HomeMy WebLinkAboutCM Briscoe Economics Group Labor BargainingAMENDED AGREEMENT FOR LEGAL SERVICES
BETWEEN THE CITY OF SAN RAFAEL AND
BRISCOE ECONOMICS GROUP, INC
This amnended Agreement is made and entered into this ~ day of kb(vCl-fY ,
2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BRISCOE
ECONOMICS GROUP, INC. (hereinafter "CONTRACTOR").
WHEREAS the CITY entered into an Agreement for economic consulting services with
CONTRACTOR in November 2017;
WHEREAS the CITY has exhausted the original $10,000.00 contract limit and wishes to
continue to use CONTRACTOR's economic consulting services through 2018 bargaining with City
labor groups;
WHEREAS CONTRACTOR wishes to continue providing economic consulting services to
the CITY; and
WHEREAS to continue receiving economic consulting from CONTRACTOR the
CITY must increase the contract amount with CONTRACTOR by $10 ,000.00 to total a not to
exceed amount of $20,000.00 for services provided by CONTRACTOR under this amended
Agreement.
AGREEMENT
NOW, THEREFORE , the parties hereby agree as follows:
1. PROJECT COORDINATION.
A. CITY. The City Manager shall be the representative of the CITY for all purposes
under this Agreement. The 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. CONTRACTOR shall assign a single PROJECT DIRECTOR
to have overall responsibility for the progress and execution of this Agreement for
CONTRACTOR. Nicholoas Briscoe is hereby designated as the PROJECT DIRECTOR for
CONTRACTOR.
2. DUTIES OF CONTRACTOR.
CONTRACTOR shall provide economic consulting services at the direction of the
PROJECT MANAGER as outlined in the Engagement Letter at Exhibit A. Such services shall be
confidential and pursuant to the attorney-clienit privilege and attorney work product doctrine.
3. DUTIES OF CITY.
CITY shall compensate CONTRACTOR as provided in Paragraph 4.
4. COMPENSATION.
For the CONTRACTOR's full performance of the duties and services described herein,
CITY shall pay CONTRACTOR for the hours of work, based on the rates of $250.00/hour for the
PROJECT DIRECTOR and other partners at CONTRACTOR's firm as approved by PROJECT
MANAGER; in a total amount not to exceed $20,000.00, including expenses. Payment will be
made upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR.
5. TERM OF AGREEMENT.
This Agreement shall become effective as of October 18, 2017, and shall continue until
terminated by mutual agreement or as provided in Section 6.
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 sale property of CITY. CITY may
use said property for any purpose, including projects not contemplated by this Agreement.
8. INSPECTION AND AUDIT.
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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 professional general liability insurance policy in the minimum amount of
one million dollars ($1,000,000) per occurrence/two million dollars ($1,000,000) aggregate, to
cover any claims arising out of the CONTRACTOR's performance of services under this
Agreement.
2. If it employs any person, CONTRACTOR shall maintain worker's
compensation and employer's liability insurance, as required by the State Labor Code and other
applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY
against all liability for injuries to CONTRACTOR's officers and employees. 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, the insurance policies shall be
specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as
additionally named insureds under the policies.
2. 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.
3. The insurance policies shall provide for a retroactive date of placement
coinciding with the effective date of this Agreement.
4. 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
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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.
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 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.
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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, CONTRACTOR shall, to the fullest extent permitted by law,
indemnify, release, defend and hold harmless the City Indemnitees from and against any
CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of CONTRACTOR in the performance of its duties and obligations under this
Agreement or its failure to comply with any of its obligations contained in this Agreement,
except such CLAIM which is caused by the sole negligence or willful misconduct of CITY.
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:
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TO CITY:
TO CONTRACTOR:
16. INDEPENDENT CONTRACTOR.
Robert F. Epstein, City Attorney
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
Nicholas Briscoe, Chief Economist
Briscoe Economics Group, Inc .
1520 E Covell Blvd., Ste B5 #264
Davis, CA 95616
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.
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19. WAIVERS.
The waiver by either party of any breach or violation of any tenn, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
other tenn, covenant, condition, ordinance, law or regulation, or of any subsequent breach or
violation of the same or other tenn, covenant, condition, ordinance, law or regulation. The
subsequent acceptance by either party of any fee, perfonnance, 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 tenn, 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 tenns and conditions of this
Agreement, or arising out of the perfonnance 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 perfonned under this Agreement, until CONTRACTOR has provided CITY with a
completed Internal Revenue Service Fonn W-9 (Request for Taxpayer Identification Number and
Certification).
22. APPLICABLE LAW.
The laws of the State of California shall govern this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL
ATTEST:
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BRISCOE ECONOMICS GROUP, INC
By:~/~
NICHOLAS BRISCOE,
Chief Economist
LIND SA Y LARA, Interim City Clerk
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VIA EMAIL
Lauren Monson
City Deputy Attorney
City of San Rafael
1400 Fifth Ave.
San Rafael, CA 94901
Dear Ms. Monson :
10/26/2017
Re: City of San Rafael
Briscoe Economics Group, Inc.
1520 E Covell Blvd ., Ste B5 #264
Davis , CA 95616
Tel 916 .890.3889
Fax 916 .307.5756
www.BriscoeEconomics.com
This letter confirms the terms upon which Briscoe Economics Group, Inc. (BEG) undertakes to
assist The City of San Rafael (Client or you) in the above-referenced matter (Engagement). You
have retained us to provide wage and hour consulting services (Services).
We understand that you may also wish to engage us to assist you by providing expert witness
services concerning economics , accounting, finance, vocational, economic damages or other
business practices issues in this Engagement or other matters. Should you wish to engage
BEG for these services, your decision will be made in light of the nature of information
previously disclosed to BEG.
The Services performed by us will be confidential and considered a portion of your work
product, and therefore will be regarded by us as covered by the attorney-client privilege and
attorney work product doctrine. Notwithstanding the foregoing, however, Client understands that
any Services or work product performed pursuant to any engagement of BEG for expert witness
services, as well as information disclosed to us pursuant to this Engagement, will be subject to
all applicable federal and state rules of discovery that pertain to expert witnesses .
We have undertaken a review of our records for any potential client conflicts with the persons or
entities that you have disclosed in connection with this Engagement, and have found none. If a
potential conflict arises, we will bring it to your attention as soon as possible.
BEG shall be compensated at our standard rate of $250 per hour for all services rendered for
work performed by BEG's Economists. Expenses incurred in connection with our Services,
including copying, travel and supplies, will be reimbursed at cost. Total compensation, including
expenses, shall not exceed ten thousand dollars ($10,000.00).
Client acknowledges that BEG 's rates are subject to change , including calendar year reviews ,
and BEG may change its rate at any time during the Engagement upon 30 days notice to you .
BEG's invoice for services requested and out-of-pocket expenses will be submitted monthly and
Ms . Lauren Monson
City of San Rafael
RE: City of San Rafael
10/26/2017
Page 2
is due and payable upon receipt. Charges are considered delinquent after a period of 30 days.
A late charge in the amount of 1 % per month will accrue on delinquent, unpaid amounts.
BEG reserves the right to request payment of all fees and costs due and payable prior to the
delivery of any written report, declaration, affidavit, or oral testimony. BEG further reserves the
right to stop all work if any invoice is unpaid for 60 days. Any termination of this Engagement
shall not relieve Client (or your clients) of responsibility for any unpaid invoice. BEG's fees are
not contingent for any reason and will be paid regardless of the opinion rendered, or the
outcome of the matter or consulting assignment for which Client has engaged BEG.
In the event that BEG is requested or subpoenaed to produce any documents or testimony
related to the Engagement in which BEG is not a party, Client agrees to reimburse BEG at its
standard billing rate for BEG's professional time and expenses, including reasonable attorney's
fees, in responding to such requests .
Client agrees to cooperate with BEG and to provide information, documents, and materials
relevant to the above matter in a timely manner, to promptly inform BEG of developments that
may affect the above matter or this Engagement, to make necessary decisions in a timely
manner, and to notify BEG if there are any questions , concerns, or any dissatisfaction regarding
the Services. Client agrees to provide BEG with prompt notice of any Daubert or Frye motions,
motions in limine, or other pre-trial motions made by anyone to restrict, exclude or in any way
limit BEG Expert's testimony. Upon termination of this Engagement, BEG will store at its
expense all relevant files for a period of up to 30 days. If BEG has not received instructions from
Client regarding the disposition of these items within 30 days of termination , it may destroy
some or all items .
BEG will store electronic copies of your files using third-party online storage services (the cloud)
that provide appropriate security and encryption services. BEG will use its best judgment as to
levels of encryption or security appropriate for storing your files in the cloud . If you require or
desire special treatment of your files, please let us know in writing at the outset of this
Engagement. If you do not communicate the need for special treatment, BEG will presume that
you have agreed to whatever cloud storage services BEG deems appropriate .
BEG may send documents or other confidential information that is covered by the attorney-client
or work product privileges using external electronic communication (EC) via the Internet or other
network. Client understands that EC is not an absolutely secure method of communication.
Client acknowledges and accepts the risk and authorizes BEG to use EC means to
communicate with Client or others necessary to effectively provide the Services. If there are
certain documents with respect to which you wish to maintain absolute confidentiality, you agree
you will advise BEG in writing not to send them via EC, and BEG will comply with your request.
Client has had the opportunity to investigate and verify BEG's credentials, and agrees that BEG
is qualified to perform the Services . Although BEG will use professional diligence in providing
the Services, Client acknowledges that BEG cannot guarantee any particular outcome in the
above-reference matter due to variables and inherent uncertainties outside of BEG's control.
Ms. Lauren Monson
City of San Rafael
RE: City of San Rafael
10/26/2017
Page 3
If you wish to terminate our relationship, you may do so at any time for any reason upon written
notice. Similarly, BEG reserves the right to terminate this Engagement and withdraw from
working with Client for any reason, including the non-payment of fees, by giving you written
notice of intent to terminate. Fees and expenses incurred by BEG through the termination date
are due immediately upon termination.
BEG's total liability and that of its officers, employees, agents and sub-contractors for all claims
of any kind arising out of, relating to, or connected with this Engagement, shall be limited to the
total fees paid to BEG pursuant to this Engagement.
You and BEG agree that a digital signature will be effective to prove assent to the terms of this
Engagement. You and BEG further agree that the terms of this Engagement may be proved
through an electronic facsimile, including a scanned electronic copy in PDF or other digital
format, and that no "original" hard-copy document will be retained by BEG to prove the terms of
this agreement. The unenforceability or invalidity or any part of this agreement will not invalidate
or make unenforceable any other part of this agreement. This agreement is the entire
agreement between Client and BEG concerning the Services and may be amended only in a
writing signed by both parties.
This agreement shall be governed by the laws of the State of California, notwithstanding its
conflict of laws provisions. Subject to the arbitration provisions below, any action or proceeding
brought to enforce the terms of this agreement or adjudicate any dispute arising out of this
agreement shall be exclusively brought in the United States District Court for the Eastern District
of California within the County of Sacramento, State of California or in the California state court
sitting in Sacramento, California. Any controversy, dispute or claim in connection with Services
or related to this agreement, including any claim for breach of contract or negligence, will be
resolved by binding arbitration. Such arbitration will be conducted in Sacramento, California, in
accordance with the rules of the American Arbitration Association. The arbitrator will be
empowered to order the party losing the arbitration to reimburse the prevailing party for all
expenses incurred in connection with the arbitration, including without limitation the arbitrator's
fees and reasonable attorney fees and costs. The arbitration award will be enforceable in any
state or federal court. This agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement.
We appreciate the opportunity to assist you in this matter. If this letter correctly describes our
Engagement, please sign and date a copy of this letter and return to us.
Sincerely,
Nicholas Briscoe
Chief Economist
[SIGNATURE PAGE TO FOLLOW]
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: City Manager
Project Manager: Rob Epstein
Extension: 3080
Contractor Name: Briscoe Economics Group, Inc. (Amended Agreement)
Contractor's Contact: Nicholas Briscoe
Contact's Email: Nick@BriscoeEconomics.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
Public 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 insurance in PINS, and bonds
(for Public Works Contracts) LN
8 City Manager / Mayor Agreement executed by Council authorized official
9 City Clerk Attest signatures, retains original agreement and
forwards copies to Project Manager
COMPLETED
DATE
N/A
2/12/2018
2/12/2018
N/A
2/12/2018
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