HomeMy WebLinkAbout2023 CON Wright L'Estrange & Ergastolo - Ambulance Service in CitySERVICES AGREEMENT
BY AND BETWEEN
THE CITY OF NATIONAL CITY
AND
WRIGHT, L'ESTRANGE&ERGASTOLO - SAN DIEGO, CA
THIS AGREEMENT is entered into this 1 th day of August, 2023, by and between the
CITY OF NATIONAL CITY, a Municipal corporation (the "CITY"), and WRIGHT,
LESTRANGE &ERGASTOLO - SAN DIED , CA, a partnership (the "CONSULTANT").
NOW, THEREFORE, CITY agrees to engage CONSULTANT to perform the services set
forth herein in accordance with the following terms and conditions:
Description of Services. CONSULTANT shall provide a legal opinion to City
regarding: 1 its statutory and contract rights to provide ambulance services within City, including
pursuant to California Health & Safety Code § 1' 9 '.2 1; 2service delivery models available to
City under state laws, including Alliance -style subcontracting under AB 9 utilizing public or
private ambulance services providers as City subcontractors; and whether contracts between
City and County and between City and a subcontractor can provide for exclusive services and
achieve state action immunity from federal antitrust laws upon implementation.
2. Length of Agreement. ent. The duration of this Agreement is from August 15, 2023
through August 15, 2024.
3. Comp ns ti r . The total: compensation to CONSULTANT T for providing the
services set forth herein shall not exceed the amount of $30,000.00 estimate on a_tt x y's fees for
the proposed scope of work. The compensation for CONSULTANT'S work shall be based upon
and not exceed the rates given in Exhibit "A" the labor rates) without prior written authorization
from CITY.
4. Payment Schedule. CITY will make payment within thirty days of receiving
and approving a. billing statement for the satisfactorily completed services of CONSULTANT.
5. Termination. CITY may terminate this Agreement at any time by providing one
(1) day's written notice to CONSULTANT.
6. Independent CONSULTANT. It is agreed that CONSULTANT is an
independent CONSULTANT, and all persons working for or under the direction of
CONSULTANT are CONSULTANT'S agents, servants and employees, and said persons shall not
be deemed agents, servants, or employees of CITY.
7. Insurance. CONSULTANT shall obtain:
A. VI If checked, Professional Liability Insurance (errors and omissions)
with minimum limits of $1,000,000 per occurrence.
B. Automobile insurance covering all bodily injury and property damage
incurredduring the performance of this Agreement, with a minimum coverage of $1,000,000
combined single limit per accident. Such automobile insurance shall include owned, non -owned,
1
and hired vehicles. The policy shall name the CITY and its officers, agents, employees, and
volunteers as additional insureds, and a. separate additional insured nd rs m nt shall be provided.
C. Commercial General Liability Insurance, with minimum limits of either
$2,000,000per occurrence and $4,000,000 aggregate, or 1, 0, per occurrence and
$2000,0O0aggregate with a $1,000,000 umbrella policy, covering all bodily injury and property
damage arising out of its operations, work, or performance under this Agreement. The policy shall
name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a
separate additional insured endorsement shall be provided. The general aggregate limit must apply
solely to this "project" or "location". The "project" or "location" should be noted with specificity
on an endorsement that shall be incorporated into the policy.
D. Workers' compensation insurance in an amount sufficient to meet statutory
requirements covering all of CONSULTANT' S employees and employers' liability insurance with
limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver
of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement
of work under this Agreement.
If CONSULTANT has no employees subject to the California Workers'
Compensation and Labor laws, CONSULTANT shall execute a Declaration to that effect. Said
Declaration shall be provided to CONSULTANT by CITY.
E. The aforesaid policies shall constitute primary insurance as to the CITY, its
officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute
to any loss under said insurance. Said policies shall provide for thirty 0 days prior written notice
to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material
change.
F. Said policies, except for the professional liability and workers'
compensation policies, shall name the CITY and its officers, agents, employees, and volunteers as
additional insureds, and separate additional insured endorsements shall be provided.
G. The Certificate Holder for all policies of insurance required by this Section
shall be:
City ofNational City
c/o Risk Manager
1243 National City Boulevard
National City, CA 91950-4397
H. If required insurance coverage is provided on, a "claims made" rather than
"occurrence" form, the CONSULTANT shall maintain such insurance coverage for three years
after expiration of the term (and any extensions) of this Agreement. In addition, the "retr " date
must 'be on or before the date of this Agreement.
I. Insurance shall be written with only insurers authorized to conduct business
in California which hold a current policy holder's alphabetic and financial size category rating of
not less than A:vll according to the current Best's Key Rating Guide, or a company of equal
financial stability that is approved by the City's Risk Manager. In the event coverage is provided
by non -admitted "surplus lines" carriers, they must be included on the most recent List of
Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements.
J . This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are Bledwith, and approved by the
CITY's Risk Manager. If the CONSULTANT does not keep all insurance :policies required by this
Standard Short Form Agreement Page 2 of
City ofNational City and
Revised February 2023 Wright, L'Estrange Ergastolo ` San Diego, C.
Section 7 in full force and effect at all times during the term of this Agreement, the CITY may
treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the
Agreement as provided. herein.
K. All deductibles and self -insured retentions in excess of $10,000 must be
disclosed to and approved by the CITY. CITY reserves the right to modify the insurance
requirements of this Section 7, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
L. If the CONSULTANT SULTANT maintains broader coverage or higher limits (or both)
than the minimum Iimits shown above, the CITY shall be entitled to the broader coverage or higher
limits (or both) maintainedby the CONSULTANT. Any available insurance proceeds in excess of
the specified minimum limits of insurance and coverage shall be available to the CITY.
8. Indemnification and Hold Harmless. To the maximum extent provided by law,
the CONSULTANT agrees to defend, indemnify and hold harmless the City of National City, its
officers, officials, agents, employees, and volunteers against and from any and all liability, loss,
damages to property, injuries to, or death of any person or persons, and all claims, demands, suits,
actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including
workers' compensation claims, of or by anyone whomsoever, ever, resulting from or arising out of the
CONSULTANT'S performance or other obligations under this Agreement; provided, however,
that this indemnification and hold harmless shall not include any claims or liability arising from
the established sole negligence or willful misconduct of the CITY, its agents, officers, employees,
or volunteers. CITY will cooperate rreasonab].y in the defense of any action, and. CONSULTANT
shall employ competent counsel, reasonably acceptable to the City Attorney.
The indemnity, defense, and hold harmless obligations contained herein shall
survive the termination of this Agreement for any alleged or actual omission, act, or negligence
under this Agreement that occurred during the term of this Agreement.
9. EMPLOYEE PAYMENTS AND INDEMNIFICATION.
9.1 PLKS Eligibility Indemnification. .if CONSULTANT's employee(s) s providing
see -vices under this Agreement claims, or is determined by a. court of competent jurisdiction or the
California Public Employees Retirement System ("PERS") to be eligible for enrollment in PERS
of the CITY, CONSULTANT shall indemnify, defend, and hold harmless CITY for the payment
of any employer and employee contributions for PERS benefits on behalf of the employee as well
as for payment of any penalties and interest o such contributions which would otherwise be the
responsibility of the CITY.
CONSULTANT'S employees providing service under this Agreement shall not:(1)
qualify for any compensation and benefit under PERS; 2 be entitled to any benefits its under PERS;
enroll in PERS as an employee of CITY; 4 receive any employer contributions paid by CITY
for PERS benefits; or be entitled to any other PERS-related benefit that would accrue to a CITY
employee. CONSULTANT's employees hereby waive any claims to benefits or compensation
described in this Section 9. This Section 9 applies to CONSULTANT notwithstanding any other
agency, state or federal policy, rule, regulation, law or ordinance to the contrary.
9.2 Limitation of CITY Liability. The payment made to CONSULTANT under this
Agreement shad be the full and complete compensation to which CONSULTANT and
Standard Short Form Agreement Page 3 of 8 City of National City and
Revised February 2023 Wright, L'Estran e & Er .stolo San Diego, CA
CO SULTANT's officers, employees, agents, and SUBCONSULTANTs are entitled for
performance of any work under this Agreement. Neither CONSULTANT nor CONSULTANT's
officers, employees, agents, and SUBCONSULTANTs are entitled to any salary or wages, or
retirement, health, leave or other fringe benefits applicable to CITY employees. The CITY will
not make any federal or state tax withholdings on behalf of CONSULTANT. The CITY shall not
be required to pay any workers' compensation insurance on behalf of CONSULTANT.
.3 Irid mnification for Emplo Pa ments. CONSULTANT agrees to defend and
indemnify the CITY for any obligation, claim, suit, or demand for tax, retirement contribution
including any contribution to PERS, social security, salary or wages, overtime payment, or
workers' compensation payment which the CITY may be required to make on behalf of (1)
CONSULTANT, 2 any employee of CONSULTANT, or 3 any employee of CONSULTANT
construedto be an employee of the CITY, for work performed under this Agreement. This is a
continuing obligation that survives the termination of this Agreement.
10. Accep_tal3ility_._ f Work. The CITY shall, with reasonable diligence and in good
faith, determine the quality or acceptability of the work, the manner of performance, and/or the
compensation payable to the CONSULTANT.
1 Business License. CONSULTANT must possess or shall obtain business license
from National City Finance Department before beginning work.
121 Prevailing Wages. State prevailing wage rates may apply to work performed under
this Agreement. State prevailing wages rates apply to a.11 public works contracts as set forth in
California Labor Code, including but not limited to, Sections 1720, 1720.2, 1 '720, , 1720.4, and
1771. CONSULTANT is solely responsible to determine if State prevailing wage rates apply and,
if applicable, pay such rates in accordance with all laws, ordinances, rules, and regulations,
13. Administrative Provisions.
A. Computation of Time Periods. If any date or time period provided for in
this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date
shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not
Saturday, Sunday or federal, state, or legal holiday.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one and.
the e same instrument.
C. Captions. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon,
or obligate any of the parties hereto, to any person or entity other than the parties hereto.
E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules,
or provisions thereof conflict or are inconsistent with the terms and conditions contained in this
Agreement, the terms and conditions of this Agreement will control.
Standard Short FoAgreement Page 4 of
City of National City and
Revised February 2023 Wright, L'Estrange Ergastolo — San Diego, CA
Fr . Amendment to this Agreement. The terms of this Agreement may not be
modified or amended except by an instrument in writing executed by each of the parties hereto.
G. Assignment & Assumption of Rights. CONSULTANT shall not assign this
Agreement, in whole or in part, to any other party without first obtaining the written consent of
CITY.
H. Waiver. The waiver or failure to nfior any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other provision
hereof.
Z. Applicable aw. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. The venue for any legal action arising under
this Agreement shall be in either state or federal court in the County of San Diego, State of
California. The CONSULTANT shall comply with all laws, including federal, state, and local
laws, whether now in force or subsequently enacted.
J. Audit. If this Agreement exceeds ten -thousand dollars 1 , , the parties
shall be subject to the examination and audit of the State Auditor for a period of three years
after final payment under the Agreement, per Government Code Section 8546.7.
K. Entire Agreement. This Agreement supersedes any prior agreements,
negotiations and communications, oral or written, and contains the entire agreement between the
parties as to the subject matter hereof. No subsequent agreement, representation, or promise made
by either party hereto, or by or to an employee, officer, agent, or representative of any party hereto
shall be of any effect unless it is in writing and executedby the party to be bound thereby.
L. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
M. SUBCONSULTANTs or Subconsultants. The CITY is engaging the services
of the CONSULTANT identified in this Agreement. The CONSULTANT shall not subcontract
any portion of the work, unless such subcontracting was part of the original proposal or is allowed
by the CITY. In the event any portion of the work under this Agreement is subcontracted, the
SUBCONSULTANT(s) shall be requiredto comply with and agree to, for the benefit of and in
favor of the CITY, both the insurance provisions in Section 7 and the indemnification and hold
harmless provision of Section 8 of this Agree-n.ent.
I. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity
to consult with its own, independent counsel and suchother professional advisors as such party
has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv)
any rule or construction to the effect that ambiguities are to be resolved against the drafting party
shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments
hereto.
Standard Short Form Agreement
Page 5 of 8 City ofNational ationa1 City and
Revised February 2023 Wright, L strange & Erga toio — San Diego, CA
I '{ITNESS WHEREOF., this Agreement is executed by CITY and by CONSULTANT
on the date and year first above written.
CITY OF NATIONAL CITY
By:
Ben Martinez, Interim City Manager
APPROVED AS TO FORM:
By:
Barry J . Schi
City Attorney
CONTACT CT INFORMATION
CITY OF NATION1.L CITY
1243 National City Boulevard
National City, CA 919 0-43 '
Phone: 1 )3 -5 1.
Fax: (619) 336-4562
Contact: Sergio Mora
Title: Fire Chief
Dep.: National City Fire
Email: smora@nationalcityca.gov
Standard and Short Form Agreement
Page
WRIGHT, L' E TT AN -GAT { L O
- SAN DIEGO, CA /
By:
i rew E. Schouten, Partnj
WRIGHT, L'ESTRANGE & ERGASTOLO -
S DIEGO, CA
402 West Broadway, Suite 1800
San Diego, CA 1 1
Phone: (619) 2
Fax: 1 ) 1- 71[
Contact: Andrew E. Schouten
Title: Attorney
Email: aschouten wlelaw.com
Taxpayer I. . o.: 95-3843080
City ° ' u ional City and
Revised February 2023 ' rig lt, L'E trange & Er astck — San Diego. CA
EXHIBIT "A"
CONSULTA_NT FEE PRACTICES AND RATES
CONSULTANT often charges for discrete legal projects, such as the one requested by CITY, on
the basis of not -to -exceed estimates. Because it is difficult to estimate with certainty how much
work CONSULTANT may be required to perform in analyzing the primary Base Project issues
and the Options, CONSULTANT SULTANT proposes a $30,000 not -to -exceed estimate on attorney's fees
for the proposed scope ofavor.
CONSULTANT T will charge CITY by the hour at the then -prevailing rates for time spent on the
proposed engagement by the attorneys, paralegals, and law clerks ("Billing Personnel") of the firrn.
Time for Billing Personnel is chargedin increments of six minutes, i.e., 1 l oth of an hour.
CONSULTANT charges for all time spent by Billing Personnel on its engagements. Therefore,
CONSULTANT T will charge CITY for the time spent on telephone calls and videoconferences.
Billing Personnel. confer between and among themselves concerning C I S LTA1 T's
engagement; and when they confer, each of the Billing Personnel will charge for the time
expended.. Likewise, if more than one of the Billing Personnel assigned to work on an engagement
attends a meeting, each will charge for the time spent. However, CONNS LTANT does not charge
for travel time.
CONSULTANT proposes billing CITY for legal services at their public agency hourly billing
rates. As of January 1, 2023, those rates are as follows:
Joseph T. Ergastolo, Attorney (Managing Partner) 42 hour
Andrew L. Schouten, Attorney (Partner) $370/hour
Davin I . Kono, Attorney (Associate) $265/hour
Erica C. Loo, Attorney (Associate) 22 ho r
Monica B. Arai, Paralegal 1 /hour
CONSULTANT also proposes to retain Bill Adams, with the law offices of William L. Adams,
PC, located at 1400 N. Dutton Ave., Suite 21, Santa Rosa, C.A. 95401, as a. legal services
subcontractor on this project. CONSULTANT proposes billing CITY for Mr. Adams' services at
the following hourly rate
William L. Adams, Attorney (Co -Counsel) 7 ho .r
Standard Short Form Agreement Page 7 of 8 City of National City and
Revised February 2023 Wright, L'Estrange & Ergastolo — San Diego, CA
In addition to hourly fees for services, CONSULTANT will charge CITY for costs and expenses
incurred CONSULTANT in performing legal services for CITY. Such costs and expenses
commonly include messenger and other delivery fees, postage, parking, and travel expenses. All
costs and expenses will be charged at C01 S LT NT's cost, with no markup to CITY,
CONSULTANT will email the CITY monthly billing statements detailing all fees and costs
incurred on CONSULTANT engagements.
Please note that any costs and expenses incurred by CONSULTANT are not included in the not -
to -exceed fee estimate i.e., the not -to -exceed amount will apply to attorney's fees, but not
expenses).
Standard Short Forrn Agreement
Page 8 of City of National City and
Revised February 2023 Wright, L'Estrange & Ergastolo — San Diego, CA