HomeMy WebLinkAboutCA 2019 Legal ServicesAGREEMENT FOR LEGAL SERVICES
BETWEEN THE CITY OF SAN RAFAEL AND
THE TELECOM LAW FIRM, P.C.
This Agreement is made and entered into this 1. LD day of j {).;(\ U t'). 'f ~ , 2019, by
and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and the TELECO LAW FIRM,
P.C. (hereinafter "CONTRACTOR").
RECITALS
WHEREAS, CITY has need of legal services in connection with updating its Municipal
Code and policies regarding wireless telecommnuications services in connection with new "small
wireless facility" technology and applicable laws and regulations pertaining thereto; and
WHEREAS, CONTRACTOR specializes in the law governing wireless
telecommunications services and is willing to provide needed services to CITY;
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. PROJECT COORDINATION.
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. Dr. Jonathan Kramer 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 provide legal advice and representation of the CITY in matters
pertaining to the CITY's regulation of wireless telecommunications servicesupon request by the
PROJECT MANAGER, including but not limited to assistance with drafting and review and
analysis. This Agreement does not include representation of the CITY by CONTRACTOR in
any judicial, administrative, alternative dispute resolution or similar proceeding.
OR~GiNA .
3. D U TIES OF CITY.
CITY shall pay the compensation as provided in Paragraph 4, and provide access to
infom1ation and work space as reasonably necessary for CONTRACTOR to perform its services.
4. COMPENSATION.
For the full perfonnance of the services described herein by CONTRACTOR, CITY shall
pay CONTRACTOR on a time and expense basis, according to the following hourly rates:
Paiiner $320
Associate $280
Pai·alegal $175
The total compensation payable to CONTRACTOR hereunder shall not exceed $25,000.
Payment will be made monthly upon receipt by PROJECT MANAGER of itemized invoices
submitted by CONTRACTOR.
5. TERM OF AGREEMENT.
The tenn of this Agreement shall be one year, cmrunencing as ofNovember 1, 2018. Upon
mutual agreement of the parties, ai1d subject to the approval of the City Maimger the te1111 of this
Agreement may be extended for an additional period of up to one (1) year.
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 te1111inate this Agreement for cause upon fifteen (15) days
written notice mailed or personally delivered to the other paiiy, 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 te1111ination, 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.
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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 mate1ials 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. ASSIGN ABILITY.
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
perfonnance 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. Notwithstanding the foregoing sentence, on written notice
to the CITY, CONTRACTOR shall have the right to assign this Agreement in full to an entity owned
and operated by CONTRACTOR's principals to facilitate a change in corporate fo1m.
10. INSURANCE.
A. Scope of Coverage. During the tenn 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 occmTence/two million dollars ($2,000,000) aggregate, for death,
bodily injury, personal injury, or property damage.
2. An automobile liability (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 perfo1mance 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.
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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 non contributory" 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 010413.
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 prirnaiy 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.
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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 oflnsurance. 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 fo1m 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
hannless 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 negligent perfonnance of
its obligations or conductwillful misconduct 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 perfonnance of or
operations under this Agreement, CONTRACTOR shall provide a defense to the City
lndemnitees 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 perfo1med 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
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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 incmTed 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 hannless 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 te1mination 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
perforn1ance 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 perfmm 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 pruiies 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 A. Goldfien, Assistant City Attorney
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TO CONTRACTOR's Project Director:
16. INDEPENDENT CONTRACTOR.
City of San Rafael
1400 Fifth A venue
P.O. Box 151560
San Rafael, CA 94915-1560
Telecom Law Firm, PC
Attn: Office Managing Partner
3570 Camino del Rio N01ih, Suite 102
San Diego, California 92108
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
te1ms 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
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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 te1m, covenant, condition, ordinance, law or regulation. The subsequent
acceptance by either paity 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 patty of any tenn, condition, covenai1t of this Agreement or any applicable law, ordinance
or regulation.
20. COSTS AND ATTORNEY'S FEES.
The prevailing patty in any action brought to enforce the terms and conditions of this
Agreement, or aii.sing out of the perfmmance 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 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 tenns 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 counterpaiis, 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 meai1s of electronic transmission.
IN WITNESS WHEREOF, the paiiies have executed this Agreement as of the day, month
and yeai· first above written.
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CITY OF SAN RAFAEL CONTRACTOR
N
Title: l/f ~ Sh-tK~ IA 0 f.Luc:
ATTEST:
[If Contractor is a corporation, add signature of second
corporate officer]
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
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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 Attorney
Project Manager: Lisa A. Goldfien Extension: 3081
Contractor Name: Telecom Law Firm, P.C.
Contractor's Contact: Tripp May, Esq. Contact's Email: tripp@telecomlawfirm.com
□ FPPC: Check if Contractor/Consultant must file Form 700
Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER
DEPARTMENT DATE Check/Initial
1 Project Manager a. Email PINS Introductory Notice to Contractor 1/18/2019 IZl
12/13/2018
b. Email contract (in Word) and attachments to City
Attorney c/o Laraine .Gittens@cityofsanrafael.org IZl
2 City Attorney a. Review, revise, and comment on draft agreement 1/18/2019
and return to Project Manager Click here to IZl --
b. Confirm insurance requirements, create Job on enter a elate .
PINS, send PINS insurance notice to contractor □
3 Department Director Approval of final agreement form to send to Click or tap □ --
contractor to enter a
date.
4 Project Manager Forward three (3) originals of final agreement to Click here to □
contractor for their signature enter a date.
5 Project Manager When necessary, contractor-signed agreement □ N/A
agendized for City Council approval *
*City Cou ncil approva l required fo r Professio nal Services □ Agreements and pu rchases of goods and services that exceed Or $75 ,000 ; and for Publ ic Works Contracts tha t exceed $175,000
Click here to
Date of City Council approval enter a date.
PRINT CONTINUE ROUTING PROCESS WITH HARD COPY
6 Project Manager Forward signed original agreements to City
Attorney with printed copy of this routing form
7 City Attorney Review and approve hard copy of signed
1/2.'i / 1q ~ agreement
8 City Attorney Review and approve insurance in PINS, and bonds
1/2.1,1/ 11 1Uk-(for Public Works Contracts)~ l,t.. tll"IIIMIJ;;t;J
9 City Manager/ Mayor Agreement executed by City Council authorized i-16 -l 1 ~ official
10 City Clerk Attest signatures, retains original agreement and IJ
forwards copies to Project Manager ' I tq \ 'ct T5t_.~
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