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HomeMy Public PortalAbout2015.009 (01-20-15)RESOLUTION NO. 2015.009 • RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LYNWOOD APPROVING • SUPERSEDING PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF LYNWOOD AND LEGISLATIVE ADVOCACY GROUP, INC. TO PROVIDE PROFESSIONAL ADVOCACY SERVICES FOR THE CITY AT A MONTHLY RETAINER OF $5,000 EFFECTIVE JANUARY 20, 2015 AND LIMITED LEGAL SERVICES WHEN REQUESTED BY THE CITY WHEREAS, Legislative Advocacy Group (LAG) is the City's contracted lobbyist firm, which represents the City at the State, regional, and local levels in order to promote and advance the legislative goals and interests of the City; and WHEREAS, since 2005, LAG provided professional lobbying services to the City on a year -to -year agreement basis and performed specific legislative goals as directed by each year's Agreement; and WHEREAS, on April 1, 2014, the City Council amended and approved a Consultant Services Agreement with LAG to provide professional lobbying and advocacy services at the State, regional, and local levels and increased their monthly retainer fee from $3,000 to $5,000; and WHEREAS, the April 1, 2014 agreement also provided for legal services in an unspecified amount for broadly defined purposes; and WHEREAS, the City desires to execute a superseding 'professional services agreement to more ,accurately detail the nature and scope or advocacy services and the circumstances and reasons for legal services from Leal & Trejo, the law firm through which the principal (H. Francisco Leal) has, to date, offered legal services to the City in certain matters. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LYNWOOD DOES HEREBY RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The City Council authorizes the Mayor to execute a superseding agreement with Legislative Advocacy Group to provide professional lobbying and advocacy services and special counsel services in limited circumstances for the City approved as to form by the City Attorney. Section 2. This Agreement will supersede the previous Agreement approved on April 1, 2014 and will not change the previous monthly retainer for legislative services of $5,000 budgeted in FY 14/15 from account 1011.30.275.62015. In addition, appropriate and transfer $60,000 from the unappropriated General Fund to account 1011.25.205.62001 for legal services. Special counsel services during the term of the Agreement shall not exceed $5,000 per month. Section 3. To the extent that City requires any legal services as set forth in Exhibit A, attached here to, LAG shall provide the service through Leal & Trejo on terms and conditions set forth in Exhibit A. Section 4. This Agreement shall expire on January 19, 2016. Section 5. This Resolution shall become effective immediately upon its adoption. Section 6. The City Clerk shall certify as to the adoption of this City Council Resolution. PASSED, APPROVED and ADOPTED this 20th day of January, 2015. ATTEST: r Maria Quinonez, City Clerk APPROVED AS TO FORM: David A. Garcia, City Attorney APPROVED AS TO CONTENT: J. Arnoldo Beltran, City Manager STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk of the City of Lynwood, do hereby certify that the foregoing Resolution was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 20th day of January, 2015. AYES: COUNCIL MEMBERS ALATORRE, CASTRO, SANTILLAN -BEAS AND SOLACHE NOES: COUNCIL MEMBER HERNANDEZ ABSENT: NONE ABSTAIN: NONE STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, the undersigned, City Clerk of the City of Lynwood, and the Clerk of the City Council of said City, do hereby certify that the above foregoing is a full, true and correct copy of Resolution No. 2015.009 on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 20th day of January, 2015. FROMM �A 70 F 0" - - PROFESSIONAL SERVICES AGREEMENT This agreement ( "Agreement ") is made as of January 20, 2015 by and between the City of Lynwood, a municipal corporation ( "City ") and H. FRANCISCO LEAL dba LEGISLATIVE ADVOCACY GROUP, ( "Consultant "). City and Consultant are sometimes hereinafter individually referred to as a "Party" and collectively referred to as the "Parties." RECITALS WHEREAS, City desires to utilize the services of Consultant as an independent contractor to provide consulting services to City as set forth in the attached Exhibit A; and WHEREAS, 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. NOW, THEREFORE, in consideration of performance by the parties of the covenants and conditions herein contained, the parties hereto agree as follows: 1. Consultant's Services. A. Scope of Services. The nature and scope of the specific services to be performed by Consultant are as described in Exhibit A. B. Time of Performance. Consultant shall complete the specific services according to the schedule of performance which is also set forth in Exhibit A. 2. Term of Agreement. This Agreement shall commence on January 20, 2015 (the "Commencement Date ") and shall terminate on January 19, 2016 (the "Termination Date "), unless sooner terminated pursuant to the provisions of this Agreement. On or before ninety (90) days prior to the Termination Date, Consultant and City shall meet to discuss this Agreement and its possible extension and or modification. In the event the Parties do not enter into a new agreement prior to the Termination Date, this Agreement shall continue on a month -to -month basis under the same terms for a period not to exceed twelve months following the Termination Date. If the Parties execute no new agreement by the end of the twelve -month period following the Termination Date, this Agreement shall terminate at the end of such twelve -month period. 3. Compensation. A. City agrees to compensate Consultant for services under this Agreement in compliance with the schedule set forth in paragraph B, next, and Exhibit A. Payment will be made only after submission of proper monthly invoices in the form and manner specified by the City. Each invoice shall include a breakdown of all tasks performed by Consultant pursuant to the direction provided by City. City shall endeavor to pay PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP 1 invoices bearing correct and authorized charges within forty five (45) days of the date they are received; however, Consultant acknowledges and agrees that due to City warrant run procedures, the City cannot guarantee that payment will occur within this time period. City shall not be responsible to Consultant for any charges, interest or penalties due to a failure to pay within such period. B. Payment to Consultant for legislative services pursuant to this Agreement will be FIVE THOUSAND DOLLARS ($5,000) per month exclusive of any expenses incurred by this Consultant, pursuant to section C, below. Payment for special counsel services when requested by CITY shall be managed by City Staff to limit services rendered so that monthly billings do not exceed the amount of FIVE THOUSAND DOLLARS ($5,000) exclusive of expenses. C. If at the request of the City, Consultant is required to incur out of pocket expenses (including but not limited to, out -of -town travel and lodging) which are above and beyond the ordinary expenses associated with performance of this Agreement; Consultant shall be entitled to reimbursement of such expenses. Consultant shall only be reimbursed for those expenses which: (i) appear on Consultant's monthly invoices; (ii) are accompanied by a copy of the City's written authorization for Consultant to incur such expenses; and (iii) receipts documenting such expenses. 4. General Terms and Conditions. The General Terms and Conditions set forth in Exhibit B are incorporated as part of this Agreement. In 'the event of any inconsistency between the General Terms and Conditions and any other exhibit to this Agreement, the General Terms and Conditions shall control unless it is clear from the context that both parties intend the provisions of the other exhibit(s) to control. 5. Addresses. City City of Lynwood 11330 Bullis Road Lynwood, CA 90262 Attn: J. Arnoldo Beltran, City Manager Consultant LEGISLATIVE ADVOCACY GROUP 3767 Worsham Avenue Long Beach, CA 90808 Attn: H. Francisco Leal, Owner PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE. ADVOCACY GROUP 2 6. Exhibits. All exhibits referred to in this Agreement are listed here and are incorporated and made part of this Agreement by this reference. Exhibit A — Scope of Services and Time of Performance (eleven (11) pages) Exhibit B — General Terms and Conditions (eight (8) pages) SIGNATURES ON FOLLOWING PAGE PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP 3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates written below. Is] I CA CITY OF LYNWOOD JosVLuis Solache, 2 --t- LS Date Arnoldo Beltran, City Manager CONSULTANT LEGISLATIVE ADVOCACY GROUP By: ,c H. Francisco Leal ATTEST: r By. Maria Quinonez, City Clerk APPROVED AS TO FORM: By: N V-/ Dav A. Garcia, City Attorney Date - j a "1 '2 G -'2 o r s' Date Date '�� h s - I /Z'0 I Date PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP 4 EXHIBIT A SCOPE OF SERVICES The CITY is entering into this Agreement with CONSULTANT to provide professional services on behalf of the CITY. Such services include, but are not limited to, notifying staff of pertinent changes in State law that may impact the CITY; identifying potential grant opportunities that will benefit the CITY; work and arrange meetings with our legislative representatives, special district officials, private sector partnerships and any other public entity representatives; as well as engage with members of the State Legislature in order to advocate for the CITY's positions and interests on various legislative issues and grants opportunities. Specific legislative services to be fulfilled by CONSULTANT as desired by the CITY include those listed below. The list is not all- inclusive, and may be changed at any time as authorized by the City Council or its Designee. A. Pursue legislation and lobby State officials that will allow the City and Successor Agency to utilize the $20.3 million of the former LRA's unspent bond proceeds for vital housing and community projects. B. Community Development — Pursue legislation in the post - redevelopment era that will assist and give cities the tools to spur economic development, affordable housing projects, environmental remediation and community revitalization. C. Lobby and advocate for funding from the State Water Bond approved November 4, 2014, which provides millions of dollars for local agencies intended for vital water infrastructure improvement projects. D. Lobby and advocate for funding to finance and construct a new, 1 -acre park across from Burke -Ham Park; E. Limit financial impact of TMDL requirements; F. Pursue reimbursement of Ham Park replacement expenditures of $4.7 million; G. Pursue funding for new law enforcement technology and /or grant programs that will directly benefit the City. In addition to the above: PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 1 1. CONSULTANT shall lobby aggressively at the State, regional or other local administrative offices and other organizations as necessary to pursue grants and /or any funding opportunities. CONSULTANT's responsibilities shall include proactively searching for potential legislative vehicles relating to the projects on the CITY's priority list and affecting the outcome of those proposals in a manner favorable to the CITY. 2. CONSULTANT shall prepare any bill language for legislative initiatives including bills as necessary and /or identify appropriate legislative or administrative vehicles (i.e. spot bills, budget/trailer bills, discretionary action at an agency level, etc.) to carry out the CITY's objectives. 3. CONSULTANT shall, in accordance with the highest legal, ethical and professional standards, provide representation, information, and advice to the CITY regarding the CITY's objectives, as well as advocate for such matters in obtaining favorable decisions and outcomes in the legislative or executive branches of the State government and /or any other governing boards of any public agency. 4. Provide briefing and analysis on all pending and proposed legislation, policies and decisions by other local, regional, county, and State agencies that may affect the CITY. 5. Pursue funding from various propositions, grants and programs. CONSULTANT shall pursue funding sources that are important to the CITY. 6. CONSULTANT shall arrange appointments for the Mayor, City Council and relevant City staff with appropriate State officials, including various departments and agencies. Personal attendance by CONSULTANT shall be provided as such meetings. 7. CONSULTANT shall monitor and make recommendations on proposed grant applications to successfully secure funding. 8. Seek outside sponsorships and partnerships from various sources in both the private and public sector that will benefit both the CITY and community. 9. Monitor and analyze State budget impacts on the CITY. 10. CONSULTANT shall provide briefing and analysis to City staff on all accomplishments and lobbying strategies on a regular basis. CONSULTANT shall meet and confer with staff at least once a month, on the fourth Thursday of every month. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 2 11. CONSULTANT shall represent the CITY in meetings or hearings with the State, regional or local agencies, boards, commissions, committees and other legislative bodies, as well as testify on behalf of the CITY as requested. 12. CONSULTANT shall provide the CITY a Year -End Report on all legislative accomplishments performed by lobbyist during the term of the Agreement. 13. CONSULTANT shall provide the CITY with a Quarterly Report on all legislative and legal efforts performed by lobbyist during the term of the Agreement. 14. CONSULTANT shall meet with City staff on a periodic basis and provide information of benefit. 15. CONSULTANT shall complete and file in a timely fashion all forms and reports required of lobbyists and lobbyist employers by the State and other relevant jurisdictions. Any penalties, fees, or charges related to untimely filing or completion of said reports shall be the sole responsibility of CONSULTANT except in cases where CITY is responsible for not responding to CONSULTANT'S request for execution of pertinent documentation. .CONSULTANT is an attorney licensed to practice law in the State of California, and is the principal of the law firm of Leal & Trejo (the "Law Firm "). As such, the Law Firm is under the exclusive control of CONSULTANT and CONSULTANT wishes to offer legal services to CITY through the Law Firm, and the CITY wishes, on specific projects and issues as may be identified by the CITY through direction from the City Council and /or the City Manager, to avail itself of the opportunity to use the Law Firm for legal services. In light of the foregoing and to complement the legislative advocacy services, CONSULTANT agrees to provide legal services to CITY on the following terms and conditions: Billing rates for services rendered by the Law Firm shall be as follows: Partners: $210 /hr Senior Attorneys: $180 /hr Junior Attorneys: $160 /hr Law Clerk/Paralegal: $90 /hr CITY shall reimburse the Law Firm for costs advanced in connection with performing legal services under this Agreement. Such costs shall include printing and copying expenses, costs for investigators or other experts, computer research, facsimile transmission, extraordinary travel expenses, parking charges, messenger and express delivery, and similar costs relating to legal services that are generally chargeable to a client. No individual cost in excess of $200.00 shall be incurred without the approval of the City Manager or his /her designee. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 3 CONSULTANT shall submit a separate monthly bill describing all legal services performed during the preceding calendar month. All services shall be billed on an hourly basis, shall be in detail sufficient to identify the work performed and the charges for the same, and shall be in compliance with CITY's Billing Guidelines, attached hereto as Exhibit A -1. The CITY shall review the monthly statement and pay for services rendered and costs incurred, in the CITY's regular course of business. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 4 EXHIBIT A -1 CITY OF LYNWOOD LEGAL BILLING GUIDELINES I. INTRODUCTION The City of Lynwood expects to receive the highest caliber of professional legal services at the most reasonable price. All firms providing legal services to the City shall comply with the policies contained in this document. Unless specifically agreed otherwise in writing, this Legal Billing Guidelines shall supplement any related Agreement between the Firm and the City. To the extent that one or more provisions of the Guidelines are inconsistent with the terms of the Agreement, the Agreement will govern as to the inconsistent policy provision. II. BILLING CYCLE The billing on each matter is to be submitted on a monthly basis (cycle of first — last day of each month). Billing will be submitted by the 15th day following previous month end. A final bill for all outstanding charges should be forwarded immediately by the Firm upon the conclusion of each matter. The City will not honor interest fees, or other late fees, assessed by the Firm for any invoice submitted for payment. The City reserves the right to amend these guidelines from time to time. III. PAYMENT 1. The City's Budget and Billing Policies a. 1. Before the Firm begins handling a legal matter for the City, it shall provide to City Manager an initial budget which shall include, at a minimum, a list of each specific legal service the Firm shall perform for the City, and include: i. A detailed estimate of all fees, expenses, and costs the Firm shall charge for each legal service to be performed by the Firm; ii. The identity and billing rate of each of the Firm's attorneys and paralegals who are to perform legal services; and iii. The amount of time the Firm expects to take to perform each of the enumerated tasks. b. The Firm shall update its budget every six months or more frequently when requested by the City Manager. The Firm shall provide a copy of each revised budget to the City Manager, and shall point out and explain each material modification or change from previous budgets. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 5 c. If it becomes apparent to the Firm that it will exceed its budget, the Firm must promptly notify the City Manager in writing, describing in detail the reason(s) why the Firm expects to or has overrun its budget. d. The City will not pay any amount in excess of the Firm's budget without the prior written approval of the City Manager and, where appropriate, the City Council. e. Payment to Firm is made 45 days from receipt of invoice. 2. The Firm's Legal Fees a. The Firm shall bill the City on a monthly basis as follows: i. The Firm shall identify the total amount to be charged to the City for all legal services provided by the Firm. ii. The Firm shall provide a billing report for each specific legal service performed by the Firm as identified in the Firm's budget. For each such legal service, the billing report shall record: 1. Each date on which the legal service was performed; 2. A detailed description of each task performed (Each task is to be billed separately; block billing will not be honored); 3. The time expended performing legal services on each date; 4. Each member of the Firm, who performed legal services on each date; 5. The billing rate of each member of the Firm so identified; and 6. The total charge for performance of the legal service by each Firm member each date and time. A sample of this billing report is included in Exhibit "A -2" 7. Itemized accounting of all expenses with supporting documentation. b. All time billed by the Firm shall be in increments of 6 minutes (1/10 of an hour) and shall specifically identify the legal service performed by the Firm's personnel during that time, in accordance with the list of legal services identified in the Firm's budget. The Firm must combine, where possible, total time for similar tasks so as to avoid extending the time for PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 6 the actual service. For example, if an attorney makes four telephone calls in the span of ten minutes, the Firm shall bill only 0.2 hours (actual time) not 0.4 hours because the minimum increment of 0.1 hours is allocated to each telephone call. c. Bills must be itemized, including the date, timekeeper involved, time charged, and a detailed description of services performed. Vague entries are unacceptable. Descriptions must be specific, or the time entries will be reduced or rejected. Examples of unacceptable vague entries are: i. Review case and issues ii. Telephone Call iii. Trial Preparation iv. Update Strategy v. Motion work vi. Analysis vii. Attention to matter viii. File maintenance ix. Review correspondence x. Review file A. Receive /review documents xii. Research xiii. Travel xiv. Conference or telephone call (must identify other participants and subject) d. Block billing is unacceptable. Each task and its corresponding time entry shall be identified separately. When an attorney spends an extended amount of time on a matter the specific elements or components that required the time spent shall be identified. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 7 3. The Firm's Travel Expenses a. The Firm shall exercise prudence in incurring travel expenses. Travel expenses for lodging, meals, and out -of -town transportation shall be at reasonable rates and consistent with the City's travel policies. It shall be the Firm's responsibility to apprise itself of the City's travel policies; if clarification of such policies is required, the Firm may contact the City Manager for such clarification. b. The Firm shall not charge for any time a Firm member spends traveling or providing legal services during travel, unless otherwise approved in advance by the City Manager. c. Whenever the Firm wishes to have more than one Firm member incur travel expenses related to the legal matter the Firm is handling for the City, the Firm must request, and d. Obtain advance approval from the City Manager for such travel expenses. This requirement applies regardless of whether the different Firm members incur travel expenses at the same time or at different times. e. An attorney conference within the Firm should be billed by the responsible party in the matter. f. The Firm shall not charge for time or mileage while traveling within the City limits. IV. AUDITS AND REVIEWS 1. At any time, representatives of the City may audit the law Firm's invoices, billings, and invoicing and billing practices. The Firm agrees to cooperate with all such audits to facilitate proper billing practices and future audits, the Firm agrees to use commercially available software specifically designated for legal billing such as Time Slips or similar products. 2. The City Manager shall review all bills and invoices and may request that the Firm reasonably adjust such bills and invoices to comply with the policies contained in this document. V. MONITORING CONTRACT FUNDS 1. It is the Firm's responsibility to closely monitor expenditures under the contract and to notify the City Manager and Finance Director in writing when fees and expenses equal to 80% of the total contract funding have been accrued or committed, even if they have not yet been billed. At this point, the Firm shall stop PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 8 providing services, unless instructed otherwise by the City Manager, until notified in writing that the City has allocated additional funding. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT A 9 EXHIBIT A -2 FIRM LETTERHEAD PRIVILEGED AND CONFIDENTIAL DATE INVOICE NUMBER: 2304 John Doe City of Lynwood 11330 Bullis Rd., Lynwood, CA 90262 Attention: City Manager For Professional Services rendered from February 1, 2014 to March 1, 2014 Re: Contract or Purchase Order Number (Brief description of legal matter) (Style of case if in litigation) Attorney Summary (Initials) (Name) (Title) (Rate) (Total Hours) (Total Amount) RPS Robert Paul Smith City Attorney $225.00 1.30 $292.50 MGI Marta Gomez Ibarra Assistant Attorney $175.00 3.90 $682.50 Billing Detail (Date) (Name) (Activity) (Rate) (Hours) (Amount) 02 -04 -2014 RPS Meet with Ms. Jones regarding $225.00 1.10 $247.50 facts of the case and strategy 02 -07 -2014 MGI Draft City's Answer $175.00 0.80 $140.00 02 -24 -2014 MGI Prepare Motion for $175.00 1.00 $175.00 Summary Judgment 02 -26 -2014 RPS Review plaintiffs' response $225.00 0.20 $45.00 to City's MSJ on Limitations 02 -28 -2014 MGI Attend pretrial conference $175.00 2.10 $367.50 Total Hours 5.20 Amount $975.00 Additional Charges: (documentation attached) (Amount) Photocopies $15.24 Long- Distance Telephone Charges $5.32 PROFESSIONAL SERVICES AGREEMENT — LEGISLATIVE ADVOCACY GROUP — EXHIBIT A 10 Total Expenses $20.56 Total amount of this bill $1,016.12 Amount Remaining in Contract $2,000.00 (as of date of bill) Balance Due 03 -01 -2014 $1,016.12 PROFESSIONAL SERVICES AGREEMENT — LEGISLATIVE ADVOCACY GROUP — EXHIBIT A 11 EXHIBIT B GENERAL TERMS AND CONDITIONS 1. 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. 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 agents or 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 the workers' compensation law 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. 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 arising under this Section 1. . D. Consultant represents the City, and the City relies on Consultant's representations, that Consultant shall serve solely in the capacity of an independent contractor to the City. Neither the City nor any of its agents will have control over the conduct of the Consultant or any of the Consultant's employees, except as otherwise set forth in the Agreement. Consultant may not, at any time or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the City. The City has no duty, obligation, or responsibility to the Consultant's agents or employees, including the Affordable Care Act coverage requirements. The Consultant is solely responsible for any tax penalties associated with the failure to offer affordable coverage to its agents and employees under the Affordable Care Act with respect to the Consultant's agents and employees. Consultant warrants and represents that the City will not be responsible and will not be held liable for issues related to the Consultant's status as an independent contractor, including Consultant's failure to comply with the Consultant's duties, obligations, and responsibilities under the Affordable Care Act. Consultant agrees to PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 1 defend, indemnify, and hold the City harmless for any and all taxes, claims, and penalties against the City related to the Consultant's obligations under the Affordable Care Act. 2. Standard of Performance and City Responsibilities A. Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City Manager or his /her designee. The City Manager or his /her designee may from time to time assign additional or different tasks or services to Consultant, provided such tasks are within the scope of services described in Exhibit A. However, no additional or different tasks or services shall be performed by Consultant other than those specified in Exhibit A, or those so assigned in writing to Consultant by the City Manager or his /her designee. B. The Department of Finance and Administration shall, until further notice to Consultant, administer this Agreement and provide for immediate supervision of Consultant with respect to the services to be provided hereunder. 3. Indemnification. A. Consultant is skilled in the professional calling necessary to perform the services and duties agreed to be performed under this Agreement, and City is relying upon the skill and knowledge of Consultant to perform said services and duties. Due to the specific nature of the services being provided by the Consultant, the Consultant does not represent nor warrant specific outcomes or results from Consultant's efforts on behalf of City. B. City and its respective elected and appointed boards, officials, officers, agents, employees and volunteers (individually and collectively, "Indemnitees ") shall have no liability to Consultant or any other person for, and Consultant shall indemnify, defend, protect and hold harmless Indemnitees from and against, any and all liabilities, claims, actions, causes of action, proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature, including reasonable attorneys' fees and disbursements (collectively "Claims "), which Indemnitees may suffer or incur or to which Indemnitees may become subject by reason of or arising out of any injury to or death of any person(s), damage to property, loss of use of property, economic loss or other loss occurring as a result of the Consultant's negligence. Except for liability arising from the gross negligence of Consultant, its employees, contractors, subcontractors or agents, liability of Consultant to City with regard to all work and services performed or provided by Consultant for City under this Agreement, including but not limited to any loss, injury, damage, claim, lawsuit, cost, expense, attorneys' fees, litigation costs, or any other cost arising out of or in any way related to the performance of this Agreement, shall be limited to the total fee actually paid by City PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 2 to Consultant under the applicable Proposed Scope of Work. Under no circumstances shall Consultant have any liability to City in excess of the amount of such fees or compensation, unless such liability arises out of the gross negligence of Consultant, its employees, contractors, subcontractors or agents. City acknowledges and agrees that but for the above limitation of liability, Consultant would not be able to provide the services for City under this Agreement for the prices applicable to the Agreement, and that this limitation of liability is reasonable. C. Consultant agrees to obtain executed indemnity agreements with provisions identical to those set forth in this Section from each and every subcontractor, subconsultant or any other person or entity involved by, for, with or on behalf of Consultant in the performance of this Agreement. In the event Consultant fails to obtain such indemnity obligations from others as required in this Section, Consultant agrees to be fully responsible according to the terms of this Section. Failure of the City to monitor compliance with these requirements imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. This obligation to indemnify and defend Indemnitees as set forth herein shall survive the termination of this Agreement and is in addition to any rights which City may have under the law. This indemnity is effective without reference to the existence or applicability of any insurance coverages which may have been required under this Agreement or any additional insured endorsements which may extend to City. 4. Insurance. A. Without limiting Consultant's indemnification of Indemnitees pursuant to Section 3 of this Agreement, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement the types and amounts of insurance as described below: (i) Commercial General Liability Insurance using Insurance Services Office Commercial General Liability form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. (ii) Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than 1,000,000 per accident, combined single limit. If consultant owns no vehicles, this requirement may be satisfied by a non -owned auto endorsement to the general liability policy described in the preceding subsection. If Consultant or Consultant's employees will use personal autos in any way on this project, Consultant shall provide evidence of personal auto liability coverage for each such person. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 3 (iii) If required by California law, Workers' Compensation insurance on a state approved policy form providing statutory benefits as required by law with employer's liability limits no less than $1,000,000 per accident for all covered losses; (iv) Professional Liability or Errors and Omissions Insurance as appropriate to the profession, written on a policy form coverage specifically designed to protect against acts, errors or omissions of the consultant and "Covered. Professional Services" as designated in the policy must specifically include work performed under this Agreement. The policy limit shall be not less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this Agreement. B. City, its officers, officials, employees and volunteers shall be named as additional insureds on the policy(ies) as to commercial general liability and automotive liability. C. All insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the state of California with a Best's rating of no less than A:VII. D. All insurance policies shall provide that the insurance coverage shall not be non - renewed, canceled, reduced, or otherwise modified (except through the addition of additional insureds to the policy) by the insurance carrier without the insurance carrier giving City thirty (30) days' prior written notice thereof. Any such thirty (30) day notice shall be submitted to CITY via certified mail, return receipt requested, addressed to "Risk Manager," City of Lynwood, 11330 Bullis Road, Lynwood, California, 90262. Consultant agrees that it will not cancel, reduce or otherwise modify said insurance coverage. E. Consultant shall submit to City (i) insurance certificates indicating compliance with the minimum worker's compensation insurance requirements above, and (ii) insurance policy endorsements indicating compliance with all other minimum insurance requirements above, not less than one (1) day prior to beginning of performance under this Agreement. Endorsements shall be executed on City's appropriate standard forms entitled "Additional Insured Endorsement ". F. The Consultant's insurance shall be primary as respects the City, its officers, officials, employees and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of the Consultant's insurance and shall not contribute with it. G. Consultant agrees that if it does not keep the aforesaid insurance in full force and effect, and such insurance is available at a reasonable cost, City may take out the necessary insurance and pay the premium thereon, and the repayment thereof shall be PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 4 deemed an obligation of Consultant and the cost of such insurance may be deducted, at the option of City, from payments due Consultant. 5. 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. 6. Ownership of Work Product. All reports, documents or other written material developed 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. Such material shall not be the subject of a copyright application by Consultant. The provisions of this paragraph shall not apply to computerized claim forms and other proprietary software and materials (the "Consultant Proprietary Materials "), which are solely owned by Consultant. Such Consultant Proprietary Materials shall be clearly marked, designated or labeled by Consultant, and City agrees not to use or distribute any such Consultant Proprietary Materials without written permission of Consultant. 7. 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 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 services to City as a result of the performance of this Agreement, or the services that may be procured by the City as a result of the recommendations made by Consultant. Consultant's covenant under this section shall survive the termination of this Agreement. 8. Termination. Notwithstanding any other provision, this Agreement may be duly terminated at any time by the City at its sole discretion with or without cause. Unless expressly agreed upon in writing by the City, the City shall not be obligated to pay for any services rendered nor any costs or expenses paid or incurred after the date of termination. The effective date of termination shall be upon the date specified in the written Notice of Termination. Consultant agrees that in the event of such termination, City's obligation to pay Consultant shall be limited to payment only for those services PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 5 satisfactorily rendered prior to the effective date of termination. Immediately upon receiving written notice of termination, Consultant shall discontinue performing services, preserve the product of the services and upon payment for services, turn over to City the product of the services in accordance with written instructions of City. Consultant may also at any time suspend, terminate or abandon this agreement by providing written notice of such to the City at least seven (7) days in advance of the effective date of termination of this agreement. Consultant shall be compensated to actual costs that were incurred and work performed as of the effective date of such notice. 9. Personnel. 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 its supervision, and all personnel engaged in the work shall be qualified to perform such services. 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, for good cause, to require Consultant to exclude any employee from performing services on City's premises. 10. Financial Condition. Prior to entering into this Agreement, Consultant has submitted documentation acceptable to the City Manager, establishing that it is financially solvent, such that it can reasonably be expected to perform the services required by this Agreement. Within thirty (30) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement, Consultant shall submit such financial information as may be appropriate to establish to the satisfaction of the City Manager that Consultant is in at least as sound a financial position as was the case prior to entering into this Agreement. Financial information submitted to the City Manager shall be returned to Consultant after review and shall not be retained by City. 11. 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. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT .B 6 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. 12. 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. 13. Performance Evaluation. For any Agreement in effect for twelve months or longer, a written annual administrative performance evaluation shall be required within ninety (90) days of the first anniversary of the effective date of this Agreement, and each year thereafter throughout the term of this Agreement. The work product required by this Agreement shall be utilized as the basis for review, and any comments or complaints received by City during the review period, either orally or in writing, shall be considered. City shall meet with Consultant prior to preparing the written report. If any noncompliance with the Agreement is found, City may direct Consultant to correct the inadequacies, or, in the alternative, may terminate this Agreement as provided herein. 14. Compliance with Laws. Consultant shall keep itself informed of State, Federal and Local laws, ordinances, codes and regulations which in any manner affect those employed by it or in any way affect the performance of its service pursuant to this Agreement. The Consultant shall at all times comply with such laws, ordinances, codes and regulations. The City, its officers and employees shall not be liable at law or in equity occasioned by failure of Consultant to comply with this Section. 15. Licenses. At all times during the term of this Agreement, Consultant shall have in full force and effect all licenses (including a City business license) required of it by law for performance of the services hereunder. 16. 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. 17. Attorney's Fees. In the event that either party to this Agreement shall commence any legal or equitable action or proceeding to enforce or, interpret the provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover its costs of suit, including reasonable attorney's fees and costs, Including costs of expert witnesses and consultants. -IROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 7 18. 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 Consultant's regular business hours or by facsimile before or during Consultant's 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. 19. Governing Law. This Agreement shall be interpreted, construed and enforced in accordance with the laws of the State of California. 20. 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. 21. Severability. If any provision or any part of any provision of this Agreement is found to be invalid or unenforceable, the balance of this Agreement shall remain in full force and effect. 22. Entire Agreement. This Agreement, and any other documents incorporated herein by specific reference, represents 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 the Mayor and attested by the City Clerk. 23. Authority. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he /she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder. PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP - EXHIBIT B 8