HomeMy WebLinkAbout0003_2_Election Consultant - Exhibit A AgreementPage 1
AGREEMENT FOR PROFESSIONAL SERVICES
MARTIN & CHAPMAN CO.
This Agreement for Professional Services (the “Agreement”) is made and entered into as
of January 23, 2017, by and between the City of Lake Elsinore, a municipal corporation (‘‘City")
and Martin & Chapman Co., a California corporation ("Contractor").
RECITALS
A.The City has determined that it requires election consulting services regarding a special
City election for the voters to consider the Alberhill Villages Initiative (the “Special Municipal
Election”).
B.The precise date of the Special Municipal Election has not been set but is anticipated to
occur on May 2, 2017. The City Clerk of the City of Lake Elsinore shall serve as the Election
Official.
C.Contractor possesses the skill, experience, ability, background, certification and
knowledge to perform the services described in this Agreement on the terms and conditions
described herein.
D.City desires to retain Contractor to perform the services as provided herein and Contractor
desires to provide such professional services as set forth in this Agreement.
AGREEMENT
1.Scope of Services. The Scope of Services to be performed by Contractor is set forth shall
include the following services:
a.Contractor agrees to provide all necessary election advice, supplies, equipment and
services for the City’s Special Municipal Election. (Exhibit A)
b.Provide a Calendar of Election Events setting out dates and requirements of the Election
Code.
c.To be available by email or by telephone; to be available at any time to the Election Official,
prior to, during and for a reasonable time after the election, and during the same period to, upon
request, work in cooperation with the Election Official upon any election task or problems which
may arise.
d.To furnish working forms, outlines, check lists and schedules which will aid the Election
Official in keeping track of procedural details of the election.
e.To prepare and print ballot cards, Sample Ballot Voter Information Pamphlets and Vote
by Mail packets and mail to all eligible voters.
f.To prepare Precinct Supplies for all voting precincts in the languages required for the City.
g.Secure the services of all foreign language translators for translation requirements.
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h.To otherwise provide such other special and unique services in close cooperation with the
Election Official as may be necessary for the successful conduct of the election.
i.To be at a designated site on the day of the election, and to tabulate the votes cast
pursuant to the election.
2.Time of Performance.
a.Time of Essence. Time is of the essence in the performance of this Agreement. The time
for completion of the services to be performed by Contractor is an essential condition of this
Agreement. Contractor shall prosecute regularly and diligently the services contemplated
pursuant to this Agreement.
b.Performance Schedule. Contractor shall commence the services pursuant to this
Agreement upon receipt of a written notice to proceed and shall perform all services within the
time period(s) established by the Election Official.
c.Term. The term of this Agreement shall commence upon execution of this Agreement and
shall continue until the services and related work are completed in accordance with the Scope of
Services.
3.Compensation. Compensation to be paid to Consultant shall be in accordance with the
fees set forth in the Schedule of Compensation (Exhibit A) attached hereto and incorporated
herein by reference. Contractor’s compensation shall not exceed One Hundred Thirty-Four
Thousand Dollars ($134,000.00) without additional written authorization from the City. In the
event additional items, either requested by the Election Official, or required by changes in the
laws, are used in this election, these items will be billed accordingly (at the unit prices stated, if
applicable) and paid for by the City. The City will be responsible for the agreed upon additional
costs required by such requests. The estimated pamphlet prices are based on the current number
of registered voters and on a set number of pages based on a set number of candidate’s
statements (if applicable), and may increase or decrease accordingly. The number of vote by mail
supplies and official ballots is based on the current number of registered voters and may increase
or decrease accordingly. Notwithstanding any provision of Exhibit “B” to the contrary, out of
pocket expenses shall be reimbursed at cost without an inflator or administrative charge.
Payment by City under this Agreement shall not be deemed a waiver of defects, even if such
defects were known to the City at the time of payment.
4.Method of Payment. Contractor shall promptly submit an invoice to the City describing
the services and related work performed. City shall make prompt payment to Contractor in in four
installments as set forth in the Schedule of Compensation (Exhibit “B”) and as summarized herein
below:
a.The first installment shall be for the postage amounts to mail out the sample ballots.
b.The second installment shall be for the postage amounts to mail out the permanent vote
by mail ballot packages.
c.The third installment shall be to compensate Contractor for the candidate statement
portion of the sample ballot pamphlet.
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d.The fourth installment shall be to compensate Contractor for all other services rendered
by Contractor upon completion of the election.
5.Reserved.
6.Suspension or Termination.
a.The City may at any time, for any reason, with or without cause, suspend or terminate this
Agreement, or any portion hereof, by serving upon the Contractor at least ten (10) days prior
written notice. Upon receipt of such notice, the Contractor shall immediately cease all work under
this Agreement, unless the notice provides otherwise. If the City suspends or terminates a portion
of this Agreement such suspension or termination shall not make void or invalidate the remainder
of this Agreement.
b.In the event this Agreement is terminated pursuant to this Section, the City shall pay to
Contractor the actual value of the work performed up to the time of termination, provided that the
work performed is of value to the City. Upon termination of the Agreement pursuant to this
Section, the Contractor will submit an invoice to the City, pursuant to Section entitled “Method of
Payment” herein.
7.Ownership of Documents. All plans, studies, documents and other writings prepared by
and for Contractor, its officers, employees and agents and subcontractors in the course of
implementing this Agreement, except working notepad internal documents, shall become the
property of the City upon payment to Contractor for such work, and the City shall have the sole
right to use such materials in its discretion without further compensation to Contractor or to any
other party. Contractor shall, at Contractor’s expense, provide such reports, plans, studies,
documents and other writings to City upon written request. City acknowledges that any use of
such materials in a manner beyond the intended purpose as set forth herein shall be at the sole
risk of the City. City further agrees to defend, indemnify and hold harmless Contractor, its officers,
officials, agents, employees and volunteers from any claims, demands, actions, losses, damages,
injuries, and liability, direct or indirect (including any and all costs and expenses in connection
therein), arising out of the City’s use of such materials in a manner beyond the intended purpose
as set forth herein.
a.Licensing of Intellectual Property. This Agreement creates a nonexclusive 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 Contractor under this Agreement
(“Documents & Data”). Contractor shall require that all subcontractors agree in writing that City
is granted a nonexclusive and perpetual license for any Documents & Data the subcontractor
prepares under this Agreement. Contractor represents and warrants that Contractor has the legal
right to license any and all Documents & Data. Contractor makes no such representation and
warranty in regard to Documents & Data which were prepared by design professionals other than
Contractor or provided to Contractor by the City. City shall not be limited in any way in its use of
the Documents & Data at any time, provided that any such use not within the purposes intended
by this Agreement shall be at City’s sole risk.
b.Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings,
descriptions, computer program data, input record data, written information, and other Documents
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& Data either created by or provided to Contractor in connection with the performance of this
Agreement shall be held confidential by Contractor. Such materials shall not, without the prior
written consent of City, be used by Contractor for any purposes other than the performance of the
services under this Agreement. Nor shall such materials be disclosed to any person or entity not
connected with the performance of the services under this Agreement. Nothing furnished to
Contractor which is otherwise known to Contractor or is generally known, or has become known,
to the related industry shall be deemed confidential. Contractor shall not use City’s name or
insignia, photographs relating to project for which Contractor’s services are rendered, or any
publicity pertaining to the Contractor’s services under this Agreement in any magazine, trade
paper, newspaper, television or radio production or other similar medium without the prior written
consent of City.
8.Contractor’s Books and Records.
a.Contractor shall maintain any and all ledgers, books of account, invoices, vouchers,
canceled checks, and other records or documents evidencing or relating to charges for services,
or expenditures and disbursements charged to City for a minimum period of three (3) years, or
for any longer period required by law, from the date of final payment to Contractor to this
Agreement.
b.Contractor shall maintain all documents and records which demonstrate performance
under this Agreement for a minimum period of three (3) years, or for any longer period required
by law, from the date of termination or completion of this Agreement.
c.Any records or documents required to be maintained pursuant to this Agreement shall be
made available for inspection or audit, at any time during regular business hours, upon written
request by the City Manager, City Attorney, City Auditor or a designated representative of these
officers. Copies of such documents shall be provided to the City for inspection at City Hall when
it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall
be available at Contractor’s address indicated for receipt of notices in this Agreement.
d.Where City has reason to believe that such records or documents may be lost or discarded
due to dissolution, disbandment or termination of Contractor’s business, City may, by written
request by any of the above-named officers, require that custody of the records be given to the
City and that the records and documents be maintained in City Hall. Access to such records and
documents shall be granted to any party authorized by Contractor, Contractor’s representatives,
or Contractor’s successor-in-interest.
9.Independent Contractor. It is understood that Contractor, in the performance of the work
and services agreed to be performed, shall act as and be an independent contractor and shall not
act as an agent or employee of the City.
10.PERS Eligibility Indemnification. In the event that Contractor or any employee, agent, or
subcontractor of Contractor providing services under this Agreement claims or is determined by
a court of competent jurisdiction or the California Public Employees Retirement System (PERS)
to be eligible for enrollment in PERS as an employee of the City, Contractor shall indemnify,
defend, and hold harmless City for the payment of any employee and/or employer contributions
for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as
for the payment of any penalties and interest on such contributions, which would otherwise be the
responsibility of City.
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Notwithstanding any other federal, state and local laws, codes, ordinances and regulations to the
contrary, Contractor and any of its employees, agents, and subcontractors providing service
under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any
claims to, any compensation, benefit, or any incident of employment by City, including but not
limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution
to be paid by City for employer contribution and/or employee contributions for PERS benefits.
11.Interests of Contractor. Contractor (including principals, associates and professional
employees) covenants and represents that it does not now have any investment or interest in real
property and shall not acquire any interest, direct or indirect, in the area covered by this
Agreement or any other source of income, interest in real property or investment which would be
affected in any manner or degree by the performance of Contractor’s services hereunder.
Contractor further covenants and represents that in the performance of its duties hereunder no
person having any such interest shall perform any services under this Agreement.
Contractor is not a designated employee within the meaning of the Political Reform Act
because Contractor:
a.will conduct research and arrive at conclusions with respect to his/her rendition of
information, advice, recommendation or counsel independent of the control and direction of the
City or of any City official, other than normal agreement monitoring; and
b.possesses no authority with respect to any City decision beyond rendition of information,
advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).)
12.Professional Ability of Contractor. City has relied upon the professional training and ability
of Contractor to perform the services hereunder as a material inducement to enter into this
Agreement. Contractor shall therefore provide properly skilled professional and technical
personnel to perform all services under this Agreement. All work performed by Contractor under
this Agreement shall be in accordance with applicable legal requirements and shall meet the
standard of quality ordinarily to be expected of competent professionals in Contractor’s field of
expertise.
13.Compliance with Laws. Contractor shall use the standard of care in its profession to
comply with all applicable federal, state and local laws, codes, ordinances and regulations.
14.Licenses. Contractor represents and warrants to City that it has the licenses, permits,
qualifications, insurance and approvals of whatsoever nature which are legally required of
Contractor to practice its profession. Contractor represents and warrants to City that Contractor
shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this
Agreement, any licenses, permits, insurance and approvals which are legally required of
Contractor to practice its profession. Contractor shall maintain a City of Lake Elsinore business
license.
15.Indemnity. Contractor shall indemnify, defend, and hold harmless the City and its officials,
officers, employees, agents, and volunteers from and against any and all losses, liability, claims,
suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss
of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance,
to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions
of Contractor or its employees, subcontractors, or agents, by acts for which they could be held
strictly liable, or by the quality or character of their work. The foregoing obligation of Contractor
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shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from
the sole negligence or willful misconduct of the City or its officers, employees, agents, or
volunteers and (2) the actions of Contractor or its employees, subcontractor, or agents have
contributed in no part to the injury, loss of life, damage to property, or violation of law. It is
understood that the duty of Contractor to indemnify and hold harmless includes the duty to defend
as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance
certificates and endorsements required under this Agreement does not relieve Contractor from
liability under this indemnification and hold harmless clause. This indemnification and hold
harmless clause shall apply to any damages or claims for damages whether or not such insurance
policies shall have been determined to apply. By execution of this Agreement, Contractor
acknowledges and agrees to the provisions of this Section and that it is a material element of
consideration.
16.Insurance Requirements.
a.Insurance. Contractor, at Contractor’s own cost and expense, shall procure and maintain,
for the duration of the contract, unless modified by the City’s Risk Manager, the following
insurance policies.
i.Workers’ Compensation Coverage. Contractor shall maintain Workers’
Compensation Insurance and Employer’s Liability Insurance for his/her employees in
accordance with the laws of the State of California. In addition, Contractor shall require
each subcontractor to similarly maintain Workers’ Compensation Insurance and
Employer’s Liability Insurance in accordance with the laws of the State of California for all
of the subcontractor’s employees. Any notice of cancellation or non-renewal of all
Workers’ Compensation policies must be received by the City at least thirty (30) days prior
to such change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for losses arising from work performed by
Contractor for City. In the event that Contractor is exempt from Worker’s Compensation
Insurance and Employer’s Liability Insurance for his/her employees in accordance with
the laws of the State of California, Contractor shall submit to the City a Certificate of
Exemption from Workers Compensation Insurance in a form approved by the City
Attorney.
ii.General Liability Coverage. Contractor shall maintain commercial general liability
insurance in an amount not less than one million dollars ($1,000,000) per occurrence for
bodily injury, personal injury and property damage. If a commercial general liability
insurance form or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed under this Agreement
or the general aggregate limit shall be at least twice the required occurrence limit.
Required commercial general liability coverage shall be at least as broad as Insurance
Services Office Commercial General Liability occurrence form CG 0001 (ed. 11/88) or
Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive
General Liability and Insurance Services Office form number GL 0404 covering Broad
Form Comprehensive General Liability. No endorsement may be attached limiting the
coverage.
iii.Automobile Liability Coverage. Contractor shall maintain automobile liability
insurance covering bodily injury and property damage for all activities of the Contractor
arising out of or in connection with the work to be performed under this Agreement,
including coverage for owned, hired and non-owned vehicles, in an amount of not less
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than one million dollars ($1,000,000) combined single limit for each occurrence.
Automobile liability coverage must be at least as broad as Insurance Services Office
Automobile Liability form CA 0001 (ed. 12/90) Code 1 (“any auto”). No endorsement may
be attached limiting the coverage.
b.Endorsements. Each general liability and automobile liability insurance policy shall
be with insurers possessing a Best’s rating of no less than A:VII and shall be endorsed
with the following specific language:
i.The City, its elected or appointed officers, officials, employees, agents and
volunteers are to be covered as additional insured with respect to liability arising out of
work performed by or on behalf of the Contractor, including materials, parts or equipment
furnished in connection with such work or operations.
ii.This policy shall be considered primary insurance as respects the City, its elected
or appointed officers, officials, employees, agents and volunteers. Any insurance
maintained by the City, including any self-insured retention the City may have, shall be
considered excess insurance only and shall not contribute with it.
iii.This insurance shall act for each insured and additional insured as though a
separate policy had been written for each, except with respect to the limits of liability of
the insuring company.
iv.The insurer waives all rights of subrogation against the City, its elected or
appointed officers, officials, employees or agents.
v.Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its elected or appointed officers, officials, employees,
agents or volunteers.
vi.The insurance provided by this Policy shall not be suspended, voided, canceled,
or reduced in coverage or in limits except after thirty (30) days written notice has been
received by the City.
c.Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must
be declared to and approved by the City. At the City’s option, Contractor shall demonstrate
financial capability for payment of such deductibles or self-insured retentions.
d.Certificates of Insurance. Contractor shall provide certificates of insurance with original
endorsements to City as evidence of the insurance coverage required herein. Certificates of such
insurance shall be filed with the City on or before commencement of performance of this
Agreement. Current certification of insurance shall be kept on file with the City at all times during
the term of this Agreement.
17.Notices. Any notice required to be given under this Agreement shall be in writing and
either served personally or sent prepaid, first class mail. Any such notice shall be addressed to
the other party at the address set forth below. Notice shall be deemed communicated within 48
hours from the time of mailing if mailed as provided in this section.
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If to City:City of Lake Elsinore
Attn: City Manager
130 South Main Street
Lake Elsinore, CA 92530
With a copy to:City of Lake Elsinore
Attn: City Clerk
130 South Main Street
Lake Elsinore, CA 92530
If to Contractor:Martin & Chapman Co.
Attn: Scott Martin, President
1951 Wright Circle
Anaheim, CA 92806
18.Entire Agreement. This Agreement constitutes the complete and exclusive statement of
Agreement between the City and Contractor. All prior written and oral communications, including
correspondence, drafts, memoranda, and representations, are superseded in total by this
Agreement.
19.Amendments. This Agreement may be modified or amended only by a written document
executed by both Contractor and City and approved as to form by the City Attorney.
20.Assignment and Subcontracting. The parties recognize that a substantial inducement to
City for entering into this Agreement is the professional reputation, experience and competence
of Contractor. Contractor shall be fully responsible to City for all acts or omissions of any
subcontractors. Assignments of any or all rights, duties or obligations of the Contractor under this
Agreement will be permitted only with the express consent of the City. Contractor shall not
subcontract any portion of the work to be performed under this Agreement without the written
authorization of the City. If City consents to such subcontract, Contractorshall be fully responsible
to City for all acts or omissions of those subcontractors. Nothing in this Agreement shall create
any contractual relationship between City and any subcontractor nor shall it create any obligation
on the part of the City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise is required by law.
21.Waiver. Waiver of a breach or default under this Agreement shall not constitute a
continuing waiver of a subsequent breach of the same or any other provision under this
Agreement.
22.Severability. If any term or portion of this Agreement is held to be invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
23.Controlling Law Venue. This Agreement and all matters relating to it shall be governed
by the laws of the State of California and any action brought relating to this Agreement shall be
held exclusively in a state court in the County of Riverside.
24.Litigation Expenses and Attorneys’ Fees. If either party to this Agreement commences
any legal action against the other party arising out of this Agreement, the prevailing party shall be
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entitled to recover its reasonable litigation expenses, including court costs, expert witness fees,
discovery expenses, and attorneys’ fees.
25.Mediation. The parties agree to make a good faith attempt to resolve any disputes arising
out of this Agreement through mediation prior to commencing litigation. The parties shall mutually
agree upon the mediator and share the costs of mediation equally. If the parties are unable to
agree upon a mediator, the dispute shall be submitted to JAMS or its successor in interest. JAMS
shall provide the parties with the names of five qualified mediators. Each party shall have the
option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining
shall hear the dispute. If the dispute remains unresolved after mediation, either party may
commence litigation.
26.Execution. This Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument and shall become binding upon the parties when at least
one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it
shall not be necessary to produce or account for more than one such counterpart.
27.Authority to Enter Agreement. Contractor 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 to bind each respective party. The City Manager is authorized to enter into
an amendment or otherwise take action on behalf of the City to make the following modifications
to the Agreement: (a) a name change; (b) grant extensions of time; (c) non-monetary changes in
the scope of services; and/or (d) suspend or terminate the Agreement.
28.Prohibited Interests. Contractor maintains and warrants that it has not employed nor
retained any company or person, other than a bona fide employee working solely for Contractor,
to solicit or secure this Agreement. Further, Contractor 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
Contractor, 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.
29.Equal Opportunity Employment. Contractor 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 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.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
date first written above.
“CITY”
CITY OF LAKE ELSINORE, a municipal
corporation
Grant Yates, City Manager
ATTEST:
Susan M. Domen, City Clerk
APPROVED AS TO FORM:
Barbara Leibold, City Attorney
“CONTRACTOR”
MARTIN & CHAPMAN CO., a California
corporation
Scott Martin, President
EXHIBIT “A”
Services and Cost Estimate