AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT FOR PROFESSIONAL SERVICES is made and entered into this 14*h day of January, 2025, by and between the CITY OF LANCASTER, a municipal corporation and charter city, ("City"), and FTI CONSULTING (SC) INC., a Business Advisory Firm ("Consultant") (collectively, sometimes referred to hereinafter as the "Parties")
RECITALS
WHEREAS, the City desires to engage Consultant to perform certain technical and professional services, as provided herein, identified as:
COMMUNICATIONS AND DESIGN SUPPORT (THE "SERVICES")
WHEREAS, the principal members of Consultant are qualified and duly registered/licensed under the laws of the State of California, and Consultant desires to accept such engagement;
NOW, THEREFORE, the parties agree as follows:
1. Parties to the Agreement
The parties to this Agreement are:
A. CITY: City of Lancaster
B. CONSULTANT: FTI Consulting (SC) Inc.
2. Notices. All written notices required by or related to this Agreement shall be sent by Certified Mail, Return Receipt Requested, postage prepaid and addressed as listed below.
Neither party to this Agreement shall refuse to accept such mail; parties to this Agreement shall promptly inform the other party of any changes of address. All notices required by this Agreement are effective on the day of receipt, unless otherwise indicated herein.
CITY City of Lancaster
Attn: Trolis Niebla, City Manager
44933 Fern Avenue
Lancaster, California 93534
CONSULTANT FTI Consulting (SC) Inc.
Attn: Brian Kennedy, brian.kennedy(@fticonsulting.com
555 12ih Street NW, Suite 700
Washington, DC 20004
With a copy to:
Attn: Legal Department
Email: [email protected]
3. Successors and Assigns. The terms hereof shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto; provided, however, that no party hereto shall assign any of the benefits and burdens hereunder, whether voluntarily or by operation of law, without prior written consent of the other party, and any such assignments without said consent shall be void.
4. Description of Work. The City hereby engages Consultant, and Consultant accepts such engagement, to perform the technical and professional services set forth in the "Scope of Services Schedule," attached hereto as Exhibit "A" and incorporated herein by reference.
Consultant shall perform and complete, in a manner satisfactory to the City, all work and services set forth in Exhibit "A." The City Manager or his designee shall have the right to review and inspect the work during the course of its performance at such times as may be specified by the City Manager, or his designee.
5. Obligations of the City.
A. The City shall pay Consultant on a time and materials basis, billed at the applicable rates listed below and invoiced at the end of the month, in an amount not to exceed $300,000 for all work necessary to complete the Services described in the Scope of Services Schedule.
FTI Hourly Charge-Out Rates
Sr. Managing Director/Sr. Advisor $750-$805/hour
Managing Director $670-$720/hour
Sr. Director $585-$645/hour
Director $483-$535/hour
Sr. Consultant $375-$410/hour
Consultant $270-$310/hour
Administration $100/hour
Consultant's fees and rates exclude sales taxes and VAT that might be charged by the relevant tax authorities. In addition, should the City be required to withhold any taxes from a payment due to Consultant, then such taxes shall be payable in addition to the fees quoted and the fees will be grossed up by the pertinent withholding tax rate.
The City also shall be responsible for all reasonable and necessary disbursements made by Consultant on behalf of the City, including travel expenses for travel requested by the City in writing. All such expenses and disbursements will be reimbursed at cost.
Payments shall be due within thirty (30) days following submittal of an invoice detailing the services performed, at the hourly rates set forth above. In addition to any other remedies available at law, Consultant reserves the right to defer rendering services until payment is received on invoiced amounts that are both (a) past due, and (b) not the subject of a good faith dispute.
B. No payment made hereunder by the City to Consultant, other than the final payment, shall be construed as an acceptance by the City of any work or materials, nor as evidence of satisfactory performance by Consultant of its obligations under this Agreement.
C. If Consultant and/or any of its employees are required to testify or provide evidence at or in connection with any judicial or administrative proceeding relating to this Agreement to which Consultant is not a named party, then City will compensate Consultant at its then-current, hourly rates and reimburse Consultant for reasonable direct and allocated expenses (including counsel fees) with respect thereto.
6. Obligations of the Consultant.
A. Consultant shall perform as required by this Agreement and in accordance with the Scope of Services Schedule set forth in Exhibit A.
B. Consultant shall be responsible for payment of all employees' wages and benefits, and shall comply with all requirements pertaining to employer's liability, workers' compensation, unemployment insurance, and Social Security.
C. Consultant shall not subcontract any of the work required to perform the Services without the express prior written approval of the City.
7. Hold Harmless and Indemnification; Limitation of Liability. Consultant agrees to indemnify and hold harmless the City, its elected officials, officers and employees, from and against any and all third-party claims, losses, obligations, or liabilities whatsoever, including reasonable attorney's fees, incurred to the extent arising out of or related to Consultant's negligent or willful wrongful acts, errors or omissions, or those of its employees or agents.
Consultant agrees to defend the City, its officers and employees, using counsel of the Consultant's choosing (subject to approval by the City which shall not be unreasonably withheld), from and against any and all claims covered by the indemnity in the preceding sentence.
City agrees to indemnify and hold harmless Consultant, its officers and employees, from and against any and all third-party claims, losses, obligations, or liabilities whatsoever, including reasonable attorney's fees, incurred to the extent arising out of or related to Consultant's use or reliance on any information provided by or on behalf of the City, including any claims that such information misappropriates or infringes on a third party's intellectual property rights.
Excluding any indemnity obligations herein, or claims arising from a party's gross negligence, willful misconduct, or acts of fraud, the parties agree that: (a) Consultant's total aggregate liability to the City shall not exceed the total fees paid to Consultant under this Agreement; and (b) neither party hereto shall be liable to the other for any indirect, punitive, or consequential damages.
8. Amendments. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon mutual written approval by the City and Consultant.
9. Non-Discrimination and Equal Employment Opportunity.
A. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, religion, ancestry, sex, national origin, physical or mental disability or age.
Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment without regard to their race, color, religion, ancestry, sex, national orıgin, physical or mental disability or age. Affirmative action relating to employment shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship.
B. The provisions of subsection A above shall be included in all solicitations or advertisements placed by or on behalf of Consultant for personnel to perform any services under this Agreement. The City shall have access to all documents, data and records of Consultant and its subcontractors for purposes of determining compliance with the equal employment opportunity and nondiscrimination provisions of this Section.
10. Term; Effective Date. This Agreement shall become effective and shall be in full force and effect upon the execution of the Agreement by the City and the Consultant. This Agreement shall continue in full force and effect until January 13, 2025, unless the Agreement is sooner terminated in accordance with this Agreement; provided, however, that the City and the Consultant may mutually agree in writing to extend the Term of this Agreement.
11. Termination.
A. For Convenience. The City may terminate this Agreement at any time without cause by giving thirty (30) days written notice to the other party of such termination and specifying the effective date thereof. In the event of termination of this Agreement, Consultant will be paid for work completed and expenses incurred through the date of termination within thirty (30) days following submittal of a final invoice.
B. For Cause. If Consultant fails to perform the services called for by this Agreement or so fails to make progress as to endanger performance of this Agreement in accordance with its terms, Consultant shall correct such failure within ten (10) days (or such longer period that the City may authorize in writing) after receipt of notice from the City specifying such failure. Should the failure not be corrected within this time period, the City may immediately terminate the Agreement by written notice to Consultant.
C. In the event of termination, whether for convenience or cause, reports, plans, studies and other documents (collectively, "documents") related to the Services shall become the City's property. Consultant shall provide all documents to the City that have not yet been within ten (10) calendar days after termination of the Agreement.
12. Independent Contractor. Consultant is an independent contractor and shall have no power or authority to incur any debt, obligation or liability on behalf of the City. It is expressly understood between the Parties to this Agreement that no employee/employer relationship is intended.
13. Insurance.
A. The Consultant, at its expense, shall maintain in effect at all times during the term of this Agreement the following coverage and limits of insurance, which shall be maintained with insurers listed "A-, VIII" or better in the Best's Key Rating Guide:
Commercial General Liability
Each Occurrence $1,000,000
Per Project General Aggregate $2,000,000
Including Products/Completed Operations; Contractual Liability/Independent Contractors; Property Damage
(Coverage shall be at least as broad as ISO form CG2010 11/85 or CG2010 07/04 and CG2037 07/04 combined, or an equivalent providing ongoing and completed operations) Commercial Automobile Liability
Combined Single Limit per Accident for
Bodily Injury and Property Damage $1,000,000
(Coverage shall be at least as broad as ISO form CA00 01) Workers Compensation
As Required by the State of California Statutory Limits Employers' Liability
Each Accident $1,000,000
Bodily Injury by Disease $1,000,000
Each Employee $1,000,000
(A Waiver of Subrogation must be provided on behalf of the Certificate Holder for the Workers Compensation & Employers' Liability policies)
Professional Liability
Per Claim $2,000,000
Annual Policy Aggregate $2,000,000
The Consultant's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insured's liability.
B. Professional liability and/or cyber insurance written on a "claims made" basis must be renewed for a period of three (3) years after this contract expires or is terminated. Such insurance must have the same coverage and limits as the policy that was in effect during the term of this contract and will cover Consultant for all claims made by the City insured entities arising out of any acts or omissions of Consultant or its officers, employees, or agents during the time this Agreement was in effect.
C. Any deductibles or self-insurance retentions must be declared and approved by the City.
D. All insurance shall be primary and non-contributory as respects the City insured entities. Any insurance or self-insurance maintained by the City insured entities shall be in excess of the Consultant's insurance and shall not contribute with it.
E. Consultant shall furnish the City with Certificates of Insurance and with endorsements effecting coverage required by this Agreement. Certificates of Insurance shall meet the following requirements:
(1) Show that Consultant shall provide not less than 30 days' prior written notice (10 days' written notice for non-payment) to the City of Lancaster prior to such insurance being suspended, voided, cancelled, reduced in coverage or in limits. (2) List in the "Descriptions of Operations/Locations/Vehicles" section regarding its Commercial Automobile Liability policy:
"COMMUNICATIONS SUPPORT"
The City of Lancaster, its elected officials, officers, employees and volunteers are included as additional covered parties, but only insofar as the operations under this contract are concerned."
(3) List in the "Certificate Holder" section:
The City of Lancaster, 44933 Fern Avenue, Lancaster, California 93534.
14. Commencement and Completion of Work. The Services to be provided by Consultant pursuant to this Agreement shall commence immediately after execution of this Agreement, and shall be completed no later than January 13, 2025; provided however, that the Parties may agree to extend the time for completion upon mutual written agreement.
15. Ownership of Documents. All plans, specifications, reports, studies, maps and other documents prepared or obtained by Consultant in the course of performing the work and are required by this Agreement to be delivered to the City shall be the property of the City. Basic sketches, charts, computations and similar data prepared or obtained by Consultant under this Agreement shall, upon request, be made available to City without restriction or limitation on their use.
To the extent Consultant uses any of its pre-existing intellectual property in connection with the Services or any deliverable prepared under this Agreement, such pre-existing intellectual property shall, at all times, remain the property of Consultant, and City shall not acquire any ownership right or interest in such pre-existing intellectual property, provided however, Consultant grants to City a perpetual, worldwide, irrevocable, limited license to use such preexisting intellectual property for the sole purpose for which the services rendered or deliverable was prepared. Consultant shall have ownership (including, without limitation, copyright ownership) and all rights to use and disclose our ideas, concepts, know-how, methods, techniques, processes and skills, and adaptations thereof in conducting Consultant's business.
Any advice given, or report, work product, or deliverable prepared and issued by Consultant (collectively, the "Consultant Advice") is provided solely for the City's use and benefit and only in connection with the purpose in respect of which the services were provided under this Agreement. Unless required by law or judicial process or as set specifically set forth in Exhibit A to this Agreement, City shall not provide any Consultant Advice to any third party, or refer to Consultant or the services, without Consultant's prior written consent, which consent shall not be unreasonably withheld or delayed but may be conditioned on the recipient executing a third- party release letter in a form acceptable to Consultant. In no event, regardless of whether consent has been provided, shall Consultant assume any responsibility to any third party to which any Consultant Advice is disclosed or otherwise made available.
Notwithstanding the foregoing paragraphs of this Section 15, during the course of performing services, Consultant may collect, generate or obtain via license, data such as, but not limited to, communications performance data, media reports, social media, media analytics, primary research data, publicly available data, opt-in subscriber data, and target audience lists. Where Consultant has not been provided this data by the City, Consultant retains ownership of any and all rights to such collected data and its derivatives. However, Consultant may not use such collected data in affiliation with the City's name for any purpose outside the scope of this Agreement without the prior, express written consent from the client.
16. Data Provided to Consultant. City shall provide to Consultant, without charge, all data, including reports, records, maps and other information, now in the City's possession which may facilitate the timely performance of the work described in Exhibit A.
Consultant's performance of the services is dependent upon City providing such information and assistance as may be reasonably required and on a timely basis. City shall use reasonable skill, care and attention to ensure that all information provided is accurate and complete and notify Consultant if City subsequently learns that the information provided is incorrect or inaccurate or otherwise should not be relied upon. Prior to the finalization of any work product or deliverable, Consultant may confirm certain facts or assumptions with City and may do so by providing drafts of the analysis, work product, or deliverable under the condition that, in no circumstances are such drafts to be copied, given to other persons, or relied upon.
17. Consultant's Warranties and Representations.
Consultant warrants and represents to City as follows:
A. Consultant has not employed or retained any person or entity, other than a bona fide employee working exclusively for Consultant, to solicit or obtain this Agreement.
B. Consultant has not paid or agreed to pay any person or entity, other than a bona fide employee working exclusively for Consultant, any fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the execution of this Agreement. Upon any breach or violation of this warranty, City shall have the right, in its sole discretion, to terminate this Agreement without further liability, or, in the alternative, to deduct from any sums payable hereunder the full amount or value of any such fee, commission, percentage or gift.
C. Consultant has no knowledge that any officer or employee of the City has any interest, whether contractual, noncontractual, financial, proprietary, or otherwise, in this transaction or in the business of the Consultant, and that if any such interest comes to the knowledge of Consultant at any time, a complete written disclosure of such interest will be made to City, even if such interest would not be deemed a prohibited "conflict of interest" under applicable laws.
D. Upon the execution of this Agreement, Consultant has no interest, direct or indirect, in any transaction or business entity which would conflict with or in any manner hinder the performance of services and work required by this Agreement, nor shall any such interest be acquired during the term of this Agreement.
18. Resolution of Disputes.
A. Disputes regarding the interpretation or application of any provisions of this Agreement shall, to the extent reasonably feasible, be resolved through good faith negotiations between the parties.
B. If the parties cannot resolve the dispute through good faith negotiations, either party may give Notice of Dispute to the other party. The Notice of Dispute shall state the nature of the dispute and the corrective action necessary to remedy the dispute.
After Notice of Dispute, the parties shall first attempt to resolve any disputes by mediation. The parties shall agree on a single mediator. Mediation shall be conducted in Lancaster, California. Each party shall pay its own attorneys' fees and the costs of mediation shall be split equally between the parties.
If the dispute has not been resolved by mediation within 45 days after Notice of Dispute, or the parties are unable to agree to a mediator, within 15 days after Notice of Dispute, then, the dispute may, upon agreement of the parties be resolved by binding arbitration.
C. If any action at law or in equity is brought to enforce or interpret any provisions of this Agreement, the prevailing party in such action shall be entitled to reasonable attorney's fees, cost and necessary disbursements, in addition to suct other relief as may be sought and awarded.
19. Exhibits.
The following exhibits to which reference is made in this Agreement are deemed incorporated herein in their entirety:
Exhibit "A" Scope of Services Schedule
20. Governing Law.
This Agreement shall be governed by the laws of the State of California.
21. Effective Date.
This Agreement shall become effective as of the date set forth below on which the last of the parties, whether City or Consultant, executes said Agreement. (Signatures begin on next page.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and attested by their respective officers thereunto duly authorized
CITY OF LANCASTER
LANCASTER, CALIFORNIA
By:
Trolis Niebla, City Manager
Dated:
FTI CONSULTING, (SC) INC.
WASHINGTON, D.C.
By:
Chris Tucker, Global Energy Sector Lead
Dated:
ATTEST:
Andrea Alexander, City Clerk
APPROVED AS TO FORM:
City Attorney
CONTRACT SUBMISSION APPROVAL:
Department Head
Strategic Communications
F T 555 12th Street NW, #700, Washington, DC 20004
CONSULTING T +1 (202) 312-9100 F +1 (202) 312-9101
EXHIBIT A
To: City of Lancaster, CA
From: FTI Consulting
Date: December 18, 2024
RE: FTI Consulting Extension and Scope of Work
FTI Consulting ("FTI) appreciates the opportunity to continue supporting the City of Lancaster, CA, with its communications and design requirements across several programs and initiatives to help amplify the City of Lancaster as a leading municipality fostering entrepreneurship, innovation, technology and business partnerships. We have provided communications and design support to the City of Lancaster since June 2021 across hydrogen & clean energy, reputation management, and digital & insights workstreams and are excited to continue this collaboration.
At the request of the City of Lancaster staff, we are submitting this scope of work and budget to support projects under the City's community safety and beautification imperatives. This memo will serve as Exhibit A to the RFP contract that the City selected FTl for.
Team Structure
FTI will continue to use the below team structure to support the City of Lancaster. Peter Thompson will continue to serve as the main point of contact and liaison between city staff and the FTI team, working closely with relevant workstream leads. Jeff Bechdel will provide senior oversight and advice, including on contractual and other key matters.
Account Oversight: Jeff Bechdel, Managing Director
Hydrogen & Clean Energy Corporate Reputation Digital & Insights Peter Thompson, Director Hamm Hooper, Senior Ryan Tippery, Creative Zac Porter, Consultant Director Strategist, Shelly Liu, Director Jessica Delgado, Senior
Consultant
Scope of Work
Proposed Support
FTI will continue to support the City of Lancaster on strategic communication matters with the goal of bolstering the City 57 mil continue to supon the ily of laste on strei conni, ation m.
The scope of work below proposes a continuation of this work to provide support for the strategic imperatives of the City of Lancaster. The deliverables below are what FTI can feasibly produce on a monthly basis within the City's budget.
Deliverables and resources can be shifted based on needs and priorities. • Press Releases: Draft and finalize 2-3 press releases, distribute press releases and conduct media outreach.
• Media Outreach: Conduct 1-2 proactive media pitches, develop pitch and media list Weekly Activity Tracker: Develop weekly activity tracker • Monthly Client Call: Conduct monthly client call, develop agenda and share next steps • Internal Weekly Call: Conduct weekly internal call to ensure alignment on action items FTI Consulting, Inc. www.fticonsulting.com
CONSULTING
• Social Content Calendar: Draft post copies, design accompanying static creative assets, schedule posts when needed (3-5 posts)
• Fact Sheets/Print Collateral: Develop content and layout of ad-hoc visual collateral (1 asset) Budget
FTI will work on a time and materials basis with an agreed cap of $260,000, with a monthly retainer of $20,000 for the scope of work, which will cover a period of 12 months, as well as an additional $20,000 to cover press release distribution services over the contract term. The City of Lancaster will provide the necessary direction on FTI deliverables within the framework laid out above.
FTI will bill at the applicable rates and invoice at the end of each month. FTI will provide routine budget updates to the City of Lancaster.
ETI Hourly Charge-Out Rates
Sr. Managing Director/Sr. Advisor $750-$805/hour
Managing Director $670-$720/hour
Sr. Director $585-$645/hour
Director $483-$535/hour
Sr. Consultant $375-$410/hour
Consultant $270-$310/hour
Administration $100/hour
For Agreements
LEVINE ACT DISCLOSURE.
Califomia Goverment Code section 84308 ("Levine Act") requires a party to a contract other than competitively bid, labor, orpersonal employment contract, to disclose any contribution of more than $250 that the party (ortheir agent) has made to a memberof the City Council orany otherofficerof the City as defined in the Levine Act within the prior 12 months. The Levine Act also prohibits for 12 months following a final decision, a party (or theiragent) from making a contribution of more than $250 to any memberof the City Council orany otherofficeras defined in the Levine Act who may participate in the making of this Agreement.
A. By its signature on this Agreement, FTI CONSULTING (SC) INC. represents and warrants [select one]:
• Neither FTI CONSULTING (SC) INC. norany agent acting on behalf of FTI CONSULTING (SC) INC. TO} has, within the 12 months preceding the commencement of negotiations of this Agreement, made any political contribution of more than $250 to any memberof the City Council orany otherofficeras defined in the Levine Act who may have participated in the making of this Agreement.
OR
• FTI CONSULTING (SC) INC. (oran agent acting on behalf of FTI CONSULTING (SC) INC. has made a political contribution of more than $250 to:
Identify the person(s) oragents) who made the contribution:
Identify the City officers) who received the contribution:
-
B. By its signature on this Agreement, FTI CONSULTING (SC) INC. further represents and warrants [select one]:
• Neither FTI CONSULTING (SC) INC. norany agent orprincipal acting on behalf of FTI CONSULTING (SC) VC. intends, within the 12 months following the execution of this Agreement, to make any political contribution ( ore than S250 to any memberof the City Council orany otherofficeras defined in the Levine Act who may hav OR
• FTI CONSULTING (SC) INC. (oran agent acting on behalf of FTI CONSULTING (SC) INC.) intends to make a political contribution of more than $250 to:
Identify the person(s) oragents) who will make the contribution:
Identify the City officers) who will receive the contribution: