HomeMy WebLinkAbout13.0 - - Consideration of Modifications of Standa - 5/4/2010CITY COUNCIL AGENDA REPORT
MEETING DATE: MAY 4, 2010
ITEM NUMBER:
SUBJECT: CONSIDERATION OF MODIFICATION OF STANDARD PROFESSIONAL SERVICES
AGREEMENT FOR CONTRACTING WITH VOLUNTEER CONSULTANTS
DATE: APRIL 29, 2010
FROM: CITY ATTORNEYS OFFICE
PRESENTATION BY: KIMBERLY HALL BARLOW, CITY ATTORNEY
FOR FURTHER INFORMATION CONTACT: KIMBERLY HALL BARLOW, (714) 754-5399
RECOMMENDATION
Determine if Council would like to approve a different form of Agreement from the City's
standard Professional Services Agreement to contract with volunteer expert consultants
who may be asked to provide advice and consultation in connection with the City's
potential acquisition of the Orange County Fair and Event Center.
BACKGROUND:
Many years ago, a standard form of Professional Services Agreement was prepared by the
City Attorney's office which includes Council approved requirements for insurance and
other language to protect the City's interests when contracting for professional services.
Minor modifications to the agreement provisions approved by the Risk Manager, City
Attorney and City Manager are permitted only where those modifications do not expose the
City to any increased risk or liability; for example, errors and omissions coverage is waived
for those vendors who do not normally carry such coverage for the services they provide.
Except for these limited circumstances, the City Council must approve any modification
which would eliminate insurance coverage, indemnification requirements or other key
provisions of the agreement which are intended to limit the City's exposure to liability.
The City Manager has previously entered into agreements with paid Consultants Becky
Bailey -Findley and Keyser Marsden using the City's standard Professional Services
Agreement. Council Member Monahan requested that the City Attorney contact several
individuals who had volunteered to provide free advisement to members of staff and to
Members Monahan and Foley in connection with the negotiations relating to the
Fairgrounds. The City Attorney then prepared and provided proposed agreements to these
community members who have agreed to volunteer their time and services. However, due
to the fact that these individuals would be providing services without compensation, there
has been objection to the insurance and indemnification provisions of the agreements
specifically, and to the formalized agreement, other than confidentiality provisions,
generally. Neither the City Manager nor the City Attorney believe they have the power to
waive these Standard Requirements, and so Council direction is sought to 1) determine
what modification of the City's professional services agreement Council would find
appropriate for this somewhat unusual circumstance of professionals volunteering their
time and services on this and perhaps other future issues; and 2) determine whether the
City Manager should be authorized to retain the individuals who have agreed to volunteer
their time and services, David Ball, Richard Kapko and Jim Righeimer.
ANALYSIS
The City's standard form of Professional Services Agreement contains a number of
provisions which detail the type of services to be provided, the standard of care at which
they are to be provided, including the Consultant's warranty as to their expertise in the
relevant field, provisions regarding payment, length of the contract, insurance to be
provided by the Consultant to protect the City from liability exposure, indemnification for
injuries caused by the Consultant's intentional and negligent behavior in performing the
services, attorney's fees, confidentiality and ownership of documents, among other things.
A copy of the proposed draft "standard" agreement modified to reflect the voluntary nature
of the services is attached hereto as Attachment 1.
The standard agreement seldom requires substantive modification, but when it does, City
Council approval is sought. The situation presented by Member Monahan's request is
unusual in that the City does not typically "retain" volunteers to perform professional
services of this nature, and perhaps understandably, those individuals with significant
professional experience are willing to volunteer their time and services, but are not willing
to be exposed to financial liability or out of pocket expenses to provide insurance coverage
to the City when they are not being compensated for their time. If the Council is willing to
waive insurance and indemnification requirements in these specific circumstances, the City
Attorney's office has prepared a proposed modified version of the agreement, attached as
Attachment 2.
LEGAL REVIEW
The City Attorney's office has prepared the attached versions of the Professional Services
Agreement. The proposed volunteers have each indicated that they cannot sign the
original proposed version, Attachment 1.
FISCAL REVIEW
There is no direct fiscal impact to the waiver of insurance and indemnification requirements
per se. There would only be a potential fiscal impact if these provisions were waived and a
claim were asserted arising out of the services of one or more of any volunteer consultants.
ALTERNATIVES
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Council may make any modifications to the proposed text of the professional services
agreement it deems appropriate under the circumstances.
Council may also determine to authorize the volunteers to sign only a confidentiality
agreement such as it attached as Exhibit A to the proposed agreements, or to provide
volunteer services without an agreement in place.
CONCLUSION
The Council is requested to provide direction to staff regarding Member Monahan's request
to retain as unpaid, volunteer consultants David Ball, Richard Kapko and Jim Righeimer
with respect to the OCFEC negotiations and to direct staff as to what form of agreement, if
any, should be executed by any volunteer consultants selected.
ALLAN ROEDER
City Manager
STEVE MANDOKI
Administrative Services Director
Attachments: 1
2
KIMBERLY HALL BARLOW
City Attorney
Standard Form of PSA as modified
[Proposed] Alternative Form of PSA
cc: City Manager
Assistant City Manager
City Clerk
City Attorney
File: OCFEC I Date: 042910 1 Time: 3:30 p.m.
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