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HomeMy WebLinkAbout2020 CON McDougal, Love, Boehmer, Foley, Lyon and Canlas - As-Needed Specialized Professional ServicesAGREEMENT FOR AS -NEEDED SPECIALIZED PROFESSIONAL SERVICES BETWEEN THE CITY OF NATIONAL CITY AND McDOUGAL, LOVE, BOEHMER, FOLEY, LYON AND CANLAS This Agreement ("Agreement") is entered into by the City of National City as of this 13th day of April, 2020, by and between the City of National City, a municipal corporation, hereinafter referred to as "City", and McDougal, Love, Boehmer, Foley, Lyon and Canlas, a professional corporation, hereinafter referred to as "Attorneys." WHEREAS, City has a need for as -needed legal services and is willing to compensate Attorneys for such services; WHEREAS, City desires to engage Attorneys to render certain professional legal services; WHEREAS, Attorneys have demonstrated competence in providing such services to other jurisdictions. NOW THEREFORE, the parties do mutually agree as follows: SECTION 1: ENGAGEMENT OF ATTORNEYS City hereby agrees to engage Attorneys, and Attorneys hereby agrees to perform the services set forth in this Agreement. SECTION 2: SERVICES TO BE PERFORMED BY ATTORNEYS Attorneys shall commence performance of the Scope of Work outlined in Exhibit 'A'. SECTION 3: KEY PROJECT PERSONNEL Attorneys agree to provide the services of Jennifer Gilman for the full term of this Agreement and other Attorney or Attorneys as may be agreed to by the parties. City reserves the right to request specific qualifications for personnel substituted under this section and to terminate this Agreement if a suitable attorney is not available for substitution. SECTION 4: CITY REPRESENTATION The City Attorney for the City of National City, or her designated representative, shall represent City in all matters pertaining to the services rendered pursuant to this Agreement and shall administer said Agreement on behalf of City. SECTION 5: COMPENSATION TO ATTORNEYS City shall pay the Attorneys for attorney professional services rendered pursuant to this Agreement in accordance with the Scope of Work, Fee Schedule and Reimbursable Expenses outlined in Exhibit 'A'. SECTION 6: METHOD OF COMPENSATION City shall compensate Attorneys for the services performed hereunder on a monthly basis within thirty (30) calendar days of receipt of Attorneys' invoice for the services performed. The Attorneys shall provide documentation regarding time -and -material charges sufficient to meet normal auditing practices. City shall promptly review invoicing and notify Attorneys of any objection thereto in writing within fifteen (15) days of receipt of the invoice; absent such objection the invoice shall be deemed proper and acceptable. SECTION 7: HOLD HARMLESS Indemnity for Professional Services. To the furthest extent allowed by law, Attorneys shall indemnify, hold harmless and defend City and each of its elected officials, officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of Attorneys, its principals, officers, employees, agents or volunteers in the performance of professional services under this Agreement. Other Indemnities. Other than in the performance of professional services, and to the fullest extent allowed by law, Attorneys shall indemnify, hold harmless and defend City and each of its elected officials, officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Attorneys' obligations under the preceding sentence shall apply regardless of whether City or any of its elected officials, officers, officials, employees, agents or volunteers are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City, or any of its elected officials, officers, officials, employees, agents or volunteers. This section shall survive termination or expiration of this Agreement. SECTION 8: INSURANCE Throughout the life of this Agreement, Attorneys shall pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company (ies) either (i) admitted by 2 the California Insurance Commissioner to do business in the State of California and rated not less than "A-VII" in Best's Insurance Rating Guide, or (ii) authorized by the City Manager or his/her designee at any time and in his/her sole discretion. The following policies of insurance are required: (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "property damage" and "personal and advertising injury" with coverage for premises and operations (including the use of owned and non -owned equipment), products and completed operations, and contractual liability (including, without limitation, indemnity obligations under the Contract) with limits of liability of not less than the following: $1,000,000 per occurrence for bodily injury and property damage $1,000,000 per occurrence for personal and advertising injury $1,000,000 aggregate for products and completed operations $2,000,000 general aggregate (ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and non -owned automobiles or other licensed vehicles (Code 1 - Any Auto) with limits of liability of not less than $1,000,000 per accident for bodily injury and property damage. (iii) WORKERS' COMPENSATION insurance as required under the California Labor Code. (iv) EMPLOYERS' LIABILITY insurance with limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. (v) PROFESSIONAL LIABILITY (ERRORS AND OMISSIONS) insurance appropriate to Attorneys' profession, with limits of liability of not less than $1,000,000 per claim/occurrence and $2,000,000 policy aggregate. In the event Attorneys maintains higher limits than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by the Attorneys. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Attorneys shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Attorneys shall also be responsible for payment of any self -insured retentions. Any deductibles or self -insured retentions must be declared to, and approved by, the City Attorney or his/her designee. At the option of the City Attorney or his/her designee, either: (i) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects to City, its elected officials, officers, officials, employees, agents and volunteers: or (ii) Attorneys shall provide a financial guarantee, satisfactory to the City Attorney or his/her designee, guaranteeing payment of losses and related investigations, claim administration and defense 3 expenses. At no time shall City be responsible for the payment of any deductibles or self -insured retentions. All policies of insurance required hereunder shall be endorsed to provide that the coverage shall not be canceled, non -renewed, reduced in coverage or in limits except after 30 calendar day written notice has been given to City. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, Attorneys shall furnish City with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for City, Attorneys shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name City, its elected officials, officers, officials, employees, agents and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Attorneys' insurance shall be primary and no contribution shall be required of City, its elected officials, officers, officials, employees, agents and volunteers. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected officials, officers, officials, employees, agents or volunteers. The Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its elected officials, officers, officials, employees, agents and volunteers. If the Professional Liability (Errors and Omissions) insurance policy is written on a claims -made form: 1. The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by Attorneys. 2. Insurance must be maintained and evidence of insurance must be provided for at least 3 years after any expiration or termination of the Agreement or, in the alternative, the policy shall be endorsed to provide not less than a 3-year discovery period. 3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the effective date of the Agreement or the commencement of work by Attorneys, Attorneys must purchase extended reporting coverage for a minimum of 3 years following the expiration or termination of the Agreement. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination of the Agreement. Attorneys shall furnish City with all certificate(s) effecting coverage required hereunder. Upon request of City, Attorneys shall immediately furnish City with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. 4 If at any time during the life of this Agreement or any extension, Attorneys or any of its subcontractors fail to maintain any required insurance in full force and effect, all work under this Agreement shall be discontinued immediately, and all payments due or that become due to Attorneys shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement. No action taken by City hereunder shall in any way relieve Attorneys of its responsibilities under this Agreement. The fact that insurance is obtained by Attorneys shall not be deemed to release or diminish the liability of Attorneys, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City and its elected officials, officers, officials, employees, agents and volunteers shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Attorneys. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Attorneys, its principals, officers, employees, agents, persons under the supervision of Attorneys, vendors, suppliers, invitees, Attorneyss, subcontractors, or anyone employed directly or indirectly by any of them. The insurance requirements contained in this Agreement shall apply to all work performed under the terms of this Agreement; however, these requirements are subject to change, based on City policy and/or actual scope of work for each individual task order and/or project. Attorneys will be notified of any changes to the insurance requirements at least 15 days prior to issuance of a task order/project. Attorneys shall comply with all applicable insurance requirements before work may commence. SECTION 9: ASSIGNABILITY Attorneys shall not assign, delegate, or transfer this Agreement or any work hereunder, nor assign any monies due or to become due hereunder, except as expressly stated herein. In no event shall any contractual relation be created between any third party and City without prior written consent of City. Consent to one assignment shall not be deemed to be consent to any subsequent assignment. SECTION 10: AMENDMENTS This Agreement sets forth the entire understanding of the parties with respect to the subject matter herein. There are no other agreements, expressed or implied, oral or written, except as set forth herein. The terms of this Agreement may be amended upon written mutual consent of both parties hereto. SECTION 11: NOTICES Notices and requests to City or Attorneys shall be delivered at the following addresses, either served personally on the designated representative or by U.S. Postal Service at the following addresses: 5 City: Angil Morris -Jones, City Attorney City of National City 1243 National City Blvd. National City CA 91950-4301 TEL: 619.336.4220 SECTION 12: DISPUTE RESOLUTION Consultant: Morgan L. Foley, Secretary McDougal, Love, Boehmer, Foley, Lyon & Canlas, APC 8100 La Mesa Blvd, #200 La Mesa CA 91942 TEL: 619.440.4444 City shall require that all Attorneys agree to submit any unresolved claims, counterclaims, disputes, controversies and other matters between them and City or the Attorneys and/or any subcontractors of any tier arising out of or relating to their agreement with City or the breach thereof ("disputes") first to mediation and then if not resolved, to non -binding arbitration prior to initiating suit or judicial proceeding. SECTION 13: TERMINATION OF AGREEMENT FOR CAUSE OR CONVENIENCE If, through any cause, the Attorneys shall fail to fulfill in timely and proper manner its obligations under this Agreement or any related Amendment(s) and task order(s), or if the Attorneys shall violate any of the covenants, agreements, or stipulations of this Agreement or any related Amendment(s) and task order(s), City shall thereupon have the right to terminate this Agreement immediately by giving written notice to the Attorneys of such termination and specifying the effective date thereof. In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Attorneys under this Agreement shall, at the option of City, become its property and the Attorneys shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. In addition to termination for cause, City may terminate this Agreement for City's convenience upon not less than fifteen (15) days' written notice to Attorneys. Upon receipt of said notice, the Attorneys shall immediately cease all work under this Agreement unless said notice provides otherwise. If this Agreement is terminated as provided in this paragraph for City's convenience, the Attorneys shall be required to provide to City all finished or unfinished documents, data, studies, services, etc., prepared by the Attorneys as may be requested by City and such work shall become City's property upon payment to Attorneys for the value of the work performed, less payments of compensation previously made. Notwithstanding the above, the Attorneys shall not be relieved of liability to City for damages sustained by City by virtue of any breach of the Agreement by the Attorneys, and City may withhold any payments to the Attorneys for the purpose of set-off until such time as the exact amount of damages due City from the Attorneys is determined. 6 SECTION 14: INDEPENDENT CONTRACTOR At all times during the term of this Agreement, Attorneys shall be an independent contractor and shall not be an employee(s) of City. City shall have the right to control Attorneys only insofar as the results of Attorneys' services rendered pursuant to this Agreement; however, City shall not have the right to control the means by which Attorneys accomplishes services rendered pursuant to this Agreement. SECTION 15: CALPERS ELIGIBILITY INDEMNIFICATION In the event that Attorneys' employee providing services 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 City, Attorneys 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 on such contributions which would otherwise be the responsibility of City. Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Attorneys' employees providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation and benefit including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contributions to be paid by City for employer contributions and/or employee contributions for PERS benefits. SECTION 16: CONSULTANT NOT AGENT Except as City may specify in writing, Attorneys shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Attorneys shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. SECTION 17: NON -DISCLOSURE The designs, plans, reports, investigations, materials and documents prepared or acquired by the Attorneys pursuant to this Agreement (including any duplicate copies kept by the Attorneys), shall not be shown to any other public or private person or entity, except as authorized by City. The Attorneys shall not disclose to any other public or private person or entity any information regarding the activities of City except as authorized by City. SECTION 18: SUBCONTRACTING None of the services covered by this Agreement shall be subcontracted without the prior consent of City. The Attorneys shall be as fully responsible to City for the acts and omissions of his subcontractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him. The Attorneys shall insert in each subcontract appropriate provisions requiring compliance with all the terms and conditions of this Agreement, including the labor standards provisions. 7 SECTION 19: CHANGES City may, from time to time, request changes in the Scope of Services of the Contract to be performed hereunder. Such changes, including any increase or decrease in the amount of the Attorneys' compensation which are mutually agreed upon by and between City and the Attorneys, shall be incorporated into each each individual task order. SECTION 20: DATE OF AGREEMENT The date of this Agreement shall be the date it shall have been signed by a duly authorized representative of the City. IN WITNESS WHEREOF, City and Attorneys have executed the Agreement. Date: LV /irPOi Date: A 1l /I 71 'O Date: " I 1 2AI 410 McDougal, Love, Boehmer, Foley, Lyon and Canlas, a professional corporation By: 6*-1 Morg. ' . ey Secr- CITY OF NATIONAL CITY, a mu '-'.. ..= ,�n By: ,A1' Brge� .4Tj Manager 8 EXHIBIT A Scope of Work, Fee Schedule and Reimbursable Expenses A. Services: Attorney professional services Interim Deputy City Attorney for City to include representation: (1) as directed by City Attorney; and (2) not less than 18 hours each week, including office hours in National City, as directed by the City Attorney. B. Fee Schedule: Attorneys shall be compensated on a "blended rate" basis at one hundred eighty-five dollars ($185.00) an hour for attorney professional services. C. Reimbursable Expenses: Attorneys shall be reimbursed for actual costs of items and services necessary, appropriate and reasonable for the provision of attorney professional services. Said items and services shall be agreed to in advance by the parties, and shall be applicable on an ongoing basis during the term of this Agreement. 9 Date: CONTRACT TRANSMITTAL FORM (Attach as cover sheet to Documents dropped off to City Clerk's Office) 5.I ..202o From (Dept.): AbbYvle\l'S flu Submitted by (First & Last Name): Vendor: L MAID� MbDbugal,1,iM, 806mer, �ole�, tioh and NinkAs Resolution: YES / Resolution No. (if applicable): 3 4 Originals Provided to City Clerk (circle quantity) No Department has Copy / Duplicate Original Vendor has Copy / Duplicate Original CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950-4397 619-336-4228 Michael R. Dalla, CMC - City Clerk May 21, 2020 Morgan L. Foley, Secretary McDougal, Love, Boehmer, Foley, Lyon & Canlas, APC 8100 La Mesa Blvd., #200 La Mesa, CA 91942 Dear Mr. Foley, On April 13, 2020, an Agreement was entered into between the City of National City and McDougal, Love, Boehmer, Foley, Lyon & Canlas. We are forwarding a fully executed copy of the Agreement for your records. Sincerely, Michael 1f. Dalla, CMC City Clerk Enclosure