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HomeMy WebLinkAboutA7177 - MEYERS NAVE RIBACK SILVER & WILSONAMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT MEYERS NAVE RIBACK SILVER & WILSON (Agreement No. A7177) THIS AMENDMENT NO. 1 to that certain "Professional Services Agreement" ("First Amendment") is made and entered into to be effective on the 6'*^ day of September 2018 by and between the City of Palm Springs, a California charter city and municipal corporation (hereinafter referred to as the City), and MEYERS NAVE RIBACK SILVER & WILSON, a California professional law corporation (hereinafter "Firm") collectively the "Parties," and each a "Party." RECITALS A. City and Firm previously entered into a professional services agreement for legal representation in connection with an independent personnel investigation. The Assistant City Manager approved and entered into this agreement, identified in the public records of the City as Agreement No. A7177, on August 9, 2018 (the "Agreement"). Fees, costs and expenses under the Agreement were not to exceed twenty-five thousand dollars ($25,000). B. City and Firm desire to amend the Agreement to allow for the Firm's continued services to the City, in an additional amount not to exceed sixty thousand dollars ($60,000). NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the Parties agree as follows: AGREEMENT 1. The true and correct recitals above are incorporated by this reference herein as the basis for this First Amendment. 2. Section 3.4 of the Agreement is hereby amended in its entirety to read as follows: Fees, costs and expenses paid pursuant to this Agreement shall have an aggregate value of no more than eighty-five thousand dollars ($85,000), this amount reflecting an additional sixty thousand dollars ($60,000) above and beyond the amount previously approved by the Assistant City Manager on August 9, 2018. 3. Full Force and Effect. This First Amendment is supplemental to the Agreement and is by reference made part of said Agreement. All of the terms, conditions, and provisions, thereof, unless specifically modified herein, shall continue in full force and effect. In the event of any conflict or inconsistency between the provisions of this First Amendment and any of the provisions of the Agreement, the provisions of this First Amendment shall in all respects govern and control. 4. Corporate Authoritv. Each of the persons executing this First Amendment on behalf of a Party hereto warrants that (i) such Party is duly organized and in good standing, (ii) Amendment No. 1 Agreement No. A7177 Meyers Nave Riback Silver & Wilson he/she is duly authorized to execute and deliver this Amendment on behalf of said Party, (Hi) by his/her execution of this First Amendment, such Party is formally bound to the provisions of this First Amendment, and (iv) the entering into this First Amendment does not violate any provision of any other agreement to which said Party is bound. IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the dates stated below. ATTEST: By: Date: o Anthony J. 2^1^ "CITY" CITY OF PALM SPRINGS Date: Marcus Fuller, Assistant City Manager APPROVED AS TO FORM: Peter Nelson King, Assistant City Attorney Date: ^ ^ O > APPROVED BY CITY COUNCIL A7I77 "FIRM" Meyers Nave Riback Silver & Wilson a California pro^s^ional corporation Date: U.. By: ^ X^amille Hamilton Fating, Principal Amendment No. 1 Agreement No. A7177 Meyers Nave Riback Silver & Wilson PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") Is made and entered into as of this 9th day of August, 2018, by and between the CITY OF PALM SPRINGS, a California charter city and municipal law corporation ("City"), and MEYERS NAVE RIBACK SILVER & WILSON, a California professional law corporation (hereinafter "Firm"). RECITALS A. The City of Palm Springs, pursuant to its authority under the City Charter and all applicable law, acting by and through the City Manager, desires to contract with Firm to provide services that may be described as a confidential, attorney-client privileged independent personnel investigation. B. Firm Is qualified to, and desires to perform the foregoing professional services as necessary for the support of the City Attorney and the City Council. C. City and Firm wish to provide for the terms and conditions of City retaining and employing Firm to provide legal services as set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree as follows: AGREEMENT 1. Retention of Firm. Identification of Individual Legal Counsel. City hereby retains and employs Firm to provide the legal services described as follows: to conduct a confidential, attorney-client privileged independent personnel investigation for the City regarding the installation by the Mayor of Palm Springs of a motion-activated electronic camera device in his office and an intercom between his office and the office of the Executive Assistant for the Office of the Mayor and City Council. The purpose and scope of work is to determine the facts surrounding the Installation and use of the camera and intercom, to issue Findings of Fact as to whether or not any misconduct occurred, to report such Findings to the Council, and such additional services as may be requested or required In relation thereto. City and Firm understand and agree that David Freedman will serve as City's liaison to the Firm regarding all services. 2. Independent Contractor. Firm and any attorneys or other persons employed by Firm, shall at all times be considered an independent contractor and not an employee of the City and not entitled to any benefits of the City's employees. Except to the extent provided herein, the City and its employees shall not have any control over the conduct of Firm. 3. Fees. Costs, and Expenses. 3.1 City agrees to pay Firm at the rates set forth in Exhibit "A," which is attached hereto and is incorporated herein by reference. 3.2 City agrees to pay out-of-pocket costs and expenses associated with Firm's work pursuant to Exhibit "A." Firm's disbursements will be capped at $7,509. 3.3 Scope of work for this retention includes two trips to Palm Springs, one to conduct all witness interviews within a two-day period and one to present findings to City Council during closed session. 3.4 The Not-To-Exceed ("NTE") amount for this contract is $25,000. It is understood that a supplemental contract and request to adjust the NTE amount will be presented to the City Council on or about September 5, 2018. 4. Statements/Task-BIHing. Firm shall prepare and present to City detailed monthly statements for professional and other services rendered to City for the month preceding the statement, indicating each task performed by Firm. City shall pay the statements within thirty (30) days of receipt of the same. Firm shall update City, upon request, regarding the status of Firm's billings. 5. Insurance and Indemnification. 5.1. Firm shall carry Professional Liability/Errors and Omissions insurances in an amount not less than one million dollars ($1,000,000.00) per occurrence and ($2,000,000.00) in aggregate. All insurance coverage shall be provided by an insurance company with a rating of A-, Vli or greater in the latest edition of Best's insurance Guide and authorized to do business in the State of California. Such policies shall not be canceled or materially changed absent thirty (30) days' prior written notice to the City. With respect to Professional Liability/Errors and Omissions Insurance, Firm agrees to maintain such insurance for at least three (3) years after termination of this Agreement as long as such insurance is reasonably available on the market. 5.2. Firm agrees to indemnify, defend and hold harmless, the City, its City Council, officers, agents and employees from and against and claim, demands, damages, injury or judgment which arises out the negligent performance or willful misconduct of Firm in performing under this Agreement. 6. Term and Termination. The term of this Agreement shall continue until terminated by either party. Firm shall serve under the terms of this Agreement at the pleasure of City, and by a majority vote of the City Council, City hereby reserves the right to terminate this Agreement upon ten (10) days written notice to Firm for any reason or to require substitute attorney personnel. In the event that Firm's services are terminated, all unpaid charges shall be due and payable to Firm for work actually performed up to the time of termination and for any other work Firm completes at the direction of the City. Firm may terminate this Agreement with or without cause upon ninety (90) days written notice to the City. 7. Notice. Any notices required by this Agreement shall be given by personal service or by delivery of such notice by first-class mail, postage prepaid. Such notices shall be addressed to each party at the address listed below. Either party may change the information in such notice upon written notice as provided herein. City: Firm: City of Palm Springs Meyers Nave RIback Silver & Wilson 3200 E. Tahqultz Canyon Way 707 Wllshire Blvd., 24^'' Floor Palm Springs, CA 92263-2743 Los Angeles, California 90017 Attn: Mr. Peter King Attn: Ms. Camille Pating Phone: 760.323.8294 Phone: 800.464.3559 8. City Officers and Employees; Non-Dlscrlmlnatlon. 8.1 No officer or employee of the City shall be personally liable to the Firm, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to Firm or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Firm acknowledges that no officer or employee of the City has or shall have any direct or Indirect financial interest in this Agreement nor shall Firm enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Firm warrants that Firm has not paid or given, and will not pay or give, any third party any money or other consideration In exchange for obtaining this Agreement. 8.3 In connection with its performance under this Agreement, Firm shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (I.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Firm shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, Firm shall certify that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Firm activity, including bgt not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training. Including apprenticeship; and further. that Firm Is In full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, Including without limitation the provision of benefits, relating to non-dlscrimlnatlon In city contracting. 9. Conflicts of Interest. Firm represents that it presently has no Interest and shall not acquire any Interest, direct or Indirect, In any legal representation which Is in conflict with the legal services to be provided the City under this Agreement. Firm represents that no City employee or official has a material financial interest In Firm. During the term of this Agreement and/or as a result of being awarded this contract. Firm shall not offer, encourage or accept any financial Interest in Firm's business from any City employee or official. 10. Files. All legal files of Firm pertaining to the City shall be and remain the property of City. Firm shall control the physical location of such legal files In a secure and accessible location during the term of this Agreement and be entitled to retain copies of such files, at Firm's expense, upon termination of this Agreement. City agree that the Firm may. In Its discretion, maintain all or part of the City's client file in electronic format. The Firm may store part or all of City documents using secure cloud storage services. If so, the Firm will apply all reasonable methods to maintain the confidentiality of City files, just as It does for City's non-digital Information. City data will be password protected and encrypted using currently available technology. The City may obtain information from its files by written request to the Firm. 11. Modifications to the Agreement. Unless otherwise provided for In this Agreement, modifications relating to the nature, extent or duration of Firm's professional services to be rendered hereunder shall require the written approval of the parties. Any such written approval shall be deemed to be a supplement to this Agreement and shall specify any changes In the Scope of Services and the agreed-upon billing rate to be charged by Firm and paid by the City. 12. Assignment and Delegation. This Agreement contemplates the personal professional services of Firm and it shall not be assigned or delegated without the prior written consent of the City. Firm shall supervise delegated work, except where precluded from doing so by virtue of a conflict of interest and where otherwise agreed to by the parties hereto. 13. Legal Construction. 13.1 This Agreement is made and entered into in the State of California and shall, in all respects, be interpreted, enforced and governed under the laws of the State of California. 13.2 This Agreement shall be construed without regard to the identity of the persons who drafted its various provisions. Each and every provision of this Agreement shall be construed as though each of the parties participated equally In the drafting of same, and any rule of construction that a document is to be construed against the drafting party shall not be applicable to this Agreement. 13.3 The article and section, captions and headings herein have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. 13.4 Whenever in this Agreement the context may so require, the masculine gender shall be deemed to refer to and Include the feminine and neuter, and the singular shall refer to and include the plural. 14. Entire Agreement. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and contains all covenants and agreements between the parties with respect to such matter. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date indicated in the preamble to this Agreement and represent that they are authorized to bind their respective parties. ATTEST:CITY OF PALM SPRINGS Marcus Fuller, Assistant City Manager APPROVED AS TO FORM: Peter Nelson King, Assistant City Attorney MEYER NAVE RIBACK SILVER & WILSON APPROVED BY CITY MAMAGER Camiile Hamilton Patmg, Principal EXHIBIT "A" MEYERS NAVE RIBACK SILVER & WILSON Rates and Billing Practices 1. Rates: Effective January 1, 2018, the hourly rates for legal personnel on this matter are as follows: Principal Camllle Rating $ 375/ hour Of CounselJenny Riggs $ 335/hour Support Analyst $ 175/hour Paralegal $ 175/hour Billing Practices: Time is charged in minimum units of one-tenth (. 1) of an hour. The time charged will Include the time spent on telephone calls relating to City's matters, including calls with City, witnesses, opposing counsel, court personnel, state filing agencies, vendors, and other necessary telephone calls. The legal personnel assigned to City's matters may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicatlve. Likewise, if more than one of the legal personnel assigned attends a meeting, court hearing, or other proceeding, each will charge for the time spent, as long as the attendance is required and appropriate. Firm will charge for waiting time in court and elsewhere and for travel time, both local and out of town. 2. Costs and Other Charges: (a) Firm 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. The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporters' fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees, and other similar items. Except for the items listed below, all costs and expenses will be charged at Firm's cost. In-office photocopying: $0.10/page Mileage: Per IRS Mileage Rates, currently $0.545/mile (b) Out of town travel. Client agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town travel by Firm's personnel. (c) Experts, Consultants and Investigators. To aid in the preparation or presentation of City's matter, it may become necessary to hire expert witnesses, consultants or investigators. City agrees to pay such fees and charges. Firm will select any expert witnesses, consultants or investigators to be hired, and City will be informed of and have the opportunity to consent to persons chosen and their charges. (d) Other Fees. City understands that If any matter proceeds to court action or arbitration; City may be required to pay fees and/or costs to other parties in the action. Any such payment will be entirely the responsibility of City. ,