HomeMy WebLinkAboutRFP - 8669 LEGAL SERVICES FOR POUDRE FIRE AUTHORITY RETIREMENT PLANS (4)Professional Services Agreement - PFA
8669 Legal Services for Poudre Fire Authority Retirement Plans Page 1 of 11
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between the POUDRE FIRE AUTHORITY (PFA) and SHERMAN & HOWARD, LLC, hereinafter
referred to as the "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance with the
scope of services attached hereto as Exhibit A, consisting of one (1) page, and incorporated
herein by this reference. Irrespective of references in Exhibit A to certain named third
parties, the Professional shall be solely responsible for performance of all duties hereunder.
2. Contract Period. This Agreement shall commence June 15, 2018, and shall continue in
full force and effect until June 14, 2019, unless sooner terminated as herein provided. In
addition, at the option of the PFA, the Agreement may be extended for additional one year
periods not to exceed four (4) additional one year periods. Renewals and pricing changes
shall be negotiated by and agreed to by both parties. Written notice of renewal shall be
provided to the Professional and mailed no later than thirty (30) days prior to contract end.
3. Early Termination by PFA. Notwithstanding the time periods contained herein, the PFA may
terminate this Agreement at any time without cause by providing written notice of termination
to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid
and sent to the following addresses:
Professional: PFA: Copy to:
Sherman & Howard, LLC
Attn: Kathleen Odle
633 17th Street, Suite 3000
Denver, CO 80202-3622
Poudre Fire Authority
Attn: Ann Turnquist
102 Remington Street
Fort Collins, CO 80524
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
In the event of any such early termination by the PFA, the Professional shall be paid for
services rendered prior to the date of termination, subject only to the satisfactory
performance of the Professional's obligations under this Agreement. Such payment shall be
the Professional's sole right and remedy for such termination.
4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional and shall, without additional
compensation, promptly remedy and correct any errors, omissions, or other deficiencies.
The Professional shall indemnify, save and hold harmless the PFA, its officers and
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employees in accordance with Colorado law, from all damages whatsoever claimed by third
parties against the PFA; and for the PFA's costs and reasonable attorney’s fees, arising
directly or indirectly out of the Professional's negligent performance of any of the services
furnished under this Agreement. The Professional shall maintain insurance in accordance
with Exhibit C, consisting of one (1) page, attached hereto and incorporated herein.
5. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the PFA agrees to pay the Professional on a time and reimbursable direct cost
basis in accordance with Exhibit B, consisting of one (1) page, attached hereto and
incorporated herein. Monthly partial payments based upon the Professional's billings and
itemized statements of reimbursable direct costs are permissible. The amounts of all such
partial payments shall be based upon the Professional's PFA-verified progress in completing
the services to be performed pursuant hereto and upon the PFA's approval of the
Professional's reimbursable direct costs.
6. PFA Representative. The PFA will designate, prior to commencement of work, its project
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the PFA
Representative.
7. Independent Contractor. The services to be performed by Professional are those of an
independent contractor and not of an employee of the Poudre Fire Authority. The PFA shall
not be responsible for withholding any portion of Professional's compensation hereunder for
the payment of FICA, Workers' Compensation, other taxes or benefits or for any other
purpose.
8. Subcontractors. The Professional may not subcontract any of the Work set forth in the
Exhibit A, Statement of Work without the prior written consent of the PFA, which shall not
be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent
of the PFA), then the following provisions shall apply: (a) the subcontractor must be a
reputable, qualified firm with an established record of successful performance in its
respective trade performing identical or substantially similar work, (b) the subcontractor will
be required to comply with all applicable terms of this Agreement, (c) the subcontract will
not create any contractual relationship between any such subcontractor and the PFA, nor
will it obligate the PFA to pay or see to the payment of any subcontractor, and (d) the Work
of the subcontractor will be subject to inspection by the PFA to the same extent as the Work
of the Professional.
The Professional shall require all subcontractors performing Work hereunder to maintain
insurance coverage naming the PFA as an additional insured under this Agreement of the
type and with the limits specified within Exhibit “C”, consisting of one (1) page attached
hereto and incorporated herein by this reference. The Professional shall maintain a copy of
each subcontract’s certificate evidencing the required insurance. Upon request, the
Professional shall promptly provide the PFA with a copy of such certificate(s).
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9. Personal Services. It is understood that the PFA enters into the Agreement based on the
special abilities of the Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under the Agreement without the prior written
consent of the PFA.
10. Acceptance Not Waiver. The PFA's approval of drawings, designs, plans, specifications,
reports, and incidental work or materials furnished hereunder shall not in any way relieve
the Professional of responsibility for the quality or technical accuracy of the Work. The
PFA's approval or acceptance of, or payment for, any of the services shall not be construed
to operate as a waiver of any rights or benefits provided to the PFA under this Agreement.
11. Default. Each and every term and condition hereof shall be deemed to be a material element
of this Agreement. In the event either party should fail or refuse to perform according to the
terms of this agreement, such party may be declared in default.
12. Remedies. In the event a party has been declared in default, such defaulting party shall be
allowed a period of ten (10) days within which to cure said default. In the event the default
remains uncorrected, the party declaring default may elect to (a) terminate the Agreement
and seek damages; (b) treat the Agreement as continuing and require specific performance;
or (c) avail himself of any other remedy at law or equity. If the non-defaulting party
commences legal or equitable actions against the defaulting party, the defaulting party shall
be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees
and costs incurred because of the default.
13. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors,
heirs, personal representatives, successors and assigns of said parties.
14. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision of this
Agreement.
15. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., the Professional represents and agrees that:
a. As of the date of this Agreement:
1. The Professional does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement; and
2. The Professional will participate in either the e-Verify program created in Public Law
208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of Homeland
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Security (the “e-Verify Program”) or the Department Program (the “Department
Program”), an employment verification program established pursuant to Section 8-
17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired
employees to perform work under this Agreement.
b. The Professional shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this
Agreement.
c. The Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If the Professional obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, the Professional
shall:
1. Notify such subcontractor and the PFA within three days that the Professional has
actual knowledge that the subcontractor is employing or contracting with an illegal
alien; and
2. Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to this section the subcontractor does not cease employing
or contracting with the illegal alien; except that the Professional shall not terminate
the contract with the subcontractor if during such three days the subcontractor
provides information to establish that the subcontractor has not knowingly employed
or contracted with an illegal alien.
e. The Professional shall comply with any reasonable request by the Colorado Department
of Labor and Employment (the “Department”) made in the course of an investigation that
the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If the Professional violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the PFA may terminate this Agreement. If
this Agreement is so terminated, the Professional shall be liable for actual and
consequential damages to the PFA arising out of the Professional’s violation of
Subsection 8-17.5-102, C.R.S.
g. The PFA will notify the Office of the Secretary of State if the Professional violates this
provision of this Agreement and the PFA terminates the Agreement for such breach.
16. Special Provisions. Special provisions or conditions relating to the services to be performed
pursuant to this Agreement are set forth in Exhibit D - Confidentiality, consisting of one (1)
page, attached hereto and incorporated herein by this reference.
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POUDRE FIRE AUTHORITY
By: _________________________________
Gerry Horak, PFA Board Chair
Date: ______________________________
ATTEST:
PFA Secretary
APPROVED AS TO FORM:
SHERMAN & HOWARD, LLC
By:
Printed:
Title:
CORPORATE PRESIDENT OR VICE PRESIDENT
Date:
DocuSign Envelope ID: AD11BBD1-A391-4F72-BB04-5F5AC05C43B0
6/14/2018
Member/Partner
Kathleen Odle
Assistant City Attorney
6/14/2018
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EXHIBIT A
SCOPE OF SERVICES
Services
Professional will provide general legal services for the Poudre Fire Authority Old and New Hire
Money Purchase Pension Plan and Trust 401 (a). A high-level summary of the types of services
that may be requested during the term of this Agreement are stated below:
Advising the Poudre Fire Authority Old and New Hire Pension Boards of Trustees
(“Boards”) on compliance with all applicable federal laws including all qualification issues
affecting employee benefits plan design under the Internal Revenue Code.
Advising the Boards concerning drafting and compliance of plan documents, including
plan amendments, state laws, rules, administrative policies, and procedures of the
different plans administered by the Boards.
Providing specific, written recommendations on amendments to statues, policies, and
procedures to ensure the plans are in full compliance with the Internal Revenue Code
qualification criteria and constitutional law.
Preparing and filing plan documents for Internal Revenue Service qualification.
Providing advice, review and drafting services concerning legal documents necessary to
consummate investment transactions.
Providing sophisticated legal advice on federal tax and, as necessary, international tax
matters.
Providing legal opinions on fiduciary duties.
Assisting in the communication of concerns involving pension fund issues to trustees,
staff, consultants, advisors and other parties, including testifying before or responding to
elected or appointed officials in the legislative and executive branches of the government.
Representing the Boards in complex litigation regarding plan issues.
Time Commitment
Professional can expect an annual time commitment in the range of 10-20 hours. This number is
an estimate based on prior years and should not be construed as a guarantee of work.
Professional will be expected to attend all Board meetings in 2018. Attendance at Board meetings
for any subsequent year(s) will be determined by the Professional and authorized PFA
representative.
Performance Expectations
Professional is expected to respond to PFA telephone and email inquiries within 24 hours on
business days. Should PFA’s designated attorney be unavailable, Professional will ensure that
another attorney(s) is available to provide service coverage.
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EXHIBIT B
COMPENSATION
The hourly billing rates for Professional’s attorneys are listed below. The primary attorney for
PFA matters will be George Tsai.
Attorney Rate*
George Tsai $395
Kathy Odle $620
Kirsten Stewart $580
Bruce Muir $660
Mike Sanchez $660
Paralegal
Lisa Green $210
* The above captioned rates are the Service Provider’s standard rates and are subject to a 10%
discount for all services performed under this agreement.
Professional will work with PFA to proactively identify and mitigate risks in an efficient and cost-
effective manner. Professional does not charge for photocopies or other miscellaneous costs.
Out-of-pocket expenditures such as messengers, overnight couriers and official copies will be
billed to PFA at cost. Professional will not charge for travel time and associated travel expenses
related to attendance at the quarterly Board meetings.
Professional will submit invoices for services on a monthly basis, including a detailed breakdown
by day and attorney of the tasks performed. Invoices should be emailed to the designated PFA
representative. Professional acknowledges that PFA pays on a Net 30 basis.
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EXHIBIT C
INSURANCE REQUIREMENTS
1. The Professional will provide, from insurance companies acceptable to the PFA, the
insurance coverage designated hereinafter and pay all costs. Before commencing Work
under this bid, the Professional shall furnish the PFA with certificates of insurance
showing the type, amount, class of operations covered, effective dates and date of
expiration of policies, and containing substantially the following statement:
“The insurance evidenced by this Certificate will not reduce coverage or limits and
will not be cancelled, except after thirty (30) days written notice has been received
by the Poudre Fire Authority.”
In case of the breach of any provision of the Insurance Requirements, the PFA, at its
option, may take out and maintain, at the expense of the Professional, such insurance
as the PFA may deem proper and may deduct the cost of such insurance from any
monies which may be due or become due the Professional under this Agreement. The
PFA, its officers, agents and employees shall be named as additional insured on
the Professional 's general liability and automobile liability insurance policies for
any claims arising out of Work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Professional shall maintain
during the life of this Agreement for all of the Professional's employees engaged in
Work performed under this agreement:
1. Workers' Compensation insurance with statutory limits as required by
Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Professional shall maintain during the
life of this Agreement such commercial general liability and automobile liability
insurance and will provide coverage for damage claims of personal injury, including
accidental death, as well as for claims for property damage, which may arise
directly or indirectly from the performance of Work under this Agreement.
Coverage for property damage shall be on a "broad form" basis. The amount of
insurance for each coverage, Commercial General and Vehicle, shall not be less
than $1,000,000 combined single limits for bodily injury and property damage.
In the event any Work is performed by a subcontractor, the Professional shall be
responsible for any liability directly or indirectly arising out of the Work performed
under this Agreement by a subcontractor, which liability is not covered by the
subcontractor's insurance.
C. Errors & Omissions. The Professional shall maintain errors and omissions
insurance in the amount of $1,000,000.
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EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to Poudre Fire Authority (the “PFA”) pursuant to
this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been
informed that the PFA has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as “information”) that are the property of and/or relate
to the PFA or its employees, customers or suppliers, which access is related to the performance
of services that the Professional has agreed to perform, the Professional hereby acknowledges
and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the PFA may be confidential and/or proprietary. The Professional
agrees to treat as confidential (a) all information that is owned by the PFA, or that relates to the
business of the PFA, or that is used by the PFA in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the PFA).
The Professional shall not disclose any such information to any person not having a legitimate
need-to-know for purposes authorized by the PFA. Further, the Professional shall not use such
information to obtain any economic or other benefit for itself, or any third party, except as
specifically authorized by the PFA.
The foregoing to the contrary notwithstanding, the Professional understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is required.
In the event of any disclosure under (b) above, the Professional shall furnish a copy of this
Agreement to anyone to whom it is required to make such disclosure and shall promptly advise
the PFA in writing of each such disclosure.
In the event that the Professional ceases to perform services for the PFA, or the PFA so requests
for any reason, the Professional shall promptly return to the PFA any and all information described
hereinabove, including all copies, notes and/or summaries (handwritten or mechanically
produced) thereof, in its possession or control or as to which it otherwise has access.
The Professional understands and agrees that the PFA’s remedies at law for a breach of the
Professional’s obligations under this Confidentiality Agreement may be inadequate and that the
PFA shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
DocuSign Envelope ID: AD11BBD1-A391-4F72-BB04-5F5AC05C43B0
Official Purchasing Document
Last updated 10/2017
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DocuSign Envelope ID: AD11BBD1-A391-4F72-BB04-5F5AC05C43B0
Official Purchasing Document
Last updated 10/2017
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DocuSign Envelope ID: AD11BBD1-A391-4F72-BB04-5F5AC05C43B0