HomeMy WebLinkAboutCA General Municipal Legal Services 2020-07AGREEMENT FOR PROFESSIONAL SERVICES
FOR GENERAL MUNICIPAL SERVICES
This Agreement is made and entered into this day of
20_,,R) by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and BURKE,
WILLIAMS & SORENSEN, LLP (hereinafter "CONTRACTOR").
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
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. Nira Doherty 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 perform the duties and/or provide services as follows:
a. Representation and advice regarding general municipal matters for the City Attorney's
office and for the City Council, City Manager, Boards and Commissions and City staff as
directed and delegated by the City Attorney's office.
b. Attendance at Council meetings and staff meetings as directed and delegated by the
City Attorney's office.
c. Occasional office hours at City Hall during Assistant City Attorney vacation, in an agreed
upon schedule by the parties.
This Agreement shall include all general municipal legal services which includes all
legal services with the exception of special counsel services. Special counsel services
include:
o Litigation
o Arbitration
o Complex construction
-� Eminent domain
o Complex personnel matters including disciplinary actions (routine
personnel matters and advice are included within the Agreement.)
o Imposition of fees and taxes pursuant to Props 26 and 218
3. DUTIES OF CITY.
CITY shall pay the compensation as provided in Paragraph 4
4. COMPENSATION.
For the full performance of the services described herein by CONTRACTOR, CITY
shall pay CONTRACTOR on a time and materials basis at CONTRACTOR's standard
public agency rates as follows:
$325/hour - partners
$295/hour — associates
In no event shall the compensation payable to CONTRACTOR hereunder exceed
the sum of $150,000 except by written amendment to this Agreement.
Payment will be made monthly upon receipt by PROJECT MANAGER of itemized
invoices submitted by CONTRACTOR.
5. TERM OF AGREEMENT.
The term of this Agreement shall commence on July 1, 2020 and end on June 30,
2021.
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
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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.
B. 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 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
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.
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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.
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 noncontributory" 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 0413.
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 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.
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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.
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
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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, 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 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 incurred 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
harmless 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 termination or completion
of this Agreement for the full period of time allowed by law.
12. NONDISCRIMINATION.
CONTRACTOR shall not discriminate, in any way, against any person on the basis
of age, sex, race, color, religion, ancestry, national origin or disability in connection with or
related to the performance of its duties and obligations under this Agreement.
13. COMPLIANCE WITH ALL LAWS.
CONTRACTOR shall observe and comply with all applicable federal, state and
local laws, ordinances, codes and regulations, in the performance of its duties and
obligations under this Agreement. CONTRACTOR shall perform all services under this
Agreement in accordance with these laws, ordinances, codes and regulations.
CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers,
agents and employees from any and all damages, liabilities, penalties, fines and all other
consequences from any noncompliance or violation of any laws, ordinances, codes or
regulations.
14. NO THIRD PARTY BENEFICIARIES.
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to
create in any third party, any benefit or right owed by one party, under the terms and
conditions of this Agreement, to the other party.
15. NOTICES.
All notices and other communications required or permitted to be given under this
Agreement, including any notice of change of address, shall be in writing and given by
personal delivery, or deposited with the United States Postal Service, postage prepaid,
addressed to the parties intended to be notified. Notice shall be deemed given as of the
date of personal delivery, or if mailed, upon the date of deposit with the United States
Postal Service. Notice shall be given as follows:
TO CITY's Project Manager: Lisa Goldfien
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
TO CONTRACTOR's Project Director: Nira Doherty
Burke, Williams & Sorensen, LLP
181 Third Street
San Rafael, CA 94901
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
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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 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. SURVIVAL OF TERMS.
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Any terms 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 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
By: .
JIM S U ,City Man"
ATTEST:
XNati.: Love. -t
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
9"". o kw,
ckr?,, ROBERT F. EPSTEIN, Cily Attorney
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CONTRACTOR
By:
Name: Nira F. Doherty
Title: Partner
[If Contractor is a corporation, add signature of
second corporate officer]
By:
Name:
Title:
RAF,q�`
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WITH P `�\y
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: 3080
Contractor Name: Burke, Williams & Sorensen, LLP
Contractor's Contact: Nira F. Doherty, Esq. Contact's Email: NDoherty@bwslaw.com
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION • COMPLETED
T REVIEWER
DEPARTMENT
DATE
Check/Initial
1
Project Manager
a. Email PINS Introductory Notice to Contractor N/A
❑X
6/23/2020
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 6/23/2020
and return to Project Manager N/A
x❑
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
❑X
3
Department Director
Approval of final agreement form to send to 6/23/2020
contractor
4
Project Manager
Forward three (3) originals of final agreement to
❑
contractor for their signature
5
Project Manager
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
7/6/2020
Date of City Council approval
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
agreement ' )1112.1
i�.k-
8
City Attorney
Review and approve insurance in PINS, and bonds
ZUZ
(for Public Works Contracts)
,
7
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9
City Manager/ Mayor
Agreement executed by City Council authorized
-71111 V
official
10
City Clerk
Attest signatures, retains original agreement and
forwards copies to Project Manager