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HomeMy WebLinkAboutAction Research Inc; 2017-07-24;City Attorney Approved Version 1/30/13 1 AMENDMENT NO. 1 TO EXTEND AGREEMENT FOR CLIMATE ACTION PLAN OUTREACH ACTION RESEARCH, INC. This Amendment No. 1 is entered into and effective as of the _______ day of ___________________________, 2020, extending and amending the agreement dated July 24, 2017, (the “Agreement”) by and between the City of Carlsbad, a municipal corporation, ("City"), and Action Research, Inc., a corporation, (“Contractor") (collectively, the “Parties”) for Climate Action Plan Outreach. RECITALS A. On July 24, 2017, the Parties executed the Agreement to provide outreach services for the city’s Climate Action Plan; and B. The Parties desire to extend the Agreement for a period of one (1) year. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of one (1) year ending on July 24, 2021. 2. All other provisions of the Agreement, as may have been amended from time to time, will remain in full force and effect. 3. All requisite insurance policies to be maintained by the Contractor pursuant to the Agreement, as may have been amended from time to time, will include coverage for this Amendment. /// /// /// /// /// DocuSign Envelope ID: AE0685E7-47F9-4B96-91F2-6099B2D7765B 20th July City Attorney Approved Version 1/30/13 2 4. The individuals executing this Amendment and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Amendment. CONTRACTOR CITY OF CARLSBAD, a municipal corporation of the State of California By: By: (sign here) SCOTT CHADWICK, City Manager Jennifer Tabanico, President (print name/title) ATTEST: By: (sign here) BARBARA ENGLESON Jennifer Tabanico, Secretary City Clerk (print name/title) If required by City, proper notarial acknowledgment of execution by Contractor must be attached. If a corporation, Agreement must be signed by one corporate officer from each of the following two groups: Group A Group B Chairman, President, or Vice-President Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney BY: _____________________________ Assistant City Attorney DocuSign Envelope ID: AE0685E7-47F9-4B96-91F2-6099B2D7765B AGREEMENT FOR CLIMATE ACTION PLAN OUTREACH BETWEEN CITY OF CARLSBAD AND ACTION RESEARCH, INC. AGREEMENT14:s ade and entered into as of the ,;j( lf ·fh day of ____;..._,..L,I,,.......,.~=---' 20 · , by and between the CITY OF CARLSBAD, a municipal " 1 y"), and Action esearch, Inc., a corporation, ("Contractor"). RECITALS City requires the professional services of a public outreach and involvement company experienced in changing behaviors that are harmful to the environment. Contractor has the necessary experience in providing these professional services, has submitted a proposal to City and has affirmed its willingness and ability to perform such work. NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and Contractor agree as follows: 1. Scope of Work. City retains Contractor to perform, and Contractor agrees to render, those services (the "Services") that are defined in Exhibit "A", attached and incorporated by this reference in accordance with the terms and conditions set forth in this Agreement. 2. Term. This Agreement will be effective for a period of three years from the date first above written. This agreement shall automatically terminate in the event that subsequent agreement years (two and three) are not funded by the city council in each subsequent year's city budget. The Agreement may be extended for two additional one-year terms with the consent of both parties. The parties will prepare a written amendment indicating the effective date and length of the extended Agreement. 3. Compensation. The total fee payable for the Services to be performed shall not exceed Ninety-five thousand dollars ($95,000.00) per agreement year and shall be billed at the rate of: President $200 hourly Director of Research Operations $175 hourly Research Analyst $150 hourly Project Manager $100 hourly Research Associate $75 hourly Research Assistant $50 hourly No other compensation for the Services will be allowed except for items covered by subsequent amendments to this Agreement. City reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or the Services specified in Exhibit "A." 4. Status of Contractor. Contractor will perform the Services in Contractor's own way as an independent contractor and in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be under control of City only as to the result to be accomplished, but will consult with City as necessary. The persons used by Contractor to provide services under this Agreement will not be considered employees of City for any purposes. City Attorney Approved Version 6-2015 The payment made to Contractor pursuant to the Agreement will be the full and complete compensation to which Contractor is entitled. City will not make any federal or state tax withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be required to pay any workers' compensation insurance or unemployment contributions on behalf of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty (30) days for any tax, retirement contribution, social security, overtime payment, unemployment payment or workers' compensation payment which City may be required to make on behalf of Contractor or any agent, employee, or subcontractor of Contractor for work done under this Agreement. At the City's election, City may deduct the indemnification amount from any balance owing to Contractor 5. Ownership of Work(s). Excepting such items which are specifically identified by Contractor as proprietary trade secrets, any and all sketches, drawings, tracings, images (whether still or moving), audio sounds, recordings, notes, computations, writings, and other materials and documents (collectively "Work(s)") prepared by Contractor in the performance of this Agreement shall be the property of City from the moment of their preparation, and Contractor shall deliver such materials and documents to City, upon request. Contractor shall have the right to make duplicate copies of such materials and documents for its own file or for other purposes the City may agree as to in writing. 6. Titles and Copyright Assignment. Contractor and City intend this to be an Agreement for Services and each considers the deliverable product (Work) and results of the Services to be rendered by Contractor hereunder to be a work made-for-hire. Contractor acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of City. If for any reason the Work would not be considered a work made-for-hire under applicable law, Contractor does hereby sell, assign, and transfer to City, its successors and assigns, the entire right, title and interest in and to the copyright in the Work and any registrations and copyright applications relating thereto and any renewals and extensions thereof, and in and to all works based upon, derived from, or incorporating the Work, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present, or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing throughout the world. If the Work is one to which the provisions of 17 U.S.C. 106A apply, the Contractor hereby waives and appoints City to assert on the Contractor's behalf the Contractor's moral rights or any equivalent rights regarding the form or extent of any alteration to the Work (including, without limitation, removal or destruction) or the making of any derivative works based on the Work, including, without limitation, photographs, drawings or other visual reproductions or the Work, in any medium, for City purposes. Contractor agrees to execute all required documents and to perform such other proper acts, as City may deem necessary to secure for City or its designee the rights herein assigned. 7. Indemnification for Intellectual Property Infringement. Contractor agrees to defend, indemnify and hold harmless City, its elected officials, employees and agents from and against any claim, action, proceeding, liability, loss, damage, cost or expense, including, without limitation, reasonable attorneys' fees, as provided herein, arising out of any claim that the City Attorney Approved Version 6-2015 2 Contractor's Works, products, services and/or deliverables, or any part of them, infringes upon or otherwise violates any copyright, trade secret, trademark, service mark, patent, invention, proprietary information, or other rights of any third party, or that City's use of them otherwise violates this Section [collectively referred to for purposes of this Section as "Infringement Claims(s)"], by paying all amounts that a court finally awards or that Contractor agrees to in settlement of such Infringement Claim(s), as well as any and all expenses or charges arising from such Infringement Claim(s), including reasonable attorneys' fees, as they are incurred by City or any other party indemnified under this Section. City also agrees that, if the use or operation of the Contractor's Works, products, services and/or deliverables, or any part of them, becomes, or in Contractor's opinion is likely to become, the subject of an Infringement Claim(s), City will permit Contractor, at Contractor's option and expense for all associated costs, either to procure the right for City to continue to use Contractor's Works, products, services and/or deliverables, or part thereof, or to replace or modify them with another item of comparable quality and performance capabilities to become non-infringing, provided such replacement or modification does not cause the product, services and/or deliverables, or any part thereof, to fail to comply with any of the requirements of this Agreement, including but not limited to, all functionality, technical specifications and performance warranties. In the event City's ongoing use of Contractor's Work's, products, services and/or deliverables, or any part of them, is the subject of any act by a third party arising from an Infringement Claim that would preclude or impair City's use of Contractor's Works, products, services and/or deliverables (e.g., injunctive relief), or if City's continued use of them may subject it to punitive damages or statutory penalties, City shall give written notice to Contractor of such fact(s). Upon notice of such facts, Contractor shall procure the right for City to continue to use the Works, products, services and/or deliverables, or part thereof, or replace or modify the Works, products, services and/or deliverables of comparable quality and performance capabilities to become non-infringing. If Contractor fails to complete the remedial acts set forth above within forty-five (45) calendar days of the date of the written notice from City, City shall have the right to take such remedial acts it determines to be reasonable to mitigate any impairment of its use of Contractor's Works, products, services and/or deliverables or damages (hereafter referred to as "City's Remedial Acts"). Contractor shall indemnify City for all amounts paid and direct and indirect costs associated with City's Remedial Acts. Failure by Contractor to pay such amounts within ten (10) calendar days of invoice by City shall, in addition to and cumulative to all other remedies, entitle City to immediately withhold payments due Contractor under this Agreement up to the amount paid in connection with City's Remedial Acts. 8. Indemnification -General. Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees and volunteers from and against all claims, damages, losses and expenses including attorneys fees arising out of the performance of the work described herein caused in whole or in part by any willful misconduct or negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable. The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or makes to or on behalf of an injured employee under the City's self-administered workers' compensation is included as a loss, expense or cost for the purposes of this section, and that this section will survive the expiration or early termination of this Agreement. City Attorney Approved Version 6-2015 3 9. Insurance. Contractor will obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with performance of the services by Contractor or Contractor's agents, representatives, employees or subcontractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by the National Association of Insurance Commissioners (NAIC) latest quarterly listings report. 10. Coverage and Limits. Contractor will maintain the types of coverage and minimum limits indicated below, unless the Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Contractor's indemnification obligations under this Agreement. City, its officers, agents and employees make no representation that the limits of the insurance specified to be carried by Contractor pursuant to this Agreement are adequate to protect Contractor. If Contractor believes that any required insurance coverage is inadequate, Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at Contractor's sole expense. The full limits available to the named insured shall also be available and applicable to the City as an additional insured. 10.1.1 Commercial General Liability Insurance. $2,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately to the work under this Agreement or the general aggregate will be twice the required per occurrence limit. 10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work for City). $1,000,000 combined single-limit per accident for bodily injury and property damage. 10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as required by the California Labor Code. Workers' Compensation will not be required if Contractor has no employees and provides, to City's satisfaction, a declaration stating this. 10.1.4 Professional Liability. Errors and om1ss1ons liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work. 10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 10.2.1 The City will be named as an additional insured on Commercial General Liability which shall provide primary coverage to the City. 10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. City Attorney Approved Version 6-2015 4 10.2.3 This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to City sent by certified mail pursuant to the Notice provisions of this Agreement. 10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this Agreement, Contractor will furnish certificates of insurance and endorsements to City. 10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance coverages, then City will have the option to declare Contractor in breach, or may purchase replacement insurance or pay the premiums that are due on existing policies in order to maintain the required coverages. Contractor is responsible for any payments made by City to obtain or maintain insurance and City may collect these payments from Contractor or deduct the amount paid from any sums due Contractor under this Agreement. 10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete and certified copies of any or all required insurance policies and endorsements. 11. Conflict of Interest. City will evaluate Contractor's duties pursuant to this Agreement to determine whether disclosure under the Political Reform Act and City's Conflict of Interest Code is required of Contractor or any of Contractor's employees, agents or subcontractors. Should it be determined that disclosure is required, Contractor or Contractor's employees, agents, or subcontractors will complete and file with the City Clerk those schedules specified by City and contained in the Statement of Economic Interests Form 700. 12. Compliance With Laws. Contractor will comply with all applicable local, state and federal laws and regulations prohibiting discrimination and harassment and will obtain and maintain a City of Carlsbad Business License for the term of this Agreement. 13. Termination. In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may terminate this Agreement for nonperformance by notifying Contractor by certified mail and/or U.S. Mail of the termination. If City decides to abandon or indefinitely postpone the work or services contemplated by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon notification of termination, Contractor has five (5) business days to deliver any documents owned by City and all work in progress to City address contained in this Agreement. City will make a determination of fact based upon the work product delivered to City and of the percentage of work that Contractor has performed which is usable and of worth to City in having the Agreement completed. Based upon that finding City will determine the final payment of the Agreement. Either party upon tendering thirty (30) days written notice to the other party may terminate this Agreement. In this event and upon request of City, Contractor will assemble the work product and put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work performed to the termination date; however, the total will not exceed the lump sum fee payable under this Agreement. City will make the final determination as to the portions of tasks completed and the compensation to be made. 14. Claims and Lawsuits. By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation of litigation or in conjunction with litigation. Contractor City Attorney Approved Version 6-2015 5 acknowledges that if a false claim is submitted to City, it may be considered fraud and Contractor may be subject to criminal prosecution. Contractor acknowledges that California Government Code sections 12650 et seq., the False Claims Act applies to this Agreement and, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a false claim may subject Contractor to an administrative debarment proceeding as the result of which Contractor may be prevented to act as a Contractor on any public work or improvement for a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is grounds for City to terminate this Agreement. 15. Venue and Jurisdiction. Contractor agrees and stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this Agreement is the State Superior Court, San Diego County, California. 16. Assignment. Contractor may assign neither this Agreement nor any part of it, nor any monies due or to become due under it, without the prior written consent of City. 17. Amendments This Agreement may be amended by mutual consent of City and Contractor. Any amendment will be in writing, signed by both parties, with a statement of estimated changes in charges or time schedule. 18. Entire Agreement. This Agreement, together with any other written document referred to or contemplated by it, along with the purchase order for this Agreement and its provisions, embody the entire Agreement and understanding between the parties relating to the subject matter of it. In case of conflict, the terms of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions may be amended, modified, waived or discharged except in a writing signed by both parties. 19. Authority. The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. II I II I 6 City Attorney Approved Version 6-2015 CONTRACTOR Je..nn,'-.f€_r TC\..bett"\ ,co H~Jen+ (Print name/title) CITY OF CARLSBAD, a municipal corporation of the State of California By: I)/---I / ~ anager or rfa.yor ATTEST: {O)JO.Oico & ttC.·hOV'I re:£(L.fch -i fl( · (.0 ,'Vl (e-mail address) (,~2J/4~Ln B1®3ARAE GL ON D'-'~ 0enn,fe/ Ta0anic,1 ~c..rei-c"v':l (Print name/title) -h)..,\J[.1..V) \c ·0 B2 C\(1-t1, <) (P':fCVc' h ·111'\ <·cu~ (e-mail address) City Clerk If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER, City Attorney By:_~_0f~ 7 ~~J~ _ Assistant City Attorney City Attorney Approved Version 6-2015 7 EXHIBIT "A" SCOPE OF SERVICES The Carlsbad City Council adopted a Climate Action Plan in September 2015. The plan is required to meet state-mandated reductions in greenhouse gas emissions. The plan contains measures aimed at reducing greenhouse gas emissions, such as changes to city laws and policies, and upgrades to city facilities. Some measures are aimed at changing public behaviors that contribute to greenhouse gas emissions. This program will take a research-based approach to identifying behaviors that would have the greatest impact on reducing emissions while being the most likely to be adopted. The approach is called "Community Based Social Marketing." Once potential behaviors are identified, this program will conduct primary research to identify the most effective approaches to sustained behavior change. The contractor will then conduct pilot programs to test each strategy, prior to broad implementation, which will occur in year two. The behavior change approach utilized by this program is based on extensive social scientific research related to human behavior. Rather than providing information about the desired behaviors, which studies show has little, if any, impact, this program will focus on removing barriers to the desired behaviors, promoting benefits and creating a social norm around the new behavior. Securing commitments and prompting the new behavior are also key parts of this approach. While research intensive in the beginning phases, this is the only proven way to achieve lasting behavior change, which is required to achieve long term compliance with greenhouse gas reduction goals. Behavior Selection Task 1 Research and Literature Review (150 hours/$15,300) • Conduct kick off meeting within three weeks of contract execution • Review existing city research (2016 Resident Survey, "Energy Efficiency Investments and Mobility Choices") • City to provide data file for contractor's use in analyzing with respect to demographics and other possible correlations that would assist in choosing targeted behaviors and strategies. • Conduct a comprehensive review of other available research and case studies pertinent to the measures outlined in the Climate Action Plan for the purpose of choosing targeted behaviors and strategies. A minimum of 12 related studies/programs will be included in the review. • Meet with a minimum of four city staff for input on targeted behaviors. • Within two months of contract execution, complete a report summarizing literature review and recommending two targeted behaviors. Must include a minimum of 12 source documents/case studies. Report shall summarize current body of knowledge for targeted behaviors. Task 2 Barriers and Benefits Research (160 hours/$24,354) • Develop recommendations for primary research on targeted behaviors as well as communication strategies to support behavior change. • Research to include: City Attorney Approved Version 6-2015 8 o Plan and conduct up to 2 focus groups, minimum of 8 respondents each. o Utilize outcomes from the focus groups to plan and conduct statistically valid mail or intercept survey. Sample size for the mail survey = 100 and intercept survey = 30. • Within three months of completion of Task 1, prepare summary of research findings and present to staff. Report shall include a summary of the research methodology and findings, a summary of secondary research considered, best practices identified and recommended, and measurement baselines for each behavior. • Recommend first two targeted behaviors for outreach program. Task 3 Strategy Development (178 hours/$32,040) • Within two months of completion of Task 2, develop a detailed communication strategy for each behavior and present to city staff for feedback. Communication strategy shall include, at a minimum: o Goals/objectives o Key messages o Target audiences o Strategies and tactics o Pilot program implementation plan • Refine based on staff direction and finalize (up to two rounds of edits from city staff) Task 4 Pilot Testing (148 hours/$21,460) • Within one month of completion of Task 3, develop a pilot testing strategy for the approved plan. Present to city staff and refine as needed (up to two rounds of revisions) • Implement the pilot programs for each targeted behavior to include a pilot audience, timeline and implementation plan, and record findings. • Develop materials for pilot program, including copywriting and design direction. City will design and produce materials. • Refine overall communication strategy based on pilot program results. • Update the overall community strategy work plan and timeline based on pilot study results. Task 5 Final Communication Plan (12 hours/$1,740) • By end of year 1, produce final communication plan for each targeted behavior, incorporating the findings of the pilot study and including a detailed work plan, timeline and cost estimate. City Attorney Approved Version 6-2015 9 Timeline --- Tasks and Subtasks Month 1 2 3 4 5 6 7 8 9 10 11 12 Task 1. Select Target Behaviors Task L A. Kick-Off Meeting and CBSM Briefing Task 1.B. Identify Key Sectors, Audiences and Behaviors Task LC. Behavior Selection by Penetration, Probability, Impact and Applicability Analysis Task 2. Identify Barriers and Benefits Task 2.A. Conduct Qualitative Resea rch Task 2.B. Conduct Quantitative Research Task 3. Develop Strategies Task 3.A. Develop Strategies and Tactics Task 4. Pilot Test Strategies Task 4.A. Identify Treatment, Control Groups and Evaluation Metrics Task 4.B. Design Outreach Materials for Pilot Program Task 4.C. Implement Treatments Task 4.0. Evaluate Program Effects Task 5. Final Communication Plan Task S.A. Deliver final communication plan City Attorney Approved Version 6-201 5 10