HomeMy WebLinkAboutCA Legal Services for Employment Relations MattersAGREEMENT FOR LEGAL SERVICES
BETWEEN THE CITY OF SAN RAFAEL AND
BURKE, WILLIAMS & SORENSEN, LLP
This Agreement is made and entered into this _Z -day of Irl , 2019, by and
between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BU CE, WILLIAMS &
SORENSEN, LLP (hereinafter "CONTRACTOR").
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 Human Resources Director 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. Timothy L. Davis is hereby designated as the PROJECT DIRECTOR for
CONTRACTOR.
2. DUTIES OF CONTRACTOR.
CONTRACTOR shall provide the CITY with consulting services pertaining to
employment relations matters, including representation in labor negotiations, as requested by the
CITY. CONTRACTOR'S services shall include, but not be limited to, the following:
• Strategize, advise, lead and represent the CITY in negotiations regarding the current
Memorandum of Understanding between the City and its labor unions (hereafter collectively
referred to as "UNIONS"), including but not limited to SEIU Local 1021- Childcare and
other labor groups as determined by PROJECT MANAGER.
• Meet with City management to review the budget in preparation of developing parameters
for the negotiations.
• Review contract language, grievance documents, and arbitration awards that prevent or limit
the City's right to eliminate or modify expensive or inefficient policies, work Hiles, or
practices.
• Meet with managers to identify expensive or inefficient policies. work rules, or practices,
and prioritize the importance of changing them through negotiations.
• Coordinate and assist the City's management staff in determining the potential cost savings
for each policy, work rule, or practice in question.
• Analyze whether or not elements of targeted policies, work rules. contract language, or past
3��
- 932 Uru"AL
practices are within the scope of bargaining. If management has the right to change any of
those items, assist staff in determining the necessity for impact bargaining.
• Assist in the development of overall labor relations strategies.
• Conduct presentations and discussions with the Council in Closed Session to authorize
parameters for negotiations, and to regularly update the Council on the progress of
negotiations.
• Develop and prepare contract proposals for negotiating changes to compensation and
benefits, policies, work rules, or practices.
• Provide reports and/or presentations as requested to senior management regarding the status
of negotiations.
• Timothy L. Davis will advise and represent the CITY in MMBA impasse procedures as
described in the CITY's Employer -Employee Relations Ordinance, Resolution No. 12189,
as necessary.
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 shall be responsible for
certain aspects of the labor negotiations process. Over the course of this agreement, CITY duties
shall include:
A. Calculating the cost of I% of employee compensation to be used during the negotiations
process, which includes figures for each bargaining unit as well as an overall CITY
figure.
B. Completing necessary survey work for benefit levels, salary comparisions, staffing
stricture, industry practices or other data as may be needed during the negotiations
process.
C. Providing current Memoranda of Understanding (MOU's), Persornlel Rules and
Regulations, CITY policies and other data that would assist CONTRACTOR in
providing negotiation services.
D. Preparing drafts of documents, proposals and contract agreements as mutually agreed to
by CITY and CONTRACTOR.
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 $325.00/hour for the
PROJECT DIRECTOR and other partners at CONTRACTOR's firm as approved by PROJECT
MANAGER, as well as $260.00/hour for any Associate of CONTRACTOR's firm; and
$150.00/hour for any Paralegal in CONTRACTOR's firm. Expenses will be billed to CITY at
CONTRACTOR's cost, except as follows:
In -office photocopying/page: $0.20
In -office color photocopying/page $1.00
Facsimile charges;/page: $1.00
Mileage/mile: $0.54
In the event that the compensation payable under this Agreement reaches a total of
$40,000.00, including expenses, then thereafter CONTRACTOR shall be required to obtain
advance written approval from the City Manager for additional compensation for services under this
Agreement.
Payment will be made upon receipt by PROJECT MANAGER of itemized invoices
submitted by CONTRACTOR.
5. TERM OF AGREEMENT
This Agreement shall be effective upon execution by all parties, 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 tennination, 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.
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 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
perfonned 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 perfonnance 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 01 04 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 teens 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 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 tlus 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 (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 hill 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
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 tine basis of age,
sex, race, color, religion, ancestry, national origin or disability in connection with or related to tine
performance of its duties and obligations under this Agreement.
G
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 conmmunications 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:
Shibani Nag, HR Director
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
TO CONTRACTOR: Timothy L. Davis, Attorney at Law
Burke, Williams & Sorensen, LLP
1503 Grand Road — Suite 200
Mountain View, CA 94040
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 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 teens and conditions of tlis 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 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
8
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 terms of this Agreement that by their nature extend beyond the term (or termination) of
this Agreement shall remain in effect until firlfrlled, 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 counterparts, 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 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 BURKE, WILLIAMS & SORENSEN,
LLP, CONTRACTOR
JIM
ATTEST:
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
RO
T F. EPSTEIN, City Attorney
9
By:
Timot avis, Partner
RAFq�`
►1
a
i
F �
/TywITH P'��
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: Lauren Monson
Contractor Name: Burke Williams Sorenson
Contractor's Contact: Tim Davis
Contractor/Consultant must file Form 700
Extension: ext 3082
Contact's Email: TDavis@bwslaw.com ® FPPC: Check if
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
a. Email PINS Introductory Notice to Contractor
DATE
Check/Initial
❑
1
Project Manager
Click here to
enter a date.
b. Email contract (in Word) and attachments to City
Click here to
Attorney c/o Laraine.Gittens@cityofsanrafael.org
a. Review, revise, and comment on draft agreement
enter a date.
4/8/2019
❑
2
City Attorney
and return to Project Manager
4/22/2019
®Lmm
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
® LMM
3
Department Director
Approval of final agreement form to send to
Click or tap
❑
contractor
to enter a
Project Manager
Forward three (3) originals of final agreement to
date.
4
4/22/2019
Project Manager
contractor for their signature
5
When necessary, contractor -signed agreement
® 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 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
4/23/19
Attorney with printed copy of this routing form
7
City Attorney
Review and approve hard copy of signed
4I
City Attorney
agreement
Review and approve insurance in PINS, and bonds
8
(for Public Works Contracts)
Agreement executed by City Council authorized^�
9
City Manager/ Mayor
Jl
official
Attest signatures, retains original agreement and
10
City Clerk
CO
forwards copies to Project Manager