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HomeMy Public PortalAboutr 04:160aNo. #04.-160 (A) Date of ^doption_ May6, 2004 AUTHORIZING A PROFESSIONAL SERVICES CONTRACT WITH ROBERT J. BERGEN, ESQ., OF GILL & CHAMAS, LLC AS THE BOROUGH ATTORNEY FOR THE YEAR 2004 WHEREAS, on January 1, 2004, Robert J. Bergen, Esq., of the Law Firm of Gill & Chamas, LLC was appointed as Borough Attorney for the year 2004; and WHEREAS, it is desirable to have a contract document which sets forth the basic terms and conditions of the employment of the Borough Attorney. NOW, THEREFORE, BE IT RESOLVED by the Borough Council, Borough of Carteret, County of Middlesex, State of New Jersey, that the attached Contract marked Exlfibit "A", for the legal services of Robert J. Bergen, Esq., be and hereby is approved. BE 1T FURTHER RESOLVED that the Mayor and Borough Clerk are hereby authorized to execute said Contract on behalf of the Borough of Carteret. Adopted this 6th day of May, 2004 and certified as a true copy of the original on May 7, 2004. KATHLEEN M. BARNEY, RMC/CMC Municipal Clerk RECORD OF COUNCIL VOTE COUNCILMAN YES NO NV A.B. COUNCILMAN YES NO NV A.B. KRUM X RIOS X NAPLES X S ITARZ X PARIS I X SOSNOWSKI X X - Indicate Vote AB - Absent NV - Not Voting XOR - Indicates Vote to Overrule Veto cp Adopted at a meeting of the Municipal Council CONTRACT FOR LEGAL SERVICES AGREEMENT made this First day of January, 2004, effective as of January 1, 2004 and between the BOROUGH OF CARTERET (the "BOROUGH") having its primary municipal offices located at 61 Cooke Avenue, Carteret, New Jersey 07008. AND ROBERT J. BERGEN, Esq. of the Law Firm of GILL & CHAMAS, LLC. (individually and collectively the "FIR_M"), having offices located at 655 Flor/da Grove Road, P.O. Box 760, Woodbridge, New Jersey 07095. PREFACE WHEREAS, by Resolution dated January 1, 2004, Borough Council acted to approve the appointment of Robert J. Bergen to serve as Borough Attorney; and WHEREAS, in order to formalize the agreement between the BOROUGH and the FIRM to provide such legal services as are generally and usually rendered to the BOROUGH through the office of the Borough Attorney, together with other legal services as may be specifically directed or specially required by the BOROUGH in the furtherance of its interests and purposes; the BOROUGH and the FIRM have agreed to enter into a contract for services with respect to same; and WHEREAS, pursuant to N.J.S.A. 40A:11-5, this contract for professional services may be awarded without public advertising for bids and bidding therefore; AGREEMENT NOW, THEREFORE, in consideration of such covenants and assurances as are hereinafter mutually set forth, the Parties hereto agree as follows: 1. Services to be Rendered. The BOROUGH hereby retains and engages the FIRM to provide such services as are normally and generally rendered in conjunction with and support the offices of Borough Attorney, together with such other legal services as may be specifically directed or specifically required by the BOROUGH. Services to be rendered by the FIRM shall include, but not be limited to, attendance at all regularly scheduled meetings and public hear/ngs of the BOROUGH; attendance at all specially scheduled meetings and public hearings of the BOROUGH; attendance at Executive Sessions held by the BOROUGH; direct communications and meetings with the Mayor, Council members, and members of the administration, on matters affecting the BOROUGH and the community and interests which it serves; rendering advice and formal opinions fi:om a legal perspective, with respect to all matters affecting the BOROUGH'S activities, powers and purposes as are permitted and/or established by law; cooperation with such employees, agents, and such professionals as may at any time be retained by the BOROUGH with respect to such projects and activities as have reason to involve the participation of the FIRM; representation of the BOROUGH in all matters of litigation which may arise during the term of this Agreement, except for such matters as for which legal representation is provided by any insurance carriers which provide coverage to the BOROUGH or except for such matters as are deemed by the BOROUGH and/or by the FIRM to require special expertise with respect to an area of law properly requiring particular knowledge and experience within a recognized specialty (e.g. Labor Law; Public Bonding; Envirom~ental; etc.); the drafting or approval as to form and 2 sufficiency of all legal documents, contracts, deeds, ordinances, and resolutions, which are to be made, executed or adopted by or on behalf of the BOROUGH; research of questions of law which may arise and which in the perception of the members of the governing body potentially affect the BOROUGH and its governmental authority, responsibilities, activities and/or purposes; preparation and drafting of pleadings and all other legal documents of every nature and form; trial preparation, appropriate investigation and related work with respect to matters of litigation; defense against such litigation as may be brought against the BOROUGH in any and all divisions of the Superior Court of New Jersey, the Federal District Court, the Middlesex County Board of Taxation, and any appellate courts; preparation and filing of any suits on behalf of the BOROUGH in any court when so directed by the Mayor or Borough Council; subject to the approval of the Borou~:J~ Council, the FIRM may enter into any agreement, compromise or settlement of any litigation in which the BOROUGH is involved; supervision and direction of the work of such additional attorneys and technical and professional assistants as the Council may authorize for special or regular employment in or for the BOROUGH; correspondence; and other such services and efforts as may be usual or appropriate for an attorney serving as general counsel to a municipality or as may be reasonably requested by the BOROUGH. 2. Special Legal Services. Services rendered in regard to special projects or activities which require an extraordinary concentration of time and effort and/or involve a specialized area of law and/or which cause for the FIRM to incur additional liability exposure to a substantial degree (such as the BOROUGH requiring the FIRM to provide third parties with warranties, guarantees or other forms of assurances in the form of legal opinion relative to matters of potentially substantial financial consequences) in which 3 event the FIRM and the BOROUGH may need to agree on a separate rate to be charged and paid for such special services. 3. Compensation. A.) Annual Salary. As Borough Attorney, Robert J. Bergen shall receive an Annual Salary as shall be set by Borough Council and set forth in the BOROUGH'S salary ordinance. Said salary shall be in lieu of any other retainer of the FIRM. B.) Additional Compensation. Payment for services rendered by the FIRM, the charges for which exceed the amounts paid in any month pursuant to the (Salary) Retainer, shall be subject to approval by the Borough Council, which shall first authorize or otherwise approve an amount to be expended for such services. The Mayor and Council shall, whenever practical, establish a "not to exceed" amount with respect to each matter assigned to the FIRM, in which event the FIRM shall not be required to perform any services which would cause for such amount to be exceeded unless authorization to increase such amount is subsequently provided or payment of such excess amount is properly authorized. Authorization by Borough Council for the payment of any services shall constitute full approval and authorization for the rendering of such services. The initial authorization for legal services provided for herein shall not exceed $160,000.00 unless otherwise authorized by resolution of the Borough Council. 4. Legal Fees. A.) The amount of fees to be charged by the FIRM to the BOROUGH for services rendered under Section 1 above shall be charged, at the rate of $125.00 per hour. B.) "Out of Pocket Expenses". Direct expenses incurred by the FIRM in the course of rendering services to the BOROUGH and which are directly related to the services performed for the BOROUGH (such expenses may 4 include, but are not limited to, telephone toll charges, facsimile charges, postage, transportation, tolls, parking, messenger services, filing fees, documentation costs, service fees, etc.) shall be reimbursed to the F~fl~Vi at the rate of $1,200.00 per month. C.) Other Professionals and Exl~erts. The FIRM may request the BOROUGH to retain other professionals and/or experts when circumstances shall so warrant. In such event, it will be the responsibility of the BOROUGH to retain the necessary professionals and/or experts and to pay them directly, for any services yvhich may be rendered by them. 5. Billing. Prior to the fifteenth (15th) day of each month, the FIRM will submit an invoice supported by an itemized summary of services rendered during the preceding month which shall be prepared in such form as is mutually acceptable. Such invoice shall be submitted together with a properly completed vouched requesting payment (if required by the BOROUGH), on a voucher form to be provided by the BOROUGH. All invoices shall be due upon submission and shall be payable within fifteen (15) days of the next following meeting date at which invoices from professionals and vendors to the BOROUGH are to be reviewed for approval and authorization of payment is made. 6. Responsibilities of BOROUGH. In addition to paying all bills when due, the BOROUGH shall be responsible for cooperating with the FIRM (including members and employees of the FIRM) and for providing such information as the BOROUGH may have concerning any legal matters being handled by the FIRM and furthermore, to furnish or make available such employees, professionaIs~ experts and support services as 5 may be necessary or appropriate with respect to efforts of the FIRM to properly represent the interests of the BOROUGH. 7. Term. This Agreement shall be applicable effective as of January 1, 2004, and shall continue until December 31, 2004, or until such later date as the BOROUGH shall hold its Annual Reorganization meeting and a successor sh~ll have been duly appointed unless terminated prior to time of such events by either party in accordance with such provisions as are stated hereinafter. Upon mutual consent of the parties, this Agreement may thereafter be extended for such successive terms as the parties hereto may mutually agree. 8. Early Termination. This Agreement may be terminated prior to December 31, 2004, or any successive extension thereof, as follows: A. By the BOROUGH. The BOROUGH may terminate this Agreement at any time and at its sole discretion upon sixty (60) days notice having been delivered to the FIRM and upon full payment being made by the BOROUGH to the FIRM for all billings applicable for services rendered and expenses incurred by the FIRM (including members and employees of the FIRM) through the effective date of termination, inclusive. B. By the FIRM. The FIRM may terminate this Agreement at any time by submitting their resignation to the BOROUGH; however, such tem~ination shall be subject to sixty (60) days notice being delivered to the BOROUGH and further subject to the BOROUGH having chosen another attorney whom it deems to be acceptable in substitution and replacement of the herein named FIRM. Upon termination of this Agreement by the FIRM, it shall be required to cooperate fully with its replacement for the 6 purpose of accomplishing a smooth transition and it shall be entitled to be promptly paid for all services rendered and expenses incurred by the FIRM up to and including all services rendered and expenses incurred with respect to assisting in the transition to its successor. 9. Certification of Funds. The BOROUGH represents that it has and will have sufficient funds available in its budget to pay the consideration of the F:ERM for services to be rendered by the FIRM to the BOROUGH as required by the provisions of Section 1 and in accordance with Sections 3 and 4 of this Agreement. 10. Affirmative Action. The FIRM is an equal opportunity employer and shall not discriminate against any employee or applicant for employment because of race, creed, color, sex, or national origin. The FIRM agrees to comply with all the laws and regulations in regard to non-discriminatory in employment or services performed by the FIRM for the BOROUGH. The FIRM further agrees to comply with the Affirmative Action requirements of P.L. 1975, C.127 and the rules and Regulations issued by the Treasurer of the State of New Jersey pursuant thereto, hereinafter "Treasurer." The parties to this Agreement agree to incorporate into this Agreement the mandatory language of N.J.A.C. i7:27-3.4(a) promulgated by the Treasurer pursuant to pursuant to P.L. 19'75, C.127, as amended and supplemented from time to time, and the FiRM agrees to comply tully with the terms, provisions and obligations and said N.J.A.C. 17:27-3.4(a), provided that said subsection shall be applied subject to the terms of N.J.A.C. 17:27-3.4(d). The mandatory language is attached hereto as Exhibit A. The FIRM agrees to forthwith prepare and submit to the BOROUGH an/nitial employee information report pursuant to the terms and provisions of N.J.A.C. 17:27- 4.3(a). 11. Non-Waiver. The failure of any party af any time to require performance by the other party of any provision hereof shall in no way affect the fight of such failing party hereafter to enforce such provision, nor shall any waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itsel£ 12. Severabilitv. If any term or provision hereof or the application thereof to any circumstances shall, in any jurisdiction and to any extent be invalid or unenforceable, such term or provision shall be ineffective as to such jurisdiction to the extent to such invalidity or unenforceability. 13. Headings. The headings within this Agreement are inserted for convenience only and shall not be considered in the construction of the provisions hereof. 14. Governing Law. This Agreement shall be construed under the laws of the State of New Jersey. 15. Notices. All notices given by either party to the other shall be delivered as follows: If to the BOROUGH, to Borough Clerk Borough of Carteret 61 Cooke Avenue Carteret, NJ 07008 If to the FIRM, to Robert J. Bergen, Esq. c/o Gill & Chamas, LLC 655 Florida Grove Road P. O. Box 760 Woodbfidge, NJ 07095 8 Each party shall deliver notice to the other as to any changes of address for the delivery of notices. 16. Entire Am:eement. This contract represents the entire agreement between the parties hereto and shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns. There shall be no modifications, additions, or deletions to this agreement except in writing signed by both parties. ATTESTED TO: G]25'Ie & CHAMAS, LLC By: ROBERTJ. BERGEN, ESQ. Dated: ATTESTED TO: BOROUGH 07 CARTERET APPROVED I. The Contractor, or Subcontractor, where appropriate, certifies that he or she has never before applied for a certificate of employee information report in accordance with roles promulgated by the Treasurer pursuant to P.L. 1975, C. 127, as amended and supplemented from time to time; and agrees to submit immediately to the Affirmative Action Office a copy of the initial employee information report. EXHIBIT A 10