Contract - Probolsky - 2012-03-09 AGREEMENT FOR CONSULTANT SERVICES
Citizen Survey
This Agreement is made and effective as of (nacrkk at_ 2012, between the
Costa Mesa Sanitary District, a sanitary district ("District"), and Probolsky Research, a
limited liability corporation ("Consultant"). In consideration of the mutual covenants and
conditions set forth herein, the parties agree as follows:
Recitals
WHEREAS, the District desires the preparation of a Zero Waste Plan for the
agency. and
WHEREAS, prior to preparing a Zero Waste Plan, the District desires to obtain
relevant data related to such a plan such as assessing residents opinion on current rate
structure, single stream system, level of satisfaction of services and identifying resident
awareness of solid waste diversion; and
WHEREAS, a citizens survey is needed to obtain said relevant data; and
WHEREAS, the District solicited RFP's from qualified public opinion research
firms to perform a citizen survey. and
WHEREAS, the Consultant has submitted a proposal to provide said services;
and
WHEREAS the District believes the Consultant's proposal is considered 'Best
Value' and should be awarded a contract to provide citizen survey services; and
WHEREAS, the District and Consultant have mutually agreed to enter into an
agreement to provide said services.
NOW, THEREFORE the parties hereto do hereby agree as follows:
1 TERM
This Agreement shall commence on Mgr).. \M. 2012, and shall remain and
continue in effect until tasks described herein are completed as stated in the proposal
dated u.teQS( , 2012, unless sooner terminated pursuant to the provisions of this
Agreement.
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2. SERVICES
Consultant shall perform the tasks described and set forth in Exhibit A, attached
hereto and incorporatedherein,as though set forth in full. Consultant shall complete the
tasks within 45 days.
3. PERFORMANCE
Consultant shall, at all times, faithfully competently and to the best of his/her/its
ability experience, and talent perform all tasks described herein. Consultant shall
employ at a minimum, generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Consultant hereunder in
meeting its obligations under this Agreement.
4. DISTRICT MANAGEMENT
District's General Manager shall represent District in all matters pertaining to the
administration of this Agreement, review and approval of all products submitted by
Consultant, but not including the authority to enlarge the Tasks to be Performed or
change the compensation due to Consultant. The General Manager shall be authorized
to act on District's behalf and to execute all necessary documents which enlarge the
Tasks to be Performed or change Consultant's compensation, subject to Section 5
hereof.
5. PAYMENT
(a) The District agrees to pay Consultant in accordance with the tasks as set
forth in Exhibit B, attached hereto and incorporated herein by this reference as though
set forth in full, upon completion of the task. This amount shall not exceed Thirty Nine
Thousand Four Hundred Dollars ($39 400.00) for the total term of this Agreement
unless additional payment is approved as provided in this Agreement. Said sum
includes travel and other costs.
(b) Consultant shall not be compensated for any services rendered in
connection with its performance of this Agreement which are in addition to those set
forth herein, unless such additional,Seyyipes are authorized in advance and in writing by
the General Manager Consultant shall be compensated for any additional services in
the amounts and in the manner as agreed to by General Manager and,Cdrpsii9ant at the
time District's written authorized is given to Consultant for the performance of said
services. The General Manager may approve additional work not to exceed the greater
of Three Thousand Nine Hundred Forty Dollars ($3,940 00) or ten percent (10%) of the
total contract sum. Any additional work in excess of this cumulative amount shall be
approved by the Board of Directors.
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(c) Consultant will submit invoices upon task completion. Payment shall be
made within thirty (30) days of receipt of each invoice as to all non-disputed fees. If the
District disputes any of Consultant's fees, it shall give written notice to Consultant within
thirty (30) days of receipt of an invoice of any disputed fees set forth on the invoice.
6. SUSPENSION OR TERMINATION OF AGREEMENT WITHOUT CAUSE
(a) The District may at any time, for any reasons, with or without cause,
suspend or terminate this Agreement, or any portion hereof by serving upon the
Consultant at least ten (10) days prior written notice. Upon receipt of said notice, the
Consultant shall immediately cease all work under this Agreement, unless the notice
provides otherwise. If the District 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
District shall pay to Consultant the actual value of the work performed up to the time of
termination, provided that the work performed is of value to the District. Upon
termination of the Agreement pursuant to this Section, the Consultant will submit an
invoice to the District pursuant to Section 5.
7 DEFAULT OF CONSULTANT
(a) The Consultant's failure to comply with the provisions of this Agreement
shall constitute a default. In the event that Consultant is in default for cause under the
terms of this Agreement, District shall have no obligation or duty to continue
compensating Consultant for any work performed after the date of default and can
terminate this Agreement immediately by written notice to the Consultant. If such failure
by the Consultant to make progress in the performance of work hereunder arises out of
causes beyond the Consultant's control, and without fault of negligence of the
Consultant, it shall not be considered a default.
(b) If the General Manager or his/her delegate determines that the Consultant
is in default in the performance of any of the terms or conditions of this Agreement,
he/she shall cause to be served upon the Consultant a written notice of the default. The
Consultant shall have ten (10) days after service upon it of said notice in which to cure
the default by rendering a satisfactory performance. In the event that the Consultant
fails to cure its default within such period of time, the District shall have the right,
notwithstanding any other provision of this Agreement, to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law in equity or under this Agreement.
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8. OWNERSHIP OF DOCUMENTS
(a) Consultant shall maintain complete and accurate records with respect to
the professional services required by this Agreement and will produce the work product
specified in Exhibit A and other such information required by District that relate to the
performance of services under this Agreement. Consultant shall maintain adequate
records of services provided in sufficient detail to permit an evaluation of services. All
such records shall be maintained in accordance with generally accepted accounting
principles and shall be clearly identified and readily accessible. Consultant shall provide
free access to the representatives of District or its designees at reasonable times to
such books and records; shall give District the right to examine and audit said books
and records; shall permit District to make transcripts therefrom as necessary and shall
allow inspection of all work, data, documents, proceedings and activities related to this
Agreement. Such records, together with supporting documents, shall be maintained for
a period of three (3) years after receipt of final payment.
(b) Upon completion, termination or suspension of this Agreement, all work
product reduced to any medium and other documents prepared in the course of
providing the services to be performed pursuant to this Agreement shall become the
sole property of the District and may be used, reused or otherwise disposed of by the
District without the permission of the Consultant. With respect to computer files,
Consultant shall make available to the District, at the Consultant's office and upon
reasonable written request by the District, the necessary computer software and
hardware for purposes of accessing, compiling, transferring and printing computer files.
9. INDEMNIFICATION
(a) Indemnification for Professional Liability When the law establishes a
professional standard of care for Consultant's services, to the fullest extent permitted by
law Consultant shall indemnify protect, defend and hold harmless District and any and
all of its officials, employees and agents ("Indemnified Parties') from and against any
and all losses, liabilities, damages, costs and expenses, including attorney's fees and
costs to the extent the same are caused in whole or in part by any negligent or wrongful
act, error or omission of Consultant, its officers, agents, employees or subconsultants
(or any entity or individual that Consultant shall bear the legal liability thereof) in the
performance of professional services under this Agreement.
(b) Indemnification for Other than Professional Liability Other than in the
performance of professional services and to the full extent permitted by law Consultant
shall indemnify defend and hold harmless District, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including
attorney's fees and costs, court costs, interest, defense costs and expert witness fees),
where the same arise out of are a consequence of or are in any way attributable to, in
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whole or in part, the performance of this Agreement by Consultant or by any individual
or entity for which Consultant is legally liable, including, but not limited to, officers,
agent, employees or subconsultants of Consultant.
10. INSURANCE
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit C attached to and part of this
Agreement. Such coverage shall provide automotive and commercial general liability
11 INDEPENDENT CONSULTANT
(a) Consultant is and shall at all times remain as to the District a wholly
independent consultant. The personnel performing the services under this Agreement
on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither District nor any of its officers, employees, or agents shall have control
over the conduct of Consultant or any of Consultant's officers, employees, or agents,
except as set forth in this Agreement. Consultant shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the District. Consultant shall not incur or have the power to
incur any debt, obligation, or liability whatever against District, or bind District in any
manner
(b) No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, District shall not pay salaries, wages, or other compensation to
Consultant for performing services hereunder for District. District shall not be liable for
compensation or indemnification to Consultant for injury or sickness arising out of
performing services hereunder
12. LEGAL RESPONSIBILITIES
The Consultant shall keep itself informed of State and Federal laws and
regulations which in any manner affect those employed by it or in any way affect the
performance of its service pursuant to this Agreement. The Consultant shall at all times
observe and comply with all such laws and regulations. The District, and its officers and
employees, shall not be liable at law or in equity occasioned by failure of the Consultant
to comply with this Section.
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13. UNDUE INFLUENCE
Consultant declares and warrants that no undue influence or pressure has been used
against or in concert with any officer or employee of the Costa Mesa Sanitary District in
connection with the award terms or implementation of this Agreement, including any
method of coercion, confidential financial arrangement or financial inducement. No
officer or employee of the Costa Mesa Sanitary District will receive compensation,
directly or indirectly from Consultant, or from any officer employee or agent of
Consultant, in connection with the award of this Agreement or any work to be conducted
as a result of this Agreement. Violation of this Section shall be a material breach of this
Agreement entitling the District to any and all remedies at law or in equity
14. NO BENEFIT TO ARISE TO LOCAL EMPLOYEES
No member officer or employee of District, or their designees or agents, and no
public official who exercises authority over or responsibilities with respect to the Project
during his/her tenure or for one year thereafter shall have any interest, direct or indirect,
in any agreement or sub-agreement, or the proceed thereof for work to be performed in
connection with the Project performed under this Agreement.
15. RELEASE OF INFORMATION / CONFLICTS OF INTEREST
(a) All information gained by Consultant in performance of this Agreement shall
be considered confidential and shall not be released by Consultant without District's
prior written authorization. Consultant, its officers, employees, agents or subconsultants,
shall not without written authorization from the General Manager or unless requested by
the District Counsel, voluntarily provide declarations, letters of support, testimony at
depositions, response to interrogatories, or other information concerning the work
performed under this Agreement or relating to any project or property located within the
District. Response to a subpoena or court order shall not be considered 'voluntary'
provided Consultant gives District notice of such court order or subpoena.
(b) Consultant shall promptly notify District should Consultant, its officers,
employees, agents or subconsultants be served with any summons, complaint,
subpoena, notice of deposition, request for documents, interrogatories, requests for
admissions, or other discovery request, court order or subpoena from any person or
party regarding this Agreement and the work performed thereunder or with respect to
any project or property located within the District. District retains the right, but has no
obligation, to represent Consultant and/or be present at any deposition, hearing, or
similar proceeding. Consultant agrees to cooperate fully with District and to provide the
opportunity to review any response to discovery requests provided by Consultant.
However District's right to review any such response does not imply or mean the right
by District to control, direct, or rewrite said response.
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(c) Consultant covenants that neither he/she nor any officer or principal of
their firm have any interest in, or shall acquire any interest, directly or indirectly which
will conflict in any manner or degree with the performance of their services hereunder
Consultant further covenants that in the performance of this Agreement, no person
having such interest shall be employed by them as an officer employee, agent or
subconsultant. Consultant further covenants that Consultant has not contracted with
nor is performing any services, directly or indirectly with any developer(s) and/or
property owner(s) and/or firm(s) and/or partnership(s) owning property in the District or
the study area and further covenants and agrees that Consultant and/or its
subconsultants shall provide no service or enter into any agreement or agreements with
a/any developer(s) and/or property owner(s) and/or firm(s) and/or partnership(s) owning
property in the District or the study area prior to the completion of the work under this
Agreement.
16. NOTICES
Any notices which either party may desire to give to the other party under this
Agreement must be in writing and may be given by (i) personal service, (ii) delivery by
a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery or (iii) mailing in the United
States Mail, certified mail, postage prepaid, return receipt requested, addressed to the
address of the party as set forth below or at any other address as that party may later
designate by notice:
To District: Costa Mesa Sanitary District
628 West 19th Street
Costa Mesa, California 92627
Attn: General Manager
To Consultant: Probolsky Research LLC
3990 Westerly Place Suite 185
Newport Beach, CA 92260
Attn: Adam D Probolsky
17 ASSIGNMENT
The Consultant shall not assign the performance of this Agreement, nor any part
thereof nor any monies due hereunder without prior written consent of the District.
Because of the personal nature of the services to be rendered pursuant to this
Agreement, only Adam Probolsky shall perform the services described in this
Agreement.
Mr Probolsky may use assistants, under his direct supervision, to perform some of the
services under this Agreement; however all client contact and interaction regarding
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professional services shall be provided by Adam Probolsky Consultant shall provide
District fourteen (14) day's notice prior to the departure of Mr Probolsky from
Consultant's employ Should he/she leave Consultant's employ the District shall have
the option to immediately terminate this Agreement, within three (3) days of the close of
said notice period. Upon termination of this agreement, Consultant's sole compensation
shall be payment for actual services performed up to, and including, the date of
termination or as may be otherwise agreed to in writing between the Board of Directors
and the Consultant.
18. LICENSES
At all times during the term of this Agreement, Consultant shall have in full force
and effect, all licenses required of it by law for the performance of the services
described in this Agreement.
19. GOVERNING LAW
The District and Consultant understand and agree that the laws of the State of
California shall govern the rights, obligations, duties and liabilities of the parties to this
Agreement and also govern the interpretation of this Agreement. Any litigation
concerning this Agreement shall take place in the superior or federal district court with
jurisdiction over the Costa Mesa Sanitary District.
20. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties relating to
the obligations of the parties described in this Agreement. All prior or contemporaneous
agreements, understandings, representations, and statements, oral or written, are
merged into this Agreement and shall be of no further force or effect. Each party is
entering into this Agreement based solely upon the representations set forth herein and
upon each party's own independent investigation of any and all facts such party deems
material.
21 CONTENTS OF REQUEST FOR PROPOSAL AND PROPOSAL
Consultant is bound by the contents of Exhibit A hereto and incorporated herein
by this reference and the contents. In the event of conflict, the requirements of District's
Request for Proposals and this Agreement shall take precedence over those contained
in the Consultant's proposals.
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22. MODIFICATION
No modification to this Agreement shall be effective unless it. is in writing and
signed by authorized representatives of the parties hereto. °4+
23. AUTHORITY TO EXECUTE THIS AGREEMENT
The person or persons executing this Agreement on behalf of Consultant
warrants and represents that he/she has the authority to execute this Agreement on
behalf of the Consultant and has the authority to bind Consultant to the performance of
its obligations hereunder
24. INTERPRETATION
In the event of conflict or inconsistency between this Agreement and any other
document, including any proposal or Exhibit hereto, this Agreement shall control unless
a contrary intent is clearly stated.
25. MODIFICATION
This Agreement may not be modified orally but only in writing, signed by a
person with authority to amend this Agreement.
26. BUSINESS LICENSE
Consultant shall obtain a business license from the City of Costa Mesa unless
legally exempt.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed this day and year first above written.
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COSTA MESA SANITARY DISTRICT PROBOLSKY RESEARCH LLC
Arr
General Manager Signature
Adam D Probolsky
Typed Name
Chairman & CEO
Title
APPROVED AS TO FORM:
District Counsel
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Exhibit A
SCOPE OF WORK
1 Meet with District representatives to develop questionnaire. After meeting with
District representative prepare a draft survey instrument that should be based on
limiting the estimated time required to conduct each interview to approximately
20 minutes. Survey shall include responses from 1,000 District citizens via
cellular and/or landline telephones.
2. Following completion of the draft survey instrument, the consultant will meet
again with District representatives to review the draft survey instrument and the
sampling and survey methodologies and process. Following the meeting, the
consultant will revise the survey instrument and the sampling and survey
methodologies and processes based upon recommendation from District
representatives.
3. After the final approval of the survey instrument by the District, the consultant will
be responsible for identifying and interviewing, via cellular and/or landline
telephones, 1,000 citizens residing within District boundaries. Consultant shall
insure a ninety-five (95) percent confidence rating in the survey findings with a
five point plus or minus variance.
4 Consultant will analyze the survey results incorporating the following items:
• A tabulation of survey results, cross tabulations as appropriate, key findings,
detailed findings, conclusions, recommendations and other relevant
information.
5. The survey results will be compiled into a Final Report to be reviewed by District
staff and eventually to District Board of Directors. In addition to describing the
tabulation results, the report shall have an Executive Summary that includes a
brief introduction of the study methodology overview conclusions, key findings,
and any other additional analysis.
6. Consultant will submit Final Report in an electronic format, via email. Consultant
will present this information through use of a power point presentation to the
Board of Directors for review and comment at a public meeting of the Board of
Directors.
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Exhibit B
PROBOLSxy
RFSFARCH
•
I.
Our cost proposal is an inclusive,firm,fixed-price bid. We do not charge incrementally nor do we charge for
travel-related expenses. Our price is not an estimate—it is a guarantee. Our payment terms are straightforward: we
require payment in full at the conclusion of the survey We do not require incremental or up-front payments.
When comparing our costs, please take note that our inclusive,fixed pricing includes the following features that most
other firms will either charge incrementally for,or will be unable to provide altogether
Accurate, proven stratified random sampling methodology that is representative of the District
Calling on both land and cell phones
Multi-lingual (English,Spanish and Vietnamese)interviewing and Spanish and Vietnamese translation
Five open-ended questions
No limit on phone,e-mail or in-person meetings,consultations and presentations
Comprehensive reporting and dataset delivery focusing on actionable results
Ongoing consultation after the project has been completed as needed—we are 'on call"for no additional charge
Probolsky Research provides all of these enhanced services at no additional cost to you because we
understand that they are necessary to achieve accurate results and actionable recommendations.
Probolsky Research places no limitations on in-person and telephone
meetings.
We have included three pricing options,so that you may choose which one best suits your needs.
Naturally, we are happy to modify our proposal to better suit your goals.
TELEPHONE SURVEY' OPTION ONE(provides for number of requested respondents per RFP)
MARGI
N
QUESTIONS RESPONDENTS OF ERROR COST
Up to 20 minutes 1,000 +/-3.1% $39,400
Approx.35 questions
Languages: English,Spanish and Vietnamese
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Exhibit C
COSTA MESA SANITARY DISTRICT
INSURANCE REQUIREMENT
Contractor shall provide proof of insurance of at least One Million Dollars ($1,000,000.00)
for commercial general liability with underground coverage, and any automotive
coverage.
The commercial general liability coverage shall name the District and its officers, agents
and employees as additional insureds and District reserve the right to require an
endorsement naming District as an additional insured. A sample endorsement is provided
in Exhibit D.
Such coverage must provide that it is not to be cancelled except upon thirty (30) days
notice to District. District also reserves the right to require that the insurance company
providing the commercial general liability policy has a Best Key Guide rating of at least A-
•VII and is an admitted carrier in the State of California.
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Exhibit D
POLICY NUMBER: COMMERCIAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY
ADDITIONAL INSURED - DESIGNATED PERSON OR
ORGANIZATION
This endorsement modifies insurance provide under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
Name of Person or Organization.
(If no entry appears above, information required to complete this endorsement will be
shown in the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section II) is amended to include as an insured the person or
organization shown in the Schedule as an insured but only with respect to liability
ansing out of your operations or premises owned by or rented to you
CG 20 26 11 85 Copyright, Insurance Services Office, Inc. 1984 Page 1 of 1
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