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HomeMy WebLinkAboutCA Legal Services Contract____________________________________________________________________________________ FOR CITY CLERK ONLY File No.: 4-3-1045 Council Meeting: 01/21/2020 Disposition: Resolution 14757 Agenda Item No: 4.e Meeting Date: January 21, 2020 SAN RAFAEL CITY COUNCIL AGENDA REPORT Department: CITY ATTORNEY Prepared by: Lisa Goldfien, Assistant City Attorney City Manager Approval: ______________ TOPIC: LEGAL SERVICES CONTRACT SUBJECT: RESOLUTION APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH BURKE, WILLIAMS & SORENSEN, LLP FOR LEGAL SERVICES TO SUPPLEMENT STAFF IN THE CITY ATTORNEY’S OFFICE, IN AN AMOUNT NOT TO EXCEED $112,000 RECOMMENDATION: Adopt resolution approving the legal services agreement. BACKGROUND: The Deputy City Attorney II position was vacated at the end of May last year, and staff has deferred advertising for a new attorney pending an analysis of the anticipated needs of the office in the next few years. Since June, the City Attorney’s office has had an agreement to obtain “on-call” legal services from Nira Doherty, a partner at the firm of Burke, Williams & Sorensen, LLP. The part-time services that Nira and her firm have provided have enabled the office to function without a fulltime deputy city attorney. Staff now wishes to enter into a more formal arrangement for Nira and her firm to provide supplemental deputy city attorney services on a part-time but regular basis that would include regular office hours and vacation coverage for the Assistant City Attorney for the remainder of this fiscal year. ANALYSIS: Nira Doherty is an experienced city attorney, litigator, and land use expert. Her litigation and transactional practices emphasize general municipal law, land use and development, CEQA, and code enforcement issues. She serves as General Counsel for the Tahoe Transportation District, and Assistant City Attorney for the cities of Benicia, Ross and Capitola. Nira advises city councils and staff in all areas of municipal law including complex land use, zoning, and development matters, open meeting laws, the Public Records Act, conflicts of interest, CEQA, elections, initiatives, contracts and torts, and conflicts of interest. She also advises municipal clients throughout the state on issues related to cannabis. Nira has spoken extensively on cannabis issues and has successfully represented municipalities in cannabis-related litigation. SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2 Staff recommends entering into an agreement with Burke, Williams & Sorensen for Deputy City Attorney services through the end of this fiscal year. Under the agreement, up to 60 hours of legal services would be provided per month for a retainer fee of $17,000. These services would include regularly scheduled office hours one to two times per week to facilitate face-to-face meetings between Nira and City staff and would also include increased office hours during the vacations or other absences of the Assistant City Attorney. City Attorney staff expects that most services would be provided by Nira, but this agreement would also provide the City Attorney’s office with the benefit of access to subject-matter experts in the Burke firm when needed. City Attorney staff will take steps to fill the Deputy City Attorney position by the beginning of the next fiscal year. FISCAL IMPACT: For a six-month term the retainer fees would amount to $102,000. Additional services beyond that amount, if any, would be payable at the rate of $325 per hour for partners and $295 per hour for associates. Staff anticipates that the monthly retainer amount would ordinarily cover all needed services; however, in the event extra legal services are needed on occasion, Staff recommends that an additional amount of $10,000 be included in the contract, for a total not-to-exceed amount of $112,000. Funds to cover the recommended contract amount are available due to budget savings from the vacant Deputy City Attorney II position. OPTIONS: The City Council has the following options to consider on this matter: 1. Adopt the resolution approving the legal services agreement as recommended. 2. Adopt the resolution with modifications to the agreement. 3. Direct staff to return with more information. 4. Take no action. RECOMMENDED ACTION: Adopt the resolution. ATTACHMENTS: 1. Resolution 2. Proposed Agreement for Legal Services RESOLUTION NO. 14757 A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH BURKE, WILLIAMS & SORENSEN, LLP FOR LEGAL SERVICES TO SUPPLEMENT STAFF IN THE CITY ATTORNEY’S OFFICE, IN AN AMOUNT NOT TO EXCEED $112,000 WHEREAS, the Deputy City Attorney II position was vacated at the end of May 2019; and WHEREAS, for assistance with overflow work pending the hiring of a new deputy city attorney, the City Attorney’s office has had an agreement since June 2019 to obtain “on-call” legal services from the firm of Burke, Williams & Sorensen, LLP (BW&S); and WHEREAS, the part-time services provided by BW&S have enabled the City Attorney’s office to function, on a temporary basis, without a fulltime deputy city attorney; and WHEREAS, the City Attorney anticipates that a new deputy city attorney may not be hired before the end of the current fiscal year; and WHEREAS, City Attorney staff now desire to enter into a more formal arrangement for BW&S to provide supplemental deputy city attorney services on a part-time but regular basis that would include regular office hours and vacation coverage for the Assistant City Attorney for the remainder of the 2019-2020 fiscal year in an amount not to exceed $112,000, as more specifically set forth in the Agreement for General Municipal Legal Services included in the staff report for this resolution; and WHEREAS, funds to cover the recommended contract amount are available due to budget savings from the vacant Deputy City Attorney II position; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of San Rafael hereby approves and authorizes the City Manager to execute an Agreement of General Municipal Legal Services with Burke, Williams & Sorensen, LLP for legal services to supplement staff in the City Attorney’s office in an amount not to exceed $112,000, in the form presented in the staff report accompanying this resolution, subject to final approval as to form by the City Attorney. I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City on Tuesday, the 21st day of January 2020, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: McCullough LINDSAY LARA, City Clerk AGREEMENTFOR GENERAL MUNICIPAL LEGAL SERVICES This Agreement is made and entered into this I day of 20 20 , by and between the CITY OF SAN RAFAEL (hereinafter WILLIAMS & SORENSEN, LLP (hereinafter "CONTRACTOR"). AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: PROJECT COORDINATION. Fe Civ q , "CITY"), and 8URKE, A. CITY'S Project Manager. The Assistant City Attorney is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Nira Doherty is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as follows: 1. Representation and advice regarding general municipal matters for the City Attorney's office and for the City Council, City Manager, Boards and Commissions and City staff as directed and delegated by the City Attorney's office. 2. Attendance at Council meetings and staff meetings as directed and delegated by the City Attorney's office. 3. Office hours at City Hall in an agreed upon schedule by the parties (intent is for office hours to be at least two half days a week.) This Agreement shall include all general municipal legal services which includes all legal services with the exception of special counsel services. Special counsel services include: Litigation o Arbitration o Complex construction o Eminent domain o Complex personnel matters including disciplinary actions (routine personnel matters and advice are included within the Agreement.) * Imposition of fees and taxes pursuant to Props 26 and 218 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CITY shall pay CONTRACTOR as follows: A flat monthly retainer of $17,000/month for up to 60 hours of Deputy City Attorney legal services. After 60 hours, CONTRACTOR's standard public agency rates apply: * $325/hour - partners o $295/hour — associates Total compensation under this Agreement shall not exceed $112,000. Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. 5. TERM OF AGREEMENT. The term of this Agreement shall be for six (6) months commencing on January 6, 2020 and ending on July 6, 2020. 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon thirty (30) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon fifteen (15) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement, shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation insurance, as required by the State of California, with statutory limits, and employer's liability insurance with limits of no less than one million dollars ($1,000,000) per accident for bodily injury or disease. CONTRACTOR's worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be "primary and noncontributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 01 04 13. 3. Except for professional liability insurance or worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. By execution of this Agreement, CONTRACTOR hereby grants to CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire against CITY by virtue of the payment of any loss under such insurance. CONTRACTOR agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the CONTRACTOR under this agreement. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. Except as otherwise provided in Paragraph B., CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S performance of its obligations or conduct of its operations under this Agreement. The CONTRACTOR's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or 5 willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. Where the services to be provided by CONTRACTOR under this Agreement are design professional services to be performed by a design professional as that term is defined under Civil Code Section 2782.8, then, to the extent permitted by law including without limitation, Civil Code sections 2782, 2782.6 and 2782.8, CONTRACTOR shall indemnify and hold harmless the CITY and its officers, officials, and employees (collectively City Indemnitees) from and against damages, liabilities or costs (including incidental damages. Court costs, reasonable attorney's fees as may be determined by the Court, litigation expenses and fees of expert witnesses incurred in connection therewith and costs of investigation) to the extent they are caused by the negligence, recklessness, or willful misconduct of CONTRACTOR, or any subconsultants, or subcontractor or anyone directly or indirectly employed by them, or anyone for whom they are legally liable (collectively Liabilities). Such obligation to hold harmless and indemnify any indemnity shall not apply to the extent that such Liabilities are caused in part by the negligence or willful misconduct of such City Indemnitee. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: Lisa Goldfien City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 TO CONTRACTOR's Project Director: Nira Doherty Burke, Williams & Sorensen, LLP 181 Third Street San Rafael, CA 94901 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. SURVIVAL OF TERMS. Any terms of this Agreement that by their nature extend beyond the term (or termination) of this Agreement shall remain in effect until fulfilled, and shall apply to both Parties' respective successors and assigns. 23. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. 24. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL By: (ivy JIM ECH TZ, City a ager ATTEST: CONTRACTOR By: Name: V/1' Title:_ . y V-4 , (N 1)1 [If Contractor is a corporation, add signature of second corporate officer] LINDSAY LARA, City Clerk By:_ APPROVED AS TO FORM: Name: Title: Lawuz.A-RFE ROBERT F. EPSTEI , City ttorney