HomeMy WebLinkAboutCM Community Engagement, Equity & Housing Policy Consulting Services; First AmendmentFIRST AMENDMENT TO AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF SAN RAFAEL AND LIZ DARBY
THIS IRST AMENDMENT is made and entered into as of this �, day of
2022, by and between the CITY OF SAN RAFAEL (hereinafter
" CI ), and LIZ DARBY (hereinafter "CONSULTANT").
RECITALS
WHEREAS, the CITY and CONSULTANT entered into that certain June 30,
2022, Agreement for Professional Services (the "Agreement"), attached hereto as
Exhibit A, pursuant to which CONSULTANT provides professional consulting services
to oversee various CITY projects; and
WHEREAS, the parties wish to clarify the maximum compensation to be paid
under the Agreement, and amend the term of the Agreement as set forth herein.
AMENDMENT TO AGREEMENT
NOW, THEREFORE, the parties hereby agree to amend the Agreement as
follows:
Section 4, Compensation, is hereby replaced in its entirety as follows:
For the full performance of the services described herein by CONSULTANT,
CITY shall pay CONSULTANT at the rate of $130 per hour, plus reimbursement of all
direct project expenses, including but not limited to transportation, postage,
messengers, photographs, and photocopying, provided that in no event shall the
compensation payable under this Agreement exceed $21,125 per month, or a total of
$170,000.
Payment will be made monthly upon receipt by PROJECT MANAGER of
itemized invoices submitted by CONSULTANT.
2. Section 5, Term of the A reement, is hereby replaced in its entirety as follows:
The term of this Agreement shall be for a one-year period, commencing on
May 17, 2022.
3. Except as specifically amended herein, all of the other provisions, terms and
obligations of the Agreement between the parties shall remain valid and shall be in full
force.
IN WITNESS WHEREOF, the parties have executed this First Amendment on
the day, month, and year first above written.
CITY OF SAN RAFAEL
SC UTZ, Ci Ma
ATTEST:
'le.�
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
RO ERT F. EPSTEIN, Oty Attorney
Exhibits
Exhibit A - Agreement
2
CONSULT
M
Name: I..l Z
Title: 1 01Su L7 -&Ar
[If CONSULTANT is a corporation, add
signature of second corporate officer]
M
Name:
Title:
AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is made and entered into thislo day of M",2022, by and between the
CITY OF SAN RAFAEL (hereinafter "CITY"), and LIZ DARBY (hereinafter "CONSULTANT"),
RECITALS
WHEREAS, the CITY has a need for professional consuting services to oversee various
CITY projects, including projects related to diversity, equity and inclusion, community engagement
and housing policy and programs; and
WHEREAS, CONSULTANT has the necessary education, skills, and professional
experience to provide the necessary services; and
WHEREAS, CITY has requested that CONSULTANT continue to provide needed services
as requested by CITY and CONSULTANT is willing to do so.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
PROJECT COORDINATION.
A. CITY'S Project Manager. The City Manager 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. CONSULTANT'S Project Director. CONSULTANT shall assign a single
PROJECT DIRECTOR to have overall responsibility for the progress and execution of this
Agreement for CONSULTANT. Liz Darby is hereby designated as the PROJECT DIRECTOR for
CONSULTANT. Should circumstances or conditions subsequent to the execution of this Agreement
require a substitute PROJECT DIRECTOR, for any reason, the CONSULTANT shall notify the
CITY within ten (10) business days of the substitution.
2. DUTIES OF CONSULTANT.
CONSULTANT shall perform the duties and/or provide services and supervise projects
related to housing, diversity, equity and inclusision initiatives, and community engagement as
specifically requested by the City Manager.
3. DUTIES OF CITY.
CITY shall pay the compensation as provided in Paragraph 4, and provide
CONSULTANT with access to such CITY resources as may be necessary to perform
CONSULTANT'S services under this Agreement.
4. COMPENSATION.
For the full performance of the services described herein by CONSULTANT, CITY shall
pay CONSULTANT at the rate of $130 per hour, plus reimbursement of all direct project
expenses, including but not limited to transportation, postage, messengers, photographs, and
photocopying, provided that in no event shall the compensation payable under this Agreement
exceed $21,125 per month.
Payment will be made monthly upon receipt by PROTECT MANAGER of itemized invoices
submitted by CONSULTANT.
5. TERM OF AGREEMENT.
The term of this Agreement shall commence upon execution of this Agreement and can be
terminated as provided in Paragraph 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 CITE' 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 CONSULTANT in connection with
the performance of its duti
use said property
es under this Agreement, shall be the sole property of CITY. CITY may
for any Purpose, including projects not contemplated by this Agreement.
8. INSPECTION AND AUDIT.
Oa
Upon reasonable notice, CONSULTANT shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONSULTANT in connection with
its performance of its duties under this Agreement. CONSULTANT 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, CONSULTANT 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 CONSULTANT's performance of services under this Agreement.
Where CONSULTANT is a professional not required to have a professional license, CITY reserves
the right to require CONSULTANT to provide professional liability insurance pursuant to this
section.
4. If it employs any person, CONSULTANT 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. CONSULTANT'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
CONSULTANT 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 CONSULTANT'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 CONSULTANT'S policies shall be at least as broad as
ISO form CG20 0104 13.
3. Except for professional
insurance, the insurance policies shall include,
contractual liability and personal injury.
liability insurance or worker's compensation
in their text or by endorsement, coverage for
4. By execution of this Agreement, CONSULTANT hereby grants to CITY
a waiver of any right to subrogation which any insurer of CONSULTANT may acquire against
CITY by virtue of the payment of any loss under such insurance. CONSULTANT 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 Foran, 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.
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
CONSULTANT under this agreement.
C. Deductibles and SIR's. Any deductibles or self-insured retentions in
CONSULTANT'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 CONSULTANT shall procure a bond guaranteeing payment of losses and
related investigations, claims administration, attorney's fees and defense expenses.
D. Proof of Insurance. CONSULTANT 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 CONSULTANT. 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.
H. . INDEMNIFICATION.
A. Except as otherwise provided in Paragraph B., CONSULTANT 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 CONSULTANT'S performance of its
obligations or conduct of its operations under this Agreement. The CONSULTANT'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 CONSULTANT'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
CONSULTANT's work or work product by the CITY or any of its directors, officers or
employees shall not relieve or reduce the CONSULTANT's indemnification obligations. In the
event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding
arising from CONSULTANT'S performance of or operations under this Agreement,
CONSULTANT 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. 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.
CONSULTANT 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.
CONSULTANT 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. CONSULTANT shall perform all services under this Agreement in accordance with
these laws, ordinances, codes and regulations. CONSULTANT 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 CONSULTANT 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 CTTY's Project Manager.
TO CONSULTANT's Project Director
16, INDEPENDENT CONSULTANT.
Cristine Alilovich, Assistant City Manager
City of San Rafael
1400 Fifth Avenue
San Rafael, CA 94901
Liz Darby
115 Martens Blvd
San Rafael, CA 94901
For the purposes, and for the duration, of this Agreement, CONSULTANT, its officers,
agents and employees shall act in the capacity of an Independent Consultant, and not as employees
of the CITY. CONSULTANT and CITY expressly intend and agree that the status of
CONSULTANT, its officers, agents and employees be that of an Independent Consultant 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 CONSULTANT 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 CONSULTANT 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.
CONSULTANT agrees that CITY may deduct from any payment due to CONSULTANT
under this Agreement, any monies which CONSULTANT 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.
CONSULTANT shall obtain and maintain during the duration of this Agreement, a CITY
business license as required by the San Rafael Municipal Code CONSULTANT 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 CONSULTANT 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 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
jlm SC Z, City M ge
ATTEST:
a•,A/,• -
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
CONSULTANT
1
W -M'
•.W e
w
3b ►S i
[If Consultant is a corporation, add signature of
second corporate officer]
By:
Name:
' J ] Title:
WLIAl/
ROB T F. EPSTEIN, City Attorney
8
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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 Manager
Project Manager: Cristine Alilovich Extension: 3384
Contractor Name: Liz Darby
Contractor's Contact: Liz Darby Contact's Email: LDarby@marincounty.org
❑ FPPC: Check if Contractor/Consultant must file Form 700
Step
RESPONSIBLE
DESCRIPTION
COMPLETED
REVIEWER
DEPARTMENT
a. Email PINS Introductory Notice to Contractor
DATE
NA
Check/Initial
0 CA
1
Project Manager
NA
b. Email contract (in Word) and attachments to City
Attorney c/o Laraine.Gittens@cityofsanrafael.org
a. Review, revise, and comment on draft agreement
0CA
2
City Attorney
and return to Project Manager
#
b. Confirm insurance requirements, create Job on
J �{ 1•L2
PINS, send PINS insurance notice to contractor
3
Department Director
Approval of final agreement form to send to
8/15/2022
NCA
contractor
4
Project Manager
Forward three (3) originals of final agreement to
8/15/2022
❑X CA
contractor for their signature
5
Project Manager
When necessary, contractor -signed agreement
❑X N/A
agendized for City Council approval *
*City Council approval required for Professional Services
NCA
Agreements and purchases of goods and services that exceed
Or
$75,000; and for Public Works Contracts that exceed $175,000
Date of City Council approval
PRINT
CONTINUE ROUTING PROCESS WITH HARD COPY
6
Project Manager
Forward signed original agreements to City
8/17/2022
NCA
Attorney with printed copy of this routing form
Review and approve hard copy of signed
7
City Attorney
r,
agreement
8
City Attorney
Review and approve insurance in PINS, and bonds
(for Public Works Contracts)
9
City Manager/ Mayor
Agreement executed by City Council authorized
]
C�
WK. I
official
/V
10
City Clerk
Attest signatures, retains original agreement andp
pwtv
f
forwards copies to Project Manager
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