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HomeMy WebLinkAboutC-3951(A) - PSA for Citizen Satisfaction Survey0 - PROFESSIONAL SERVICES AGREEMENT WITH ETC INSTITUTE FOR CITIZEN SATISFACTION SURVEY THIS AGREEMENT is made and entered into as of this 4th day of June, 2010, by M and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and ETC Institute, a Kansas Corporation whose address is 725 W. Frontier Circle, Olathe, Kansas, 66061 ("Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to conduct a follow-up to its 2007 Citizen Satisfaction Survey to gauge progress on its performance measurement and benchmarking effort. C. City desires to engage Consultant to conduct the Citizen Satisfaction Survey of services provided to residents and customers of the City of Newport Beach ("Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Christopher Tatham. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of October 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference.. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Twenty One Thousand Three Hundred and Eighty Dollars and no/100 ($21,380) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit invoices to City upon completion of each task, as further described in Exhibit A, describing the work performed. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: Professional Services Agreement Page 2 A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Christopher Tatham to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. David Kiff, City Manager, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: Professional Services Agreement Page 3 A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, Professional Services Agreement Page 4 attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Professional Services Agreement Page 5 Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. C. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least $1,000,000) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Any notice of cancellation or non -renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. Professional Services Agreement Page 6 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: i. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party Professional Services Agreement Page 7 or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy; which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty- five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Professional Services Agreement Page 8 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, 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 Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. 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 to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. Professional Services Agreement Page 9 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: DAVE KIFF City Manager's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3000 Fax: 949-644-3008 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Christopher Tatham ETC Institute 725 W. Frontier Circle Professional Services Agreement Page 10 Olathe, Kansas 66061 Phone: 913-829-1215 Fax: 913-829-1591 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. Professional Services Agreement Page 11 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. 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. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. 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 or age. Professional Services Agreement Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By: c6p= - 11 David Hunt City Attorney w� ATTEST: By: 444 Leilani Brown, City Clerk VeNv o�- CITY OF NEWPORT BEACH, A Municipal Corporation By:_-1�,�1. ba4id Kiff City Manager CONSULTANT: ETC Institute, A Kansas Corporation By: Z�- "Teorporate Officer) Title: )'C' i`CJ d+ Print Name: CV 4 'tomk By: (Financial Officer) Title: C - F, d Print Name: So ry k) Attachments: Exhibit A — Scope of Services & Schedule of Billing Rates Professional Services Agreement Page 13 Exhibit A I1r IIVSTI'I`CS,r]� '. MA1C2{SCl`FD113T+T�51SRe�Jd2K,93.;CMG 04VAkTTM 9TATWrI< LAl, Al^PLLO.iTSON% �L'Ii W. AF13()NTI/l%R E;1Ize,J'.�:/y, OT✓1'['TixC, x;nN"le�:-1 oeoni mM X: (913) *32'-1591 May 27, 2010 Tara Finnigan City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92663 Subject: A Proposal to Conduct a Community Survey Dear Ms. Finnigan: Based on our conversation, I have developed the following scope and fees to conduct a community survey for the City of Newport Beach. Scope of Services: Task 1: Designing the Survey Instrument/Developing the Sampling Plan (25% of total fee) ETC Institute will work with city staff to design the survey instrument. The survey is expected to be similar to the 2007 survey in both content and length, but some of the questions may change. It is anticipated that 2-3 drafts of the survey will be prepared before the survey is approved by the city. Given the population and demographic composition of the city, ETC Institute will design the sampling plan in a manner that we ensure the completion of at least 600 surveys from a random sample of households in the City of Newport Beach. A random sample of 600 completed surveys will provide results that have a precision of at least +/- 4% at the 95% level of confidence. ETC Institute will also design a short survey that could be administered to up to 30 community leaders or members of the development community if this option is desired by the City. Deliverables Task 1. First draft of the survey (invoice 1) and a copy of the approved survey instruments (invoice 2). Task 2: Administer the Survey (55% of total fee) ETC Institute will administer the survey through a combination of mail and phone. Specifically, ETC Institute will do the following: 01 o Phone interviewers working in ETC Institute's call center will rehearse the phone version of the survey. All interviewers will review the protocol for the administration of the survey with a supervisor; special attention will be paid to the treatment of non-English speaking respondents. o A toll-free phone number to assist respondents with the survey will be operational three -days before the surveys are mailed. This will allow people who receive the mail version of the survey to contract ETC Institute with questions about the survey. o ETC Institute will test the survey with at least 20 residents before the survey is administered. Any problems or issues that are identified will be reported to the City and corrective action will be recommended and taken as appropriate. o Surveys will be mailed to 3,000 randomly selected households in the City. Only one survey per household will be sent. Postage -paid envelopes will be provided by ETC Institute for each respondent. The City will provide a cover letter for the mail survey. o Four days after the surveys are mailed, ETC Institute's phone interviewers will begin making follow-up phone calls to each of the persons in the sample frame. Persons who indicate that have already returned the survey will be thanked. Persons who have not completed the survey will be given the opportunity to complete the survey by phone. o Phone follow-ups will be conducted to ensure that a minimum of at least 600 surveys are completed. o ETC Institute will record the home address of survey respondents. These addresses will then be geocoded to the X,Y coordinates (note: not all records will be geocoded because some respondents will refuse to provide addresses and some residents will live in new subdivisions for which there are not valid references files). Deliverable Task 2. ETC Institute will provide a copy of the survey mailing packet (invoice 3) and a copy of the overall results to each question on the survey (invoice 4). Task 3: Analysis and Final Report (20% of total fee) ETC Institute will submit a final report to the City of Newport Beach. At a minimum, this report will include the following items: • Executive summary of survey methodology and findings Charts depicting the overall results of each survey 2 3 • Benchmarking analysis that shows how the results of Auburn's citizen survey compares to national norms • Importance -Satisfaction Analysis • Tabular data that shows the overall results for each question on each survey along with crosstabulations for selected variables as appropriate • A copy of the survey instruments • Up to 20 maps that show geocoded survey results for selected questions on the survey Deliverable Task 3: ETC Institute will submit the draft final report in an electronic format (invoice 5) and 10 hard copies of the final report (invoice 6). ETC Institute will also make an on-site presentation to City officials and provide an electronic copy of the presentation highlighting the results. Project Schedule for the Citizen Survey • June 2010 Design Survey Instrument • July Aurust 2010 Administer Survey • September 2010 Prepare and Deliver Final Report • TBA On-site presentation Costs and Invoicing Schedule The fee for the services described above would be $21,380, which is simply a 2.5% annual increase from our 2007 fee of $19,855. Invoices would be submitted as follows: • Invoice 1: 1" Draft of the Survey Submitted ($2,138) • Invoice 2: Final Survey Approved by the City ($3,207) • Invoice 3: Survey Printing and Mailing Complete ($5,345) • Invoice 4: Survey Administration Complete and Results submitted ($6,414) • Invoice 5: First Draft of the Final Report Delivered ($2,138) • Invoice 6: Final Report Delivered ($2,138) 3 CLOSING: We appreciate your consideration of our proposal and look forward to your decision. If you have any questions, please do not hesitate to call me at (913) 829-1215. Sincerely, Christopher Tatham Senior Vice President PROFESSIONAL SERVICES AGREEMENT WITH ETC INSTITUTE FOR CITIZEN SATISFACTION SURVEY THIS AGREEMENT is made and entered into as of this *L day of October, 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and ETC INSTITUTE, a Kansas Corporation, whose address is 725 W. Frontier Circle, Olathe, Kansas, 66061 ("Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to institute an organizational performance improvement effort through the identification of service benchmarks and data gathering to measure organizational effectiveness. C. City desires to engage Consultant to conduct a Citizen Satisfaction Survey of services provided to the residents and customers of the City of Newport Beach. ("Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project, shall be Chris Tatham, Dr. Elaine Tatham, Dr. Robert Cicerone and Karen Falk. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 9th day of April, 2008, unless terminated earlier as set forth herein. 0 • 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand -delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nineteen Thousand Eight Hundred Fifty -Five Dollars and no/100 ($19,855) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it 2 0 0 relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Chris Tatham to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 0 0 6. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Homer Bludau, City Manager, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. E9 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over 5 11. 12. 13. 14. the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner 2 • 0 to transact business of insurance in the State of California, with an assigned policyholders' Rating Category Class VII (or larger) in Best's Key Rating Guide, unless Manager. D. Coverage Reguirements. of A (or higher) and Financial Size accordance with the latest edition of otherwise approved by the City's Risk Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant 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 City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) 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 Consultant for City. General Liability Coverage. Consultant 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, including without limitation, contractual liability. If commercial general liability insurance 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. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). 0 E. Endorsements. Each general liability and automobile liability insurance policy 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 insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self-insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 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 City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to 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, by either party except after thirty (30) calendar days (10 calendar days written notice of non-payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 1*1 0 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 0 • 0 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, 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 Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. 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 to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work 0 0 accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves _the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Homer Bludau City Manager's Office City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3000 Fax: 949-644-3020 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: 11 L] 26. TERMINATION Attn: Chris Tatham ETC Institute 725 W. Frontier Circle Olathe, Kansas 66061 Phone: 913-829-1215 Fax: 913-829-1591 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 12 0 0 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 31. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. 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. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equ discriminate against any subcontractor, because of race, religion, color, national al opportunity employer and it shall not employee or applicant for employment origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. 13 0 APPROVED AS TO FORM: �_ C v+-� City Attorney for the City of Newport Beach ATTEST: By U /�7 LaVonne Harkless, City Clerk 0 CITY OF NEWPORT BEACH, A Municipal Corporation By:�' ity Manager for the City of Newport Beach CONSULTANT: By: �� (Corporate Officer) Title: Vice Prestbvc Print Name: (Financial Officer) Title: Print Name:�a r ne L, I aha Attachments: Exhibit A — Scope of Services & Schedule of Billing Rates 14 0 Contract for Services P Exhibit A Between ETC Institute and the City of Newport Beach, California ARTICLE I SCOPE OF SERVICES A. Overview of Services to Be Performed: ETC Institute will design and administer a citizen survey for the City of Newport Beach, California, during the Fall of 2007. B. ETC Institute's responsibilities. The services that will be provided by ETC Institute under the terms of this agreement are described in detail in Appendix A (Scope of Services). A general description of the services that will be provided is described below: 1. Designing and administering a citizen survey. The survey will be approximately 15 minutes in length and will be administered to a random sample of at least 600 residents. 2. Geocoding and preparing GIS maps that show the results of the survey on maps of the City. 3. Developing performance measures based on the results of the survey to objectively assess the City's performance over time 4. Conducting benchmarking analysis that shows how the results for Newport Beach compare to other communities 5. Conducting importance -satisfaction analysis that will help identify which city services should receive the highest priority for improvement 6. Conducting open-ended surveys with representatives of up to 30 key customer groups. 7. Making an on-site visit at the end of the project to present the results of the survey to City leaders C. City of Newport Beach Responsibilties: The responsibilities for the City of Newport Beach will include the following: 1. approving the survey instrument 2. providing a cover letter to accompany the survey 3. identifying requests for subanalysis of the data as appropriate 0 ARTICLE I1 PAYMENT FOR SERVICES A. Maximum fixed fee. The total fee for this contract will not exceed $19,855. B. Invoices for the administration of the survey (total fee of $12,850) will be submitted as follows: • Invoice #I for $3,000 following the approval of the survey instrument • Invoice 92 for $6,000 following the submittal of tables that show the overall results for at least 600 completed surveys • Invoice #3 for $2,850 following the submittal of the draft final report • Invoice #4 for $1,000 following the delivery of the final report and the completion of an on-site presentation of the results to the City. C. Invoices for other tasks will be submitted as follows: • $2,450 following the delivery of GIS maps (this will be a section of the final report) • $1,750 following the delivery of an Excel spreadsheet that shows the methodology for calculating Performance Indices • $2,805 following the submission of a summary of the findings from the interviews with representatives of key customer groups ARTICLE III MISCELLANEOUS PROVISIONS A. Change in Scope. The Scope of Services for this contract shall be subject to modification or supplement upon the written agreement of the contracting parties. Any such modification in the Scope of Services shall be incorporated in this Agreement by supplemental agreement executed by the parties. B. Riahts to Use the Data. ETC Institute has the right to use the data as a component of DirectionFinder® benchmarks, but ETC Institute will not release specific results for City of Newport Beach without approval from the City. • App*ix A: Scope of Services ETC ETC INSTITUTE MARSIDTTRiO mm�a.aOg, D�RO(#RAPHY. ®1'ATffiTiDAL APPIdOATION9 795 W. PROP T OII20 01 AT KANSAS "081 19137 829-1815 FAS. 19131 629-1591 Sept 22, 2007 Phil Batchelor City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 Subject: Best and Final Offer to Conduct a Citizen Survey from ETC Institute Dear Mr. Batchelor: In response to your request, I have briefly summarized the services that ETC Institute will provide and our fees below: 1) Design and Administer a Citizen Survey: ETC Institute will work with the City of Newport Beach to design a survey that is up to 15 minutes in length. ETC Institute will administer the survey by a combination of mail and phone to a fixed sample of 1800 randomly selected households. Our firm will guarantee at least 600 completed surveys (or a 33% response rate). Specific elements of our survey administration process are listed below: • ETC Institute will select a random sample of 1800 households to be included in the survey • Before the surveys are mailed, ETC Institute will place a 20 -second automated call to each of the 1800 households that are selected to receive the survey • ETC Institute will then mail a cover letter, survey, and a postage paid return -reply envelope to each of these 1800 households • Seven days after the surveys are mailed, interviewers in ETC Institute's call center will contact each of the households that received a survey. Household that indicate they have already completed the survey will be thanked. Those that have not completed the survey will be asked to participate by phone. The Administration of the survey will be conducted in-house. Scope of Services A-1 • App*ix A: Scope of Services ETC Institute will conduct phone surveys until a minimum of 600 of the 1800 households have completed the survey. If the response rate is higher than 33%, all additional surveys that are completed will be processed at no additional charge. The mail/phone method will yield a higher response rate than either the phone only or mail only methods. The demographic composition of the completed survey sample will also more accurately reflect the demographic composition of the community. Total fee (15 -minute survey; 600 completes): $12,850 2) Geocoding and GIS Mapping. ETC Institute will geocode the home address of respondents to the survey and prepare up to 40 maps that show the results of the survey on maps of the City. At a minimum, ETC Institute will show the results of the survey by Census Block Group and by Council District. This will allow each City Council member to see the results for his/her district. It will also allow City staff to see the results for other subregions of the City that may have distinct socio-economic differences. Total fee (GIS Mapping): $2,450 3) Develop Performance Measures. ETC Institute will develop composite performance measurements for major city departments and the City as a whole. The composite performance indices will be similar to the U.S. Consumer Price Index. The results for the 2007 survey will serve as a Base Year (2007=100). Changes in the survey over time will be reported compared to the base year. These performance indices will allow City leaders to see the "big picture" regarding how well that City performance is changing over time. A sample index from the City of Olathe is provided below. Overall Satisfaction Index 2000 thru 2006 deM MM Me Mean by 1sa0akodon re pov byre lz(Year 2000-100( ---------------------------- 114 __________________________ K 775 111 111 -.. -107'-_ __100 100 104y4 _ �_ 2000 2001 200[ 2003 1001 3005 ZM5 RaeMe o5c MMS 3wrcet1Cl�.rimm DvmNurFinhrf]Oad-ObW, ssl Total fee (Performance Measure): $1,750 Scope of Services A-2 E App*ix A: Scope of Services 4) Benchmarking/Normative Comparisons. ETC Institute will provide the City of Newport Beach with three types of benchmarking data: National comparisons: The results from Newport Beach will be compared to results of ETC Institute's national Direction Finder@ Survey that was administered to a random sample of more than 2,000 U.S. residents during July 2007. ETC Institute will show how the results from the City of Newport compare to a true national average for medium-sized U.S. cities (population of 50,000- 150,000). • California comparisons: The results from Newport Beach will be compared to results of ETC Institute's regional DirectionFinder® that was administered to a random sample of 500 California residents during July 2007. ETC Institute will show how the results from the City of Newport compare to a true average for the state of California. Head -to -Head Comparisons that Are Tailored to Your Needs: Since all cities have some differences, there is never a "perfect" way to compare communities. In order to provide the best comparison possible, ETC Institute will work with the City of Newport Beach to identify 20 communities from our DirectionFinder® database that would provide a good basis for comparisons plus up to 5 other cities that are not in our database. Communities included in the "head-to-head" benchmarking group will be selected based on the location, population, average household income, and other variables as appropriate. Some of the medium-sized communities in ETC Institute's DirectionFinder® database where (1) the average income is in the top 25% of all U.S. cities, (2) at least 50% of the adult population has a college degree, (3) the community is tourist -oriented, and/or (4) the community is located in a California/another coastal area are listed below: • Auburn, Alabama • Battle Creek, Michigan • Bend, Oregon • Bloomington, Indiana • Branson, Missouri • Bridgeport, Connecticut • Brunswick, Maine • Casa Grande, Arizona • Casper, Wyoming • Cedar Rapids, Iowa • Champaign, Illinois • Chandler, Arizona • Charlottesville, Virginia • Claremont, New Hamp. • Clearwater, Florida • Coconut Creek, Florida • Columbia, Missouri • Deerfield, Illinois • Des Plaines, Illinois • Downers Grove, Illinois • East Providence, RI • Edina, Minnesota • Elk Grove Village, Illinois • Flagstaff, Arizona • Fredericksburg, Virginia • Galveston, Texas • Greenville, South Carolina • Guilford County, NC • High Point, North Carolina • Indio, California Scope of Services A-3 • App*ix A: Scope of Services • Jackson, Wyoming • Providence, Rhode Island • Johnson County, Kansas • Provo, Utah • Key Biscayne, Florida • Rapid City, South Dakota • Lawrence, Kansas • Ramsey, Minnesota • Leawood, Kansas • Rockville, Maryland • Martha's Vineyard, Mass. • Rutland, Vermont • Mount Dora, Florida • San Bernardino, California • Mount Pleasant, Michigan • San Diego, California • Naperville, Illinois • Shoreline, Washington • Natick, Massachusetts • Sioux Falls, South Dakota • New Haven, Connecticut • South Burlington, Vermont • Newport, Rhode Island • Springfield, Missouri • Norman, Oklahoma • St Charles, Missouri • O'Fallon, Missouri • Tamarac, Florida • Olathe, Kansas • Tempe, Arizona • Olivette, Missouri • The Colony, Texas • Ormond Beach, Florida • Tulsa, Oklahoma • Overland Park, Kansas • Urbana, Illinois • Palm Desert, California • Victor, New York • Peoria, Arizona • Virginia Beach, Virginia • Portland, Oregon • West Des Moines, Iowa • Prairie Village, Kansas • Westchester County, New York • Princeton, New Jersey a Wilmington, North Carolina In addition to the cities listed above, ETC Institute will let the City of Newport Beach pick up to five other communities to be included in the comparisons. ETC Institute will contact the five additional cities and obtain the results of their most recent community survey (which are almost always a public record) and incorporate the findings into our benchmarking report. Total fee (Benchmarking): No Charge — included with basic services 5) Importance -Satisfaction Priorities Analysis. Although it is important to understand how satisfied residents are with city services, it is equally important to understand the importance that residents place on improvements in city services. Just because satisfaction ratings are low, does not mean that the priority for improvement should be high. ETC Institute's Importance -Satisfaction Rating and Matrix analysis will help city leaders prioritize investment by assessing both the level of satisfaction and relative importance residents place on specific services. In other words, if the City of Newport Beach had just one dollar to invest, where will that dollar have the most positive impact on customer satisfaction with city services. Examples of this analysis are provided on pages 14-15 of the Scope of Work in Section 3 of our proposal. Total fee (1-S Analysis): No Charge — included with basic services Scope of Services A-4 0 App*ix A: Scope of Services 6) Surveys of key customer groups and/or special interest groups. ETC Institute will conduct open-ended, one-on-one interviews with 30 representatives of key customer groups and or special interest groups in the city. The interviews will be conduct by phone and ETC Institute will prepare a report that summarizes the findings. Tota! fee (30 Key Customer Group Surveys): $2805 COSTSUMMARY A summary of ETC Institute's fees are listed below. $12,850 Administer Survey (15 -minutes in $ 2,450 GIS Maps $ 1,750 Performance Measurements $ included Benchmarking $ included I -S Priorities Analysis $ 2,805 Key Customer Surveys $19,855 TOTAL FOR ALL SERVICES SCHEDULE length to 600 households) ETC Institute can complete the survey and present the final report within 30 days from the time the survey is approved by the City. CLOSING We certainly appreciate your consideration of our proposal. If you have any questions, please let me know. Sincerely, Chris Tatham, Vice President ctatham(&etci nstitue.com 913-829-1215 Scope of Services A-5 • ICA) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT 5;#100 ` s'v0-7 U : o 9 .,Ji Agenda Item No. October 9, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Homer Bludau, City Manager 949/644-3000 or hbludau@city.newport-beach.ca.us Administrative Services Department Dennis C. Danner, Administrative Services Director (949) 644-3123 ddanner@city.newport-beach.ca.us SUBJECT: Citizen Survey Award of Contract ISSUE: Should the City retain the services of ETC Institute to conduct a Citizen Satisfaction Survey? RECOMMENDATION: Retain the services of ETC Institute to conduct a Citizen Satisfaction Survey of services provided to the residents and customers of the City of Newport Beach. DISCUSSION: On Saturday, March 24, 2007, the City Council held a Special Meeting in the Friends Room of the Central Library to consider establishing its priorities for the upcoming fiscal year (July 2, 2007 — June 30, 2008). Public input was obtained throughout the meeting. At a regular City Council Meeting held on April 24, 2007, the City Council formally adopted the priorities established at the Special Meeting of March 24th. One of the priorities was defined as follows: Institute an Organizational Performance Improvement Effort through the identscation of service benchmarks and data gathering to measure organizational effectiveness. This priority was referred to the City Council Finance Committee to further define the initiative and to develop a scope of work and timeframe to achieve the objectives of the initiative. To date the City Council Finance Committee has held numerous meetings to discuss the initiative and determine how to proceed with the scope of work. • An Survey Award of Contract October 9, 2007 Page 2 On July 10, 2007, the City Council retained the services of Mr. Phil Batchelor to assist the City in implementing this initiative. It was determined that there were three key areas of the initiative as follows: 1. Understand the level of satisfaction that the citizens of Newport Beach have with the City services that are being provided to them. 2. Establish goals for each of the program areas that the City provides by setting performance measurements that will provide competent, responsive and courteous services to the public in the most cost effective and efficient manner possible. 3. Perform an assessment of the existing service delivery systems to determine what actions should be taken to improve the overall productivity of the organization, systems, procedures, staffing, facilities and operations of the City of Newport Beach. To address the level of satisfaction of City services a Request For Quotation (RFQ) for a Citizen Survey was issued on July 27, 2007 with a response date of August 31, 2007. Seven responses to the RFQ were received. Staff met with Mr. Batchelor on September 7, 2007 to review the responses and to pick the top three proposers for a further interview by the City Finance Committee. Those interviews were conducted on September 21, 2007 and the Committee met a second time on September 27, 2007 to make its final selection of the firm to conduct the Survey. The ETC Institute was selected by the Finance Committee for recommendation to the City Council to award a contract to conduct the Survey. FUNDING AVAILABILITY: The cost of the Survey is $19,855. Funds for this Survey are included in the current City Budget. Submitted by: Homer L. BI au, City Manager Attachment: Consultant Proposal Dennis C. Danner, Administrative Services . Director �LAA�IIf*aa navAuL �!tfR.+TAimpwa r. (*:Lm 889?7.f16 SAL.l IS) 6E9-"91 Sept 22, 2007 . Phil Batchelor City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 Subject: Best and Final Offer to Conduct a Citizen Survey from ETC Institute Dear Mr. Batchelor: In response to your request, I have briefly summarized the services that ETC Institute will provide and our fees below: 1) Design and Administer a Citizen Survey: ETC Institute will work with the City of Newport Beach to. design a survey that is up to 15 minutes in length. ETC Institute will administer the survey by a combination of mail and phone to a fixed sample of 1800 randomly selected households. Our firm will guarantee at least 600 completed surveys (or a 33% response rate). Specific elements of our survey administration process are listed below: • ETC Institute will select a random sample of 1800 households to be included in the survey • Before the surveys are mailed, ETC Institute will place a 20 -second automated call to each of the 1800 households that are selected to receive the survey • ETC Institute will then mail a cover letter, survey, and a postage paid return -reply envelope to each of these 1800 households • Seven days after the surveys are mailed, interviewers in ETC Institute's call center will contact each of the households that received a survey. Household that indicate they have already completed the survey will be thanked. Those that have not completed the survey will be asked to participate by phone. The Administration of the survey Will be conducted in-house. • ETC Institute will conduct phone surveys until a minimum of 600 of the 1800 households have completed the survey. If the response rate is higher than 33%, all additional surveys that are completed will be processed at no additional charge. The mail/phone method will yield a higher response rate than either the phone only or mail only methods. The demographic composition of the completed survey sample will also more accurately reflect the demographic composition of the community. Total fee (15 -minute survey, 600 completes): $12,850 2) Geocoding and GIS Mapping. ETC Institute will geocode the home address of respondents to the survey and prepare up to 40 maps that show the results of the survey on maps of the City. At a minimum, ETC Institute will show the results of the survey by Census Block Group and by Council District. This will allow each City Council member to see the results for his/her district. It will also allow City staff to see the results for other subregions of the City that may have distinct socio-economic differences. Total fee (GIS Mapping): $2,450 3) Develop Performance Measures. ETC Institute will develop composite performance measurements for major city departments and the City as a whole. The composite performance indices will be similar to the U.S. Consumer Price Index. The results for the 2007 survey will serve as a Base Year (2007=100). Changes in the survey over time will be reported compared to the base year. These performance indices will allow City leaders to see the °big picture" regarding how well that City performance is changing over time. A sample index from the City of Olathe is provided below. Overall Satisfaction Index 2000 thni 2006 OnMMiwnmamnoreir i4eM.Mv pw bylaNMs(Yw0000-M sw oox O�obaw YKC 1.1100 Sov: HCIWer M.naFtd.rlA%-O(Aa Lp Total fee (Performance Measure): $1,750 .0 0 0 4) Benchmarking/Normative Comparisons. ETC Institute will provide the City of Newport Beach with three types of benchmarking data: National comparisons: The results from Newport Beach will be compared to results of ETC Institute's. national Direction Finder@ Survey that was administered to a random sample of more than 2,000 U.S. residents during July 2007. ETC Institute will show how the results from the City of Newport compare to a true national average for medium-sized U.S. cities (population of 50,000- 150,000). California comparisons: The results from Newport Beach will be compared to results of ETC Institute's regional DirectionFinder@ that was administered to a random sample of 500 California residents during July 2007. ETC Institute will show how the results from the City of Newport compare to a true average for the state of California. Head -to -Head Comparisons that Are Tailored to Your Needs: Since all cities have some differences, there is never a "perfect" way to compare communities. In order to provide the best comparison possible, ETC Institute will work with the City of Newport Beach to identify 20' communities from our DirectionFinder@ database that would provide a good basis for comparisons plus up to 5 other cities that are not in our database. Communities included in the "head -.to -head" benchmarking group will be selected based on the location, population, average household income, and other variables as appropriate. Some of the medium-sized communities in ETC Institute's DirectionFinder® database where (1) the average income is in the top 25% of all U.S. cities, (2) at least 50% of the adult population has a college degree, (3) the community is tourist -oriented, and/or (4) the community is located in a California/another coastal area are listed below: • Auburn, Alabama • Battle Creek, Michigan • Bend, Oregon • Bloomington, Indiana • Branson, Missouri • Bridgeport, Connecticut • Brunswick, Maine • Casa Grande, Arizona • aper. Wyoming • Cedar Rapids, Iowa • Champaign, Illinois • Chandler, Arizona • Charlottesville, Virginia • Claremont, New Hamp. • Clearwater, Florida • Coconut Creek, Florida • Columbia, Missouri • Deerfield, Illinois • Des Plaines, Illinois • Downers Grove, Illinois • East Providence, RI • Edina, Minnesota • Elk Grove Village, Illinois • Flagstaff, Arizona • Fredericksburg, Virginia • Galveston, Texas • Greenville, South Carolina • Guilford County, NC • High Point, North Carolina • Indio, California • Jackson, Wyoming • Providence, Rhode Island • Johnson County, Kansas • Provo, Utah • Key Biscayne, Florida • Rapid City, South Dakota • Lawrence, Kansas • Ramsey, Minnesota • Leawood, Kansas • Rockville, Maryland • Martha's Vineyard, Mass. • Rutland, Vermont • Mount Dora, Florida San Bernardino, Califomia • Mount Pleasant, Michigan San Diego, California • Naperville, Illinois Shoreline, Washington • Natick, Massachusetts Sioux Falls, South Dakota • New Haven, Connecticut South Burlington, Vermont • Newport, Rhode Island Springfield, Missouri • Norman, Oklahoma St Charles, Missouri • OTallon, Missouri • Tamarac, Florida • Olathe, Kansas Tempe, Arizona • Olivette, Missouri • The Colony, Texas • Ormond Beach, Florida Tulsa, Oklahoma • Overland Park, Kansas Urbana, Illinois • Palm Desert, California Victor, New York • Peoria, Arizona Virginia Beach, Virginia • Portland, Oregon • West Des Moines, Iowa • Prairie Village, Kansas Westchester County, New York • Princeton, New Jersey Wilmington, North Carolina In addition to the cities listed above, ETC Institute will let the City of Newport Beach pick up to five other communities to be included in the comparisons. ETC Institute will contact the five additional cities and obtain the results of their most recent community survey (which are almost always a public record) and incorporate the findings into our benchmarking report. Total fee (Benchmarking): No Charge — included with basic services 5) Importance -Satisfaction Priorities Analysis. Although it is important to understand how satisfied residents are with city services, it is equally important to understand the importance that residents place on improvements in city services. Just because satisfaction ratings are low, does not mean that the priority for improvement should be high. ETC Institute's Importance -Satisfaction Rating and Matrix analysis will help city leaders prioritize investment by assessing both the level of satisfaction and relative importance residents place on specific services. In other words, if the City of Newport Beach had just one dollar to Invest, where will that dollar have the most positive impact on customer satisfaction with city services. Examples of this analysis are provided on pages 14-15 of the Scope of Work in Section 3 of our proposal. Total fee (1-S Analysis): No Charge — Included with basic services 0 9 6) Surveys of key customer groups and/or special interest groups. ETC Institute will conduct open-ended, one-on-one interviews with 30 representatives of key customer groups and or special interest groups in the city. The interviews will be conduct by phone and ETC Institute will prepare a report that summarizes the findings. Total fee (30 Key Customer Group Surveys): $2,805 COSTSUMMARY A summary of ETC Institute's fees are listed below. $12,850 Administer Survey (15 -minutes in length to 600 households) $ 2,450 GIS Maps $ 1,750 Performance Measurements $ included Benchmarking $ included I -S Priorities Analysis $ 2.805 Key Customer Surveys $19,855 TOTAL FOR ALL SERVICES SCHEDULE ETC Institute can complete the survey and present the final report within 30 days from the time the survey is approved by the City. CLOSING We certainly appreciate your consideration of our proposal. If you have any questions, please let me know. Sincerely, Chris Tatham, Vice President ctathamOetcinstitue.com 913-829-1215