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HR Legal Services Amendment Van DermydenFIRST AMENDED AGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND VAN DERMYDEN MADDUX LA W CORPORATION This amended Agreement is made and entered into this _,_I _ day of J\.An (.. ,2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and VAN DERMYDEN MADDUX LA W CORPORATION (hereinafter "CONTRACTOR"). AGREEMENT WHEREAS, the City entered into an agreement with Contractor on May 15, 2018 ("Agreement") for legal consulting services, in particular investigation services into a complaint of alleged workplace misconduct; and WHEREAS, Contractor is providing said services to the City in a satisfactory manner and as described by the Agreement; and WHEREAS, the scope and size of the investigation has broadened since executing the Agreement; and WHEREAS, the City desires to increase the total payment amount authorized in the Agreement in order to allow for full completion ofthe investigative services; and WHEREAS, the Agreement provides for an amendment to the Agreement in the event that the compensation payable under the Agreement exceeds the amount authorized. NOW, THEREFORE, the parties hereby agree amend the original Agreement as follows: 4. COMPENSATION. For the CONTRACTOR's full perfonnance of the duties and services described herein, CITY shall pay CONTRACTOR for the hours of work, based on the rates outlined in Exhibit A at "Fees and Costs" in an amount not to exceed $35,000.00, including reimbursement of expenses. In the event that the compensation payable under this Agreement reaches a total of $35,000.00 including expenses, then thereafter CONTRACTOR shall be required to obtain an amendment to the Agreement including advance written approval from the City Manager for additional compensation for services under this Agreement. Payment will be made upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. ORIGINAL Except as otherwise amended herein, the Agreement remains in full force and effect. CITY OF SAN RAFAEL ATTEST: LINDSAY LARA, hIte! iill City Clerk 2 VAN DERMYDEN MADDUX LAW CORPORATION By: '-L1~~ Nikki Hall, \t(;f anagmg P artner VAN DERMYDEN MADDUX April 27, 2018 Via Electronic Mail Stacey Peterson Human Resources Director City of San Rafael 1400 Fifth Avenue, Room 210 San Rafael, CA 94915-1560 Investigations Law Firm Re: Engagement Letter for Investigative Services Dear Ms. Peterson: This letter will confirm your request to engage Van Dermyden Maddux Law Corporation ("the Firm") to provide investigative services for the City of San Rafael ("Client"). Th is Agreement will govern all services to be performed for this engagement. Scope of Services. Client hires the Firm to perform legal services for Client in the form of an impartial investigation regarding alleged misconduct by a City firefighter. The Firm will perform these duties as an attorney at law for the purpose of facilitating the rendering of legal advice to Client by its counsel. The Firm's communications, work product, and the final report will be protected from disclosure pursuant to the attorney-client privilege, unless waived by the Client. Independence. As an independent contractor, the Firm has the right to determine the means, manner and findings related to the investigation. Client agrees to allow the Firm full discretion to undertake the investigation and otherwise make findings without influencing or interfering with the outcome. Client understands and acknowledges that the Firm will exercise its independent judgment to make whatever findings it deems are warranted based on the evidence developed in the investigation, and that this Agreement is not dependent on the Firm's making or failing to make any particular credibility determination, finding of fact, or conclusion. Limited Scope Agreement. The scope of this attorney-client representation is limited. The Firm will perform an investigation as an attorney at law for the purpose of facilitating the rendering of legal advice to the client by its counsel. The Firm will not render a legal determination whether there were violations of any law or statute. The Firm will not act as an advocate or provide advice to Client with Van Dermyden Maddux Law Corporation 2520 Venture Oaks Way Suite. 140, Sacramento , CA 95833 -4227 P: (916) 779 -2402 I F: (916) 779-1451 www.vmlawcorp .com Exhibit A Ms . Stacey Peterson April 27, 2018 Page 2 respect to what employment actions, if any, should be taken as a result of the findings. The Firm will not represent Client in any legal action or proceeding. It is expressly agreed that Client will look to its regular legal counsel for such services, as well as for advice with respect to issues which may arise relating to the investigation. This includes, without limitation, the admonitions, if any, to be made to employees who are Interviewed concerning confidentiality; the consequences of employee failure to cooperate in the investigation; the accessing of electronic and other data; document retention; litigation holds; appropriate interim employment measures pending investigation; compliance with the federal Fair Credit Reporting Act; and compliance with the California Investigative Consumer Reporting Agencies Act. Client also agrees it will look to its regular outside counsel for advice with respect to issues of attorney-client privilege, scope of privilege, waiver, and work product in connection with the Firm's services. Client agrees it will comply with employer-required notice and consent rules to the extent applicable, including those under Civil Code sections 1786 et seq. Cooperation. To perform our services effectively, the Firm requires the full cooperation and support of all representatives of the Client. You can assist us by keeping us fully informed as to facts and developments relevant to our investigative services. It is essential that each client (as well as any employees or representatives) provide us with accurate and complete information, including written materials when requested, and that you make personnel available to the extent required. Confidentiality Admonitions. Client acknowledges that it is the Firm's practice not to provide any confidentiality admonitions unless directed to do so, in writing, by Client. Client acknowledges the decisions by the National Labor Relations Board in Banner Health System, NlRB No. 93 (2012) and Banner Health System, Case 28-CA-023438 (2015) (as well as the Public Employment Relations Board's decision in Los Angeles Community College District (2014), for public employers), which require an employer to provide a legitimate business justification in order to ask witnesses to keep an investigation confidential. Client agrees it will provide a confidentiality admonit.ion in writing to Investigator before witness interviews commence, if Client determines such an admonition is appropriate. Investigator agrees she/he will notify Client if any changed circumstances arise that relate to the confidentiality analysis. Fees and Costs. Client agrees to pay the Firm at the following rates: Staff Partner Senior Associate Associate Law Clerk Paralegal Van Dermyden Maddux Law Corporation 2520 Venture Oaks Way Suite 140. Sacramento. CA 95833-4227 Discounted Public Sector Hourly Rates $350 $290 $250 $175 $120 P: (916) 779 -2402 I F: (916) 779-1451 www.vm.awcorp.com Ms. Stacey Peterson April 27, 2018 Page 3 Time charged will include, for example, time spent interviewing witnesses, reviewing and analyzing documents, writing the report of the findings, and performing any necessary research. The time charged will also include travel time and the time the Firm spends on telephone calls and emails relating to Client's matter, including calls and emails with the Client, witnesses, potential witnesses, or counsel representing any of the parties. Costs. The Firm may incur various costs and expenses in performing services under this Agreement. Client agrees to pay for all costs and expenses, in addition to the hourly fee. Specifically, Client agrees to pay a 2% administrative charge calculated on the service fees billed. This fee covers costs and expenses incurred in our handling of the matter, such as postage, photocopies, parking fees, bridge or other road tolls, fax charges, telephone charges and other similar charges. This administrative fee does not include other out-of-pocket charges incurred by the Firm, such as messenger and other special delivery fees, other travel costs such as mileage reimbursement at the federal standard mileage rate in effect for the year or a vehicle rental, meals, lodging, and similar charges. In the event of a vehicle rental, Client will be expensed for either the rental or calculated mileage at the federal standard mileage rate in effect for the year, whichever is less. Client will be responsible for reimbursing Firm for the out-of-pocket expenses as actually incurred by the Firm, and all costs and expenses will be charged at the Firm's cost. The Firm will not charge for word processing or overtime expenses associated with administrative personnel. Billing Statements. The Firm will send Client periodiC statements for fees and costs incurred. Each statement will be payable within thirty (30) days of its mailing date. The statements shall include the amount, rate, basis of calculation or other method of determination of the fees and costs, which costs will be clearly identified by item and amount. Payment is due upon presentation of the invoice. Invoices that remain unpaid after sixty (GO) days from the invoice date are immediately subject to a late payment charge of fifteen percent (lS%) per year, accrued monthly. Because this matter is of a sensitive nature and subject to the attorney-client privilege, we recommend that you treat our invoices as confidential documents and safeguard them appropriately. Any estimate of fees given by the Firm shall not be a guarantee. Actual fees may vary from estimates given. Outside Experts. Should the matter require expertise from any outside consultants, you will have an opportunity in advance to: (a) approve the rationale for retention of same; (b) approve the selection of same; and (c) approve the rates and anticipated fees relating to such services. As of the time of this engagement letter, the Firm has not identified the need to hire an outside consultant to assist in this investigation, although there may be a need for transcription services relating to the tape recordings, if any, of the witness interviews. Compensation for Post-Investigative Work. This engagement shall be considered concluded after the Firm has provided a final investigation report in this matter, whether oral or written. After the conclusion of this engagement, should a need arise for the Firm to respond to any subpoena or discovery, to provide testimony at deposition, trial or arbitration, or to otherwise perform services with respect to any matter relating to or arising out of this engagement, Client shall compensate the Firm at Van Dermyden Maddux Law Corporation 2520 Venture Oaks Way 5ulte 140. Sacramento. CA 95833-4227 P: (916) 779 -2402 I F: (916) 779-1451 www.vmlawcorp.com Ms. Stacey Peterson April 27, 2018 Page4 its then applicable rates for time expended, including all required preparation time. Client agrees to reimburse the Firm for all reasonable fees and costs incurred in obtaining necessary representation for such proceedings, including legal fees and costs that the Firm incurs in preparing for such proceedings . Client shall also compensate the Firm at its then applicable rates for time expended in defending against any actual or threatened claim with respect to which the Firm is entitled to indemnification pursuant to this Agreement, below. If costs and/or expenses, including the costs of legal representation should reasonably be expected to exceed $5,000, Client shall advance the funds to the Firm or the Firm's designee. Indemnification. Client agrees to defend, indemnify and hold the Firm harmless for and against all actions, claims, and complaints, whether formal or informal, actual or threatened, arising from or related to the investigation brought or asserted against the Firm by any investigation interviewee, Client employee or official, or anyone claiming through them. This right of indemnification shall not extend to any loss, liability, damage, or expense resulting from the Firm's actual negligence or other actual misconduct. Any right of defense or indemnification shall be undertaken by Client at its sole expense and under its control. In accordance with California Rule of Professional Conduct 3-400, this provision is not intended to apply to any potential professional malpractice action brought by Client against the Firm. The Firm agrees to defend, indemnify and hold the Client harmless for and against all other actions, claims, and complaints, whether formal or informal~ actual or threatened, arising from or related to the investigation brought or asserted against the Client, other than those claims for which the Client is defending and indemnifying the Firm, as set forth above. Discharge and Withdrawal. Clients may terminate the Firm's investigative services at any time effective upon delivery of written notice to the Firm. In this event, all unpaid charges will immediately become due and payable. Unless we specifically agree to do so, we will provide no further services and advance no further costs on the matter after we receive notice of termination. Our right to terminate services to a client is subject to certain Rules of Professional Conduct that: (a) require us to take reasonable steps to avoid foreseeable prejudice to the client from our withdrawal; and (b) establish standards for mandatory and permissive withdrawal under certain circumstances. Failure by a client to pay our bills in full, and on a timely basis, can constitute adequate grounds for us to withdraw. No Warranty of Result. Although we believe that we can assist Client in reaching its goals, we cannot predict or represent that a particular result can be obtained. We can make no promises or guarantees regarding the outcome of the matter or matters that are the subject of our services. Entire Agreement. This letter represents our entire agreement, which will be effective on the date of your signature. It supersedes all prior agreements, statements, or promises made before this time. Severability. Should any provisions of this contract be declared to be invalid or unenforceable, the remainder of this contract shall remain in full force and effect. Applicable Law. This Agreement shall be governed by the laws of the State of California. To s!gnify Client's agreement with the terms of this letter, please sign the original and retain it for your files. You should sign the enclosed copy and return it to us for our files. An individual authorized to Van Dermyden Maddux Law Corporation 2520 Venture Oaks Way Suite 140. Sacramento. CA 95833-4227 P: (916) 779 -2402 I F: (916) 779 -145 1 www.vmlawcorp.com Ms. Stacey Peterson April 27, 2018 Page 5 execute this Agreement on behalf of Client, should sign, date and return a copy of this letter to the Firm, signifying agreement to these terms. Thank you for this opportunity to provide investigative services. Very truly yours, Nikki Hall I am authorized to sign this Agreement. I have read and understand the terms of this Agreement. I hereby confirm the engagement of Van Dermyden Maddux Law Corporation to provide investigative services in accordance with its terms. City of San Rafael Printed Name Signature Date: _______ -.1' 2018 Van Dermyden Maddux Law CorporatIon 2520 Venture Oaks Way Suite 140, Sacramento, CA 95833·4227 Title P: (916) 779-2402 I F: (916) 779-1451 www.vmlawcorp.com CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Human Resources Project Manager: Stacey Peterson Extension: 3069 Contractor Name: Van Dermyden Maddux (First Amended Agreement for Legal Services) Contractor's Contact: Nikki Hall Contact's Email: nhall@vmlawcorp.com o FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION DEPARTMENT 1 Project Manager a. Email PINS Introductory Notice to Contractor b . Email contract (in Word) & attachments to City Atty c/o Laraine .Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement and return to Project Manager b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to contractor for their signature 4 Project Manager When necessary, * contractor-signed agreement agendized for Council approval ·PSA > $20,000 ; or Purchase> $35 ,000 ; or Pub lic Works Contract> $125,000 Date of Council approval PRINT CONTINUE ROUTING PROCESS WITH HARD COpy 5 Project Manager Forward signed original agreements to City Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed agreement 7 City Attorney Review and approve insuranal" ~~S , and bonds (for Public Works Contracts) vv~A~.:. .{1; 'V\-~/~ 8 City Manager / Mayor Agreement executed by Council authcfrized official 9 City Clerk Attest signatures, reta i ns original agreement and forwards copies to Project Manager COMPLETED DATE N/A 6/5/2018 6/5/2018 N/A 6/6/2018 IZJ N/A Or C. c. ~ here to entc a date 6/8/18 fIj tf WI I /~ ·i/l '~ ~113/1?J REVIEWER Check/Initial Ig] Ig] IZJ IZJ -- Ig] Ig] IjJJjJ} &l AM ~ ~ ~ V\V