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
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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
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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
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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
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Date
Date
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Date
PROFESSIONAL SERVICES AGREEMENT - LEGISLATIVE ADVOCACY GROUP
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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(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
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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
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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.
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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.
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.
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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.
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