City of Coronad o
PROFESSIONAL SERVICES AGREEMENT
FOR SPECIAL LEGAL SERVICES FOR MATTERS RELATED TO ELECTIONS THIS Professional Services Agreement ("AGREEMENT") is made and entered into this 16th day of January 2024 by and between THE CIPi' OF CORONADO, ("CITY"), and, LOUNSBERY FERGUSON ALTONA & PEAK LLP, ("CONSULTANT") (collectively "PARTIES").
WHEREAS, the CITf requires legal services of independent special counsel to assist with matters related to special and general elections; and WHEREAS, the CIT>' has determined that CONSULTANT is qualified by experience and ability to perform the services desired by the CITi', and CONSULTANT is willing to perform such services; and
WHEREAS, CONSULTANT will conduct all the work as described and detailed in this AGREEMENT to be provided to the CITY.
NOW, THEREFORE, the PARTIES hereto mutually covenant and agree with each other as follows:
1. PROFESSIONAL SERVICES.
1. 1. Scope of Services. The CONSULTANT shall perform the PROFESSIONAL SERVICES as set forth in the written Scope of Services, attached as Exhibit "A" Scope of Services and Fee, at the direction of the CITf. CIT»' shall provide CONSULTANT access to appropriate staff and resources for the coordination and completion of the projects under this AGREEMENT.
1.2. Modification of Scope of Services. CITf may order changes to the Scope of Services within the general scope of this AGREEMENT consisting of additions, deletions, or other revisions. If such changes cause a change in the CONSULTANT'S cost of, or time required for, completion of the Scope of Services, an equitable adjustment to CONSULTANT'S compensation and/or contract time shall be made, subject to the CITY'S approval. All such changes shall be authorized in writing, executed by CONSULTANT and CITi'.
2. DURATION OF AGREEMENT.
2. 1 Term. The services to be provided by CONSULTANT under this Agreement shall begin as of the date of this Agreement and shall remain in full force and effect unless and until the parties hereto terminate the same. At that time, any of the terms and conditions of this Agreement may be renegotiated.
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2.2 City's Right to Terminate for Default. Should CONSULTANT be in default of any covenant or condition hereof, CITY may immediately terminate this AGREEMENT for cause if CONSULTANT fails to cure the default within ten (10) calendar days of receiving written notice of the default.
2. 3 City's Right to Terminate without Cause. Without limiting its rights in the event of CONSULTANT'S default, CITY may terminate this AGREEMENT, without cause, by giving written notice to CONSULTANT. Such termination shall be effective upon receipt of the written notice. CONSULTANT shall be compensated for all effort and material expended on behalf of CITf under the terms of this AGREEMENT, up to the effective date of termination.
3. COMPENSATION.
3. 1. Total Amount. All fees for services rendered and costs billed to the CITf shall be in accordance with any terms negotiated and incorporated herein as part of Exhibit "A" Scope of Services and Fee. CONSULTANT shall bill the CITi' for work provided and shall present a written request for such payment monthly.
3. 2. Additional Services. CITY may, as the need arises or in the event of an emergency, request additional services of CONSULTANT. Should such additional services be required, CITY and CONSULTANT shall agree to the cost prior to commencement of these services.
3. 3. Costs. Any costs billed to the CITY shall be in accordance with any terms negotiated and incorporated herein as part of Exhibit "A" Scope of Services and Fee.
4. INDEPENDENT CONTRACTOR. CONSULTANT is, for all purposes arising out of this AGREEMENT, an independent contractor. The CONSULTANT has and shall retain the right to exercise full control and supervision of all persons assisting the CONSULTANT in the performance of said services hereunder, the CITf only being concerned with the finished results of the work being performed. Neither CONSULTANT nor CONSULTANT'S employees shall in any event be entitled to any benefits to which CITV' employees are entitled, including, but not limited to, overtime, retirement benefits, workers' compensation benefits, injury leave or other leave benefits. CONSULTANT is solely responsible for all such matters, as well as compliance with social security and income tax withholding and all other regulations and laws governing such matters.
5. STANDARD OF PERFORMANCE. While performing the PROFESSIONAL SERVICES, CONSULTANT shall exercise the reasonable professional care and skill customarily exercised by reputable members of CONSULTANT'S profession practicing in the metropolitan Southern California Area, and will use reasonable diligence and best judgment while exercising its professional skill and expertise.
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6. WARRANTY OF CONSULTANT'S LICENSE. CONSULTANT warrants that CONSULTANT is properly licensed with the applicable government agency(ies) for any PROFESSIONAL SERVICES that require a license. If the CONSULTANT lacks such license, this AGREEMENT is void and of no effect.
7. AUDIT OF RECORDS.
7. 1. At any time during normal business hours and as often as may be deemed necessary the CONSULTANT shall make available to a representative of CIT»' for examination all of its records with respect to all matters covered by this AGREEMENT and shall permit CIW to audit, examine and/or reproduce such records. CONSULTANT shall retain such financial and program service records for at least four (4) years after termination or final payment under this AGREEMENT.
7. 2. The CONSULTANT shall include the CIWs right under this section in any and all of their subcontracts, and shall ensure that these sections are binding upon all subcontractors.
8. CONFIDENTIALITY. All professional services performed by CONSULTANT, including but not limited to all drafts, data, correspondence, proposals, reports, research and estimates compiled or composed by CONSULTANT, pursuant to this AGREEMENT, are for the sole use of the CITY, its agents and employees. Neither the documents nor their contents shall be released to any third party without the prior written consent of the CITY. This provision does not apply to information that (a) was publicly known, or otherwise known to CONSULTANT, at the time that it was disclosed to CONSULTANT by the CITY, (b) subsequently becomes publicly known through no act or omission of CONSULTANT or (c) otherwise becomes known to CONSULTANT other than through disclosure by the CITY. Except for any subcontractors that may be allowed upon prior agreement, neither the documents nor their contents shall be released to any third party without the prior written consent of the CITf. The sole purpose of this section is to prevent disclosure of CITf's confidential and proprietary information by CONSULTANT or subcontractors.
9. CONFLICTS OF INTEREST.
9. 1. CONSULTANT shall at all times comply with all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices, including but not limited to California Government Code Sections 81000 et seq. (Political Reform Act) and Sections 1090 et seq. CONSULTANT shall immediately disqualify itself and shall not use its official position to influence in any way any matter coming before the CITY in which the CONSULTANT has a financial interest as defined in Government Code Section 87103. CONSULTANT represents that it has no knowledge of any financial interests which would require it to disqualify itself from any matter on which it might perform services for the CITY.
9.2. If, in performing the PROFESSIONAL SERVICES set forth in this AGREEMENT, the CONSULTANT makes, or participates in, a "governmental decision"
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as described in Title 2, Section 18701(a)(2) of the California Code of Regulations, or performs the same or substantially all the same duties for the CITY that would otherwise be performed by a CITY employee holding a position specified in the department's conflict of interest code, the CONSULTANT shall be subject to a conflict of interest code requiring the completion of one or more statements of economic interests disclosing the CONSULTANT'S relevant financial interests.
9.3. LJ If checked, the CONSULTANT shall comply with all of the reporting requirements of the Political Reform Act. Specifically, the CONSULTANT shall file a Fair Political Practices Commission Form 700 (Assuming Office Statement) within thirty (30) calendar days of the CITY'S determination that the CONSULTANT is subject to a conflict of interest code. The CONSULTANT shall also file a Form 700 (Annual Statement) on or before April 1 of each year of the AGREEMENT, disclosing any financial interests held during the previous calendar year for which the CONSULTANT was subject to a conflict of interest code.
9.4. CITx' represents that pursuant to California Government Code Sections 1090 etseq., none of its elected officials, officers, or employees has an interest in this AGREEMENT.
10. DISPOSITION AND OWNERSHIP OF DOCUMENTS.
10. 1. All documents, data, studies, drawings, maps, models, photographs and reports prepared by CONSULTANT under this AGREEMENT, whether paper or electronic, shall become the property of CIT/ for use with respect to this PROJECT, and shall be turned over to the CiJY upon completion of the PROJECT or any phase thereof, as contemplated by this AGREEMENT.
10.2. Contemporaneously with the transfer of documents, the CONSULTANT hereby assigns to the CITi' and CONSULTANT thereby expressly waives and disclaims, any copyright in, and the right to reproduce, all written material, drawings, plans, specifications or other work prepared under this AGREEMENT, except upon the CIP^'s prior authorization regarding reproduction, which authorization shall not be unreasonably withheld. The CONSULTANT shall, upon request of the CITr", execute any further document(s) necessary to further effectuate this waiver and disclaimer.
11. INSURANCE
11.1. CONSULTANT shall procure and maintain for the duration of the AGREEMENT insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the CONSULTANT, their agents, representatives, employees or subcontractors. Insurance shall be placed with insurers with a current A.M. Best's rating of no less than "A" and "VII" unless otherwise approved in writing by the SUCCESSOR AGENCY'S Risk Manager.
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11.2. CONSULTANT'S liabilities, including but not limited to CONSULTANT'S indemnity obligations, under this AGREEMENT, shall not be deemed limited in any way to the insurance coverage required herein. All policies of insurance required hereunder must provide that the CIT^ is entitled to thirty (30) days prior written notice of cancellation or non-renewal of the policy or policies or ten (10) days prior written notice for cancellation due to non-payment of premium. Maintenance of specified insurance coverage is a material element of this AGREEMENT.
11.3. Types and Amounts Required. CONSULTANT shall maintain, at minimum, the following insurance coverage for the duration of this AGREEMENT:
11. 3. 1. j^lCommercial General Liability (CGL). If checked the CONSULTANT shall maintain CGL Insurance written on an ISO Occurrence form or equivalent providing coverage at least as broad which shall cover liability arising from any and all personal injury or property damage in the amount of $1, 000, 000. 00 per occurrence and subject to an annual aggregate of $2, 000, 000. 00. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy.
11. 3. 2. I^ICommercial Automobile Liability. If checked the CONSULTANT shall maintain Commercial Automobile Liability Insurance for all of the CONSULTANT'S automobiles including owned, hired and non-owned automobiles, automobile insurance written on an ISO form CA 00 01 12 90 or a later version of this form or an equivalent form providing coverage at least as broad for bodily injury and property damage for a combined single limit of $1, 000, 000. 00 per occurrence. Insurance certificate shall reflect coverage for any automobile (any auto).
11. 3. 3. l^jWorkers' Compensation. If checked the
CONSULTANT shall maintain Workers' Compensation insurance for all of the CONSULTANT'S employees who are subject to this AGREEMENT and to the extent required by applicable state or federal law, a Workers' Compensation policy providing at minimum $1, 000, 000. 00 employers' liability coverage.
11.3.4. ^Professional Liability. If checked the
CONSULTANT shall also maintain Professional Liability (errors and omissions) coverage with a limit of $1, 000, 000 per claim and $2, 000, 000 annual aggregate. The CONSULTANT shall ensure both that (1) the policy retroactive date is on or before the date of commencement of the Scope of Services; and (2) the policy will be maintained in force for a period of three years after substantial completion of the Scope of Services or termination of this AGREEMENT whichever occurs last. The CONSULTANT agrees that for the time period defined above, there will be no changes or endorsements to the policy that increase the CITY'S exposure to loss. All defense costs shall be outside the limits of the policy.
11.4. Deductibles and Self-lnsured Retentions. Any deductibles or selfinsured retentions are the responsibility of the CONSULTANT and must be declared to
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and approved by the CITY. At the option of the CITf, either (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the CIPr^, its officers, officials, employees and volunteers, or (2) the CONSULTANT shall provide a financial guarantee satisfactory to the CIT/ guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
11.5. Additional Required Provisions. The commercial general liability and automobile liability policies shall contain, or be endorsed to contain, the following provisions:
11. 5. 1. The CITY, their officers, officials, employees, and representatives shall be named as additional insureds. The additional insured status must be reflected on additional insured endorsement form (20 10 1185 or20 10 1001 and 20 37 1001) which shall be submitted to the CIT>'.
11. 5. 2. The policies are primary and non-contributory to any insurance that may be carried by the CITY, as reflected in an endorsement which shall be submitted to the C\TY.
11.6. Verification of Coverage. CONSULTANT shall furnish the CiJY with original certificates and amendatory endorsements effecting coverage required by this Section 11. The endorsement should be on forms provided by the CIT>' or on other than these forms provided those endorsements conform to the requirements of the CIPi'.
All certificates and endorsements are to be received and approved by the CIT>' before work commences. The CIT/ reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
12. INDEMNIFICATION. CONSULTANT agrees to indemnify, defend, and hold harmless the CITY, and its officers, officials, agents and employees from any and all claims, demands, costs or liability that arise out of, or pertain to, or relate to the negligence, recklessness, or willful misconduct of CONSULTANT, its employees, agents, and subcontractors in the performance of services under this AGREEMENT. CONSULTANT'S duty to indemnify under this section shall not include liability for damages for death or bodily injury to persons, injury to property, or other loss, damage or expense arising from the sole negligence or willful misconduct by the CITi' or its elected officials, officers, agents, and employees. CONSULTANT'S indemnification obligations shall not be limited by the insurance provisions of this AGREEMIENT. The PARTIES expressly agree that any payment, attorney's fees, costs or expense CITi' incurs or makes to or on behalf of an injured employee under the CIWs self-administered workers' compensation is included as a loss, expense, or cost for the purposes of this section, and that this section will survive the expiration or early termination of this AGREEMENT.
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13. SUBCONTRACTORS.
13. 1. The CONSULTANT'S hiring or retaining of third parties (i. e. subcontractors) to perform services related to the PROJECT is subject to prior approval by the CITY.
13. 2. All contracts entered into between the CONSULTANT and its subcontractor shall also provide that each subcontractor shall obtain insurance policies which shall be kept in full force and effect during any and all work on this PROJECT and for the duration of this AGREEMENT. The CONSULTANT shall require the subcontractor to obtain, all policies described in Section 11 in the amounts required by the CIT^, which shall not be greater than the amounts required of the CONSULTANT.
13. 3. In any dispute between the CONSULTANT and its subcontractor, the CITY shall not be made a party to any judicial or administrative proceeding to resolve the dispute. The CONSULTANT agrees to defend and indemnify the CITY as described in Section 12 of this AGREEMENT should the CITY be made a party to any judicial or administrative proceeding to resolve any such dispute.
14. NON-DISCRIMINATION. CONSULTANT shall not discriminate against any employee or applicant for employment because of sex, race, color, age, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. CONSULTANT shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their sex, race, color, age, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation and shall make reasonable accommodation to qualified individuals with disabilities or medical conditions. Such action shall include, but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship.
CONSULTANT agrees to post in conspicuous places available to employees and applicants for employment any notices provided by CIT/ setting forth the provisions of this non-discrimination clause.
15. NOTICES. All communications to either party by the other party shall be delivered to the persons listed below. Any such written communications by mail shall be conclusively deemed to have been received by the addressee five (5) calendar days after the deposit thereof in the United States mail, postage prepaid and properly addressed as noted below.
Tina Friend, City Manager
City of Coronado
1825 Strand Way
Coronado, CA 92118
Helen Holmes Peak
Lounsbery Ferguson Altona &
Peak LLP
960 Canterbury Place, Suite 300
Escondido, CA 92025-387Q
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16. ASSIGNABILITY. This AGREEMENT and any portion thereof shall not be assigned or transferred, nor shall any of the CONSULTANT'S duties be delegated or subcontracted, without the express written consent of the CITY.
17. CALIFORNIA LAW; VENUE. This AGREEMENT shall be construed and interpreted according to the laws of the State of California. Any action brought to enforce or interpret any portion of this AGREEMENT shall be brought in the county of San Diego, California. CONSULTANT hereby waives any and all rights it might have pursuant to California Code of Civil Procedure Section 394.
18. COMPLIANCE WITH LAWS. The CONSULTANT shall comply with all laws, ordinances, regulations, and policies of the federal, state, and local governments applicable to this AGREEMENT whether now in force or subsequently enacted. This includes maintaining a City of Coronado Business Certificate.
19. ENTIRE AGREEMENT. This AGREEMENT sets forth the entire understanding of the PARTIES with respect to the subject matters herein. There are no other understandings, terms or other agreements expressed or implied, oral or written, except as set forth herein. No change, alteration, or modification of the terms or conditions of this AGREEMENT, and no verbal understanding of the PARTIES, their officers, agents, or employees shall be valid unless agreed to in writing by both PARTIES.
20. NO WAIVER. No failure of either the CITi' or the CONSULTANT to insist upon the strict performance by the other of any covenant, term or condition of this AGREEMENT, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this AGREEMENT shall constitute a waiver of any such breach of such covenant, term or condition.
21. SEVERABILITY. The unenforceability, invalidity, or illegality of any provision of this AGREEMENT shall not render any other provision unenforceable, invalid, or illegal.
22. DRAFTING AMBIGUITIES. The PARTIES agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this AGREEMENT, and the decision of whether or not to seek advice of counsel with respect to this AGREEMENT is a decision which is the sole responsibility of each Party. This AGREEMENT shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the AGREEMENT.
23. CONFLICTS BETWEEN TERMS. If an apparent conflict or inconsistency exists between the main body of this AGREEMENT and the Exhibits, the main body of this AGREEMENT shall control. If a conflict exists between an applicable federal, state, or local law, rule, regulation, order, or code and this AGREEMENT, the law, rule, regulation, order, or code shall control. Varying degrees of stringency among the main body of this AGREEMENT, the Exhibits, and laws, rules, regulations, orders, or codes
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are not deemed conflicts, and the most stringent requirement shall control. Each Party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this AGREEMENT.
24. EXHIBITS INCORPORATED. All Exhibits referenced in this AGREEMENT are incorporated into the AGREEMENT by this reference.
25. SIGNING AUTHORITY.
25. 1. The representative for each Party signing on behalf of a corporation, partnership, joint venture or governmental entity hereby declares that authority has been obtained to sign on behalf of the corporation, partnership, joint venture, or entity and agrees to hold the other Party or PARTIES hereto harmless if it is later determined that such authority does not exist.
25. 2. Qlf checked, a proper notary acknowledgement of execution by CONSULTANT must be attached.
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT the day and year first hereinabove written.
THE CITY OF CORONADO,
By:
Tina Friend, City Manager
ATTEST:
LOUNSBERY FERGUSON ALTONA &
PEAK LL6
By:
/Helen Holmes Peak
Kelsea Holian, City Clerk
APPROVED AS TO FORM:
Johanna N. Canlas, City Attorney
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EXHIBIT "A"
SCOPE OF SERVICES AND FEE
A. SCOPE OF SERVICES.
The legal services to be provided include to assist, advise, and represent the CIPi' as may be requested in connection with the general elections in 2024.
B. COMPENSATION AND REIM@URSEMENT
1. FEES AND BILLING
Fees for legal services will be paid on a time and material basis. Unless otherwise agreed in writing, each attorney and paralegal will record time devoted to the CITi"s matters at his or her standard hourly rate. Currently, Helen Holmes Peak's hourly rate is $375. 00.
Others who may provide services on the CITY'S behalf have rates which fall within the following ranges: $375 per hour for partners, $300 per hour for associates, and $150 per hour for paralegals. Any increase in the CONSULTANT'S hourly rates requires the express consent of the CITY.
In general, CONSULTANT may incur various costs and expenses in performing legal services under this AGREEMENT. CITY agrees to pay for all costs, disbursements and expenses in addition to the hourly fees with the exception that CONSULTANT shall not be reimbursed for travel cost or mileage without the express consent of the CITr'. The costs and expenses commonly include fees fixed by law or assessed by public agencies, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, investigation expenses and consultants' fees and other similar items. All costs and expenses will be charged at CONSULTANT'S cost.
No consultants) will be retained on CITY'S behalf without CITY'S prior written approval.
CONSULTANT'S fee shall include and CONSULTANT shall be responsible for the payment of all federal, state, and local taxes of any kind which are attributable to the compensation received.
CONSULTANT will send monthly statements indicating attorneys' fees and costs incurred and their basis, any amounts applied from deposits, and any current balance owed. If no fees or costs are incurred for a particular month, or if they are minimal, the statement may be held and combined with the following month's billing. Any balance which is not paid within 30 days of the statement date will be subject to a late payment charge.
2. DEPOSIT FOR FEES AND COSTS
The requirement for an initial deposit in connection has been waived.
C. RETURN AND DISPOSITION OF FILES
After its services conclude, CONSULTANT will deliver to C\TY the files that it created in providing representation to CITY, along with any funds or CITY property in its possession.
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