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HomeMy WebLinkAboutRincon Consultants - Colantuono, Highsmith & Whatley, PC 2026-05-19 CROSS REFCOU No. 2526-223AMENDED LIMITED SCOPE AGREEMENT FOR CONSULTING SERVICES (Colantuono, Highsmith & Whatley, PC/ City of Ukiah /Rincon Consultants, Inc .. ) 1.Identification1.1 This Agreement for Consulting Services ("Agreement") is entered into by and among Colantuono, Highsmith & Whatley, PC, a California professional corporation ("Attorney"), Rincon Consultants, Inc., a California limited liability company ("Rincon" or "Consultant"), and the City of Ukiah, a municipal corporation ( II City"). 2.Recitals2.1 Attorney represents the City, which has determined that the professional services of Consultant are necessary to aid the City in its defense of the lawsuit captioned Vichy Springs Resort, Inc. v. City of Ukiah, et al, ND Cal, Case No. 3:24-cv-7106-JSC ("Lawsuit"). 2.2 Consultant represents that it is fully qualified to perform such professional services by virtue of its training, education, experience, and expertise. Consultant further represents that it is willing to accept responsibility to perform such services in accordance with this Agreement. 3.Term3.1 The term of this Agreement shall commence when the Agreement is signed by the last of the parties to do so. The term of this Agreement expires when a final, non-appealable judgment or dismissal is issued by a court of competent jurisdiction adjudicating the Lawsuit, unless the term is extended by written agreement of the parties or terminated earlier in accordance with section 10 below. 4.Consultant's Scope of Services4.1 Consultant agrees to perform the services identified in the Scope of Services attached hereto as Exhibits A and incorporated herein by this reference. 4.2 Consultant shall, at the request of Attorney, provide analysis, conclusions, and opinions regarding the Lawsuit and as more fully described and set forth in the Scope of Services attached hereto as Exhibit A. In particular, Consultant shall communicate its analysis, conclusions, and opinions regarding the Lawsuit to Attorney. Such analysis includes, but is not limited to, source material and analytical tables or spreadsheets associated with the Lawsuit. 441038.2 1 441038.2 2 4.3 Consultant shall participate in telephone conferences, meetings, site visits, and other similar activities as may be requested by Attorney. 4.4 Attorney may request, in writing, changes in the Scope of Services attached hereto as Exhibit A. Any such change, and any corresponding increase or decrease in compensation, must be mutually agreed upon by Attorney and Consultant, and shall be incorporated by written amendment to this Agreement. 4.5 Consultant will act as an independent consultant. All of Consultant’s reports, advice, and testimony will be objective and impartial, based upon Consultant’s good faith analysis and professional conclusions and opinions. 4.6 Consultant makes no representation or guarantee of any nature with respect to the ultimate results, outcomes, conclusions, or opinions that Consultant may reach in connection with its services under this Agreement. 5. Compensation 5.1 City agrees to compensate Consultant for all its time devoted to services performed under this Agreement at the rates provided in Exhibit B, upon Attorney’s and City’s approval of the invoices submitted in accordance with Section 5.3 herein. Consultant agrees to look to the City for payment and to hold Attorney harmless from any duty to do so. . 5.2 City agrees to reimburse Consultant, at its actual cost, for reasonable out- of-pocket costs incurred by Consultant to perform the services covered by this Agreement, including mileage for automobile travel at the current IRS rate. 5.3 Consultant shall submit to City, with a copy to Attorney, invoices for services performed pursuant to this Agreement on a monthly basis or less frequently. For the billing period it covers, each invoice shall itemize the services rendered, out-of- pocket expenses incurred, and the amount due. City agrees to pay the amount due shown on a given invoice within thirty (30) days after City receives that invoice. Consultant shall maintain an accurate log of its time and costs incurred, and City shall be entitled to inspect a copy thereof upon request. 5.4 Payments for any services requested by Attorney and not included in this Agreement shall be made to Consultant by City pursuant to a further agreement covering those services. This further agreement shall be approved in writing by City and Attorney before Consultant performs those services. 441038.2 3 5.5 City agrees to compensate Consultant pursuant to this Agreement irrespective of the ultimate outcome of any lawsuits associated with the Lawsuit, and irrespective of the ultimate opinions and testimony Consultant may provide related to such lawsuits. 5.6 Total compensation to Consultant under this Agreement shall not exceed 10,000 without the written approval of City and Attorney given before performance of the work for which the excess compensation is sought. The City shall provide an initial 5,000 retainer as detailed in Exhibit A. 6. Ownership of Written Products 6.1 All reports, documents, or other written material (“written products”) developed by Consultant in the performance of this Agreement shall be and remain the Attorney’s property until Attorney decides to make these materials public. Consultant may take and retain copies of its written products as desired, but no written products shall be the subject of a copyright application by Consultant. 7. Relationship of Parties 7.1 Consultant is and shall at all times remain, as to Attorney and the City, a wholly independent contractor. Consultant shall have no power to incur any debt, obligation, or liability on behalf of Attorney or the City or otherwise to act on behalf of Attorney or the City as an agent. Attorney, the City and their respective agents shall have no control over Consultant’s conduct, except as set forth in this Agreement. Consultant shall not represent that it is, in any manner, an employee of Attorney or the City. 7.2 Consultant, Attorney and the City represent that none of them is aware of any prior or existing relationship that reasonably appears to create any conflict of interest for Consultant to provide the services described in this Agreement. 7.3 Indemnification. Consultant agrees, during the term of this Agreement and for the full period of time allowed by law, surviving the termination of this Agreement, to indemnify the Attorney and City for any claim, cost or liability that arises out of, or pertains to, or relates to any negligent act or omission or the willful misconduct of Consultant in the performance of services under this Agreement by Consultant and for any claim based on a work-related injury of an employee of Consultant, but this indemnity does not apply to liability for damages for death or bodily injury to persons other than Consultant’s employees, injury to property, or other loss, arising from the sole negligence, or willful misconduct by the Attorney or City, or arising from the active negligence of the Attorney or City. 441038.2 4 Indemnify,” as used herein includes the expenses of defending against a claim and the payment of any settlement or judgment arising out of the claim. Defense costs include all costs associated with defending the claim, including, but not limited to, the fees of attorneys, investigators, consultants, experts and expert witnesses, and litigation expenses. References in this Section 7.3 to Attorney, City or Consultant, include their officers, employees, agents, and subcontractors. 8. Confidentiality 8.1 All data, documents, discussion, or other information developed or received by Consultant or provided through performance of this Agreement are confidential and shall not be disclosed by Consultant without prior written consent by Attorney. Attorney shall grant such consent if disclosure is legally required. Upon request, all information of Attorney shall be returned to Attorney or the City, as the case may be, upon the termination or expiration of this Agreement. 8.2 Consultant understands that its work under this Agreement will be done at Attorney’s direction as part of Attorney’s representation of the City. Consequently, Consultant understands that all work under this Agreement is intended to be Attorney work product that is protected from discovery under the rules of evidence. Consultant will not discuss its work under this Agreement or share its written product with anyone other than Attorney except as authorized by Attorney. Consultant further agrees to be exclusively retained by Attorney with respect to the Lawsuit and any associated lawsuit(s) and not to serve any other party with respect to this matter. The parties agree that Consultant’s performance of this promise of exclusivity is essential to this Agreement and that damages will be insufficient to remedy the harm to Attorney and the City. Accordingly, Consultant further agrees that Attorney and City, and each of them, shall be entitled to specific performance of this promise and other appropriate remedies in court of competent jurisdiction to ensure performance of this promise. This promise is not in derogation of Consultant’s right under Section 5.4 of this Agreement to compensation for services to Attorney not included in this Agreement. 9. Termination 9.1 Attorney or the City may terminate this Agreement without cause at any time. Upon any termination, Consultant shall immediately return to City any uncharged deposit, but City shall pay to Consultant all earned fees and incurred costs. 441038.2 5 9.2 Consultant may terminate this Agreement in the event of any default by Attorney or the City, if that default is not cured within ten (10) days after written notice of the default is given to Attorney. 9.3 The parties agree that the covenants contained in Section 6, Section 8, and Section 9 of this Agreement shall survive the expiration or termination of this Agreement. 10. General Provisions 10.1 This Agreement shall be construed and enforced in accordance with the laws of the State of California. 10.2 Any dispute regarding this Agreement shall be submitted to nonbinding mediation in Oakland, CA as a condition precedent to filing litigation to resolve such a dispute. 10.3 The captions appearing at the commencement of the sections hereof, and in any paragraph thereof, are for convenience only. Should there be any conflict between such heading and the section or paragraph at the head of which it appears, the section or paragraph, as the case may be, and not such heading, shall control. Masculine or feminine pronouns shall be substituted for the neuter and vice versa, and the plural shall be substituted for the singular and vice versa, in any place or places herein in which the context requires. 10.4 The waiver by a party of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or of any subsequent breach of the same or any other term, covenant or condition herein contained. No term, covenant or condition of this Agreement shall be deemed to have been waived by a party unless in writing. 10.5 If any term or provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, then such term or provision shall be amended to, and solely to, the extent necessary to cure such invalidity or unenforceability, and in its amended form shall be enforceable. In such event, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected, and each term and provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law. To this end, the provisions of this Agreement are severable. 10.6 This Agreement may be executed in counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same 441038.2 6 Agreement. The Parties further agree that this Agreement may be transmitted by facsimile or other electronic means and that the reproduction of signatures by facsimile or other electronic means will be binding as if originals. TO EFFECTUATE THIS AGREEMENT, the parties have caused their duly authorized representatives to execute this Agreement on the dates set forth below. Rincon Consultants, Inc. Colantuono, Highsmith & Whatley, PC By: _______________________________ By: _______________________________ Ryan Thatcher Matthew Slentz Its: Principal Its: Senior Counsel Date: _______________________________ Date: ______________________________ City of Ukiah By: _______________________________ Sage Sangiacomo Its: City Manager Date: ______________________________ 4/22/2026 05/19/2026 5-27-2026 Exhibit A Scope of Work Rincon Consultants, Inc. 601 University Avenue, Suite 221 Sacramento, California 95825 916-706-1374 1 February 11, 2026 Rincon Project No. 26-18808 John A. Abaci, Senior Counsel Colantuono, Highsmith & Whatley, PC 670 West Napa Street, Suite F Sonoma, California 95476 Via email: jabaci@chwlaw.us Subject: Proposal to Provide Litigation Support in the Matter of Vichy Springs Resort, Inc. v. City of Ukiah Dear Mr. Abaci: Rincon Consultants, Inc. (Rincon) appreciates the opportunity to support the City of Ukiah in the matter of Vichy Springs Resort, Inc. (“Vichy Springs”) v. City of Ukiah (“City”). We understand that Vichy Springs is seeking damages from the City related to the alleged presence of lead bullets and potential environmental contamination associated with the alleged presence of lead bullets. The City is interested in engaging Rincon for environmental consulting and expert services in relation to the allegations put forth by Vichy Springs. To initiate work on this matter, we request a retainer of $5,000 to support initial consultation, desktop information review, investigative approach development, and coordination between Colantuono, Highsmith & Whatley, PC, the City, and Rincon. Any unused funds from this initial retainer can be applied to subsequent work scopes once authorized by the City. Rincon anticipates the future work scope will be to evaluate Vichy Springs’ allegations, which may include delineating a potential impact area on Vichy Springs property where bullets may have settled, identifying bullets on Vichy Springs property using forensic ground scanning equipment, collecting soil samples for laboratory analysis, data analysi s, and report preparation. Rincon will provide the City with scopes and budgets for subsequent work scope as it is developed for review and authorization prior to implementation. If you have any questions regarding this proposal, please contact Ryan Thacher at 213-254-3733 or rthacher@rinconconsultants.com, or James (“Jym”) Schwartz at 510-916-4863 or james.schwartz@rinconconsultants.com. Sincerely, Rincon Consultants, Inc. Ryan Thacher, PhD, PE Principal James Schwartz, PG Principal Exhibit B Fee Schedule Rincon Consultants, Inc. Effective January 1, 2026 Standard Fee Schedule for Environmental Sciences and Planning Services Professional, Technical and Support Personnel* January 1, 2026 – December 31, 2026 Senior Principal $342 Principal $329 Director $329 Senior Supervisor II $313 Supervisor I $292 Senior Professional II $273 Senior Professional I $255 Professional IV $226 Professional III $210 Professional II $186 Professional I $166 Associate III $140 Associate II $125 Associate I $117 Field Technician $100 Technical Editor $157 Project Accountant $134 Billing Specialist $115 Publishing Specialist $128 Clerical $115 Professional classifications include environmental scientists, urban planners, biologists, geologists, marine scientists, GHG verifiers, sustainability, cultural resources, GIS, data technology, and other professionals. Expert witness services consisting of depositions or in- court testimony are charged at the hourly rate of $400. Reimbursable Expenses Equipment Rate Equipment Package (covers field equipment) $150/day UAS Drone $300/day Boat (20-foot Boston Whaler or Similar) $800/day Light-Duty and Passenger Vehicles* $90/day 4WD and Off-Road Vehicles* $150/day Current IRS mileage rate for mileage over 50 and for all miles incurred in employee-owned vehicles. Direct Costs. Other direct costs associated with the execution of a project, that are not included in the hourly rates above, are billed at cost plus 16%. These may include, but are not limited to, printing and production, laboratory and drilling services, subcontractors, vendors, authorized travel expenses, permit charges and filing fees, mailings and postage, performance bonds, sample handling and shipment, rental equipment, and vehicles other than covered by the above charges. Budget Reallocation. Rincon reserves the right to reallocate the budget between tasks and staff classifications, while remaining within the approved contract amount. Annual Escalation. Standard rates subject to 3.5% annual escalation on January 1. Payment Terms. All fees will be billed to Client monthly and shall be due and payable upon receipt or as indicated in the contract provisions for the assignment. Invoices are delinquent if not paid within 10 days from receipt or per the contractually required payment terms.