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HomeMy WebLinkAboutStrauss, Betsy 2019-09-09cou No. 19zO —1 /3 LEGAL SERVICES AGREEMENT This Agreement dated as of September 9, 2019, is made by and between the Mendocino County Oversight Board Ukiah ("Oversight Board") and Betsy Strauss ("Attorney"). This Agreement is required by Business and Professions Code Section 6148 and is intended to fulfill its requirements. RECITALS WHEREAS, Attorney specializes in public agency law and has significant experience and recognized expertise in that area, and; WHEREAS, Oversight Board has determined that Attorney's assistance is needed in connection with providing legal services and advice on an as -needed basis to the Oversight Board; NOW THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: AGREEMENT 1. Services. Attorney will provide advisory and representation services upon request of the Oversight Board. 2. Compensation. Compensation to Attorney for services shall be at the rates set forth in Exhibit A, provided however that total payments hereunder shall not exceed $25,000.00 per any 12 month period. The rates set forth in Exhibit A shall not be adjusted without a formal amendment to this Agreement. 3. Term. The term of this Agreement shall commence upon the Effective Date and shall terminate pursuant to paragraphs 8 or 9 of this Agreement. 4. Standard of Care. Oversight Board has relied on the professional ability, professional experience, and training of Attorney as a material inducement to enter into this Agreement. Attorney warrants that all work will be performed in accordance with generally accepted and applicable professional practices and standards as well as the requirements of applicable federal, state and local laws, it being understood that acceptance by Agency of work performed by Attorney shall not operate as or be interpreted to be a waiver or release. 5. Billing and Timekeeping. Duplicate billing statements shall be provided on a monthly basis to Oversight Board, and shall include the following information: a. The date and time spent performing services. Minimum billing times shall not exceed one-tenth of an hour. Page 1 ATTACHMENT 1 b. Summary description of the services performed regarding the designated matter, with a separate time allocation for each function (e.g., telephone calls, research, drafting); c. Separate itemization of non -legal costs by type. d. Total fees and costs of the matter to date. e. For any extraordinary expenses, the invoice must include the date and who gave prior approval for incurring such expense. 6. Non -Reimbursable Services. Attorney shall not be reimbursed for any of the following expenses: a. Travel expenses, except to the extent approved in accordance with Section 7 below. b. Messenger or express mail charges. c. Normal overhead functions such as word processing or typing time, scheduling of depositions, ordering records, calendaring functions, filing, indexing, proofreading or copying time, or any other procedures that are of a secretarial nature. d. Meals, overtime, office supplies, or attorney time for preparation of bills or audit responses. e. Expenses for experts or consultants that have been retained without the prior written approval of the Oversight Board. f. Photocopying charges. g. Office supplies, local telephone charges, per -page fax charges, conference call line charges, routine mail, etc. h. Intra -office conferencing time of more than one attorney for routine matters, unless such conference involves expert opinion. i. Replacement attorney learning time or other ramp -up learning costs. J. Travel time. k. Charges/fees for use of computer research programs (e.g. Lexis Nexis, WestLaw, etc.). Page 2 ATTACHMENT I 7. Direction and Extraordinary Expenses. All direction and control of Attorney's work will be by the Oversight Board. Attorney shall seek pre -approval from the Oversight Board for all extraordinary expenses before the same is incurred by Attorney. By way of example, extraordinary expenses shall include expenses for preparing complex motions, undertaking significant legal research or substantial drafting, retaining experts and consultants, and out-of-town travel. 8. Termination. This Agreement may be terminated by Oversight Board at the direction of the Oversight Board at any time, subject to equitable proportional payments due to Attorney. All files, written material, and documents will be transferred to the Oversight Board upon such termination. 9. Withdrawal. Attorney may withdraw as permitted under the Rules of Professional Conduct of the State Bar of California. 10. Status of Attorney. The parties intend that Attorney, in performing the services under this Agreement, shall be an independent contractor and shall control the work and the manner in which it is performed. Attorney shall acquire no rights or status in the service of Oversight Board. Attorney is not to be considered an agent or employee of Oversight Board and is not entitled to participate in any pension plan, insurance, bonus, or similar benefits Oversight Board provides its employees. In the event Oversight Board exercises its right to terminate this Agreement at the direction of the Oversight Board pursuant to the terms herein, Attorney expressly agrees that she shall have no recourse or right of appeal under rules, regulations, ordinances, or laws applicable to employees. 11. Modification. If, during the term of this Agreement, it becomes necessary to amend or add to its terms, conditions, scope or requirements, such amendment or addition shall only be made after mutual agreement of Attorney and Oversight Board and by way of execution of a written modification to this Agreement. 12. Insurance. With respect to performance of work under this Agreement, Attorney shall maintain and require all of its subcontractors, consultants, and other agents to maintain, insurance as described in Exhibit B, which is attached hereto and incorporated herein, by this reference. 13. Indemnity. Attorney agrees to accept responsibility for loss or damage to any person or entity, and to defend, indemnify, hold harmless, and release Oversight Board, its officers, agents, and employees, from and against any and all actions, claims, damages, liabilities, or expenses that may be asserted by any person or entity, including Attorney, arising out of or in connection with the negligent performance or willful misconduct of Attorney hereunder, whether or not there is concurrent negligence on the part of Oversight Board, but excluding liability due to the sole or active negligence or due to the willful misconduct of Oversight Board. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Attorney or its agents under workers' compensation acts, disability Page 3 ATTACHMENT 1 benefits acts, or other employee benefit acts. In addition, Attorney shall be liable to Oversight Board for any loss or damage to Oversight Board property arising from or in connection with Attorney's negligent performance or willful misconduct hereunder. 14. Rules of Professional Conduct. Nothing contained herein shall be construed to relieve Attorney of her obligations under the Rules of Professional Conduct. 15. Merger. This Agreement contains the entire agreement of the parties. No other agreement, statement or promise made on or before the effective date of this agreement will be binding on the parties. 16. Taxes. Attorney agrees to file federal and state tax returns and pay all applicable taxes on amounts paid pursuant to this Agreement and shall be solely liable and responsible to pay such taxes and other obligations, including, but not limited to, state and federal income and FICA taxes. Attorney agrees to indemnify and hold Oversight Board harmless from any liability which it may incur to the United States or to the State of California as a consequence of Attorney's failure to pay, when due, all such taxes and obligations. If Oversight Board is audited for compliance regarding any withholding or other applicable taxes, Attorney agrees to furnish the Oversight Board with proof of payment of taxes on these earnings. 17. Conflict of Interest. Attorney covenants that she presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services hereunder. Where the Oversight Board deems that there is an actual or potential conflict of interest in Attorney representing another party in a matter, the Oversight Board must waive any such actual or potential conflict before Attorney may represent such other party. 18. Nondiscrimination. Attorney shall comply with all applicable federal, state, and local laws, rules and regulations in regard to nondiscrimination in employment because of race, color, ancestry, national origin, religion, sex, marital status, age, medical condition, pregnancy, disability, sexual orientation, or other prohibited basis, including without limitation the Oversight Board's Non -Discrimination Policy. All nondiscrimination rules or regulations required by law to be included in this Agreement are incorporated by this reference. 19. Assignment and Delegation. Neither party hereto shall assign, delegate, sublet, or transfer any interest in or duty under this Agreement without the prior written consent of the other, and no such transfer shall be of any force or effect whatsoever unless and until the other party shall have so consented. 20. Method and Place of Giving Notice, Submitting Bills and Making Payments. All notices, bills, and payments shall be made in writing and may be given by personal delivery or by mail. Notices, bills, and payments sent by mail shall be addressed as follows: Page 4 ATTACHMENT 1 Dated: S e f 1, 2019 Countywide Oversight Board APPROVED AS TO FORM: City Atto Dated: .4'W/147f 7/1(07 Page 6 By: ATTACHMENT 1 Oversight Board: Mendocino Countywide Oversight Board 300 Seminary Road Ukiah, CA 95482 Phone: 707-463-6213 Fax: 707-463-6204 Email: klawlerrcityofukiah.com Attorney: Betsy Strauss 3018 Porter Street NW Apt 102 Washington DC 20008 Email: betsy.strausstgmait.com or at such address as such party may previously have advised the other party by notice similarly given. And when so addressed, shall be deemed given upon deposit in the United States mail, postage prepaid. In all other instances, notices, bills, and payments shall be deemed given at the time of actual delivery. Changes may be made in the names and addresses of the person to whom notices, bills, and payments are to be given by giving notice pursuant to this paragraph. 21. No Waiver of Breach. The waiver by the Oversight Board of any breach of any term or promise contained in this Agreement shall not be deemed to be a waiver of such term or promise or any subsequent breach of the same or any other term or promise contained in this Agreement. 22. Applicable Law and Forum. This Agreement shall be construed and interpreted according to California Law, and any action or proceeding to enforce this Contract or for the breach thereof shall be brought or tried in the County of Mendocino 23. Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement that shall be binding on all of the parties, notwithstanding that all of the parties are not signatory to the original or same counterpart. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. Dated: , 2019 Page 5 Attorney: By: ATTACHMENT 1 EXHIBIT A RATES For all services provided, Attorney will be paid at the rate of $275 per hour. EXHIBIT B Insurance Requirements With respect to performance of work under this Agreement, Attorney shall maintain and shall require all of its subcontractors, consultants, and other agents to maintain insurance as described below. Any requirement for insurance to be maintained after completion of the work shall survive this agreement. 1. Workers Compensation and Employers Liability Insurance a. Required only if Attorney has employees. b. Workers' Compensation insurance with statutory limits as required by the Labor Code of the State of California. c. Employers' Liability with limits of 1,000,000 per Accident; 1,000,000 Disease per employee; 1,000,000 Disease per policy. d. Required Evidence of Coverage: i. Certificate of Insurance. If Attorney currently has no employees, Attorney agrees to obtain the above- specified Workers' Compensation and Employers' Liability insurance should any employees be engaged during the term of this Agreement or any extensions of the term. 2. General Liability Insurance a. Commercial General Liability Insurance on a standard occurrence form, no less broad than ISO form CG 00 01. b. Minimum Limits: 1,000,000 per Occurrence; 2,000,000 General Aggregate; 2,000,000 Products/Completed Operations Aggregate. c. Attorney shall disclose any deductible or self-insured retention in excess of $25,000 and such deductible or self-insured retention must be approved in advance by County. Attorney is responsible for any deductible or self- insured retention. d. City of Ukiah, in its capacity as Oversight Board to the Ukiah Redevelopment Agency, shall be an additional insured for liability arising out of operations by or on behalf of the Attorney in the performance of this agreement. Page 7 ATTACHMENT 1 e. The insurance provided to Oversight Board as additional insured shall apply on a primary and non-contributory basis with respect to any insurance or self-insurance program maintained by them. f. The policy definition of "insured contract" shall include assumptions of liability arising out of both ongoing operations and the products - completed operations hazard (broad form contractual liability coverage including the "P' definition of insured contract in ISO form CG 00 01, or equivalent). g. The policy shall cover inter -insured suits between County and Attorney and include a "separation of insureds" or "severability" clause which treats each insured separately. h. Required Evidence of Coverage: i. Copy of the additional insured endorsement or policy language granting additional insured status, and ii. Certificate of Insurance. 3. Automobile Liability Insurance a. Minimum Limit: $300,000 Combined Single Limit per Accident; or Bodily Injury: $100,000 per person/$300/000 per accident and Property Damage: $50,000 per accident. b. Required Evidence of Coverage: i. Copy of Auto Policy Declarations Page or Certificate of Insurance. 4. Standards for Insurance Companies Insurers shall have an A.M. Best's rating of at least A:VII. 5. Documentation a. All required Evidence of Coverage shall be submitted upon request. b. Upon request, copies of required insurance policies must be provided within thirty (30) days. 6. Policy Obligations Attorney's indemnity and other obligations shall not be limited by the foregoing insurance requirements. 7. Material Breach If Attorney fails to maintain insurance coverage which is required pursuant to this Agreement, it shall be deemed a material breach of this Agreement. County, at its sole option, may terminate this Agreement and obtain damages from Attorney resulting from said breach. Alternatively, County may purchase the required insurance coverage, and without further notice to Attorney, County may deduct from sums due to Attorney any premium costs advanced by County for such insurance. These remedies shall be in addition to any other remedies available to County. Page 8