) upon transmittal of results to City. This cost does include Mandarin and Spanish translation.
• Graphics, Mailing Data and Travel Expenditures Not to Exceed Ten Thousand,
Dollars ($10,000) upon invoice by Consultant. These expenses do not include translation, printing and mailing costs to be budgeted and incurred separately by City through its own vendors.