HomeMy WebLinkAboutEmanuels Jones and Associates; 2015-11-02;AGREEMENT FOR PROFESSIONAL LEQSLATIVE SERVICES
EMANUELS JONES AND ASSOCIATES ,
tIS AGREEiyiENT is made, and entered into as of ttie day of
., 20O, by and between ttie CITY OF CARLSBAD, a municipal
corporation, ("City"), and David A. Jones and Denise M. Jones doing business as Emanuels Jones
and Associates ("Contractor").
RECITALS
A. City requires the professional services of a legislative advocate and advisor for
assistance with state lobbying and legislative platform development, with experience in state
matters, including the state budget, legislative processes and negotiation with various state
agencies.
B. Contractor has the necessary experience in providing professional legislative
services and advice related to state matters.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree asfollows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A", which is incorporated by this reference in
accordance with this Agreement's terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of one year from the date first above
written. The City Manager may amend the Agreement to extend it for two additional one year
periods or parts thereof. Extensions will be based upon a satisfactory review of Contractor's
performance. City needs, and appropriation cf funds bythe City Council. The parties will prepare
a written amendment indicating the effective date and length ofthe extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term will be
forty-five thousand five hundred fifty dollars ($45,550). No other compensation for the Services
will be allowed except for items covered by subsequent amendments to this Agreement. If the
City elects to extend the Agreement, the amount shall not exceed forty-five thousand five hundred
fifty dollars ($45,550) per Agreement year. The City reserves the right to withhold a ten percent
(10%) retention until City has accepted the work and/or Services specified in Exhibit "A".
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Incremental payments, if applicable, should be made as outlined in attached Exhibit "A".
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City's election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorneys
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney's fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City's self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination ofthis Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor's
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
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carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California's List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best's Key Rating Guide of at least "A:X"; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coveraqe and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits ofthe
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate.
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insired.
10.1.1 Commercial General Liabilitv Insurance. $2,000,000 combined single-limit per
occurrence for bodily injury, personal injury and property damage. Ifthe submitted policies contain
aggregate limits, general aggregate limits will apply separately to the work underthis Agreement
or the general aggregate will be twice the required per occurrence limit.
10.1.2 Workers' Compensation and Emplover's Liabilitv. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coveraae. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in orderto maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
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11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended fl-om time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor's records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For Citv For Contractor
Name KPrp^ Name DN^^.^ TW^^
Title \ J^-^>g^(l-J<^^ CAAN^ MfV>ot>v.(otsOjitle Pc-as v D£.v:>-v
Department CU^ry^ ^A^N>AWfL^s, *^^c£Address V:L ^S>'oLv-re ^ov^
City of Carlsbad 'S^?:JlaJ^^><;^^•c-^> , C-X ^ ST^i M
Address poo 0><»..<jbC^ Vh^ Phone No. *^V(o - M*-\M - ^1^^^
Oyg-4^<;/Vp,,r>^ cA Email C^^^^ S^e t^f.y^S'^JaA^^.Ciof^
Phone No. - ^3.<|^-T-S
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all four categories.
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinancesand regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws.
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ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements ofthe Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not othenwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be fon/varded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. Ifthe resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be fonwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination. Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
underthis Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making ofthis Agreement. For breach or violation
ofthis warranty. City will have the rightto annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or othenwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
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22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as setforth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Govemment Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall notbe unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the temns
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
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CONTRACTOR
By:
(sign h^e)
(print name/title)
CITY OF CARLSBAD, a municipal
corporation of the State of California
By:
Interim City Manager
Kathryn B. Dodson, PhD
ATTEST:
(signhere) BARBARA ENG
'^^H'-^ ](y^^ , ^ Pir^^/(^4- City Clerk
(print nanne/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation. Agreement must be signed by one corporate officer from each of the following
two groups.
Group A
Chairman,
President, or
Vice-President
Group B
Secretary,
Assistant Secretary,
CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY:
Assistant City Attorney
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Exiiibit "A"
SCOPE OF WORK
The Scope of Work to be performed by Emanuels Jones and Associates (Contractor) over a
one year period includes:
For each Legislative Session, Contractor will provide all of the items outlined below, at a
minimum including:
(a) Assist City Council and staff in devebping legislative platform and strategies to
successfully implement the City's legislative and administrative agency program.
(b) Review proposed administrative rules and regulations. Identify rule makings that
impact City of Carlsbad and alert City staff to impacts via e-mail or phone and provide
additional supplenrental information in a timely manner.
(c) Represent and\or testify on behalf ofthe City at meetings or hearings with state
agencies, boards, commissions and other legislative bodies. Prepare briefing
materials and arrange meetings for Council Members and City staff with legislators
and members ofthe Administration.
(d) Read all bills as introduced and all subsequent amendments. Identify legislation that
impacts the City of Carlsbad; and alert City staff to relevant legislation via e-mail or
phone and provide additional supplemental information in a timely manner, including
bill text, committee staff analyses and analyses ofthe Legislative Analyst.
(e) Track and report on legislation which the City has targeted with a support, oppose or
watch position and report on the status (including changes due to amendments) of all
bills on which the City has an adopted position.
(f) Provide City staff with advance notice of hearings and votes relating to priority issues
and bills as identified bythe City.
(g) Maintain the effective professional and personal relationship with the City's legislative
delegation and their key staff.
(h) Provide timely updates on key priority issues such as budget negotiations, federal
stimulus moneys, grant availability, leadership changes, emergency declarations or
other state actions which may impact the City.
(i) When the City sponsors legislation (1-3 per session), this firm will:
a. Coordinate drafting of legislation, seek legislative author or co-authors and seek
co-sponsors and support from other Sacramento based lobbying organizations
and other cities, including the League of Cities and the California Municipal
Utilities Association.
b. Meet with opponents and legislative consultants to understand the nature of
opposition and possibilities for mutually agreeable amendments. Draft
amendments if appropriate.
c. Arrange for City officials to meet with legislative committee chairs, committee
members and staff consultants (including party caucus stafO in advance of
committee hearing and vote and assist City officials in preparation of hearing
testimony.
d. Lobby committee members individually for support vote.
e. Arrange for City officials to meet with the Governor's Office, Department of
Finance and relevant state departments and elected officials.
f. Prepare support letters to Assembly and Senate floors. Lobby floor votes. And
prepare "request for signature" letter to Governor.
(j) When the City seeks a budget appropriation (up to two per year), we will follow the
path of tasks outlined above as modified forthe budget adoption process.
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(k) Identify state grant programs that provide funding for city programs. Provide concise
information on funding availability and timelines. Monitor and assist the City through
the application process.
(I) Lobby on behalf of the City for all positions and all other non-sponsorship bills,
(m) Communicate position to City's legislators via letter and when feasible in person and
individually or in coordination with allied citiesi the League of California Cities, or
Associations, present testimony before legislative committee on City's position. When
appropriate, meet with committee consultants, committee chair and committee
members to advance the City's position,
(n) When requested, arrange for City officials to present testimony and meet with
committee chair and members in advance ofthe hearing date and assist City officials
in preparation of testimony before legislative committees,
(o) As requested, assist in the preparation and delivery of written correspondence,
materials and presentations for advocacy on behalf of the City for legislative
committees. Assembly and Senate floor and the Governor, as well as to executive
departments and/or Federal officials,
(p) Provide unlimited general legislative inquiry service. Respond to City staff questions
about legislation, committee analyses or impact of legislation on the City of Carlsbad.
Be available by telephone, fex or e-mail for direct consultation on any matter relating
to state legislative or administrative matters,
(q) Prepare and file all applicable FPPC lobbying documents and reports for the City of
Carlsbad.
(r) Provide work space in office for City officials and staff when visiting Sacramento.
(s) Training ~ This firm will conduct bi-annual scheduled training of City staff on the
legislative process, if requested.
(t) Attendance at City Council ~ This firm will attend (by conference call or in person if
requested and when possible) and brief the City Council.
(u) Communication with individual City Staff and Council Members ~ This firm will travel
to the City and meet all City Department heads and individual council members up to
once per year to discuss the City's priority issues, legislative program, and their areas
of particular interest and ensure our lines of communication are effective.
EJ&A will follow this general schedule for task completion:
Tasks to be completed each month:
- Read all bills as introduced and all subsequent amendments, alert City staff to relevant
legislation.
- Track and review all bills monitored by the City and take action as needed.
- Track and review administrative rule makings, send to City for review and action.
- Track and review grant and funding opportunities, send to City for review and action.
- Provide timely updates on priority issues and City priorities.
- Respond to City's inquiries as often as needed.
- Participate in monthly or bi-monthly calls with City staff if requested.
- Prepare weekly reports and monthly summary for City on all bills, rule makings, grant
opportunities, and priority issues.
- Track activity for FPPC filings, complete quarterly filings.
- Attend meetings and participate in strategies sessions with important organizations
including the League of California Cities
- Interface with City contractors on technical issues as required.
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Tasks to be completed during these specific months:
November- December 2015:
- Travel to City of Carlsbad to meet with elected and appointed officials (including all
department directors and appropriate staff) to give an overview of work to be completed
on behalf of the City, assess needs, identify priorities, and assist in development of the
City's legislative platform, develop legislative proposals and priorities and planning
strategy for next legislative year.
- Coordinate drafting of legislation as well as development of position papers, background
and talking points, as needed. Then identify potential authors for legislation.
- Coordinate development of budget items, as well as de\«lopment of position papers,
background and talking points, as needed.
January- February 2016
- Secure legislative authors for sponsored bills
- Access budget issues and seek to insert City's budget priorities in process
- Schedule 'meet and greets' for City's legislators, bringing City staff to Sacramento if
beneficial for sponsored bills or City priorities.
- Summarize Governor's proposed budget for impacts to the City.
February- August 2016
- Testify on behalf of the City at all meetings or hearings with state agencies, boards,
commissions and other legislative bodies as often as needed.
- Arrange for City officials to present testimony and meet with members, as needed
- Assist in the preparation of letters and briefing materials on behalf of the City for
legislature, as needed
September- October 2016
- Provide detailed summaries of all legislative activity and status of all bills for the year.
- Assist in the preparation of letters and briefing materials submitted to the Governor
requesting signatures or vetoes on legislation, as needed
- Travel to City of Carlsbad to meet with elected and appointed officials, to present an
overview of work completed on behalf of the City, to discuss potential revisions to the
City's legislative platform, and to initiate planning forthe next legislative session.
FEES AND EXPENSES
The total cost of our services will not exceed $45,550 annually.
• Fees for Professional Services will be billed incrementally at $3,600 per month.
• Expenses will be billed for FPPC filing and travel only.
FPPC Expense will not exceed be $350 per year and will be billed incrementally at
$75 per quarter, plus an initial filing fee of $50 per legislative session.
- Actual travel expenses for city requested and pre-approved travel not to exceed
$2,000 per year.
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