AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this fte day of Ap'il - 2021, by and between the City of Merced, a California Charter Municipal Corporation, whose address of record is 678 West 18'h Street, Merced, California 95340, (hereinafter referred to as "City") and Lozano Smith, LLP, a Limited Liability Partnership, whose address of record is 7404 Spalding Avenue, Fresno, California 93720-3370 (hereinafter referred to as "Attorney").
WHEREAS, City is undertaking a project related to employer-employee relations; and,
WHEREAS, Attorney represents that it possesses the professional skills to provide the specialized legal services in connection with said project.
NOW, THEREFORE, the parties hereto, in consideration of the mutual covenants hereinafter recited, hereby agree as follows:
1. SCOPE OF SERVICES. The Attorney shall furnish the following services: Attorney shall provide the legal services described in Exhibit "A". attached hereto.
No additional services shall be performed by Attorney unless approved in advance in writing by the City, stating the dollar value of the services, the method of payment, and any adjustment in contract time. All such services are to be coordinated with City and the results of the work shall be monitored by the City Attorney or her designee. However, the means by which the work is accomplished shall be the sole responsibility of the Attorney.
2. TIME OF PERFORMANCE. All of the specialized legal services shall be performed and completed in accordance with the direction provided by City.
3. TERM OF AGREEMENT. The term of this Agreement shall be for three years commencing upon the day first above written. The City shall have the option to extend this Agreement for two one (1) year terms.
4. COMPENSATION. Payment by the City to the Attorney for actual services rendered under this Agreement shall be made upon presentation of an invoice detailing services performed, in accordance with the fee schedule set forth in Exhibit "B" attached hereto and incorporated herein by reference. The Attorney X: AgreementsiCity Amorey 202/PSA-Lozano Smith-Labor Relations doca 1 agrees to provide all services required under the Scope of Services in Exhibit "A" within the compensation amount set forth in Exhibit "B". For Attorney's services rendered under this Agreement, City shall pay Consultant the not to exceed sum of $100,000.00.
5. METHOD OF PAYMENT. Compensation to Attorney shall be paid by the City after submission by Attorney of an invoice delineating the services performed.
6. RECORDS. It is understood and agreed that all plans, studies, specitications, data magnetically or otherwise recorded on computer or computer diskettes, records, files, reports, etc., in possession of the Attorney relating to the matters covered by this Agreement shall be the property of the City, and Attorney hereby agrees to deliver the same to the City upon termination of the Agreement.
It is understood and agreed that the documents and other materials including but not limited to those set forth hereinabove, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
7. ATTORNEY'S BOOKS AND RECORDS. Attorney shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Attorney to this Agreement. Any records or documents required to be maintained shall be made available for inspection, audit and/or copying at any time during regular business hours, upon oral or written request of the City.
INDEPENDENT CONTRACTOR. It is expressly understood that Attorney is an independent contractor and that its employees shall not be employees of or have any contractual relationship with the City. Attorney shall be responsible for the payment of all taxes, workers' compensation insurance and unemployment insurance. Should Attorney desire any insurance protection, the Attorney is to acquire same at its expense.
In the event Attorney or any employee, agent, or subcontractor of Attorney providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Attorney shall indemnify, protect, defend, and hold harmless the City for the payment of any X: Agreements City Attomey 2021 PSA-Lozano Smith-L.abor Relations.doct 2 employee and or employer contributions for PERS benefits on behalf of Attorney or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
9. INDEMNITY.
A. Indemnity for Professional Liability. When the law establishes a professional standard of care for Consultant's Services, to the fullest extent permitted by law, Consultant shall indemnify, protect, defend, and hold harmless City and any and all of its officials, employees and agents from and against any and all losses, liabilities, damages, costs, and expenses, including legal counsel's fees and costs but only to the extent the Consultant (and its Subconsultants), are responsible for such damages, liabilities and costs on a comparative basis of fault between the Consultant (and its Subconsultants) and the City in the performance of professional services under this agreement.
B. Indemnity for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Consultant shall indemnify, defend, and hold harmless City, and any and all of its employees, officials and agents from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including legal counsel's fees and costs, court costs, defense costs, and expeit witness fees), where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Consultant or by any individual or City for which Consultant is legally liable, including, but not limited to officers, agents, employees, or subcontractors of Consultant.
I0. INSURANCE. During the term of this Agreement, Attorney shall maintain in full force and effect at its own cost and expense, the following insurance coverage:
a. Workers' Compensation Insurance. Full workers' compensation insurance shall be provided with a limit of at least One Hundred Thousand Dollars ($100,000) for any one person and as required by law, including Employer's Liability limits of $1,000,000.00 per accident. The policy shall be endorsed to waive the insurer's subrogation rights against the City.
X:Mgreemenis|City Allomey 20211PSA-Lozano Smith-Lahor Relations.docx 3 General Liability.
(i) Attorney shall obtain and keep in full force and effect general liability coverage at least as broad as ISO commercial general liability coverage occurrence Form CG 0001.
(ii) Attorney shall maintain limits of no less than One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage.
(iii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects liability arising out of work or operations performed by or on behalf of the Attorney.
(iv) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Attorney and its sub- contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
(V) Attorney shall maintain its commercial general liability coverage for three (3) years after completion of the work and shall add an additional insured endorsement form acceptable to the City naming the City of Merced, its officers, employees. agents and volunteers for each year thereafter for at least three (3) years after completion of the work. Copies of the annual renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal. c. Automobile Insurance.
(i) Attorney shall obtain and keep in full force and effect an automobile policy of at least One Million Dollars ($1,000,000) per accident for bodily injury and property damage.
(ii) The City, its officers, employees, volunteers and agents are to be named as additional insureds under the policy, as respects automobiles owned, leased, hired or borrowed by the Attorney.
X./Agreements City Altomey 20211PSA-Lozano Smith-Labor Relations dock (iii) The policy shall stipulate that this insurance will operate as primary insurance for work performed by Attorney and its sub- contractors, and that any other insurance or self insurance maintained by City or other named insureds shall be excess and non-contributory.
d. Professional Liability Insurance. Attorney shall carry professional liability insurance appropriate to Attorney's profession in the minimum amount of One Million Dollars ($1,000,000). Architects and engineers' coverage is to be endorsed to include contractual liability.
e. Qualifications of Insurer. The insurance shall be provided by an acceptable insurance provider, as determined by City, which satisfies all of the following minimum requirements:
(i) An insurance carrier admitted to do business in California and maintaining an agent for service of process within this State; and,
(ii) An insurance carrier with a current A.M. Best Rating of A: VII or better (except for workers' compensation provided through the California State Compensation Fund).
f. Certificate of Insurance. Attorney shall complete and file with the City prior to engaging in any operation or activity set forth in this Agreement, certificates of insurance evidencing coverage as set forth above and which shall provide that no cancellation or expiration by the insurance company will be made during the term of this Agreement, without thirty (30) days written notice to City prior to the effective date of such cancellation-—including cancellation for nonpayment of premium.
g. Notwithstanding any language in this Agreement to the contrary, Attorney shall be entitled to be paid pursuant to the terms of this Agreement until Attorney has obtained the insurance required by this Section 10 and provided documentation of said insurance to the City. In addition to any other remedies City may have, City reserves the right to withhold payment if Attorney's insurance policies are not current.
11. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Attorney and is KilAgreements City Atomicy|202 PSA-Lozano Smith-Labor Relations.doen 5 based upon a determination of its unique personal competence and experience and upon its specialized personal knowledge. Assignments of any or all rights, duties or obligations of the Attorney under this Agreement will be permitted only with the express written consent of the City.
12. TERMINATION FOR CONVENIENCE OF CITY. The City may
terminate this Agreement any time by mailing a notice in writing to Attorney that the Agreement is terminated. Said Agreement shall then be deemed terminated, and no further work shall be performed by Attorney. If the Agreement is so terminated, the Attorney shall be paid for that percentage of the phase of work actually completed, based on a pro rata portion of the compensation for said phase satisfactorily completed at the time the notice of termination is received.
13. CONFORMANCE TO APPLICABLE LAWS. Attorney shall
comply with its standard of care regarding all applicable Federal, State, and municipal laws, rules and ordinances. No discrimination shall be made by Attomey in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
Attorney hereby promises and agrees to comply with all of the provisions of the Federal Immigration and Nationality Act (8 U.S.C.A. 1101 et seq.), as amended; and in connection therewith, shall not employ unauthorized aliens as defined therein. Should Attorney so employ such unauthorized aliens for the performance of work and/or services covered by this Agreement, and should any agency or instrumentality of the federal or state government, including the courts, impose sanctions against the City for such use of unauthorized aliens, Attorney hereby agrees to, and shall, reimburse City for the cost of all such sanctions imposed, together with any and all costs, including attorneys' fees, incurred by the City in connection therewith.
14. WAIVER. In the event that either City or Attorney shall at any time or times waive any breach of this Agreement by the other, such waiver shall not constitute a waiver of any other or succeeding breach of this Agreement, whether of the same or any other covenant, condition or obligation. Waiver shall not be deemed effective until and unless signed by the waiving party.
15. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached documents) or exhibit(s) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
X: Agreements\City Auomey 20211PSA-Lozano Smitb-Labor Relations. doce 6 Any exhibit that is attached and incorporated by reference shall be limited to the purposes for which it is attached, as specified in this Agreement. Any contractual terms or conditions contained in such exhibit imposing additional obligations on the City are not binding upon the City unless specifically agreed to in writing, and initialed by the authorized City representative, as to each additional contractual term or condition.
16. AMBIGUITIES. This Agreement has been negotiated at arms' length between persons knowledgeable in the matters dealt with herein. Accordingly, any rule of law, including, but not limited to, Section 1654 of the Civil Code of California, or any other statutes, legal decisions, or common-law principles of similar effect, that would require interpretation of any ambiguities in this Agreement against the party that drafted this Agreement is of no application and is hereby expressly waived.
17. GOVERNING LAW AND VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California, including the California Rules of Professional Conduct. Any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
18. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
19. INTEGRATION. This Agreement constitutes the entire
understanding and agreement of the parties and supersedes all previous and/or contemporaneous understanding or agreement between the parties with respect to all or any part of the subject matter hereof.
20. AUTHORITY TO EXECUTE. The person or persons executing this Agreement on behalf of the parties hereto warrants and represents that he/she/they has/have the authority to execute this Agreement on behalf of their entity and has/have the authority to bind their party to the performance of its obligations hereunder.
21. COUNTERPARTS. This Agreement may be executed in one or more counterparts with each counterpart being deemed an original. No counterpart shall be deemed to be an original or presumed delivered unless and until the counterparts executed by the other parties hereto are in the physical possession of the party or parties seeking enforcement thereof.
X: Agreemens\City Automey/202/1PSA-Lozano Snish-Labor Relations does 7 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first above written.
CITY OF MERCED
A California Charter Municipal
Corporation
BY: StephanieR. Hut
City Manager
ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
CAL
MERCED,
BY:
Assistant/Deputy City Clerk
1889
APPROVED AS TO FORM:
CEOSPRATED AREN
BY huda a not 3k121
City Attorney Date
301533 PO# 1412107
ACCOUNT DATA:
BY: Vado
Verified by Finance Officer v-18152.
Funds available. 1g 3130121
001-0301-517-17-00 F23|31|24
#100,000.00
V: Agreements\City Allomey 2021\PSA-Lozano Smith-Labor Relations docx
ATTORNEY
LOZANO SMITH, LLP, A Limited
Liability Partnership
BY: Rassa ms
/ (Signature)
Karen M. Rezendes
(Typed Name)
Its:_ Managing Partner
(Title)
BY:
(Signature)
(Typed Name)
Its:
(Title)
Taxpayer I.D. No. 80-0874383
ADDRESS: 7404 Spalding Avenue
Fresno, CA 93720
TELEPHONE: 559-431-5600
FAX: 559-261-9366
E-MAIL: [email protected]
X: AgreementsiCity Altomey 20211P5A-Lovano Smith-i abor Relations doct
SCOPE OF SERVICES
1. Strategize, advise, lead and represent the City as its chief labor negotiator in negotiations regarding a successor Memorandum of Understanding between the City and each unit's representative employee organization.
2. Review existing MOU language and identify areas within the MOU that should be re-evaluated or renegotiated in the interests of the City.
3. Lead meet and confer sessions and consult on mandatory topics of bargaining and impacts with City staff and/or employee organizations.
4. Assist with drafting proposal language, perform necessary fact research, and assist in the formulation and preparation of cost analysis.
5. Assist in the preparation of negotiation strategy, provide advice regarding industry best practices and regional trends.
6. Consult with the Human Resources Director, and City Manager as needed, prior to and following bargaining sessions to provide updates and receive direction.
7. Review all materials submitted by employee organizations and assist in the preparation on any responses to union materials or questions.
8. Attend closed session meetings with City Council, the City Manager, and Human Resources Director to provide debriefing on the status of contract negotiations and receive direction as needed.
9. If necessary, advise the City on impasse procedures and represent the City in fact finding sessions.
10. Other employment related service as determined by the City Manager.
X:lAgreemenzsiCity Auomey|2021VPS.A-Lozano Stith-Labar Reintions dors
EXHIBIT A
LS Lozano Smith
ATTORNEYS AT LAW
PROFESSIONAL RATE SCHEDULE
FOR CITY OF MERCED
HOURLY PROFESSIONAL RATES
Client agrees to pay Attoney by the following standard hourly rate:
All Attorneys $ 250 per hour
Paralegal / Law Clerk $ 150 per hour
BILLING PRACTICE
Lozano Smith will provide a monthly, itemized Statement for services rendered. Time billed is broken into 1/10 (10) hour increments, allowing for maximum efficiency in the use of attorney time. Invoices will clearly indicate the department or individuals for whom services were rendered.
Written responses to audit letter inquiries will be charged to Client on an hourly basis, with the minimum charge for such responses equaling .5 hours. Travel time shall be prorated if the assigned attorney travels for two or more clients on the same trip.
COSTS AND EXPENSES
In-office copying/electronic comnunication printing S 0.25 per page Facsimile $ 0.25 per page
Postage Actual Lisage
Mileage IRS Standard Rate
Other costs, such as messenger, meals, and lodging shall be charged on an actual and necessary basis.
EXHIBIT B