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Resolution No. 10116RESOLUTION NO. 10,116 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A SERVICES AGREEMENT WITH SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES WHEREAS, the City of Vernon ("City") desires to retain the services of a consultant to provide, among other things, public affairs services relating to energy and environmental programs and community public information programs (the "Services"); and WHEREAS, the City has determined that Sugerman Communications Group, Inc. ("Sugerman"), a public affairs consulting firm, is qualified and capable of providing the Services required by the City; and WHEREAS, by memo dated December 2, 2009, the City Administrator recommends the City enter into an agreement setting forth the terms and conditions under which Sugerman will provide the Services for the sum of $15,750.00 per month plus out-of-pocket expenses not to exceed $1,000.00 per month for a total not to exceed amount of $201,000.00 for the period September 1, 2009 through August 31, 2010; and WHEREAS, the City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (b)(1) and (b)(7) of Section,2.27 of the Vernon City Code, it is in the public interest and necessity to enter into an agreement with Sugerman setting forth the terms and conditions for the performance of the Services to enhance services provided to the Vernon community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon does hereby find and determine that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Services Agreement between the City of Vernon and Sugerman for the Services (the "Agreement"), a copy of which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby authorizes the City Administrator, or his designee, to take whatever actions are deemed necessary or desirable for the purpose of implementing and carrying out the purposes of this Resolution and the transactions herein approved or authorized. SECTION 5: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to send a fully executed Agreement to: Sugerman Communications Group, Inc. c/o Freeman, Freeman & Smiley, LLP 3415 Sepulveda Blvd., Penthouse, Suite 1200 Los Angeles, CA 90034-6060 2 SECTION 6: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 7th day of December, 2009. ATTEST: M NUELA GIRON, C'ty Clerk Name: Hilario Gonzales Title: Mayor 3 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 10,116, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Monday, December 7, 2009, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this day of December, 2009, at Vernon, California. (S EAL ) w MANUELA GIRON, City Clerk - 4 - EXHIBIT A SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES COVER PAGE Contractor: Sugerman Communications Group, Inc. Responsible Principal of Contractor: Notice Information - Contractor: Notice Information - City: Commencement Date: Termination Date: Consideration: 12720-0001\1187747v5.doc Steven Sugerman, President Freeman, Freeman & Smiley, LLP 3415 Sepulveda Boulevard Penthouse, Suite 1200 Los Angeles, CA 90034-6060 Attention: Jack Lenack Phone: (310) 255-6176 Facsimile: (310) 391-4042 City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Donal O'Callaghan, City Administrator Telephone: (323) 583-8811 ext. 561 Facsimile: (323) 826-1408 September 1, 2009 August 31, 2010, unless extended pursuant to Section 1 Total not to exceed $201,000.00 (includes all applicable sales tax); and more particularly described in Exhibit B SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES THIS AGREEMENT is made and entered into as of December 7 , 2009 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Sugerman Communications Group, Inc., a California corporation ("Contractor"). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain public affairs services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a year-to-year basis at its discretion. Any services performed prior to the Effective Date listed above shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. (b) In the event that City renews this Agreement, Contractor may submit a proposal to increase its rates no later than thirty (30) days after receiving notice of City's intent to renew. Any increase in rates must be approved by City before such increase can take effect. If City fails to approve the proposed increase within thirty (30) days of receipt, Contractor may terminate the renewal by giving thirty (3.0) days written notice. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar circumstances and in a manner reasonably satisfactory to City. (c) Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, 2 12720-0001\1187747v5.doc officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this paragraph. (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the monthly fee and expense reimbursement set forth in Exhibit B ("Monthly Fee and Expenses"). The Monthly Fee and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including all labor, materials, delivery, tax, assembly, and installation, as applicable). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and `expenses. Invoices shall include the month for which the services were provided, the dates of such services, and a description of the services provided for that billing period. Each invoice shall include supporting documents as City may require. (b) Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt_of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. Section 5. Personnel. All persons performing the services under this Agreement shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. At any time, and for any reason or for no reason, City may request that Contractor replace any of Contractor's personnel. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. No access to City property for performance of the Services shall be permitted prior to delivery to City of proof of insurance paid and maintained by Contractor. Section 7. Contractor's Duties and Representations. Contractor represents, covenants and agrees as follows: (a) There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. 12720-0001 \1187747v5.doc (b) Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. Section 8. Independent Contractor. (a) Contractor is and shall at all times remain, as to City, a wholly independent contractor. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees, agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing services hereunder. Section 9. Termination. (a) Termination Right. Either Party may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the other Party at least fifteen (15) days prior written notice. Upon receipt of such notice, Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for work performed up to the time of termination, calculated on a pro rata basis for any partial months and Contractor shall submit an invoice to City as required under this Agreement. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, Contractor shall deliver all Confidential Information, as defined in Section 11 below, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's duties and activities hereunder. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 10. Limitation of City's Liability. City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the services required by this Agreement. In no event shall City be liable for anticipated profits or for 4 12720-0001\1187747v5.doc incidental, consequential or punitive damages. City shall not be liable for penalties of any description. Section 11. Confidential Status: Disclosure of Information. (a) Confidential Status; Disclosure of Information. All data, floor plans, designs, maps, surveys, drawings, models, reports, logs, documents, materials or other information developed or created by Contractor, received by Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. (b) Contractor's obligation not to disclose any Confidential Information shall not extend to information that: i. was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; ii. is or becomes generally known to the public without violation of this Agreement; . iii. is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or iv. information which is required to be disclosed pursuant to any court order or directive having the force of law. (c) The provisions of this section shall survive the termination of this Agreement. Section 12. Default. Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement immediately by written notice to Contractor. Section 13. Indemnification. The Parties agree and acknowledge that Contractor cannot undertake the process to verify all facts, information and materials supplied by City. Accordingly, City agrees to indemnify, defend and hold Contractor harmless from and' against any and all losses, claims, actions, damages, expenses (including reasonable attorneys' fees and costs) or liabilities ("Damages") which Contractor may incur as a result of any facts, information, materials, releases, reports, or information supplied to Contractor by, or on behalf of City, except when directly attributable to Contractor's negligence. City shall further indemnify, defend and hold Contractor harmless from and against any and all Damages sustained as a result of City's breach of the terms and conditions of this Agreement or City's negligence or intentional misconduct in connection with or relating to this Agreement or its performance or non-performance. Contractor shall indemnify, defend and hold City harmless from and against any and all Damages sustained as a result of Contractor's breach of the terms and conditions of 12720-0001\1187747v5.doc this Agreement or Contractor's negligence or intentional misconduct in connection with or relating to this Agreement or its performance or non-performance. The foregoing indemnification provisions in favor of City and Contractor are intended to extend to and cover City and Contractor's respective officers, officials, directors, shareholders, agents, employees and volunteers. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Section 14. Insurance. (a) Contractor shall at all times during the term of this Agreement carry, maintain and keep in full force and effect, a policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Contractor or Contractor's officers, employees, .or agents. (b) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive Vehicle Liability insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit, covering any vehicle utilized by Contractor in performing the services required by this Agreement, (c) Contractor agrees to maintain in force at all times during the performance of work under this Agreement workers compensation as required by law. (d) The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+; VI in the latest edition of Best's Insurance Guide. (e) Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractors expense, the premium thereon. (f) At all times during the term of this Agreement, Contractor shall maintain on file with the Risk Manager, a certificate or certificates of insurance, satisfactory to the City Attorney and Risk Manager, showing that.the aforesaid policies are in effect in the required amounts. Contractor shall, prior to commencement of work under this Agreement, file with the Risk Manager, such certificate or certificates. The policies of insurance required by this Agreement shall contain an endorsement naming the City as additional insured. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days prior written notice to City, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (g) The insurance provided by Contractor shall be primary to any coverage available to City, and any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers shall be excess of Contractor's insurance and shall not contribute with it. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation. Contractor hereby waives all rights of subrogation against City. 6 12720-000 1\1 187747v5.doc (h) Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City. Contractor shall either reduce or eliminate the deductibles or self - insured retentions with respect to City, or Contractor shall procure a bond guaranteeing payment of losses and expenses. Section 15. Assignment and Subcontracting. Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 16. Arbitration and Venue, Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 17. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 18. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, .without regard to its laws regarding choice of applicable law. Section 19. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire agreement and understanding between City, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by this Agreement. This Agreement may only be modified by a writing signed by both Parties. Section 20. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. Section 21. Force Majeure Neither party shall be considered in' default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any 12720-0001 \11 877470.doc other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 22. City Not Obligated to Third Parties. City shall not be obligated or liable under this Agreement to any party other.than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information — Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 25. Headings. Headings used in this Agreement are for convenience reference only and shall not affect the interpretation of the Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment; confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 27. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 28. Authority To Execute This Agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement, [Signatures Begin on Next Page]. 12720-0001 \1187747v5. doc IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City and California municipal corporation 0 HILARIO GONZALES Mayor ATTEST: MANUELA GIRON, City Clerk APPROVED AS TO FORM: LAURENCE S. WIENER, City Attorney 12720-0001\1187747v5.doc Sugerman Communications Group, Inc., a California corporation , ,S`'�i'��►• i Title: ple 4e:-, N a m Title:• EXHIBIT A EXHIBIT A SCOPE OF SERVICES Contractor will perform the following work pursuant to this Agreement: Public Information Officer • Create and manage public information program • Re -design City website • Support community partnerships • Support government relations Energy and Environmental Programs • Design and oversee strategic public affairs efforts • Support community relations activities • Develop website and informational materials • - Manage media relations • Support government relations These services are more specifically detailed on the following page detailing task, project areas, and hours, 10 12720-0001\1187747v5.doc Sugerman Communications Group estimates its monthly fee based on estimated work hours to complete the projected scope of work. To calculate the retainer SCG uses hourly billing rates for firm personnel ranging from $375 to $150 per hour. Public Information I Create and Manage Public Officer Information Program Re -design website Support Community/Strategic Partnerships Support Government Relations TOTAL: 23 hours per month $5,250 per month Energy and Design and Oversee Strategic Environmental Public Affairs Efforts Programs Support Community Relations Activities Develop Website and Informational Materials Manage Media Relations Support Government Relations TOTAL: 60 hours per month $10,500 per month T1 12720-0001 \1187747v5.doc EXHIBIT B EXHIBIT B MONTHLY FEE AND EXPENSES Contractor shall be paid $15,750.00 per month for Services. Contractor shall be reimbursed for out-of-pocket expenses not to exceed $1000.00 per month. Out-of-pocket expenses include telephone, facsimile transmission, mail, messenger charges, information retrieval, and travel expenses as appropriate to the Services provided by Contractor to meet its obligations under this Agreement. In the event the Parties mutually agree in a writing signed by both Parties that Contractor will perform additional services beyond those described in Exhibit A, those additional services shall be billed at the following hourly rates based upon the individual performing the services: Steve Sugerman: $375 Heather Herndon: $225 Nate Miller: $150 Emily Heidt: $125 12720-0001\118774M. doc ,E IR OFFICE OF THE CITY CLERK 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 December 9, 2009 Sugerman Communications Group, Inc. c/o Freeman, Freeman & Smiley, LLP 3415 Sepulveda Blvd., Penthouse, Suite 1200 Los Angeles, CA 90034-6060 Re: Services Agreement for Public Affairs Ladies and Gentlemen: Transmitted herewith is a fully executed agreement, as referenced above, approved by City Council on December 7, 2009, through Resolution No. 10,116. If you have any questions regarding this matter, please call Mr. Donal O'Callaghan at 323/583-8811 ext. 834. Very truly yours, Nelly Gir Pn City Clerk NG:dj c: D. O'Callaghan Purchasing Department Resolution No. 10,116 Agreement File No. 09-146 Exchusively Industrial SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES COVER PAGE Contractor: Sugerman Communications Group, Inc. Responsible Principal of Contractor: Steven Sugerman, President Notice Information - Contractor: Freeman, Freeman & Smiley, LLP 3415 Sepulveda Boulevard Penthouse, Suite 1200 Los Angeles, CA 90034-6060 Attention: Jack Lenack Phone: (310) 255-6176 Facsimile: (310) 391-4042 Notice Information - City: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attention: Donal O'Callaghan, City Administrator Telephone: (323) 583-8811 ext. 561 Facsimile: (323) 826-1408 Commencement Date: September 1, 2009 Termination Date: August 31, 2010, unless extended pursuant to Section 1 Consideration: Total not to exceed $201,000.00 (includes all applicable sales tax); and more particularly described in Exhibit B 12720-0001\ 1187747v5. doc SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES THIS AGREEMENT is made and entered into as of December 7 , 2009 ("Effective Date"), by and between the City of Vernon, a California charter City and California municipal corporation ("City"), and Sugerman Communications Group, Inc., a California corporation ("Contractor'). City and Contractor are collectively referred to herein as the "Parties." RECITALS A. City desires to have certain public affairs services provided as more fully set forth in the Scope of Services, attached hereto and incorporated herein as Exhibit A B. Contractor represents it is qualified and capable of furnishing the labor, materials, and expertise necessary to perform such services in accordance with the terms and conditions set forth in this Agreement. NOW, THEREFORE, the parties agree as follows: Section 1. Term and Time of Performance. (a) This Agreement shall commence upon the Commencement Date listed on the Cover Page, and shall remain and continue in effect through the Termination Date listed on the Cover Page, unless sooner terminated pursuant to the provisions of this Agreement. City may renew this Agreement on a year-to-year basis at its discretion. Any services performed prior to the Effective Date listed above shall for all purposes be deemed to have been performed pursuant to this Agreement, subject to the terms and conditions hereof. (b) In the event that City renews this Agreement, Contractor may submit a proposal to increase its rates no later than thirty (30) days after receiving notice of City's intent to renew. Any increase in rates must be approved by City before such increase can take effect. If City fails to approve the proposed increase within thirty (30) days of receipt, Contractor may terminate the renewal by giving thirty (30) days written notice. Section 2. Performance. (a) Contractor shall perform the services and tasks described and set forth in the Scope of Services, Exhibit A ("Services"). Additional services must be mutually agreed upon in writing signed by both Parties prior to performance of those additional services. (b) Contractor shall at all times faithfully, competently and to the best of its ability, experience, and talent, perform all Services under this Agreement in accordance with the standard of care and skill ordinarily exercised by members of the profession currently practicing in the same locality under similar circumstances and in a manner reasonably satisfactory to City. (c) Contractor shall keep itself informed of all local, state, and federal ordinances, laws and regulations which in any manner affect those employed by it or in any way affect the performance of its Services pursuant to this Agreement. Contractor shall at all times observe and comply with all such ordinances, laws and regulations. City, and its officers, 2 12720-0001 \1187747v5.doc officials, employees, agents or volunteers shall not be liable at law or in equity occasioned by failure of Contractor to comply with this paragraph. (d) Contractor will not be compensated for any work performed not specified in Exhibit A unless City authorizes such work in advance and in writing. Section 3. Compensation. (a) City agrees to compensate Contractor, and Contractor agrees to accept in full satisfaction for the services required by this Agreement, the monthly fee and expense reimbursement set forth in Exhibit B ("Monthly Fee and Expenses"). The Monthly Fee and Expenses shall constitute reimbursement of Contractor's fee for the services as well as the actual cost of any equipment, materials, and supplies necessary to provide the services (including all labor, materials, delivery, tax, assembly, and installation, as applicable). (b) Contractor shall be entitled to reimbursement only for those expenses expressly set forth in Exhibit B. Any expenses incurred by Contractor that are not expressly authorized by this Agreement will not be reimbursed by City. Section 4. Method of Payment. (a) Invoices. Contractor shall submit invoices monthly for services and expenses. Invoices shall include the month for which the services were provided, the dates of such services, and a description of the services provided for that billing period. Each invoice shall include supporting documents as City may require. (b) Payments by City. Payments of each invoice shall be made by City within thirty (30) days following receipt of each invoice as to all non -disputed fees. If City disputes any of Contractor's fees, it shall give written notice to Contractor within thirty (30) days of receipt of the disputed invoice. Any amounts in dispute shall be withheld until resolution. Section 5. Personnel. All persons performing the services under this Agreement shall have all the necessary technical expertise, permits, professional licenses, certificates, training, and other qualifications required by this Agreement or other applicable laws. Contractor shall provide City with said permits, licenses, and certificates at the request of City. At any time, and for any reason or for no reason, City may request that Contractor replace any of Contractor's personnel. Section 6. Access. Contractor shall comply with all reasonable access and other restrictions that City may impose. No access to City property for performance of the Services shall be permitted prior to delivery to City of proof of insurance paid and maintained by Contractor. Section 7. Contractor's Duties and Representations. Contractor represents, covenants and agrees as follows: (a) There are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services. 12720-0001\1187747v5.doc (b) Contractor presently has no interest and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of the Services contemplated by this Agreement. No person having any such interest shall be employed by or be associated with Contractor. Section 8. Independent Contractor. (a) Contractor is and shall at all times remain, as to City, a wholly independent contractor. The personnel performing the Services under this Agreement on behalf of Contractor shall at all times be under Contractor's exclusive direction and control. Neither City nor any of its officers, officials, employees, agents, or volunteers shall have control over the conduct of Contractor or any of Contractor's officers, employees, or agents except as set forth in this Agreement. Contractor shall not at any time or in any manner represent that it or any of its officers, employees, or agents are in any manner officers, officials, employees,' agents, or volunteers of City. Contractor shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. (b) No employee benefits shall be available to Contractor or its officers, employees, or agents in connection with the performance of this Agreement. Except for Consideration paid to Contractor as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Contractor for performing services hereunder for the City. City shall not be liable for compensation or indemnification to Contractor or its officers, employees, or agents for injury or sickness arising out of performing services hereunder. Section 9. Termination. (a) Termination Right. Either Party may, at any time, for any reason or for no reason, with or without cause, terminate this Agreement, by serving upon the other Party at least fifteen (15) days prior written notice. Upon receipt of such notice, Contractor shall immediately cease all work under this Agreement, unless the notice provides otherwise. (b) Payment Upon Termination. In the event this Agreement is terminated without cause pursuant to this section, City shall pay Contractor for work performed up to the time of termination, calculated on a pro rata basis for any partial months and Contractor shall submit an invoice to City as required under this Agreement. Contractor shall have no other claim against City by reason of such termination, including any claim for compensation. (c) Actions Subsequent to Termination. In the event of termination of this Agreement, Contractor shall deliver all Confidential Information, as defined in Section 11 below, to City within thirty (30) days after the termination of this Agreement. Contractor shall also take all such other action as City reasonably requires and shall cooperate with City to effectuate an orderly and systematic termination of Contractor's duties and activities hereunder. (d) All of the terms and conditions in the Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 10. Limitation of City's Liability. City's liability on any kind of claim for any loss or damage arising out of, in connection with, or resulting from this Agreement, shall in no case exceed the amount that would be paid to Contractor for the full performance of the services required by this Agreement. In no event shall City be liable for anticipated profits or for 4 12720-0001\1187747v5.doc incidental, consequential or punitive damages. City shall not be liable for penalties of any description. Section 11. Confidential Status; Disclosure of Information. (a) Confidential Status; Disclosure of Information. All data, floor plans, designs, maps, surveys, drawings, models, reports, logs, documents, materials or other information developed or created by Contractor, received by Contractor, or provided to Contractor for the performance of this Agreement ("Confidential Information") are deemed confidential and shall not be disclosed by Contractor to any third party without City's prior written consent. City shall grant consent if disclosure is legally required. All Confidential Information shall be returned to City upon the termination of this Agreement. Contractor's covenant under this section shall survive the termination of this Agreement. City may disclose to third parties any Confidential Information at its sole discretion. (b) Contractor's obligation not to disclose any Confidential Information shall not extend to information that: i. was in the possession of, or was rightfully known by, the Contractor without an obligation to maintain its confidentiality prior to receipt from City; is or becomes generally known to the public without violation of this Agreement; iii. is obtained without an obligation of confidentiality by the Contractor in good faith from a third party having the right to disclose it without an obligation of confidentiality; or iv. information which is required to be disclosed pursuant to any court order or directive having the force of law. (c) The provisions of this section shall survive the termination of this Agreement. Section 12. Default. Contractor's failure to comply with the provisions of this Agreement shall constitute a default. In the event that Contractor is in default under the terms of this Agreement, City shall have no obligation or duty to continue compensating Contractor for any work performed after the date of default and can terminate this Agreement immediately by written notice to Contractor. Section 13. Indemnification. The Parties agree and acknowledge that Contractor cannot undertake the process to verify all facts, information and materials supplied by City. Accordingly, City agrees to indemnify, defend and hold Contractor harmless from and" against any and all losses, claims, actions, damages, expenses (including reasonable attorneys' fees and costs) or liabilities ("Damages") which Contractor may incur as a result of any facts, information, materials, releases, reports, or information supplied to Contractor by, or on behalf of City, except when directly attributable to Contractor's negligence. City shall further indemnify, defend and hold Contractor harmless from and against any and all Damages sustained as a result of City's breach of the terms and conditions of this Agreement or City's negligence or intentional misconduct in connection with or relating to this Agreement or its performance or non-performance. Contractor shall indemnify, defend and hold City harmless from and against any and all Damages sustained as a result of Contractor's breach of the terms and conditions of 12720-0001\1187747v5.doc this Agreement or Contractor's negligence or intentional misconduct in connection with or relating to this Agreement or its performance or non-performance. The foregoing indemnification provisions in favor of City and Contractor are intended to extend to and cover City and Contractor's respective officers, officials, directors, shareholders, agents, employees and volunteers. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. Section 14. Insurance. (a) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive General Liability Insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence, combined single limit, against any personal injury, death, loss or damage resulting from the wrongful or negligent acts by Contractor or Contractor's officers, employees, or agents. (b) Contractor shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, a policy or policies of Comprehensive Vehicle Liability insurance covering personal injury and property damage, with minimum limits of One Million Dollars ($1,000,000) per occurrence, combined single limit, covering any vehicle utilized by Contractor in performing the services required by this Agreement. (c) Contractor agrees to maintain in force at all times during the performance of work under this Agreement workers compensation as required by law. (d) The policy or policies required by this Agreement shall be issued by an insurer admitted in the State of California and with a rating of at least a B+; VII in the latest edition of Best's Insurance Guide. (e) Contractor agrees that if it does not keep the aforesaid insurance in full force and effect City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may take out the necessary insurance and pay, at Contractor's expense, the premium thereon. (f) At all times during the term of this Agreement, Contractor shall maintain on file with the Risk Manager, a certificate or certificates of insurance, satisfactory to the City Attorney and Risk Manager, showing that the aforesaid policies are in effect in the required amounts. Contractor shall, prior to commencement of work under this Agreement, file with the Risk Manager, such certificate or certificates. The policies of insurance required by this Agreement shall contain an endorsement naming the City as additional insured. All of the policies required under this Agreement shall contain an endorsement providing that the policies cannot be canceled or reduced except on thirty (30) days prior written notice to City, and specifically stating that the coverage contained in the policies affords insurance pursuant to the terms and conditions as set forth in this Agreement. (g) The insurance provided by Contractor shall be primary to any coverage available to City, and any insurance or self-insurance maintained by City, its officers, employees, agents, or volunteers shall be excess of Contractor's insurance and shall not contribute with it. The policies of insurance required by this Agreement shall include provisions for waiver of subrogation. Contractor hereby waives all rights of subrogation against City. 6 12720-0001\1187747v5.doc (h) Any deductibles or self -insured retentions must be declared to and approved by City. At the option of City, Contractor shall either reduce or eliminate the deductibles or self - insured retentions with respect to City, or Contractor shall procure a bond guaranteeing payment of losses and expenses. Section 15. Assignment and Subcontracting. Contractor shall not assign or attempt to assign any portion of this Agreement, or subcontract any required performance hereunder, without the prior written approval of City. Any assignment or subcontract made in violation of this section is invalid and void. Section 16. Arbitration and Venue. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. All decisions of the arbitrators shall be in writing, and the arbitrators shall provide written reasons for their decision. The arbitration decision shall be final and binding on the Parties. Judgment on the award may be entered in any court having jurisdiction pursuant to this Agreement. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court having jurisdiction pursuant to this Agreement. The exclusive jurisdiction and venue under this Agreement shall be the Superior Court of California, Los Angeles County. Section 17. Attorneys Fees. In the event a dispute, claim or litigation arises regarding this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys fees and actual costs, which may be set by the arbitrators or the court in the same action or in a separate action brought for that purpose, in addition to any other relief which is obtained. Section 18. Governing Law. This Agreement shall be interpreted and enforced according to, and the Parties rights and obligations governed by, the domestic law of the State of California, without regard to its laws regarding choice of applicable law. Section 19. Entire Agreement and Modifications. This Agreement, including attachments incorporated herein by reference, represents the entire agreement and understanding between City, and any negotiation, proposals or oral agreements are intended to be integrated herein and to be superseded by this Agreement. This Agreement may only be modified by a writing signed by both Parties. Section 20. Waiver. The waiver by either party of a breach or default by the other party shall not be deemed a waiver of any different or later breach whether of the same or other covenant or condition; nor shall any delay or omission by either party to exercise any right it may have hereunder operate as a waiver of any breach or default of such a right. The failure of either party to this Agreement to exercise any of its rights under this Agreement does not constitute a breach thereof and shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach. No waiver, benefit, privilege, or service voluntarily given or performed by a party shall give the other party any contractual rights by custom, estoppel, or otherwise. Section 21. Force Majeure. Neither party shall be considered in' default of any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The term "uncontrollable force" shall mean flood, earthquake, storm, fire, lightning, epidemic, war, riot, civil disturbance or disobedience, federal, state, or municipal action, statute, ordinance, or regulation, embargoes of the United States Government or any 7 12720-0001\1187747v5.doc other government, which by exercise of due diligence such party could not reasonably have been expected to avoid and by exercise of due diligence has been unable to overcome. Either party rendered unable to fulfill any of its obligations under this Agreement by reason of an uncontrollable force shall give written notice within five (5) business days of such fact to the other party and shall exercise due diligence to remove such inability with all reasonable dispatch. Section 22 City Not Obligated to Third Parties. City shall not be obligated or liable under this Agreement to any party other. than Contractor. Section 23. Notices. All notices, approvals, consents and other communications between the parties shall be in writing, and shall be sent by certified mail (return receipt requested) or other delivery service which provides evidence of delivery, using the address set forth on the Cover Page under "Notice Information - City" or "Notice Information — Vendor," as appropriate, or at such other address as may be furnished by either party to the other in writing. Mailed notices will be deemed communicated as of the day of receipt. Section 24. Cover Page and Exhibits. The Cover Page and all documents referenced as exhibits in this Agreement are hereby incorporated in this Agreement. In the event of any material discrepancy between the express provisions of this Agreement and the provisions of any document incorporated herein by reference, the provisions of this Agreement shall prevail. Section 25. Headings. Headings used in this Agreement are for convenience reference only and shall not affect the interpretation of the Agreement. Section 26. Survival of Terms. All of the terms and conditions in this Agreement related to payment, confidentiality, indemnification, dispute resolution and waiver shall survive termination of this Agreement. Section 27. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be valid under applicable law. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect, and shall in no way be affected, impaired or invalidated. Section 28. Authority To Execute This Agreement. The person or persons executing this Agreement on behalf of Contractor warrants and represents that he or she has the authority to execute this Agreement on behalf of Contractor and has the authority to bind Contractor to the performance of its obligations under this Agreement. [Signatures Begin on Next Page]. 12720-0001\1187747v5.doc IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of Vernon, a California charter City and California municipal corporation P By: (/�r/ �.rr , A � !,a /— /� HILARIO GONZAL S Mayor ATTEST: ANUELA GIRON, City Clerk APPRO _ED AS TO FORM: LAk4RtNCE S. WIENER, City Attorney Sugerman Communications Group, Inc., a California corporation By: A - U Name: 5-ki-e v Title: re l i b—..P- d I�i�IL`1 Nam e�:M /I il-All E 12720-0001 \ 11877470 , doc 0 EXHIBIT A EXHIBIT A SCOPE OF SERVICES Contractor will perform the following work pursuant to this Agreement: Public Information Officer • Create and manage public information program • Re -design City website • Support community partnerships • Support government relations Energy and Environmental Programs • Design and oversee strategic public affairs efforts • Support community relations activities • Develop website and informational materials • Manage media relations • Support government relations These services are more specifically detailed on the following page detailing task, project areas, and hours. 10 12720-0001\1187747v5.doc Sugerman Communications Group estimates its monthly fee based on estimated work hours to complete the projected scope of work. To calculate the retainer SCG uses hourly billing rates for firm personnel ranging from $375 to $150 per hour. Public Information Create and Manage Public Officer Information Program Re -design website Support Community/Strategic Partnerships Support Government Relations TOTAL: 23 hours per month $5,250 per month Energy and Environmental Programs Design and Oversee Strategic Public Affairs Efforts Support Community Relations Activities Develop Website and Informational Materials Manage Media Relations Support Government Relations TOTAL: 60 hours per month $10, 500 per month 11 12720-0001\1187747v5.doc EXHIBIT B EXHIBIT B MONTHLY FEE AND EXPENSES Contractor shall be paid $15,750.00 per month for Services. Contractor shall be reimbursed for out-of-pocket expenses not to exceed $1000.00 per month. Out-of-pocket expenses include telephone, facsimile transmission, mail, messenger charges, information retrieval, and travel expenses as appropriate to the Services provided by Contractor to meet its obligations under this Agreement. In the event the Parties mutually agree in a writing signed by both Parties that Contractor will perform additional services beyond those described in Exhibit A, those additional services shall be billed at the following hourly rates based upon the individual performing the services: Steve Sugerman: $375 Heather Herndon: $225 Nate Miller: $150 Emily Heidt: $125 12720-0001\1187747v5.doc APPROVED DEC 0 pi '09 My COUNCIL RECEIVED STAFF REPORT DEC 0 2 2009 CITY ADMINISTRATION OFFICE CITY CLERK'S OFFICE DATE: December 2, 2009 TO: Honorable Mayor and City Council FROM: Donal O'Callaghan, City Administrator RE: SERVICES AGREEMENT BETWEEN THE CITY OF VERNON AND SUGERMAN COMMUNICATIONS GROUP, INC. FOR PUBLIC AFFAIRS SERVICES The City wishes to engage the services of Sugerman Communications Group, Inc. to secure media relations services. Sugerman Communications Group, Inc. specializes in public affairs and issue management. They have a great track record in working with governments, businesses and community groups. FISCAL. IMPACT: Funds have been allocated in the Industrial Development Division under Fund 055- 1023-5962 RECOMMENDATIQN: It is recommended that City Council approve the attached Services Agreement between the City of Vernon and Sugerman communications Group, Inc. for Public Affairs Services at the December 7, 2009 City Council meeting. DO:rmt Attachment 4