09-044 Godbe Research Professional ServicesTANDARD FORM
AGREEPvIENT
BETWEEN
CITY OF CUPERTINO
AND
GODBE RESEARCH
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT MADE AS OF March 30, 2009, BETWEEN CITY
OF CUPERTINO (hereinafter referred to as C [TY), and GODBE RESEARCH
(hereinafter referred to as Consultant).
WITNESSETH:
WHEREAS, CITY intends to conduct a random digit dial phone survey of voters
(hereinafter referred to as Project) and,
WHEREAS, CITY requires certain professional services in connection with Project
(hereinafter referred as Services); and
WHEREAS, Consultant is qualified and prepared to provide such Services;
NOW, THEREFORE, in consideration of the promises contained herein, the parties agree
as follows:
ARTICLE 1 -SERVICES TO BE PERFORMED BY CONSULTANT
1.1 Specific Services and the associated sa~pe of services, payment, schedule, and
personnel will be defined in specific Task Order as mutually agreed by City and
Consultant.
1.2 All Appendices will by reference incorporate the terms and conditions on this
Agreement, and become formal amendments hereto.
ARTICLE 2 -COMPENSATION
PC/DIR/CITY/FRMS/A92502
2.1 Compensation for Consulting services ~~erformed under this Agreement shall be
compensated for on a Fixed Fee basis. 'when using this basis of compensation, the
City agrees to pay a Fixed Professional Fee (Fixed Fee).
As compensation to be paid to Consult;~nt, City shall pay a Fixed Professional Fee
negotiated for tasks as described in Ap~~endix A, for services rendered by
Consultant covered by this Agreement. The Fixed Fee may be increased for
additional authorized services only by subsequent amendment changing the scope
of work
2.6 The fixed professional fee will not be changed except in the case of a
written amendment to the Agreement ~~hich alters the Scope of Services. City and
Consultant agree to negotiate an increa:;e or decrease in and Fixed Fee for any
change in Scope of Services required at any time during the term of this
Agreement. Consultant will not commence work on the altered Scope of Services
until authorized by City.
ARTICLE 3 -PERIOD OF SERVICE
3.1 Consultant's services will be performed. and the specified services rendered and
deliverables submitted within the time period or by the date stipulated in
Appendix A.
3.2 Consultant's services under this Agreement will be considered complete when the
services are rendered and/or final deliverable is submitted and accepted by City.
3.3 If any time period within or date by which any of the Consultant's services are to
be completed is exceeded through no fault of Consultant, all rates, measures and
amounts of compensation and the time for completion of performance shall be
subject to equitable adjustment.
ARTICLE 4 -CITY'S RESPONSIBILITIES
City will do the following in a timely manner so as not to delay the services of
Consultant.
4.1 Provide all criteria and full information as to City's requirements for the
services assignment and designate in writing a person with authority to act on
City's behalf on all matters concerning -the Consultant's services.
4.2 Furnish to Consultant all existing studies, reports and other available data
pertinent to the Consultant's services, obtain or authorize, Consultant to obtain or
provide additional reports and data as required, and furnish to Consultant services
of others required for the performance of Consultant's services hereunder, and
Consultant shall be entitled to use and rely upon all such information and services
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provided by City or others in performing Consultant's services under this
Agreement.
4.3 Arrange for access to and make all provisions for Consultant to enter upon public
and private property as required for Consultant to perform services hereunder.
4.5 Bear all costs incident to compliance with the requirements of this Section.
ARTICLE 5 -STANDARD OF CARE
5.1 Consultant shall exercise the same degree of care, skill, and diligence in the
performance of the Services as is ordinarily provided by a professional Consultant
under similar circumstance and Consultant shall, at no cost to City, re-perform
services which fail to satisfy the foregoing standard of care.
ARTICLE 6 -OPINIONS OF COST AND SCHEDULE
6.1 Since Consultant has no control over tree cost of labor, materials, equipment or
services furnished by others, or over contractors', subcontractors', or vendors'
methods of determining prices, or over competitive bidding or market conditions
or economic conditions, Consultant's cost estimate and economic analysis shall be
made on the basis of qualification and f~xperience as a professional.
6.2 Since Consultant has no control over the resources provided by others to meet
contract schedules, Consultant's forecast schedules shall be made on the basis of
qualification and experience as a professional.
6.3 Consultant cannot and does not guarantee that proposals, bids or actual project
costs will vary from his cost estimates or that actual schedules will not vary from
his forecast schedules.
ARTICLE 7 -SUBCONTRACTING
7.1 No subcontract shall be awarded by Co~isultant until prior written approval is
obtained from the City.
ARTICLE 8 -CONSULTANT-ASSIGNED PERSONNEL
8.1 Consultant shall designate in writing an individual to have immediate
responsibility for the performance of th~~ services and for all matters relating to
performance under this Agreement. Key personnel to be assigned by Consultant
will be stipulated in the Agreement. Substitution of any assigned person shall
require the prior written approval of the City, which shall not be unreasonably
withheld. If the City determines that a proposed substitution is not responsible or
qualified to perform the services then, at the request of the City, Consultant shall
substitute a qualified and responsible person.
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ARTICLE 9 -OWNERSHIP OF DOCUMEI\ TS
9.1 All work products, drawings, data, rep~~rts, files, estimate and other such
information and materials (except proprietary computer programs, including
source codes purchased or developed vrith Consultant monies) as may be
accumulated by Consultant to complete; services under this Agreement shall be
owned by the City.
9.2 Consultant shall retain custody of all project data and documents other
than deliverables specified in each Taslc Order, but shall make access
thereto available to the City at all reasonable times the City may request.
City may make and retain copies for information and reference.
9.3 All deliverables and other information prepared by Consultant pursuant to this
Agreement are instruments of service in respect to this project. They are not
intended or represented to be suitable for reuse by City or others on extensions of
this Project or on any other project. Aliy reuse without written verification or
adaptation by Engineer for the specific purpose intended will be at City's sole risk
and without liability or legal exposure to Consultant; and City shall indemnify and
hold harmless Consultant against all cl;~ims, damages, losses, and expenses.
including attorney's fees arising out of or resulting from such reuse. Any such
verification or adaptation will entitle Consultant to further compensation at rates
to be agreed upon by City and Consult:int.
ARTICLE 10 -RECORDS OF LABOR AND COSTS
10.1 Consultant shall maintain records of labor and costs used in claims for
compensation under this Agreement. F:ecords shall mean a contemporaneous
record of time for personnel; a methodology and calculation of the Multiplier for
fringe benefits and indirect costs; and i;lvoices, time sheets, or other factors used
as a basis for determining other nonlab~~r Project charges. These records must be
made available to the City upon reasonable notice of no more than 48 hours
during the period of the performance oi~ this Agreement.
10.2 After delivery of Services under this Agreement, the Consultant's records of all
costs used in claims for compensation >,lnder this Agreement shall be available to
City's accountants and auditors for inspection and verification. These records will
be maintained by Consultant and made reasonably accessible to the City for a
period of three (3) years after completion of Appendices under this Agreement.
10.3 Consultant agrees to cooperate and pro~~ide any and all information concerning
the Project costs which are a factor in determining compensation under this
Agreement as requested by the City or :;<ny public agency which has any part in
providing financing for, or authority over, the Services which are provided under
the Agreement.
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10.4 Failure to provide documentation or s>r~bstantiation of all Project costs used as a
factor in compensation paid under Article 2 hereof will be grounds for City to
refuse payment of any statement submitted by the Consultant and for a back
charge for any City funds, including interest from payment; or grant, matching or
other funds from agencies assisting City in financing the Services specified in this
Agreement.
ARTICLE II -INSURANCE
Consultant shall provide and maintain at all tunes during the performance of the
Agreement the following insurances:
11.1 Workers' Compensation and Employer's Liability Insurance for protection of
Consultant's employees as required by law and as will protect Consultant from
loss or damage because of personal injuries, including death, to any of his
employees.
11.2 Comprehensive Automobile Liabilit,~nsurance. Consultant agrees to carry a
Comprehensive Automobile Liability Policy providing bodily injury liability.
This policy shall protect Consultant ag;~inst all liability arising out of the use of
owned or leased automobiles both passenger and commercial. Automobiles,
trucks, and other vehicles and equipment (owned, not owned, or hired, licensed or
unlicensed for road use) shall be covert:d under this policy. Limits of liability for
Comprehensive Automobile Liability Insurance shall not be less than $1,000,000
Combined Single Limit.
11.3 Comprehensive General Liabili~. Insurance as will protect Consultant and
City from any and all claims for damages or personal injuries, including death,
which may be suffered by persons, or for damages to or destruction to the
property of others, which may arise from the Consultant's operations under this
Agreement, which insurance shall name the City as additional insured. Said
insurance shall provide a minimum of `i1,000,000 Combined Single Limit
coverage for personal injury, bodily injury, and property damage for each
occurrence arid aggregate. Such insurance will insure Consultant and City from
any and all claims arising from the following:
1. Personal injury;
2. Bodily injury;
3. Property damage;
4. Broad form property damage;
5. Independent contractors;
6. Blanket contractual liability.
11.4 Consultant shall maintain a policy of professional liability insurance, protecting it
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against claims arising out of negligent acts, errors, or omissions of Consultant
pursuant to this Agreement, in an amount of not less than $1,000,000. The said
policy shall cover the indemnity provi;~ions under this Agreement.
11.5 Consultant agrees to maintain such insurance at Consultant's expense in full force
and effect in a company or companies satisfactory to the City. All coverage shall
remain in effect until completion of th~~ Project.
11.6 Consultant will furnish the City with certificates of insurance issued by
Consultant's insurance carrier and coulitersigned by an authorized agent or
representative of the insurance company. The certificates shall show that the
insurance will not be cancelled, altered, or reduced without at least thirty (30)
days' prior written notice to the City. ~Che certificates for liability insurance will
show that liability assumed under this Agreement is included.
ARTICLE 12 -LIABILITY AND INDEMND;ICATION
12.1 Having considered the risks and potential liabilities that may exist during the
performance of the Services; and in consideration of the promises included
herein, City and Consultant agree to allocate such liabilities in accordance with
this Article 12. Words and phrases used in this Article shall be interpreted in
accordance with customary insurance industry usage and practice.
12.2 Consultant shall indemnify and save harmless and defend the City and all of
their agents, officers, and employees from and against all claims, demand, or
cause of action of every name and nature arising out of negligent error, omission,
or act of Consultant, its agents, servants, or employees in the performance of its
services under this Agreement.
12.3 In the event an action for damages is filed in which negligence is alleged on the
part of City and Consultant, Consultant: agrees to defend City. In the event City
accepts Consultant's defense, City agrees to indemnify and reimburse Consultant
on a pro rata basis for all expenses of defense and any judgment or amount paid
by Consultant in resolution of such claim. Such pro rata share shall be based upon
a final judicial determination of negligence or, in the absence of such
determination, by mutual agreement.
12.4 Consultant shall indemnify City against legal liability for damages arising out
of claims by Consultant's employees. (~ity shall indemnify Consultant against
legal liability for damages arising out of claims by City's employees.
12.5 Indemnity provisions will be incorporated into all Project contractual
arrangements entered into by City and ~,vill protect City and Consultant to the
same extent.
12.6 Upon completion of all services, obligations and duties provided for in the
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Agreement, or in the event of termination of this Agreement for any reason, the
terms and conditions of this Article shall survive.
ARTICLE 13 -INDEPENDENT CONTRACrCOR
Consultant undertakes performance of the Sereices as an independent contractor and shall
be wholly responsible for the methods of performance. City will have no right to
supervise the methods used, but City will have right to observe such performance.
Consultant shall work closely with City in per:`orming Services under this Agreement.
ARTICLE 14 -COMPLIANCE WITH LAWS
In performance of the Services, Consultant will comply with applicable regulatory
requirements including federal, state, and local. laws, rules, regulations, orders, codes,
criteria and standards. Consultant shall procure the permits, certificates, and licenses
necessary to allow Consultant to perform the Services indicated in the Agreement.
Consultant shall not be responsible for procuring permits, certificates, and licenses
required for any construction unless such responsibilities are specifically assigned to the
Consultant in Appendix A.
ARTICLE 15 -NONDISCLOSURE OF PROPRIETARY INFORMATION
Consultant shall consider all information provided by City and all drawings, reports,
studies, design calculations, specifications, anti other documents resulting from the
Consultant's performance of the Services to be proprietary unless such information is
available from public sources. Consultant shall not publish or disclose proprietary
information for any purpose other than the performance of the Services without the prior
Written authorization of City or in response to legal process.
ARTICLE 1.6 -TERMINATION OF CONTRACT
16.1 The obligation to continue Services under this Agreement may be terminated by
either party upon seven days written notice in the event of substantial failure by
the other party to perform in accordance with the terms hereof through no fault of
the terminating party.
16.2 City shall have the right to terminate this Agreement or suspend performance
thereof for City's convenience upon written notice to Consultant, and Consultant
shall terminate or suspend performance of Services on a schedule acceptable to
City. In the event of termination of suspension for City s convenience, City will
pay Consultant for all services performt:d and costs incurred including termination
or suspension expenses. Upon restart of a suspended project, equitable
adjustment shall be made to Consultant's compensation.
ARTICLE 17 -UNCONTROLLABLE FORCES
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17.1 Neither City nor Consultant shall be considered to be in default of this
Agreement if delays in or failure of performance shall be due to uncontrollable
forces, the effect of which, by the exer~~ise of reasonable diligence, the
nonperforming party could not avoid. The term "uncontrollable forces" shall
mean any event which results in the prevention or delay of performance by a party
of its obligations under this Agreement. and which is beyond the control of the
nonperforming party. It includes, but is not limited to, fire, flood, earthquake,
storms, lightening, epidemic, war, riot, civil disturbance, sabotage, inability to
procure permits, licenses, or authorizations from any state, local, or federal
agency or person for any of the supplies, materials, accesses, or services required
to be provided by either City or Consultant under this Agreement, strikes, work
slowdowns or other labor disturbances. and judicial restraint.
17.2 Neither party shall, however, be excusf;d from performance if nonperformance is
due to uncontrollable forces which are removable or remediable, and which the
nonperforming party could have, with the exercise of reasonable diligence,
removed or remedied with reasonable dispatch. The provisions of this Article
shall not be interpreted or construed to require Consultant or City to prevent,
settle, or otherwise avoid a strike, work: slowdown, or other labor action. The
nonperforming party shall, within a reasonable time of being prevented or delayed
from performance by an uncontrollable force, give written notice to the other
party describing the circumstances and uncontrollable forces preventing continued
performance of the obligations of this Agreement. The Consultant will be
allowed reasonable negotiated extension of time or adjustments for City initiated
temporary stoppage of services.
ARTICLE 18 -MISCELLANEOUS
18.1 A waiver by either City or Consultant of any breach of this Agreement shall
not be binding upon the waiving party unless such waiver is in writing. In the
event of a written waiver, such a waiver shall not affect the waiving party's rights
with respect to any other or further bre~ich.
18.2 The invalidity, illegality, or unenforceability of any provision of this Agreement,
or the occurrence of any event rendering any portion or provision of this
Agreement void, shall in no way effect the validity or enforceability of any other
portion or provision of the Agreement. Any void provision shall be deemed
severed from the Agreement and the balance of the Agreement shall be construed
and enforced as if the Agreement did not contain the particular portion or
provision held to be void.
ARTICLE 19 -INTEGRATION AND MODI~~ICATION
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19.1 This Agreement (consisting of pages 1 to 10), together with all Appendices
executed by the undersigned, is adopted by City and Consultant as a complete and
exclusive statement of the terms of the Agreement between City and Consultant. This
Agreement supersedes all prior agreements, contracts, proposals, representations,
negotiations, letters, or other communications between the City and Consultant pertaining
to the Services, whether written or oral.
19.2 The Agreement may not be modified unless such modifications are evidenced in
writing signed by both City and Consu (tant.
ARTICLE 20-SUCCESSORS AND ASSIGN;i
20.1 City and Consultant each binds itself a~~d its directors, officers, partners,
successors, executors, administrators; ~~ssigns and legal representatives to the
other party to this Agreement and to th~~ partners, successors, executors,
administrators, assigns, and legal representatives of such other party, in respect to
all covenants, agreements, and obligati~~ns of this Agreement.
20.2 Neither City nor Consultant shall assign, sublet, or transfer any rights under or
interest in (including, but without limitation, monies that may become due or
monies that are due) this Agreement without the written consent of the other,
except to the extent that the effect of this limitation may be restricted bylaw.
Unless specifically stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any duty or
responsibility under this Agreement. Nothing contained in this paragraph shall
prevent Consultant from employing such independent consultants, associates, and
subcontractors as he may deem appropriate to assist him/her in the performance of
the Services hereunder and in accordance with Article 7.
20.3 Nothing herein shall be construed to gi~~e any rights or benefits to anyone other
than City and Consultant.
ARTICLE 21-EXECUTION
IN WITNESS THEREOF, the parties hereto have made and executed this Agreement as
of the day and year first above written.
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APPENDIX A
to
AGREEMENT
BETWEEN
CITY OF CUPERTINO
AND
GODBE RESEARCH
FO13
PROFESSIONAL SERVICES
Dated March 16, 2009
SCOPE OF WORK
1 In-person meetings and conference calls, as needed, with the City and any City
consultants to discuss the research objectives for the study, questionnaire design, and related
topics.
2 Drafting, refining, and pre-testing a survey instrument of approximately 15 to 18-minutes
in length, to accomplish the goals of the UUT feasibility study.
3 Purchasing a listed sample of City voters ~tnd developing a sampling design of voters
likely to vote in the elections of interest in 2009 and potentially 2010 (e.g. November 2009, March
2010, June 2010, etc.).
4 CATI programming the survey instrument 1~or efficient data collection.
5 Conducting telephone interviews with 400 (n=400) to 500 (n=500) Cupertino voters
according to a strict interviewing protocol The length of each interview is estimated to be 15 to
18-minutes, and the City will only be charged for tl-e cost option that reflects the final time tested
survey length and overall sample size employed for this project.
6 Processing the data collected according to strict quality control standards and meeting
with the City and any City consultants to review thE~ topline results shortly after data collection has
been completed.
7 Producing complete cross-tabulations of tl'ie survey data.
8 Producing a written report of findings and conclusions, with a complete set of
crosstabulations.
9 An in-person presentation of findings to thc~ City of Cupertino representatives and any
City consultants/stakeholders for up to two presentations.
10 Post survey consulting on the results and recommendations from the polling through
Election Day.
Half of the amount for the project will be due to Go~~be Research upon approval of the survey
instrument. The remaining half will be due upon delivery of the topline report to the City of
Cupertino.
PROJECT COSTS
The following costs are associated with conducting a survey of 400 (n=400) to 500 (n=500)
Cupertino voters to assess the feasibility of passincf a UUT measure in the City. Costs are based
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on a survey of 15 to 18-minutes in length and are reflective of fees charged to the City for other
recent surveys. The costs below are firm and fixE~d and will not change provided that the project
parameters conform to the Godbe Research sco~~e of work dated March 16, 2009. Should
project parameters change, Godbe Research will be happy to provide amended costs prior to
proceeding. Please note that the City will only be charged for the option below that reflects the
final time tested survey length and overall sample size employed for the voter survey.
Option One: Survev of 500 (n=500) Cupertino Voters
Project Tasks 15-min. 18-min.
Listed Voter Sample $1,200.00 $1,200.00
CAT) Programming $1,120.00 $1,290.00
Voter Telephone Interviewing $12,300.00 $13,050.00
Data Processing $770.00 $995.00
Research Fee $6,500.00 $6,500.00
Project Management $1,500.00 $1,500.00
Voter Survey Total $23,390.00 $24,535.00
Option Two: Survev of 400 (n=400) Cupertino Voters
Proiect Tasks 15-min. 18-min. Listed Voter Sample $900.00 $900.00 CATI Programming
$1,120.00 $1,290.00 Voter Telephone Interviewing $9,840.00 $10,440.00 Data Processing
$600.00 $725.00 Research Fee $6,000.00 $6,000.00 Project Management $1,250.00 $1.250.00
Voter Survey Total $19,710.00 $20,605.00
STANDARD BUSINESS TERMS AND CONDITIONS
GODBE RESEARCH
Contracts and agreements between Godbe Rese:~rch and its clients include the following
general terms and conditions unless otherwise specified in the attached Professional Services
Agreement.
Subcontractors' Fees. Should the firm retain a spE~cial employee solely for the purpose of
providing services to a client, a fee equal to 15 percent of the costs of such person will be
charged to cover the firm's payroll costs.
Acting as Agent. In compliance with California sales tax regulation, Godbe Research is
designated as an Agent for the acquisition of tangible personal property and services as they
apply to its clients' advertising and sales promotion activities.
Ownership of Materials. In producing finished products, it is expressly understood that
ownership of all materials purchased by Godbe Research to complete the property to be
produced passes to its clients at the time of purchase and prior to any use by Godbe Research.
Attorneys' Fees. Should any action be brought by one party against the other party to enforce
any agreement, the prevailing party shall be entitled to recover from the other party its
reasonable attorneys' fees, costs and expenses.
Governing Law: Venue. Any agreement between the agency and a client shall be
governed by California law and any action arising out of it shall be instituted and
prosecuted only in the Superior Court of the County of Santa Clara.
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