AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made and entered into this _day of
, 2024, 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 Thomas E. Lewis, Attorney at Law, whose address of record is 806 West 19" Street, Merced, California 95340, (hereinafter referred to as "Attorney").
WHEREAS, City desires to retain an independent Hearing Officer for the City's Administrative Citation Program and parking citation appeals; and, WHEREAS, Attorney represents that it possesses the professional skills to provide the 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 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 work outlined in the Scope of Services shall be completed in a timely manner and in accordance with any time periods required by law, and meeting all procedural and substantive due process requirements pursuant to the Merced Municipal Code, the City of Merced Administrative Policy and Procedure entitled, "A-17 Procedure on Parking Violations," and the California Vehicle Code, including, but not limited to sections 40200 through 40230 ("Procedure on Parking Violations").
3. TERM OF AGREEMENT. The term of this Agreement shall
commence on July 1, 2024, and shall continued unless mutually terminated by the parties or terminated in accordance with the provisions of Section 13 of this Agreement.
IIVM-MERFILE01 Attorney Agreements\City Attorney |2024 PSA - Thomas Lewis Re Hearing Officer.docx 1 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 under the Scope of Services, in accordance with the Attorney's rate of Two Hundred Twenty-Five Dollars ($225.00) per hearing per case.
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, specifications, 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.
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 IIVM-MERFILE01 Attomey Agreements|City Attorney\2024\PSA - Thomas Lewis Re Hearing Officer.docx 2 indemnify, protect, defend, and hold harmless the City for the payment of any 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 Attorney's Services, to the fullest extent permitted by law, Attorney 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 Attorney (and its Subconsultants), are responsible for such damages, liabilities and costs on a comparative basis of fault between the Attorney (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, Attorney 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 expert 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 Attorney or by any individual or City for which Attorney is legally liable, including, but not limited to officers, agents, employees, or subcontractors of Attorney.
10. 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.
IVM-MERFILE01/AttorneylAgreementslCity Attorney\2024IPSA - Thomas Lewis Re Hearing Officer.docx 3 b. 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 (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 anc shall add an additional insured endorsement form acceptable t the City naming the City of Merced, its officers, employees, gents and volunteers for each year thereafter for at least thre 3) vears after completion of the work. Copies of the annu renewal and additional insured endorsement form shall be sent to the City within thirty (30) days of the annual renewal.
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.
IIVM-MERFILE01 Attorney/Agreements\City Attorney 2024IPSA - Thomas Lewis Re Hearing Officer.docx 4 (ili) 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.
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. 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. PREVAILING WAGES.
A. Labor Code Compliance. If the work performed under this Agreement falls within Labor Code Section 1720(a)(1) definition of a "public works" the Attorney agrees to comply with all of the applicable provisions of the Labor Code including, those provisions requiring the payment of not less than the general prevailing rate of wages. The Attorney further agrees to the penalties and IIVM-MERFILE01 Attorney/Agreements\City Attorney|2024\PSA - Thomas Lewis Re Hearing Öfficer.docx 5 forfeitures provided in said Code in the event a violation of any of the provisions occurs in the execution of this Agreement.
B. These wage rate determinations are made a specific part of this Agreement by reterence pursuant to Labor Code Section 1773.2. General Prevailing Wage Rate Determinations may be obtained from the Department of Industrial Relations Internet site at http://www.dir.ca.gov/.
C. After award of the Agreement, and prior to commencing work, all applicable General Prevailing Wage Rate Determinations, if applicable, are to be obtained by the Attorney from the Department of Industrial Relations. Theses wage rate determinations are to be posted by the Attorney at the job site in accordance with Section 1773.2 of the California Labor Code.
Attorney agrees to include prevailing wage requirements, if applicable, in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771.
12. ASSIGNABILITY OF AGREEMENT. It is understood and agreed that this Agreement contemplates personal performance by the Attorney and is 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.
13. 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.
14. 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 Attorney in the employment of persons to work under this contract because of race, color, national origin, ancestry, disability, sex or religion of such person.
IIVM-MERFILE01 \Attorney Agreements\City Attorney 2024\PSA - Thomas Lewis Re Hearing Officer.docx 6 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 delined 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.
15. 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.
16. INCONSISTENT OR CONFLICTING TERMS IN AGREEMENT
AND EXHIBITS. In the event of any contradiction or inconsistency between any attached documents) or exhibits) incorporated by reference herein and the provisions of the Agreement itself, the terms of the Agreement shall control.
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.
17. 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.
18. VENUE. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this agreement shall be held exclusively in a state court in the County of Merced.
VM-MERFILE01 Attorney\Agreements|City Attorney 2024UPSA - Thomas Lewis Re Hearing Officer.docx 7 19. AMENDMENT. This Agreement shall not be amended, modified, or otherwise changed unless in writing and signed by both parties hereto.
20. 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.
21. 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.
22. 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.
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:_
D. Scott McBride
City Manager
ATTEST:
D. SCOTT MCBRIDE, CITY CLERK
BY:
Assistant/Deputy City Clerk
/IVM-MERFILE01/Attorney Agreements\City Attorney 2024 PSA - Thomas Lewis Re Hearing Officer.docx 8 APPROVED AS TO FORM:
CRAIG J. CORNWELL, CITY ATTORNEY
Cornell 5/14/2024
BY: Are
City Attorney Date
ACCOUNT DATA:
M. VENUS RODRIGUEZ, FINANCE OFFICER
BY:
Verified by Finance Officer
ATTORNEY
Про
BY:
ThomasE. Lewis
Taxpayer I.D. No. 555-82-1000
ADDRESS: 806 West 19th Street
Merced, CA 95340
TELEPHONE: (209) 354-3500
FAX: (209) 354-3502
E-MAIL: [email protected]
IIVM-MERFILE01 AttorneylAgreements\City Attorney|2024\PSA - Thomas Lewis Re Hearing Officer.docx 9 SCOPE OF SERVICES
Attorney to perform the following legal services:
Act as the Hearing Officer for appeals by citizens appealing citations issued by City of Merced employees pursuant to the Administrative Citation Program.
2. Act as the Hearing Officer for appeals by citizens challenging parking citations issued by City of Merced employees. Parking citations may include allegations concerning equipment violations in addition to parking violations.
3. After the hearing is held, Attorney shall prepare a Decision. Attorney will mail the Decision to the Appellant via certified U.S. mail, providing a copy of the Decision to the City via email. 11VM-MERFILE01/Attomey Agreements\City Attorney|2024\PSA - Thomas Lewis Re Hearing Officer.docx 10