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HomeMy WebLinkAboutHR Legal Services Economic ConsultingAGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND BRISCOE ECONOMICS GROUP, INC This Agreement is made and entered into this 1 st day of April 2018, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BRISCOE ECONOMICS GROUP, INC. (hereinafter "CONTRACTOR"). RECITALS WHEREAS, the City of San Rafael desires services related to economIC consulting servIces. WHEREAS, CONTRACTOR has the skills and experience to provide such services. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. The HUMAN RESOURCES DIRECTOR shall be the designated 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. In addition, CONTRACTOR shall provide wage and hour consulting services specific to the City'S Police and Fire Departments other related wage and hour calculations as requested by the PROJECT MANAGER. 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. uHitiiiuAi 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 April 1, 2018, 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 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. 2 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/one 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 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. 3 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. 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 4 CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of CONTRACTOR in the perfonnance 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 tennination 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 perfonnance 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 perfonnance of its duties and obligations under this Agreement. CONTRACTOR shall perfonn all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnifY and hold hannless 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 tenns and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or pennitted 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: 5 Stacey Peterson, Human Resources Director City of San Rafael 1400 Fifth Avenue, Rm 210 San Rafael, CA 94901 TO CONTRACTOR: 16. INDEPENDENT CONTRACTOR. 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. 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 6 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. 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: LfNDSA Y LARA, City Clerk 7 BRISCOE ECONOMICS GROUP, INC By:~;7~ NICHOLAS BRISCOE, Chief Economist RO F. EPSTEIN, City Attorney I BRISCOE iIIII ~ ECONOMICS GROUP VIA EMAIL Stacey Peterson City of San Rafael 1400 Fifth Ave. San Rafael, CA 94901 Dear Ms. Peterson: 6/19/2018 Re: City of San Rafael Briscoe Economics Group, Inc. 1520 E Covell Blvd., Ste 85 #264 Davis , CA 95616 Tel 916 .890 .3889 Fax 916 .307 .5756 www.8riscoeEconomics.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 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 twenty thousand dollars ($20,000.00). 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 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. Exhibit A Ms . Stacey Peterson City of San Rafael RE: City of San Rafael 06/19/2018 Page 2 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. 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 Ms. Stacey Peterson City of San Rafael RE: City of San Rafael 06/19/2018 Page 3 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] Ms . Stacey Peterson City of San Rafael RE: City of San Rafael 06/19/2018 Page 4 AGREED AND ACCEPTED: 8y: ______________________________ __ City of San Rafael Dated: ______________ __ 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: Briscoe Economics Group, Inc. 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) 8 City Manager / Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and forwards copies to Project Manager ti-I-dDI~ COMPLETED DATE N/A 6/19/2018 6/20/2018 Already insurance from prior K 6/21/18 emailed to BEG 0 Or n/a 6/25/18 ~ll;1 / -) (~hA.l\ t ~ l'\~ll~ (r - REVIEWER Check/Initial 181 181 IZl LMM IZl n/a 181 Imm 181 Imm t rv ltJ\ !J~ no in PINS) ~ LY