HomeMy WebLinkAbout2011-018 Agrmt - Employment - Douglas McGeary
PERSONAL SERVICES CONTRACT
This contract is between City of Ashland, a political subdivision of the State
of Oregon, hereinafter called "City", and Contractor hereinafter called
"Contractor". The parties agree as follows:
I. Contractor's information:
NAME (tax filing): Douglas M. McGeary, Attorney at La~
ADDRESS: 2 N. Oakdale Ave, Medford, OR 97501
doug@douglasmmcgeary.com
CITIZENSHIP, if applicable:
Non-resident alien 0 Yes X No
BUSINESS DESIGNATION (check one):
o Corporation 0 General Partnership
o Limited Partnership 0 GovemmentallNon-Protit
o Limited Liability Company 0 Limited Liability Partnership
X Sole Proprietorship
Federal Tax 10#: 26-1417718
SSN#: N/A
(Contractor muSI provide Contractor's Social Securily Number unlcss it provid"" a [<:<lend nD number).
Oregon Business Liccnse#: N/A
This information herein will be rcporlcd 10 the Inlernal Revenue Service (IRS) under Ibe name
and taxpayer LD. number submitted, (See IRS 1099 for additional instructions regarding
taxpayer ID numbers.) Informalion not matching IRS records could subject Contractor to 31 %
backup withholding.
2. Description of Contractor's Services, Delivery Schedule and
Compenstation: 181 Exhibit A Scope of Work
3. Compensation by City: Payment for all work performed under this
contract shall be made as set forth below from available and authorized City
funds, and shall not exceed the maximum sum of$50,000.00 for the term of
this agreement. Travel and other expenses of the Contractor shall not be
reimbursed by City unless specifically provided herein as a supplementary
condition.
a. Interim payments shall be made to Contractor following City's review
and, approval of billings submitted by Contractor. Contractor will also
submit copies of other billings for work performed under the contract when
such bills are to be paid by other parties. These other billings are not subject
to the maximum compensation amount of this contract.
b. Contractor shall not submit billings for, and City will not pay, any
amount in excess of the maximum compensation amount of this contract,
including any travel and other expense when noted below. If the maximum
compensation amount is increased by amendment of this contract, the
amendment must be fully effective before Contractor performs work subject
to the amendment. Contractor shall notifY City's supervising representative
in writing 30 calendar days before this contract expires of the upcoming
expiration of the contract. No payment will be made for any services
performed before the beginning date or after the expiration date of this
contract. This contract will not be amended after the expiration date.
c. Contractor shall submit bi-weekly billings for work performed. The
billings shall describe all work performed with particula.rity, by whom and
on the date it was performed, the number of hours spent performing such
work, and shall itemize and explain all expenses for which reimbursement is
claimed. Billings shall be sent to the supervising representative.
4. Effective Date and Duration: This Contract shall become effective on
duration from January 20, 2011 or the date this Contract is fully executed and
approved as required by applicable law. Unless earlier terminated or
extended, this contract shall expire on No Specified Date, or when
Contractor's completed performance has been accepted by City, whichever
event occurs first. However, such expiration shall not extinguish or
prejudice City's right to enforce this contract with respect to: (a) any breach
of a Contractor warranty; or (b) any default or defect in Contractor's
performance that has not been cured.
5. Contract Documents: This contract between the parties consists of this
Personal Services Contract, Scope of Work (Exhibit A), General Conditions
(Exhibit B) Compliance with Applicable Laws (Exhibit C) and the
following attached documents, if checked, which contain all the terms and
conditions of the contract and are incorporated by this reference:
o Exhibit D Supplemental)' Conditions
o Exhibit E Required Federal Terms and Conditions
6. Amend~ents: The terms of this contract shall not be waived, altered,
modified, supplemented or amended, in any manner whatsoever, except by
written instrument signed by the parties.
IN WITNESS WHEREOF, THE PARTIES OR THEIR
RIZED REPRESENTATIVE HAVE
(
CERTIFI A TIONSIREPRESENT A TIONS: Contractor, under penalty
of perjury, certifies that (a) the number shown on this form is its correct
taxpayer ID (or is waiting for the number to be issued to it and (b) Contractor
is not subject to backup withholding because (i) it is exempt from backup
withholding or (ii) it has not been notified by the Internal Revenue Service
(IRS) that it is subject to backup withholding as a result ofa failure to report
all interest or dividends, or (iii) the IRS has notified it that it is no longer
subject to backup withholding. Contractor further represents and warrants
to City that (a) it has the power and authority to enter into and perform the
work, (b) the Contract, when executed and delivered, shall be a valid and
binding obligation of Con tractor enforceable in accordance with its terms, (c)
the work under the Contract shall be performed in accordance with the
highest professional standards, and (d) Contractor is qualified, professionally
competent and duly licensed to perform the work. Contractor also certifies
under penalty of perjury that its business is not in violation of any Oregon tax
laws, and it is a corporation authorized to act on behalf of the entity
designated above and authorized to do business in Oregon or is an
independent contractor as defined in the contract documents, and has
checked four or more of the following criteria:
~(I) I carry out the labor or services at a location separate from my
residence or is in a specific portion of my residence, set aside as the location
of the business.
~(2) Commercial advertising or business cards or a trade association
membership are purchased for the business.
~(3) Telephone listing is used for the business separate from the
personal residence listing.
~(4) Labor or services are performed only pursuant to written
contracts.
~(5) Labor or services are performed for two or more different
persons within a period of one year.
~(6) I assume financial responsibility for defective workmanship or
for service not provided as evidenced by the ownership of performance
bonds, warranties, errors and omission insurance or liability insurance
relating to the labor or services to be provided.
Contractor
(Date)
Exhibit A
SCOPE OF WORK
Description of Contractor's Services, Delivery
Schedule and Consideration:
Provide legal advice andlor services in areas of
municipal law to assigned city departments, and
mayor and city council.
Rate:
A. Review, charge and prosecute municipal
criminal and code violations.
'.
$1 iO/hour; no retainer. ..
, ,"-
." J:
B. Routine legal advice, consultation and,opinions
of the City Council ands!aff;
,
$IIO/hour, no retainer.
C. Assistance in the preparation and review of
ordinances, resolutions, agreements, contracts
and related documents:
$11O/hour, no retainer.
D. Attendance at any City Council meetings, and
other meetings as necessary.
$11O/hour, no retainer.
E. Monitor pending and current State and Federal
legislation and case law as appropriate.
No charge.
Travel is charged at $30/hour for any travel exceeding one
half hour and is charged in lieu of standard legal services
rate.
After six month from effective date of contract,
Contractor reserves opportunity to adjust its rates.
Hours:
Contractor's hours shall not exceed twenty (20) hours a
week unless first notifying city or interim city attorney
and additional time is approved.
Exhibit B
GENERAL CONDITIONS
1. Independent Contractor; Responsibility for Taxes and
Withholding; Retirement System Status:
a. Contractor shall perform the work required by this contract as an
independent contractor. Although the City reserves the right (i) to determine
(and modify) the delivery schedule for the work to be performed and (ii) to
evaluate the quality of the completed performance, the City cannot and will
not control the means or manner of the Contractor's performance. The
Contractor is responsible for determining the appropriate means and manner
of performing the work.
b. The Contractor represents and warrants that Contractor (i) is not an
employee of City of Ashland, Oregon. (ii) is not currently employed by the
Federal Government, and (iii) meets the specific independent contractor
standards of ORS 670.600, as certified on the foregoing Certification
Statement for Corporation or Independent Contractor. Contractor is not
an "officer", "employee", or "agent" of the City, as those terms are used in
ORS 30.265.
c. Contractor shall be responsible for all federal or state taxes applicable
to any compensation or payments paid to Contractor under this contract and.
unless Contractor is subject to backup withholding, City will 1101 withhold
from such compensation or payments any amounts(s) to cover Contractor's
federal or state tax obligations. Contractor is not eligible for any federal
Social Security, unemployment insurance, or workers' compensation benefits
from compensation or payments paid to Contractor under this contract,
except as a self-employed individual.
2. Subcontracts and Assignment: Contractor shall not enter into any
subcontracts for any of the Work required by this Contract or assign or
transfer any of its interest in this Contract without City's prior written
consent. Any proposed use of a subcontractor which is located outside the
United States or use of subcontract labor or facilities located outside the
United States must be called to the specific attention of City. City's consent
to any subcontract shall not relieve Contractor of any of its duties or
obligations under this Contract~
3. Successors and Assigns: Neither party shall subcontract, assign or
transfer its interest in this Contract without the express written consent of the
other party, and such consent shall not be unreasonably withheld. In addition
to any other provisions, Contractorshall include in any permitted subcontract
under this Contract a requirement that the subcontractor be bound to the
same provisions herein as if the subcontractor were the Contractor. The
provisions of this Contract shall be binding upon and shall inure to the
benefit of the parties hereto, and their respective successors and assigns.
Consent of City given to a subcontractor does not relieve the Contractor of
any obligations and responsibilities under this Contract, including
Contractor's responsibility for any goods and services to be provided by any
subcontractor.
4. No Third Party Beneficiaries: City and Contractor are the onlyparties
to this contract and are the only parties entitled to enforce its terms. Nothing
in this contract gives, is intended to give, or shall be construed to give or
provide, any benefit or right, whether directly, indirectly or othetWise, to
third persons unless such third persons are individually identified by name
herein and expressly described as intended beneficiaries of the terms of this
contract.
S. Funds Available and Authorized: City has sufficient funds currently
avai lable and authorized for expenditure to finance the costs of this contract
within the City's fiscal year budget.
6. Termination:
a. Mutual Consent. This contract may be terminated at any time by mutual
consent of both parties.
b. Parties' Convenience. This contract may be terminated at any time by
either Party upon 30 days' notice in writing and delivered by certified mail
or in person.
c. For Cause. City may terminate or modify this contract, in whole or in
part, effective upon delivery of written notice to Contractor, or at such later
date as may be established by City, under any of the following conditions:
i. If City funding from federal, state, or other sources is not obtained and
continued at levels sufficient to allow for the purchase of the indicated
quantity of services;
ii. If federal or state regulations or guidelines are modified, changed. or
interpreted in such a way that the services are no longer allowable or
...
appropriate for purchase under this contract or are no longer eligible for
the funding proposed for payments authorized by this contract; or
iii. Ifany license or certificate required by law or regulation to be held by
Contractor to provide the services required by this contract is for any
reason denied, revoked, suspended, or nOI renewed.
d. For Default or Breach.
i. Either City or Contractor may terminate this contract in the event of a
breach of the contract by the other. Prior to such tennination the party
seeking termination shall give to the other party written notice of the
breach and intent to terminate. If the party committing the breach has
not entirely cured the breach within 15 days of the date of the notice, or
within such other period as the party giving the notice may authorize or
require, then the contract may be terminated at any time thereafter by a
written notice of termination by the party giving notice.
II. Time is of the essence for Contractor's performance of each and every
obligation and duty under this contract. City, by written notice to
Contractor of default or breach, may at any time terminate the whole or
any part of this contract if Contractor fails to provide services called for
by this contract within the time specified herein or in any extension
thereof.
iii. The rights and remedies of City provided in this subsection d are not
exclusive and are in addition to any other rights and remedies provided
by law or under this contract.
e. Obligation/Liability of Parties. Termination or modification of this
contract pursuant to subsections a, b or c above shall be without prejudice to
any obligations or liabilities of either party already accrued prior to such
termination or modification. However, upon receiving a notice oftermination
(regardless whether such notice is given pursuant to subsections a, b, cord
of this section 6 Contractor shall immediately cease all activities under this
contract, unless expressly directed othelWise by City in the notice of
termination. Further, upon termination, Contractor shall deliver to City all
contract documents, information, works-in-progress and other property that
are or would be deliverables had the contract been completed. City shall pay
Contractor for work performed prior to the termination date ifsuch work was
performed in accordance with the Contract.
7. Records Maintenance; Access; Ownership of Work Product;
License:
a. Records Maintenance; Access. Contractor shall maintain records
pertinent to this contract in such a manner as to clearly document
Contractor's performance hereunder. Contractor acknowledges and agrees
that City and its duly authorized representatives shall have access to such
fiscal records and toall other books, documents, electronic files, papers, plans
and writings of Contractor that are pertinent to this contract for the purpose
of performing examinations and audits, and making excerpts and transcripts.
Contractor further acknowledges records generated as a result of this Contract
may be subject to disclosure pursuant to the Oregon Public Records Act.
b. Ownership of Work Product: License. All work products of the
Contractor that result from this contract ("the work products") are the
exclusive property of the City. In addition, if any of the work products
contain intellectual property of the Contractor that is or could be protected by
federal copyright, patent, or trademark laws, or state trade secret laws,
Contractor hereby grants City a perpetual, royalty-free, fully paid-up,
nonexclusive and irrevocable license to copy, reproduce, deliver, publish,
perform, dispose of, use and re-use, in whole or in part, and to authorize
others to do so, all such work products, including but not limited to any
information, designs, plans or works provided or delivered to the City or
produced by the Contractor under this contract.
8. Compliance with Applicable Law: Contractor shall comply with all
federal. state and local laws and ordinances applicable to the work under this
contract, including. without limitation, the provisions of ORS 2798.220,
279B.230, and 2798.235, and as well as other statutes as set forth in the
attached Compliance With Applicable Law, which is by this reference made
a part hereof. Without limiting the generality of the foregoing, Contractor
expressly agrees to comply with: (i) Title VI ofthe Civil Rights Act of 1964;
(ii) Section V of the Rehabilitation Act of 1973; (iii) the Americans with
Disabilities Act of 1990 (Pub L No. 101-336), ORS 659A.142, and all
regulations and administrative rules established pursuant to those laws; and
(iv) all other applicable requirements offederal, state and local civil rights
and rehabilitation statues, rules and regulations.
9. Foreign Contractor: Ifthe Contractor is not domiciled in or registered
to do business in the State of Oregon, Contractor shall promptly provide to
the Oregon Department of Revenue and the Secretary of State Corporation
Division all information required by those agencies relative to this Contract.
The Contractor shall demonstrate its legal capacity to perform these selVices
in the State of Oregon prior to entering into this contract.
10. Governing Law; Jurisdictionj Venue: This contract shall be governed
and construed in accordance with the laws of the State of Oregon without
resort to any jurisdiction's contlict of laws, rules or doctrines. Any claim,
action, suit orproceeding(collectively, "the claim"} between the City (and/or
any other City or department of the State of Oregon) and the Contractor that
arises from or relates to this contract shall be brought and conducted solely
and exclusively within the Circuit Court of Jackson County for the State of
Oregon. If, however, the claim must be brought in a federal forum, then it
shall be brought and conducted solely and exclusively within the United
States District Court for the District of Oregon filed in Jackson County,
Oregon. Contractor, by the signature herein of its authorized representative,
hereby consents to the in personam jurisdiction of said courts. In no event
shall this section be construed as a waiver by City of any form of defense or
immunity, based on the Eleventh Amendment to the United States
Constitution, or otherwise, from any claim or from the jurisdiction.
11. Insurance:
a. Insurance. Contractor shall at its own expense provide the following
insurance:
i Worker's Compensation insurance in compliance with ORS 656.017,
which requires subject employers to provide Oregon workers'
compensation coverage for all their subject workers.
ii Professional Liability insurance with a combined single limit, or the
equivalent, of not less than $200,000 for each claim, incident or
occurrence. This is to cover damages caused by error, omission or
negligent acts related to the professional services to be provided under
this contract.
iii General Liability insurance with a combined single limit, or the
equivalent, of not less than NfA for each occurrence for Bodily Injury
and Property Damage.
iv Automobile Liability insurance with a combined single limit, or the
equivalent, of not less than $NfA for each accident for Bodily Injury
and Property Damage, including coverage for owned, hired or non-
owned vehicles, as applicable. '
v. Umbrella/Excess Liability insurance with combined single limits/
annual aggregate of not less than $N/A for Bodily Injury and Property
Damage.
c. Notice of cancellation or change. There shall be no cancellation,
material change, reduction of limits or intent not to renew the insurance
coverage(s} without 30 days' written notice from the Contractor or ,its
insurer(s} to the City.
12. Left for insertion.
13. Force Majeure: Neither City nor Contractor shall be held responsible
for delay or default caused by fire, riot, acts of God, or war where such cause
was beyond, respectively, City's or Contractor's reasonable control.
Contractor shall, however, make all reasonable efforts to removeoreliminate
such a cause of delay or default and shall, upon the cessation of the cause,
diligently pursue performance of its obligations under this contract.
14. Severability: The parties agree that if any term or provision of this
contract is declared by a court of competent jurisdiction to be illegal or in
contlict with any law, the validity of the remaining tenns and provisions shall
not be affected, and the rights and obligations of the parties shall be construed
and enforced as if the contract did not contain the particular term or provision
held to be invalid.
15. Survival: The terms, conditions, representations and all warranties
contained in this Contract shall survive the tennination or expiration of this
Contract.
16. Waiver: The failure of either party to enforce any provision of this
contract shall not constitute a waiver by either party of that or any other
provision.
17. Execution and Counterparts: This contract may be exercised in
several counterparts, each of which shall be an original, all of which shall
constitute but one and the same instrument.
18. Prior Approval Required: Pursuant to AMC 2.50.120.Al the City
attorney shall "select and retain all outside legal counsel hired by the City
subject to the approval o(the City Counci1."
19. Notice: Notices required by this contract must be given in writing by
personal delivery or mail, at the addresses given by the parties on the first
page ofthis contract, unless some other means or method of notice is required
by law. Each party will notify the other of any change of address.
20. Confidentiality: Contractor acknowledges and agrees it is responsible
for ensuring compliance with all applicable confidentiality laws, including but
not limited to the Ilealth Insurance Portability Accountability Act (HIP AA)
and Family Educational Rights and Privacy Act (FERP A).
21. Merger Clause: THIS CONTRACT AND A IT ACHED EXHIBITS
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
NO WAIVER, CONSENT, MODI FICA TlON OR CHANGEOFTERMSOF
THIS CONTRACTSHALLBlND EITHER PARTY UNLESS IN WRITING
AND SIGNED BY BOTlJ PARTIES. SUCH WAIVER, CONSENT,
MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE
ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC
PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS,
AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRlITEN, NOT
SPECIFIED HEREIN REGARDING THIS CONTRACT. CONTRACTOR,
BY SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE, HEREBY
ACKNOWLEDGES THAT HE/SHE HAS READ THIS CONTRACT,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS
AND CONDITIONS.
1..oiIIl
. .
. '
CITY OF
ASHLAND
Council Communication
Meeting Date:
Department:
Secondary Dept.:
Approval:
Contract for Legal Services
January 18, 2011 Primary Staff Contact:
Legal E-Mail:
Finance Secondary Contact:
Martha Bennett Estimated Time:
Megan Thornton
thorntrn@ashland.or.us
None
Consent
Question:
Should the City Council approve a legal services contract with Douglas McGeary that could exceed
$50,000?
Staff Recommendation:
Staff recommends Council approve a contract for legal services with Douglas McGeary.
Background:
The City Attorney's Office has only had one attorney for the last five months. In addition, the office
has been without a full-time paralegal for two and a half months. It is necessary to get additional
assistance in the legal department to assist with day-to-day operations, as well as the larger projects
that arise.
The public contracting code requires "Council approval of any expenditure for legal services paid to a
single legal services provider that is expected to exceed $50,000 prior to entering into the contract."
AMC 2.50.120.A.1. Although the City Attorney's Office does not expect it to exceed $50,000, it
could potentially be close to $50,000 depending on the length oftime it takes to hire a new city
attorney. The proposed contract would allow the City Attorney's office to employ Douglas McGeary
on a part-time basis with a not to exceed amount of $50,000. This contract is for part-time services,
twenty hours of work per' week or less, that will be performed on-site in the City Attorney's office.
The City Attorney's Office has requested a transfer of appropriations of$50,000, which will be used to
pay for this contract as well as hire additional legal services if necessary. The finance department has
provided a Council Communication and a resolution to allow the appropriations to be transferred if this
contract is approved.
Related City Policies:
AMC 2.50.120.A.I-Personal Services Class Exemption for Attorney Services
Council Options:
I) Move to approve a contract with Douglas McGeary.
2) Withhold approval of the contract.
Potential Motions:
Council: Motion to withdraw item from consent agenda.
Attachments:
None.
Pagelofl
~.l'
Page 1/1
~~,
CITY OF
ASHLAND
20 E MAIN ST.
ASHLAND, OR 97520
(541) 488-5300
CITY REC
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';;;k~~I!fIir:m. ~1~~~
2/8/2011
~":P.O'N(JIVIBERlf,<k
10005
VENDOR: 015851
MCGEARY, DOUGLAS M
2 N OAKDALE AVE
MEDFORD, OR 97501
SHIP TO: City of Ashland
20 E MAIN STREET
ASHLAND, OR 97520
FOB Point:
Terms: Net
Req. Del. Date:
Speclallnst:
Req. No.:
Dept.:
Contact: Megan Thornton
Confirming? No
i!11Q'Uanif~~i !l1funIi11 ~1.i;~E?;1111jI::,t}rl~~~:~~:1~mr"~;?.~~DescriDtion~~r~rW~rt~,~?;f;~1F~~.~Sff~~~It~~!!~t ~~Unit~~rlce_ Im.tEit!P.rlm1m
Legal Services
Part time up to 20 hours per week
Not to exceed $50,000
50,000.00
Approved by Council on January 18, 2011
BILL TO: Account Payable
20 EAST MAIN ST
541-552-2028
ASHLAND, OR 97520
i1lW~ccouiit!Number_ _p.roj8ct)Nii~ I!Il8WAmount -1IiIi...ccountlNiiiiiber-= -
E 710.01.03.00.60410 50000.00
SUBTOTAL
TAX
FREIGHT
TOTAL
50 000.00
0.00
0.00
50,000.00
~$
.~ 0/
Au rlzed Signature
VENDOR COPY
FORM #3
REQUISITION
Date of request:
Required date for delivery:
CITY OF
ASHLAND
~
..f). .....,"i""'t j"o" -" ;;:;"cr'rl"''"'' C"'rd",
.. 11,..""11., .....,. ,.... ~ \J, ,_ '-'....... I ~".
Vendor Name
Address, City, State, Zip
Contact Name & Telephone Number
Fax Number
SOLICITATION PROCESS
D Exemot from Comoetitive Biddina D Emeraencv
Reason for exemption: D Invitation to Bid (Copies on file) D Written findings attached
Date approved by Council: D Quote or Proposal attached
D Small Procurement Coooerative Procurement
Less than $5.000 D Reauest for Proposal (Copies on file) D State of Oregon
Note: Total contract amount, including any Date approved by Council: Contract #
amendments may not exceed $6,000 D State of Washington
Intermediate Procurement D Sole Source Contract #
GOOOS & SERVICES D Written findings attached D Other government agency contract
$5.000 to $100.000 D Quote or Proposal attached Agency
D (3) Written quotes attached Contract #
PERSONAL SERVICES D Soecial Procurement D intergovernmentai Agreement
$5.000 to $75.000 l.'50.\2b.~_ \ D Written findings attached Agency
D Less than $35,000, by direct appointment D Quote or Proposal attached Contract fI
D (3) Written proposals attached . Date aDDroved bv Council: Dale approved by Councii:
Description of SERVICES
Total Cost
o Per attached QUOTE
Project Number _n_n - _n Account Number110-Q!-O!l-OCHoO'l10D Account Number n_ - __' n - n - nnn
Account Number ___' __' __ - __' ______ Account Number _~_ - __ - __ - __ - ______
'Expenditure must be charged to the appropriate account numbers for the financials to refiect the actuel expenditures accuretely. Affach exlra pages if needed.
I
By signing this requisition form, i certify that the information provided above meets the City's pubiic conlracting requirements, and the documentation can be provided
upon request.
Employee Signature:
Department Head Signature:
Additional signatures (if applicable):
Funds appropriated for current fiscal year: ~ NO
~~
Finance Director
......
Comments:
G: Finance\ProcedureW\Fonns\Fonn #3 - Requisition.doc
Updated on: 1/1912011