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HomeMy WebLinkAboutHR Legal Services 2019; Amendment 1FIRST AMENDED AGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF SAN RAFAEL AND SACKS, RICKETTS & CASE, LLP This amended Agreement is made and entered into this I 1plp day of January, 2019, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and SACKS, RICKETTS & CASE, LLP (hereinafter "CONTRACTOR"). RECITALS WHEREAS, The City entered into an Agreement for consulting services, in particular investigation services into a complaint of alleged workplace misconduct with CONTRACTOR on October 3, 2018; WHEREAS, the CONTRACTOR performed those services but exceeded the $25,000.00 compensation limit; and WHEREAS, the Agreement provides for the parties to obtain an amendment to the Agreement including advance written approval from the City Manager for additional compensation for services under this Agreement; and . WHEREAS, the C= continues to be in need of investigation services for a new and different allegation of workplace misconduct; and WHEREAS, the CITY would like to amend the original agreement to increase the contract compensation amount and expand the scope to include the additional requested investigation services. AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY. The Human Resources Director 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. Todd Simonson is hereby designated as the PROJECT DIRECTOR for CONTRACTOR. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall provide the CITY with consulting services, in particular investigation services into a complaint of alleged workplace misconduct. The CONTRACTOR'S services shall include, but not be limited to the following: Scope of Services. CITY hires the CONTRACTOR to perform legal services for CITY in the form of an impartial investigation, or investigations, regarding alleged misconduct by City employees. The CONTRACTOR will perform these duties as an attorney at law for the purpose of facilitating the rendering of legal advice to CITY by its counsel. The CONTRACTOR'S communications, work product, and the final report will be protected from disclosure pursuant to the attorney-client privilege, unless waived by the CITY. Independence. As an independent contractor, the CONTRACTOR has the right to determine the means, manner and findings related to the investigation. CITY agrees to allow the CONTRACTOR full discretion to undertake the investigation and otherwise make findings without influencing or interfering with the outcome. CITY understands and acknowledges that the CONTRACTOR 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 CONTRACTOR'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 CONTRACTOR 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 CONTRACTOR will not render a legal determination whether there were violations of any law or statute. The CONTRACTOR will not act as an advocate or provide advice to CITY with respect to what employment actions, if any, should be taken as a result of the findings. The CONTRACTOR will not represent CITY in any legal action or proceeding. 3. DUTIES OF CITY. CITY shall cooperate with CONTRACTOR in its performance under this agreement and shall compensate CONTRACTOR as provided in Paragraph 4. CITY acknowledges that CONTRACTOR will not represent CITY in any legal action or proceeding and agrees that it 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. 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 $300.00/hour for the PROJECT DIRECTOR and other partners at CONTRACTOR's firm as approved by PROJECT MANAGER; in a total amount not to exceed $55,000.00, including expenses.' Expenses will be billed 1 The amended not to exceed amount includes the $25,000.00 already incurred from the original Agreement. Accordingly, additional amount authorized to spend under this contract is $30,000. to CITY at CONTRACTOR's cost, except as follows: Travel/hour: $150.00 In the event that the compensation payable under this Agreement reaches a total of $55,000.00 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. In no event shall the contract exceed $75,000.00. Payment will be made upon receipt by PROJECT MANAGER of itemized invoices submitted by CONTRACTOR. TERM OF AGREEMENT. This Agreement shall be effective as of October 3, 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. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of two million dollars ($2,000,000) per occurrence/four million dollars ($4,000,000) aggregate, to cover any claims arising out of the CONTRACTOR's performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation 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. The additional insured coverage under CONTRACTOR'S insurance policies shall be primary 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 0104 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the PROJECT MANAGER. 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall suivive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. 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 (3excerpts 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. The City agrees to defend, indemnify and hold harmless the Firm, its employees and agents, from and against all claims, suits or causes of action arising out of any complaint brought against the City during or as a result of the Engagement described above, or as the Firm may undertake on behalf of the City pursuant to this Agreement. The City will also provide legal representation for the Firm and any of its employees and agents at the City's expense through its legal counsel, or at the Firm's option, will provide reimbursement for legal counsel chosen by the Firm, if during any litigation relating to the Engagement, the Firm or any of its employees or agents providing services under this contract are sued, deposed, or otherwise required to provide information or testimony concerning services under this contract. The City will indemnify and hold harmless the Firm, its employees and agents, with respect to any judgment entered against it and/or with respect to any settlement of any third party claims related to the services rendered under this Agreement. This right of indemnifications shall not extend to any loss, liability, damage or expense resulting from the Firm's negligence or other actual misconduct. 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 the City against the Firm. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. 13. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY: Robert F. Epstein, City Attorney Lauren M. Monson, Deputy City Attorney City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 TO CONTRACTOR: Todd Simonson, Partner Sacks, Ricketts & Case, LLP 177 Post Street, Suite 630 San Francisco, CA 94108 16. INDEPENDENT CONTRACTOR. For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terns 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 terns and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other tenn, 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 terns and conditions of this Agreement, or arising out of the performance of tlus 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. 23. COUNTERPARTS AND ELECTRONIC SIGNATURE. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one -in -the -same document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL SACKS, RICKETTS & CASE LLP J SC TZ, City M a er ATTEST: - \-qr \_ LINDSAY LARA, Interim City Clerk AS TO FORM: T F. EPSTEIN, City Attorney r- �.- By: " 1j, Todd imonson, C9p,� RAP f;61 i z 'ryWITH p�Li 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: Cristine Alilovich Extension: 3384 Contractor Name: Sacks, Ricketts & Case, LLP Contractor's Contact: Todd Simonson, Esq. Contact's Email: tsimonson@srclaw.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE Check/Initial 1 Project Manager n/a 1/10/2019 b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 1/14/2019 and return to Project Manager 1/14/2019 b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Department Director Approval of final agreement form to send to ck or tap contractor to enter a Project Manager Forward three (3) originals of final agreement to date. 4 1/14/2019 contractor for their signature When necessary, contractor -signed agreement 5 Project Manager ® N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here tc Date of City Council approval enter a date PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City 1/14/19 Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed ,, (( i4 � i�nI Iq�. City Attorney agreement Review and approve insurance in PINS, and bonds L �vWUI� 8 (for Public Works Contracts) r 1 li, Lt ,rL� 9 City Manager/ Mayor Agreement executed by City Council authorized I City Clerk official 1 I� 10 Attest signatures, retains original agreement and l I9. �- I forwards copies to Project Manager ) L+-3-Soz