MassDOT MLSA with Task Order - Final 2.1.2024.pdf

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MASTER LEGAL SERVICES AGREEMENT

THIS MASTER LEGAL SERVICES AGREEMENT (“Agreement”) is made and entered into as of the _____ day of ____________, 2024 by and between the Massachusetts Department of Transportation, having offices at 10 Park Plaza, Boston, Massachusetts 02116 (“Client”) and ___________________________, having offices at __________________________ (“Counsel”).

WITNESSETH:

WHEREAS, Counsel has legal expertise in certain fields (“Fields of Expertise”) and;

WHEREAS, Client, from time to time, may desire to engage the legal services of Counsel in the Fields of Expertise and;

WHEREAS, Counsel and Client agree that the engagement of Counsel for any such legal services shall be in accordance with the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

1. Services. Client may, from time-to-time, engage the legal services (“Services”) of Counsel in one or more of the Fields of Expertise (each engagement a “Task”) as such Task is defined and described in a statement of work signed by Client and Counsel (each a “Task Order”). Each Task Order shall be in the form attached hereto as Exhibit A and shall be governed by the terms and conditions of this Agreement. Except in unusual circumstances approved by Client’s General Counsel or designee, any work performed by Counsel without a fully-signed Task Order for that work shall be considered to have been performed at the sole risk of Counsel and Client shall have no obligation to pay for that work.

Nothing herein shall obligate Client to engage Counsel for the provision of Services.

2. Standard of Performance. Counsel shall provide the highest quality Services in a cost-effective and efficient manner, while also maintaining the highest standards of professional responsibility and ethics.

3. Communication; Primary Contacts. For each Task, Counsel will keep Client informed of significant developments, consult with Client on an ongoing basis, obtain Client’s direction on critical issues and respond promptly to Client inquiries. Counsel will, however, avoid unnecessary internal consultation and review, utilization of inexperienced personnel and duplication of effort. Counsel and Client will each assign a primary point of contact in connection with each Task and will furnish the email address and telephone number(s) for said contacts. In the event that a change in a primary contact is necessary, the party requesting the change will provide advanced written notice thereof to the other party.

4. Compensation. Counsel shall be compensated for Services performed under this Agreement in accordance with the hourly rate(s), flat rate(s) or other rate method that has been pre-approved in writing by Client’s General Counsel or designee as set forth on the Task Order. Counsel will charge Client the lowest rate(s) offered to any governmental or quasi-governmental clients of Counsel. Counsel may propose an alternate discounted rate for Client’s review in connection with a particular Task Order,

- 2 -provided that such alternate rate will only apply upon advance written approval of Client’s General Counsel or designee.

Any cost estimate provided by Counsel on a Task Order is intended to reflect the best estimate of Counsel for the Services to be performed, the legal staff who will be performing Services, and the legal fees to be charged for such matter during such time period. If for any reason the estimated amount needs to be revised or there will be a significant change in the Services to be performed or the legal staff assigned, then an amendment to such Task Order may be submitted by Counsel, provided that, no amendment shall be effective unless and until it has been signed and approved by Client’s General Counsel or designee. In accordance with the billing policy set forth below, Client shall not pay any fees for Services (a) in excess of the estimated fee for Services stated in the applicable Task Order or approved amendment thereto, (b) significantly different from those described in the applicable approved Task Order or approved amendment thereto or (c) provided by legal staff not identified in the applicable approved Task Order or approved amendment thereto.

5. Billing Policy and Procedures

a. Submission. Unless otherwise agreed by Client, all invoices for Services shall be submitted electronically to Client’s Office of General Counsel at legalinvoices@dot.state.ma.us (or to such other electronic address or location as directed by Client) no more than thirty (30) days after the end of the month in which the Services covered by such invoice were performed. Each invoice will be reviewed for appropriateness and accuracy of the Services and costs by the General Counsel or designee and the Client attorney to whom the particular Task has been assigned. If such review is satisfactory and such invoice is:

1) within the estimated costs set forth in the applicable approved Task Order;

2) in proper form, and

3) in compliance with the provisions of this Agreement, then such invoice will be forwarded internally by Client for authorization to pay. Such invoices will typically be paid within thirty (30) days after receipt.

b. Form of Invoice. Each invoice submitted electronically by Counsel shall contain a cover sheet prepared by Counsel which provides the following information:

1) Law firm name;

2) Responsible law firm attorney;

3) Matter name;

4) Total estimated budget for entire Task Order;

5) Total estimated budget for applicable fiscal year of Task Order (July 1st through and including June 30th);

6) Total amount billed on Task Order to date (including invoice being submitted);

7) Invoice period;

8) Invoice amount;

9) Name of each attorney and/or paralegal performing Services and their respective hourly billing rates;

10) Specific description of the Services rendered by each attorney and/or paralegal and the number of hours or fraction thereof (recorded in segments of 1/10th of an hour) worked on each day by each such person, unless an alternative billing structure has been agreed to in writing in advance on a particular Task Order;

mailto:legalinvoices@dot.state.ma.us

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11) Summary chart showing the total amount charged per attorney and/or paralegal for the invoice period based on their respective hourly billing rates and hours or fractions thereof worked during the invoice period; and

12) Billable disbursements listed by type for each day covered by the invoice.

Attorneys and paralegals listed on an invoice shall only be those persons identified on the applicable approved Task Order, unless otherwise approved by Client’s General Counsel or designee in advance in writing. Invoices submitted without the required information may be returned to Counsel to be revised in compliance with the foregoing.

c. Non-billable Time and Disbursement. Client will not pay for the following items without the prior written approval of the General Counsel or designee: (1) travel time (in state or out of state), (2) travel costs including, without limitation, taxicab fares, public transportation fares, tolls and automobile related charges (such as gasoline and mileage), (3) routine telecopy costs, (4) routine documents reproduction costs, (5) routine telephone charges, (6) routine postage and delivery costs,

(7) accounting, bill preparation, word processing, document production, proofreading or training,

(8) clerical or paralegal overtime, (9) obtaining law books, publications or periodicals, (10) costs of food and beverages, (11) on-line research charges, and (12) other similar types of charges that Client considers “overhead.” Client recognizes that in unusual circumstances it may be appropriate to pay for certain of the aforementioned costs provided that any such costs are approved in advance in writing by the General Counsel or designee. In such event:

i. Any air or rail travel that is pre-approved must be "economy" or "coach" class and will be the most cost-effective rate possible (i.e., purchased as far in advance as practicable to take advantage of lower fares/rates) unless otherwise pre-approved in writing by the General Counsel or designee;

ii. Any hotel accommodations and meals that are pre-approved will be reimbursed at the per diem rates for Massachusetts as determined by the General Services Administration (see www.gsa.gov and its link to Per Diem Rates). Alcoholic beverages are not reimbursable;

iii. Receipts will be required for all pre-approved travel, hotel and meal expenses, regardless of whether per diem rates apply;

iv. Any pre-approved travel time will be subject to a cap of four (4) reimbursable hours per trip at the hourly rate established for the individual as provided in the applicable Task Order, unless otherwise agreed in advance in writing by the General Counsel or designee and

v. Client will not reimburse Counsel for any travel time devoted to performing work for another client. Client reserves the right to audit travel time and expenses.

d. Application of Policy to Invoices. Client shall notify Counsel of any problem with any of its invoices and Counsel shall be given the opportunity to correct such problem. However, Client reserves the right to withhold payment of any invoice or portion thereof which is not in compliance with the foregoing billing policy.

6. Term and Termination. The initial term of this Agreement shall commence on the date first set forth above and shall terminate on September 30, 2025. Client shall have the option to extend the initial term for one (1) additional period of three (3) years by giving written notice thereof to Counsel via email.

Unless otherwise agreed in writing by both parties, all of the terms and conditions of this Agreement

- 4 -shall apply to such option term. If Client provides such written notice of extension, the extension shall automatically be effective without the execution of any additional documents.

Client reserves the right to discharge Counsel at any time upon delivery of written notice to Counsel.

Subject to ethical rules and legal requirements by which Counsel is bound, Counsel reserves the right to withdraw from any Task upon reasonable written notice to Client [not less than sixty (60) days] and without any material adverse effect on Client, while providing Client with a reasonable opportunity to arrange for alternative counsel. If permission from the court is necessary for Counsel to withdraw, counsel will promptly apply for the same.

In the event of termination of one or more Tasks under this Agreement for any reason, Counsel will be paid for Services satisfactorily rendered by Counsel up to the date of termination. Upon any such termination, Counsel shall provide reasonable cooperation to facilitate the transition and transfer of pending matters to any successor or to Client, including execution of all forms reasonably necessary, to effect such transfer in accordance with Client’s instructions. Counsel’s files, records and other documentation pertaining to the subject Task shall be retained and/or returned to Client in accordance with Section 7 below.

7. Files and Records; Audit. Counsel shall maintain and shall make available to Client for inspection, all books, records, documents, files, information and other evidence pertinent to Counsel’s performance under this Agreement, whether such items be in electronic, printed or other form (“Records”). Counsel further agrees that all books, records, documents, files, information and other evidence obtained by Counsel in any representation of Client hereunder, whether such items be in electronic, printed or other form, are protected by the attorney-client and work product privileges to the extent of applicable law.

After Counsel’s engagement under a Task has ended, Client may request the return of Records pertaining to said Task. Counsel shall retain a copy of said Records, at its cost, for a period of not less than seven (7) years after the Task has ended. Upon the expiration of the retention period, Counsel will have no further obligation to retain the Records and may, after written notice to Client with an opportunity for Client to respond, destroy them, unless otherwise notified by Client.

8. Special State Employees. Counsel acknowledges and agrees that all of Counsel’s partners, attorneys and other employees and contractors involved in the performance of Services for Client under this Agreement will be considered “special state employees” subject to the provisions of M.G.L. c.268A and that all of said parties will comply with said provisions.

9. Conflicts of Interest. For each Task, Counsel shall, prior to performing Services thereunder, complete a diligent and thorough review of its records to determine whether an actual or potential conflict of interest exists as between Client and any of Counsel’s current or past clients that would interfere with Counsel’s full and unrestricted representation of Client in the subject Task. If such an actual or potential conflict of interest exists, Counsel shall immediately notify Client thereof in writing. If no such conflict exists, Counsel shall notify Client in writing accordingly. If such an actual or potential conflict of interest is later identified, Counsel shall immediately notify Client thereof in writing. In the event that Counsel or Client later identifies a conflict of interest that was not previously disclosed by Counsel, whether knowingly or unknowingly, Client reserves its right to pursue all remedies available at law, including a refund to Client of all or a portion of the fees paid by Client to Counsel in connection with the subject Task and Counsel shall promptly refund such amount to Client upon request. In addition, Counsel shall, without cost to Client, provide reasonable cooperation to facilitate the transition and

- 5 -transfer of pending matters to any successor or to Client, including execution of all forms reasonably necessary, to effect such transfer in accordance with Client’s instructions.

10. Insurance. During the term of this Agreement, Counsel shall continually maintain, with insurance carriers licensed to do business in the Commonwealth of Massachusetts:

a. Professional Liability insurance in the sum of not less than Twenty Million and 00/100 Dollars

($20,000,000.00) to cover claims attributable to any professional liability of Counsel in the performance of this Agreement;

b. Commercial General Liability insurance with limits at least equal to One Million Dollars ($1,000,000.00) per occurrence for bodily injury and property damage, One Million Dollars ($1,000,000.00) for personal injury and Two Million Dollars ($2,000,000.00) in the general aggregate. Coverage shall be equivalent to ISO Form CG 01 01 12 07. Coverage shall be provided on a first dollar basis without a deductible. Any Commercial General Liability policy subject to a deductible must be approved in writing in advance by Client’s General Counsel or designee;

c. Automobile Liability insurance with limits at least equal to One Million Dollars ($1,000,000.00) per accident, bodily injury and property damage combined. Coverage shall include non-owned and hired liability;

d. Workers’ Compensation insurance as follows:

Coverage A Workers’ Compensation: Statutory as required by Massachusetts law.

Coverage B Employer’s Liability: (i) bodily injury by accident Five Hundred Thousand Dollars ($500,000.00) each accident, (ii) bodily injury by disease Five Hundred Thousand Dollars ($500,000.00) each employee and (iii) bodily injury by disease Five Hundred Thousand Dollars ($500,000.00) policy limit; and

e. Umbrella insurance with limits at least equal to Ten Million Dollars ($10,000,000.00) per occurrence and Ten Million Dollars ($10,000,000.00) in the aggregate. Self-insured retention shall not exceed Ten Thousand Dollars ($10,000.00). Coverage shall be equivalent or broader than the coverage afforded on the underlying Commercial General Liability, Automobile Liability and Employer’s Liability grant within the Workers’ Compensation policy.

All policies shall have a minimum AM Best Rating of A-IX and Client shall be named as an additional insured on all policies except for Workers’ Compensation. All policies shall contain a waiver of subrogation in favor of Client and the Workers’ Compensation policy shall be specifically endorsed to provide such waiver.

Counsel shall provide proof of the foregoing coverage upon the request of Client. The limits of coverage set forth herein shall in no way limit the liability of Counsel as provided in this Agreement.

11. Indemnification. Counsel shall indemnify, defend and hold harmless Client and its employees and agents from and against any and all liabilities, losses, damages, costs, expenses (including reasonable attorneys’ expenses and fees), causes of action, suits, claims, demands or judgments that may be imposed upon, incurred by or asserted against Client by reason of (i) the negligence of Counsel in the

- 6 -performance of Services hereunder, (ii) Counsel’s breach of this Agreement or (iii) Counsel’s breach of the Supreme Judicial Court Rules of Professional Conduct in the performance of Services hereunder.

12. Dispute Resolution. In the event of any dispute or claim between Client and Counsel arising under this Agreement that cannot be resolved by the parties, Client (with the approval of the Attorney General’s Office, if required) and Counsel may agree to voluntary mediation through the Massachusetts Office of Dispute Resolution or other mediation service. If mediation is not successful, any action brought by either party shall be brought and maintained in a State court in Suffolk County Massachusetts which court shall have exclusive jurisdiction thereof. No legal or equitable rights of the parties shall be limited by this Section 12.

13. Press Releases, Advertising and Marketing. Except as otherwise required by law, Counsel shall not, without the prior written approval of Client’s General Counsel or designee, publicly disclose that it represents Client in legal matters and/or publicly disclose the nature or amount of work performed by Counsel on behalf of Client, including, without limitation, in connection with any press releases, advertising material or marketing efforts by Counsel.

14. Notice; Telephone. Any notices required or permitted to be given hereunder shall be given in writing and shall be delivered (a) in person, (b) by certified or registered mail, postage prepaid, return receipt requested, (c) by a commercial overnight courier that guarantees next day delivery and provides a receipt, or (d) for purposes of Client exercising its option to extend per Section 6 above, by email. Such notices shall be addressed as follows:

If to Client: Massachusetts Department of Transportation Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Attention: General Counsel

If to Counsel: _______________________________ Attention: ______________________ Email: _________________________ or to such other address as either party may from time to time specify in writing to the other party.

Any notice shall be effective only upon delivery.

Telephone Contact for Counsel: ______________________, (___) _________.

15. Assignment. Counsel shall not assign or transfer its interest in or obligations under this Agreement without the prior written consent of Client, which consent may be granted or withheld by Client in its sole discretion.

16. Applicable Law; Severability. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of its choice of law provisions. If any provision of this Agreement shall to any extent be invalid, unlawful or unenforceable, the remainder of this Agreement shall not be affected thereby.

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17. Non-Discriminatory Employee Practices. Counsel, with regard to work performed by its partners, attorneys and other employees and contractors under this Agreement, shall not discriminate against any person, employee or applicant for employment, or in the selection and retention of contractors and consultants, on the grounds of race, color, creed, national origin, age, sex, sexual orientation, disability or Vietnam era veteran status.

18. Waiver. A failure of a party to strictly enforce a provision of this Agreement shall in no event be considered a waiver of any part of such provision. No waiver by a party of any breach or default by the other party shall operate as a waiver of any succeeding breach or other default or breach by such other party. No waiver shall be binding unless in a writing signed by the waiving party.

19. Authority. The individuals executing this Agreement hereby represent that they are empowered and duly authorized to so execute this Agreement on behalf of the parties they represent.

20. Independent Contractor. Counsel is an independent contractor and neither it nor its officers, employees or agents are employees of Client for any purpose whatsoever. Counsel and its officers, employees and agents have no right or authority to assume or create any obligation or responsibility, express or implied, on behalf of Client, unless expressly authorized by Client in writing.

21. Facsimile Signatures; Counterparts. The parties agree that this Agreement and any amendments thereto may be executed by facsimile or electronic mail, provided that in each case, they are followed by the sending and receipt of the original documents, unless otherwise specified by Client’s General Counsel or designee. For purposes of this Section 21, execution by electronic mail shall mean sending a scanned copy of a party’s handwritten signature versus an electronic signature of this Agreement, the latter of which shall not be valid. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original for all purposes, and which together shall constitute the Agreement.

22. Order of Precedence. If Counsel has been prequalified to perform legal services pursuant to the MassDOT and MBTA Request for Responses for General Legal Services (BD-21-1030-CPO1-CPO1- 60738), as amended (“RFR”), Counsel must also sign the MassDOT Standard Contract Form (which incorporates, without limitation, the MassDOT Terms and Conditions) prior to the performance of the first Task Order hereunder.

In the event of a conflict between any term or condition of this Agreement and any term or condition of the RFR, MassDOT Terms and Conditions and/or MassDOT Standard Contract Form, the term or condition of this Agreement shall prevail.

23. Entire Agreement. This Agreement represents the entire agreement between the parties regarding the subject matter hereof, superseding any prior oral or written agreements or understandings regarding the same. There are no understandings, agreements or representations regarding this subject matter, whether oral or written, except as expressly set forth herein. No modification of this Agreement shall be binding on either party unless in a writing signed by authorized representatives of each party.

REMAINDER OF PAGE LEFT INTENTIONALLY BLANK

SIGNATURE PAGE FOLLOWS

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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives as of the date first set forth above.

CLIENT:

MASSACHUSETTS DEPARTMENT

OF TRANSPORTATION

By: _____________________________ Name: ___________________________ Title: ___________________________

COUNSEL:

By: _____________________________ Name: ___________________________ Title: ___________________________

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EXHIBIT A

to

Master Legal Services Agreement

MassDOT Legal Services Task Order No: ___________

LAW FIRM NAME: ________________________________________________________

MATTER NAME: __________________________________________________________

RESPONSIBLE LAW FIRM ATTORNEY: ______________________________________

LAW FIRM ATTORNEY(S) TO BE PERFORMING SERVICES ON TASK ORDER:

LAW FIRM PARALEGAL(S) TO BE PERFORMING SERVICES ON TASK ORDER:

RESPONSIBLE MASSDOT ATTORNEY: (MANAGING COUNSEL)

TOTAL ESTIMATED BUDGET

FOR ENTIRE TASK ORDER: ________________________________________________

TOTAL ESTIMATED BUDGET FOR CURRENT

FISCAL YEAR (JULY 1, _____ - JUNE 30, ____): ________________________________

FUNDING SOURCE (TO BE COMPLETED BY MANAGING COUNSEL):

ESTIMATED TIME PERIOD FOR COMPLETION OF ENTIRE TASK ORDER:

_______________________ through _______________________ (month and year) (month and year)

1. Description of Matter: _____________________________________________________

__________________________________________ (attach additional sheets if necessary)

2. Is this an amendment to an existing Task Order [yes or no]: ________________

3. Please provide:

a. a general description of the overall work to be performed on this Task Order and the expected results and/or deliverables;

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b. a detailed listing of the specific tasks anticipated to be performed during the current Fiscal Year by the attorney(s) and/or or paralegal(s) who will be performing them;

c. the estimated amount of time that will be required during the current Fiscal Year to perform each task referenced in item (b) above and the billing rate of each person performing the task (hourly, flat or other rate method that has been pre-approved in writing by Client’s General Counsel or designee)∗;

d. the estimated costs of allowed disbursements; and

e. please attach a description of the qualifications of the persons being proposed to perform the legal services (unless a description has recently been provided to Client for such persons on a separate project).

[Please attach additional sheets if necessary.]

4. PAYOR: Massachusetts Department of Transportation

5. The above-named outside law firm hereby approves this Task Order and agrees to comply with all terms and conditions of the Master Legal Services Agreement in connection therewith.

Signature of Responsible Law Firm Attorney: _________________________________________

Printed Name: _________________________________________

Date: _________________________________________

Please email this completed and signed Task Order form to the Responsible MassDOT Attorney (Managing Counsel) with copies to legalinvoices@dot.state.ma.us.

General Counsel Authorized Approval: _________________________________________

Printed Name: _________________________________________

Date: _________________________________________

Managing Counsel Authorized Approval: _________________________________________

Printed Name: _________________________________________

Date: _________________________________________

∗MassDOT’s General Counsel or designee may determine that in certain circumstances, a budget is not required. Generally, only those legal services which are of a “general advice” or “on-call” nature will be excluded from the budget requirement. Outside counsel may, however, build into the budget a category for unanticipated legal services. The preparation of the budget will require close consultation with the Responsible MassDOT attorney assigned to the Task Order.

mailto:legalinvoices@dot.state.ma.us