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CONSULTANT SERVICES AGREEMENT
Non-Design Professionals]
THIS AGREEMENT (the "Agreement") is made as of February 2, 2022 by and
between the City of Diamond Bar, a municipal corporation ("City") and Redistricting
Partners ("Consultant").
1. Consultant's Services.
Subject to the terms and conditions set forth in this Agreement Consultant shall
provide to the reasonable satisfaction of the City the demographic analysis services set
forth in the attached Exhibit "A", which is incorporated herein by this reference. As a
material inducement to the City to enter into this Agreement, Consultant represents and
warrants that it has thoroughly investigated the work and fully understands the
difficulties and restrictions in performing the work. Consultant represents that it is fully
qualified to perform such consulting services by virtue of its experience and the training,
education and expertise of its principals and employees.
Ryan McLean, Assistant City Manager (herein referred to as the “City’s Project
Manager”), shall be the person to whom the Consultant will report for the performance
of services hereunder. It is understood that Consultant shall coordinate its services
hereunder with the City’s Project Manager to the extent required by the City’s Project
Manager, and that all performances required hereunder by Consultant shall be
performed to the satisfaction of the City’s Project Manager and the City Manager
2. Term of Agreement. This Agreement shall take effect February 2, 2022
and shall continue until completion ("Term"), unless earlier terminated pursuant to the
provisions herein.
3. Compensation. City agrees to compensate Consultant for each service
which Consultant performs to the satisfaction of City in compliance with the scope of
services set forth in Exhibit "A". Payment will be made only after submission of proper
invoices in the form specified by City. Total payment to Consultant pursuant to this
Agreement shall not exceed twenty thousand dollars ($20,000) without the prior written
consent of the City. The above not to exceed amount shall include all costs, including,
but not limited to, all clerical, administrative, overhead, telephone, travel and all related
expenses.
4. Payment.
A.As scheduled services are completed, Consultant shall submit to City an
invoice for the services completed, authorized expenses and authorized extra work
actually performed or incurred.
B.All such invoices shall state the basis for the amount invoiced, including
services completed, the number of hours spent and any extra work performed.
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C.City will pay Consultant the amount properly invoiced within 35 days of
receipt, but may withhold 30% of any invoice until all work is completed, which sum
shall be paid within 35 days of completion of the work and receipt of all deliverables.
D.Payment shall constitute payment in full for all services, authorized costs
and authorized extra work covered by that invoice.
5. Change Orders. No payment for extra services caused by a change in
the scope or complexity of work, or for any other reason, shall be made unless and until
such extra services and a price therefore have been previously authorized in writing and
approved by the City Manager or his designee as an amendment to this Agreement.
The amendment shall set forth the changes of work, extension of time, if any, and
adjustment of the fee to be paid by City to Consultant.
6. Priority of Documents. In the event of any inconsistency between the
provisions of this Agreement and any attached exhibits, the provisions of this
Agreement shall control.
7. Status as Independent Contractor.
A. Consultant is, and shall at all times remain as to City, a wholly
independent contractor. Consultant shall have no power to incur any debt, obligation, or
liability on behalf of City or otherwise act on behalf of City as an agent, except as
specifically provided herein. Neither City nor any of its agents shall have control over
the conduct of Consultant or any of Consultant's employees, except as set forth in this
Agreement. Consultant shall not, at any time, or in any manner, represent that it or any
of its agents or employees are in any manner employees of City.
B. Consultant agrees to pay all required taxes on amounts paid to Consultant
under this Agreement, and to indemnify and hold City harmless from any and all taxes,
assessments, penalties, and interest asserted against City by reason of the
independent contractor relationship created by this Agreement. In the event that City is
audited by any Federal or State agency regarding the independent contractor status of
Consultant and the audit in any way fails to sustain the validity of a wholly independent
contractor relationship between City and Consultant, then Consultant agrees to
reimburse City for all costs, including accounting and attorney's fees, arising out of such
audit and any appeals relating thereto.
C. Consultant shall fully comply with Workers' Compensation laws regarding
Consultant and Consultant's employees. Consultant further agrees to indemnify and
hold City harmless from any failure of Consultant to comply with applicable Worker's
Compensation laws.
D. Consultant shall, at Consultant’s sole cost and expense fully secure and
comply with all federal, state and local governmental permit or licensing requirements,
including but not limited to the City of Diamond Bar, South Coast Air Quality
Management District, and California Air Resources Board.
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E. In addition to any other remedies it may have, City shall have the right to
offset against the amount of any fees due to Consultant under this Agreement any
amount due to City from Consultant as a result of Consultant's failure to promptly pay to
City any reimbursement or indemnification required by this Agreement or for any
amount or penalty levied against the City for Consultant’s failure to comply with this
Section.
8. Standard of Performance.Consultant shall perform all work at the
standard of care and skill ordinarily exercised by members of the profession under
similar conditions and represents that it and any subcontractors it may engage, possess
any and all licenses which are required to perform the work contemplated by this
Agreement and shall maintain all appropriate licenses during the performance of the
work.
9. Indemnification.
Consultant shall indemnify, defend with counsel approved by City, and hold
harmless City, its officers, officials, employees and volunteers ("Indemnitees") from and
against all liability, loss, damage, expense, cost (including without limitation reasonable
attorneys' fees, expert fees and all other costs and fees of litigation) of every nature
arising out of or in connection with:
1) Any and all claims under Workers’ Compensation Act and other
employee benefit acts with respect to Consultant’s employees or Consultant’s
contractor’s employees arising out of Consultant’s work under this Agreement;
and
2) Any and all claims arising out of Consultant's performance of work
hereunder or its failure to comply with any of its obligations contained in this
Agreement, regardless of City’s passive negligence, but excepting such loss or
damage which is caused by the sole active negligence or willful misconduct of
the City. Should City in its sole discretion find Consultant’s legal counsel
unacceptable, then Consultant shall reimburse the City its costs of defense,
including without limitation reasonable attorneys' fees, expert fees and all other
costs and fees of litigation. The Consultant shall promptly pay any final judgment
rendered against the Indemnitees. It is expressly understood and agreed that
the foregoing provisions are intended to be as broad and inclusive as is permitted
by the law of the State of California and will survive termination of this
Agreement. Except for the Indemnitees, this Agreement shall not be construed
to extend to any third party indemnification rights of any kind.
3) The Consultant's obligations to indemnify, defend and hold harmless
the City shall survive termination of this Agreement.
10. Insurance.
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A. Consultant shall at all times during the term of this Agreement carry,
maintain, and keep in full force and effect, with an insurance company authorized to do
business in the State of California and approved by the City the following insurance:
1) Worker's Compensation insurance when required by law, with a
minimum limit of $500,000.00 or the amount required by law, whichever is
greater.
11. Confidentiality.Consultant in the course of its duties may have access
to confidential data of City, private individuals, or employees of the City. Consultant
covenants that all data, documents, discussion, or other information developed or
received by Consultant or provided for performance of this Agreement are deemed
confidential and shall not be disclosed by Consultant without written authorization by
City. City shall grant such authorization if disclosure is required by law. All City data
shall be returned to City upon the termination of this Agreement. Consultant's covenant
under this section shall survive the termination of this Agreement. Notwithstanding the
foregoing, to the extent Consultant prepares reports of a proprietary nature specifically
for and in connection with certain projects, the City shall not, except with Consultant's
prior written consent, use the same for other unrelated projects.
12. Ownership of Materials.Except as specifically provided in this
Agreement, all materials provided by Consultant in the performance of this Agreement
shall be and remain the property of City without restriction or limitation upon its use or
dissemination by City. Consultant may, however, make and retain such copies of said
documents and materials as Consultant may desire.
13. Maintenance and Inspection of Records. In accordance with generally
accepted accounting principles, Consultant and its subcontractors shall maintain
reasonably full and complete books, documents, papers, accounting records, and other
information (collectively, the “records”) pertaining to the costs of and completion of
services performed under this Agreement. The City and any of their authorized
representatives shall have access to and the right to audit and reproduce any of
Consultant's records regarding the services provided under this Agreement. Consultant
shall maintain all such records for a period of at least three (3) years after termination or
completion of this Agreement. Consultant agrees to make available all such records for
inspection or audit at its offices during normal business hours and upon three (3) days'
notice from the City, and copies thereof shall be furnished if requested.
14. Conflict of Interest.
A. Consultant covenants that it presently has no interest and shall not
acquire any interest, direct or indirect, which may be affected by the services to be
performed by Consultant under this Agreement, or which would conflict in any manner
with the performance of its services hereunder. Consultant further covenants that, in
performance of this Agreement, no person having any such interest shall be employed
by it. Furthermore, Consultant shall avoid the appearance of having any interest which
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would conflict in any manner with the performance of its services pursuant to this
Agreement.
B. Consultant covenants not to give or receive any compensation, monetary
or otherwise, to or from the ultimate vendor(s) of hardware or software to City as a
result of the performance of this Agreement. Consultant's covenant under this section
shall survive the termination of this Agreement.
15. Termination.The City may terminate this Agreement with or without
cause upon fifteen (15) days' written notice to Consultant. The effective date of
termination shall be upon the date specified in the notice of termination, or, in the event
no date is specified, upon the fifteenth (15th) day following delivery of the notice. In the
event of such termination, City agrees to pay Consultant for services satisfactorily
rendered prior to the effective date of termination. Immediately upon receiving written
notice of termination, Consultant shall discontinue performing services, unless the
notice provides otherwise, except those services reasonably necessary to effectuate the
termination. The City shall be not liable for any claim of lost profits.
16. Personnel/Designated Person.Consultant represents that it has, or will
secure at its own expense, all personnel required to perform the services under this
Agreement. All of the services required under this Agreement will be performed by
Consultant or under it supervision, and all personnel engaged in the work shall be
qualified to perform such services. Except as provided in this Agreement, Consultant
reserves the right to determine the assignment of its own employees to the performance
of Consultant's services under this Agreement, but City reserves the right in its sole
discretion to require Consultant to exclude any employee from performing services on
City's premises.
17. Non-Discrimination and Equal Employment Opportunity.
A. Consultant shall not discriminate as to race, color, creed, religion, sex,
marital status, national origin, ancestry, age, physical or mental handicap, medical
condition, or sexual orientation, in the performance of its services and duties pursuant to
this Agreement, and will comply with all rules and regulations of City relating thereto.
Such nondiscrimination shall include but not be limited to the following: employment,
upgrading, demotion, transfers, recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training,
including apprenticeship.
B. Consultant will, in all solicitations or advertisements for employees placed
by or on behalf of Consultant state either that it is an equal opportunity employer or that
all qualified applicants will receive consideration for employment without regard to race,
color, creed, religion, sex, marital status, national origin, ancestry, age, physical or
mental handicap, medical condition, or sexual orientation.
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C. Consultant will cause the foregoing provisions to be inserted in all
subcontracts for any work covered by this Agreement except contracts or subcontracts
for standard commercial supplies or raw materials.
18. Time of Completion. Consultant agrees to commence the work provided
for in this Agreement upon being notified by the City to proceed and to diligently
prosecute completion of the work by February 15, 2022 or as may otherwise be agreed
to by and between the Project Manager and the Consultant.
19. Time Is of the Essence. Time is of the essence in this Agreement.
Consultant shall do all things necessary and incidental to the prosecution of
Consultant's work.
20. Reserved.
21. Delays and Extensions of Time.Consultant's sole remedy for delays
outside its control shall be an extension of time. No matter what the cause of the delay,
Consultant must document any delay and request an extension of time in writing at the
time of the delay to the satisfaction of City. Any extensions granted shall be limited to
the length of the delay outside Consultant’s control. If Consultant believes that delays
caused by the City will cause it to incur additional costs, it must specify, in writing, why
the delay has caused additional costs to be incurred and the exact amount of such cost
within 10 days of the time the delay occurs. No additional costs can be paid that
exceed the not to exceed amount absent a written amendment to this Agreement. In no
event shall the Consultant be entitled to any claim for lost profits due to any delay,
whether caused by the City or due to some other cause.
22. Assignment.Consultant shall not assign or transfer any interest in this
Agreement nor the performance of any of Consultant's obligations hereunder, without
the prior written consent of City, and any attempt by Consultant to so assign this
Agreement or any rights, duties, or obligations arising hereunder shall be void and of no
effect.
23. Compliance with Laws.Consultant shall comply with all applicable laws,
ordinances, codes and regulations of the federal, state, and local governments.
24. Non-Waiver of Terms, Rights and Remedies.Waiver by either party of
any one or more of the conditions of performance under this Agreement shall not be a
waiver of any other condition of performance under this Agreement. In no event shall
the making by City of any payment to Consultant constitute or be construed as a waiver
by City of any breach of covenant, or any default which may then exist on the part of
Consultant, and the making of any such payment by City shall in no way impair or
prejudice any right or remedy available to City with regard to such breach or default.
25. Reserved.
26. Reserved.
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27. Notices.Any notices, bills, invoices, or reports required by this
Agreement shall be deemed received on (a) the day of delivery if delivered by hand
during regular business hours or by facsimile before or during regular business hours;
or (b) on the third business day following deposit in the United States mail, postage
prepaid, to the addresses heretofore set forth in the Agreement, or to such other
addresses as the parties may, from time to time, designate in writing pursuant to the
provisions of this section.
REDISTRICTING PARTNERS” “CITY”
Redistricting Partners City of Diamond Bar
730 Howe Ave., Ste. 425 21810 Copley Drive
Sacramento, CA 95825 Diamond Bar, CA 91765-4178
Attn.: Kimi Shigetani Attn.: Ryan McLean, Asst. City Mgr.
Phone: 916-612-8686 Phone: 909-839-7016
E-Mail: kimi@redisdrictingpartners.com E-mail: RMcLean@diamondbarca.gov
28. Governing Law.This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of California. The venue for any
action brought under this Agreement shall be in Los Angeles County.
29. Counterparts.This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be the original, and all of which together
shall constitute one and the same instrument.
30. Entire Agreement.This Agreement, and any other documents
incorporated herein by reference, represent the entire and integrated agreement
between Consultant and City. This Agreement supersedes all prior oral or written
negotiations, representations or agreements. This Agreement may not be amended,
nor any provision or breach hereof waived, except in a writing signed by the parties
which expressly refers to this Agreement. Amendments on behalf of the City will only
be valid if signed by a person duly authorized to do so under the City's Purchasing
Ordinance.
IN WITNESS of this Agreement, the parties have executed this Agreement as of
the date first written above.
Consultant" "City"
REDISTRICTING PARTNERS CITY OF DIAMOND BAR
By: ______ By: ____
Printed Name: Paul Mitchell Dan Fox, City Manager
Title: Owner, Redistricting Partners
Daniel Fox
Digitally signed by Daniel Fox
DN: cn=Daniel Fox, o, ou,
email=dfox@diamondbarca.gov, c=US
Date: 2022.02.02 09:37:57 -08'00'
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ATTEST:___________________
Kristina Santana, City Clerk
Approved as to form:
By:____
David DeBerry, City Attorney
January 31, 2022
Dan Fox
City Manager
City of Diamond Bar
Dear Mr. Fox,
The following is a proposed cost and structure for the City of Diamond Bar for
conducting areview of the demographics of the district as you determine potential need
to convert to a by-area election system in order to comply with the California Voting
Rights Act (CVRA).
Redistricting Partners has worked with dozens of local government agencies, law firms
and nonprofit clients on racially polarized voting analysis for the purposes of
identifying CVRA vulnerability and assisting with decisions on possible conversion to
by-district election systems.
Our experience includes work for cities, school boards, community colleges, water and
healthcare districts. We most recently conducted the public conversion process to create
to CVRA compliant election districts in the Cities of Napa, Davis and Santa Ana in
response to CVRA claims.
If contracted, Redistricting Partners can produce a racially polarized voting analysis
that identifies voting patterns comparing outcomes of candidates and issues in recent
elections and identification of potential communities of interest that may require
protection or representation. This voting analysis is often the first thing courts look to
in determining whether at-large elections undermining the voting power of minority
voters under the CVRA.
After this analysis and recommendations has been delivered, we can present them
either in a public meeting or through attorneys.
In conducting a full racially polarized voting analysis we will utilize four main datasets:
1) 2020 Census Redistricting Data [P.L. 94-171] Summary Files. These are
files released by the state reflective of the total population within the boundaries
of the city utilizing the census geographies. This must be the basis for
determining the “equal population” of districts if they were to be created.
2) Most recent American Community Survey (ACS) dataset, including
estimated total population and Citizen Voting Age Population (CVAP). This
dataset is based on the longform of the US Census and statistical estimates which
can be useful in both understanding how different communities might be
growing, and the ethnic populations for the purposes of voting rights claims.
This data is updated annually and based on five-year averages.
3) California Voter File as maintained by Political Data Inc. This file allows
us to understand the voter makeup of the registered voter population, including
the age, ethnicity, partisanship, and other factors which help provide
understanding of the populations that vote in elections, and providing a part of
the basis for identifying candidate preferences of geographic and ethnic
subgroups. Note: the voter file cannot be used to determine the “equal districts”
but it can be utilized to inform decisions about communities of interests and the
impacts politically of a change in election method.
4) Election results datasets. The analysis would compare ethnic composition
of the population with election results. If necessary we will often rebuild base
files of official election results for candidates and measures that are endogenous
contests for the agency itself, or agency ballot measures and bonds) and
exogenous (statewide campaigns, countywide races, ballot measures or other
elections that are not local municipal contest, but can be evaluated within the
boundaries)
The analysis will utilize these datasets to create the following deliverables and a set of
recommendations.
Overview of the existing boundaries, ethnic populations that could be
considered “protected classes” for the purposes of voting rights.
Overview of past elections and a selection of candidate races or ballot measure
contests that have the greatest potential to show racially polarized voting.
Statistical analysis of past statewide elections and two most recent city council
elections utilizing at least two different methodologies to create mathematical
proof for or against racially polarized voting claims.
Recommendation, based on the above analysis, for next steps.
The cost for this research, report, and a call to go over the findings by February 18, 2022
would be $20,000.
Please contact us if you have any questions regarding the process I can be reached at
916) 612-8686 or you can email me at paul@redistrictingpartners.com. For questions
regarding contracting or other administrative queries, please contact Kimi Shigetani at
kimi@redistrictingpartners.com.
References are also available upon request
Sincerely,
Paul Mitchell
Owner, Redistricting Partners