HomeMy WebLinkAboutCA Burke Williams Sorensen Michelle KenyonAGREEMENT FOR LEGAL SERVICES
BETWEEN THE CITY OF SAN RAFAEL AND
BURKE, WILLIAMS & SORENSEN, LLP
This Agreement is made and entered into this 12u1 day of March, 2018, by and between the
CITY OF SAN RAFAEL (hereinafter "CITY"), and BURKE, WILLIAMS & SORENSEN, LLP
(hereinafter "CONTRACTOR").
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
1. PROJECT COORDINATION.
A. CITY. The City Manager shall be the representative of the CITY for all purposes
under this Agreement. The City Attorney is hereby designated the PROJECT MANAGER for the
CITY, and said PROJECT MANAGER shall supervise all aspects ofthe progress and execution of
this Agreement.
B. CONTRACTOR. CONTRACTOR shall assign a single PROJECT DIRECTOR
to have overall responsibility for the progress and execution of this Agreement for
CONTRACTOR. Michelle Marchetta Kenyon is hereby designated as the PROJECT DIRECTOR
for CONTRACTOR.
2. DUTIES OF CONTRACTOR.
CONTRACTOR shall provide legal advice and representation of the CITY upon request
by the PROJECT MANAGER, including but not limited to general advice and consultation.
3. DUTIES OF CITY.
CITY shall compensate CONTRACTOR as provided in Paragraph 4.
4. COMPENSATION.
For the CONTRACTOR's full performance of the duties and services described herein,
CITY shall pay CONTRACTOR for the hours of work, based on the rates of$360.00/hour for the
PROJECT DIRECTOR, for other partners at CONTRACTOR's firm as approved by PROJECT
MANAGER; $3\S.00/hour and $270/hour for any Associate of CONTRACTOR's firm; and
$160.00/hour for any Paralegal in CONTRACTOR's firm; in a total amount not to exceed
$20,000, including expenses. Expenses will be billed to CITY at CONTRACTOR's cost, except
as follows:
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In-office photocopying/page:
In-office color photocopying/page
Facsimile charges;/page:
Mileage/mile:
$0.20
$1.00
$1.00
$0.54
Payment will be made upon receipt by PROJECT MANAGER of itemized invoices
submitted by CONTRACTOR.
5. TERM OF AGREEMENT.
This Agreement shall become eftective as of March 12, 2018, and shall continue until
tenninated by mutual agreement or as provided in Section 6.
6. TERMINATION.
A. Discretionary. Either party may terminate this Agreement without cause upon
thirty (30) days written notice mailed or personally delivered to the other party.
B. Cause. Either party may terminate this Agreement for cause upon tifteen (15) days
written notice mailed or personally delivered to the other party, and the notified party's failure to
cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such
notice, within such fifteen (15) day time period.
C. Effect of Termination. Upon receipt of notice of termination, neither party shall
incur additional obligations under any provision of this Agreement without the prior written consent
of the other.
D. Return of Documents. Upon termination, any and all CITY documents or
materials provided to CONTRACTOR and any and all of CONTRACTOR's documents and
materials prepared for or relating to the performance of its duties under this Agreement, shall be
delivered to CITY as soon as possible, but not later than thirty (30) days after termination.
7. OWNERSHIP OF DOCUMENTS.
The written documents and materials prepared by the CONTRACTOR in connection with
the perfOlmance of its duties under this Agreement, shall be the sole property of CITY. CITY may
use said property for any pw-pose, including projects not contemplated by this Agreement.
8. INSPECTION AND AUDIT.
Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for
inspection and audit, all documents and materials maintained by CONTRACTOR in connection
with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate
with CITY or its agent in any such audit or inspection.
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9. ASSIGNABILITY.
The parties agree that they shall not assign or transfer any interest in this Agreement nor the
performance of any of their respective obligations hereunder, without the prior written consent of
the other party, and any attempt to so assign this Agreement or any rights, duties or obligations
arising hereunder shall be void and of no effect.
10. INSURANCE.
A. Scope of Coverage. During the term of tIus Agreement, CONTRACTOR shall
maintain, at no expense to CITY, the following insurance policies:
1. A commercial general liability insurance policy in the minimum amount of
one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for
death, bodily injury, personal injury, or property damage.
2. An automobile liability (owned, non-owned, and hired vehicles) insurance
policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence.
3. If any licensed professional performs any of the services required to be
performed under this Agreement, a professional liability insurance policy in the nlinimum amount
of two million dollars ($2,000,000) per occurrence/four million dollars ($4,000,000) aggregate, to
cover any claims arising out of the CONTRACTOR's performance of services under this
Agreement. Where CONTRACTOR is a professional not required to have a professional license,
CITY reserves tIle right to require CONTRACTOR to provide professional liability insurance
pursuant to this section.
4. If it employs any person, CONTRACTORshall maintain worker's
compensation insurance, as required by the State of California, with statutory limits, and
employer's liability insurance with limits of no less than one million dollars ($1,000,000) per
accident for bodily injury or disease. CONTRACTOR'S worker's compensation insurance shall
be specifically endorsed to waive any right of SUbrogation against CITY.
B. Other Insurance Requirements. The insurance coverage required of the
CONTRACTOR In subparagraph A of this section above shall also meet the following
requirements:
1. Except for professional liability insurance, the insurance policies shall be
specifically endorsed to include tIle CITY, its officers, agents, employees, and volunteers, as
additionally named insureds under the policies.
2. The additional insured coverage under CONTRACTOR'S insurance
policies shall be primary with respect to any insurance or coverage maintained by CITY and shall
not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and
noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form
CG20 01 04 13.
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3. Except for professional liability insurance, the insurance policies shall
include, in their text or by endorsement, coverage for contractual liability and personal injury.
4. By execution of this Agreement, CONTRACTOR hereby grants to
CITY a waiver of any right to subrogation which any insurer of CONTRACTOR may acquire
against CITY by virtue of the payment of any loss under such insurance . CONTRACTOR
agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation, but
this provision applies regardless of whether or not CITY has received a waiver of subrogation
endorsement from the insurer.
5. If the insurance is written on a Claims Made Form, then, following
termination of this Agreement, said insurance coverage shall survive for a period of not less than
five years.
6. The insurance policies shall provide for a retroactive date of placement
coinciding with the effective date ofthis Agreement.
7. The limits of insurance required in this Agreement may be satisfied by a
combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall
contain or be endorsed to contain a provision that such coverage shall also apply on a primary and
noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement)
before CITY'S own insurance or self-insurance shall be called upon to protect it as a named
insured.
8. It shall be a requirement tmder this Agreement that any available insurance
proceeds broader than or in excess of the specified minimum insurance coverage requirements
and/or limits shall be available to CITY or any other additional insured party. Furthermore, the
requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this
Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or
proceeds available to the named insured; whichever is greater.
C. Dcductiblcs and SIR's. Any deductibles or self-insured retentions in
CONTRACTOR's insurance policies must be declared to and approved by the PROJECT
MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any
self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be
satistied by either the named insured or CITY or other additional insured party. At CITY's option,
the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to
CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and
related investigations, claims administration, attorney's fees and defense expenses.
D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER
or CITY's City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance
coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement
page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of
policy language or specific endorsements evidencing the other insurance requirements set forth in
OAK #4829-7654-6399 vl 4
this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and
endorsements from CONTRACTOR. Failure to exercise this right shall not constitute a waiver of
the right to exercise it later. The insurance shall be approved as to form and sufficiency by
PROJECT MANAGER and the City Attorney.
11. INDEMNIFICATION.
A. Except as otherwise provided in Paragraph B., CONTRACTOR shall, to the
fullest extent permitted by law, indemnity, release, defend with counsel approved by CITY, and
hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City
Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of
any kind, including but not limited to attorney's fees, expert fees and all othcr costs and fees of
litigation, (collectively "CLAIMS"), arising out of CONTRACTOR'S performance of its
obligations or conduct of its operations under this Agreement. The CONTRACTOR's
obligations apply regardless of whether or not a liability is caused or contributed to by the active
or passive negligence of the City Indemnitees. However, to the extent that liability is caused by
the active negligence or willful misconduct of the City Indemnitees, the CONTRACTOR's
indemnification obligation shall be reduced in proportion to the City Indemnitees' share of
liability for the active negligence or willful misconduct. In addition, the acceptance or approval
of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or
employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the
event the City Indemnitees are made a party to any action, lawsuit, or other adversarial
proceeding arising from CONTRACTOR'S performance of or operations under this
Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S
option reimburse the City Indemnitees their costs of defense, including reasonable attorneys'
fees, incurred in defense of such claims.
B. Where the services to be provided by CONTRACTOR under this Agreement are
design professional services to bc performed by a design professional as that term is defined
under Civil Code Section 2782.8, CONTRACTOR shall, to the fullest extent permitted by law,
indemnify, release, defend and hold harmless the City Indemnitees from and against any
CLAIMS that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of CONTRACTOR in the performance of its duties and obligations under this
Agreement or its failure to comply with any of its obligations contained in this Agreement,
except such CLAIM which is caused by the sole negligence or willful misconduct of CITY. In
no event shall the cost to defend charged to the design professional exceed the design
professional's proportionate percentage of fault.
C. The defense and indemnification obligations of this Agreement are undertaken in
addition to, and shall not in any way be limited by, the insurance obligations contained in this
Agreement, and shall survive the termination or completion of this Agreement for the full period
of time allowed by law.
12. NONDISCRIMINATION.
CONTRACTOR shall not discriminate, in any way, against any person on the basis of age,
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sex, race, color, religion, ancestry, national origin or disability in connection with or related to the
perfonnance of its duties and obligations under this Agreement.
13. COMPLIANCE WITH ALL LAWS.
CONTRACTOR shall observe and comply with all applicable federal, state and local laws,
ordinances, codes and regulations, in the perfonnance of its duties and obligations under this
Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with
these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnifY
and hold hannless CITY, its officers, agents and employees from any and all damages, liabilities,
penalties, fines and all other consequences from any noncompliance or violation of any laws,
ordinances, codes or regulations.
14. NO THIRD PARTY BENEFICIARIES.
CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in
any third party, any benefit or right owed by one party, under the terms and conditions of this
Agreement, to the other pru1y.
15. NOTICES.
All notices and other communications required or permitted to be given under this
Agreement, including any notice of changc of address, shall be in writing and given by personal
delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the
parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or
if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as
follows:
TO CITY:
TO CONTRACTOR:
16. INDEPENDENT CONTRACTOR.
Robert F. Epstein, City Attorney
City of San Rafael
1400 Fifth Avenue
San Rafael , CA 94901
Michelle Marchetta Kenyon
Burke, Williams & Sorensen, LLP
1901 Harri son Street, Suite 900
O akland. CA 946) 2-350 t
For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers,
agents and employees shall act in the capacity of an Independent Contractor, and not as employees
of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of
CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not
OAK #4B29-7654 -6399 vl 6
that of an employee of CITY.
17. ENTIRE AGREEMENT --AMENDMENTS.
A. The terms and conditions of this Agreement, all exhibits attached, and all documents
expressly incorporated by reference, represent the entire Agreement ofthe parties with respect to the
subject matter of this Agreement.
B. This written Agreement shall supersede any and all prior agreements, oral or written,
regarding the subject matter between the CONTRACTOR and the CITY.
C. No other agreement, promise or statement, written or oral, relating to the subject
matter of this Agreement, shall be valid or binding, except by way of a written amendment to this
Agreement.
D. The terms and conditions of this Agreement shall not be altered or modified except
by a written amendment to this Agreement signed by the CONTRACTOR and the CITY.
E. If any conflicts arise between the terms and conditions of this Agreement, and the
terms and conditions of the attached exhibits or the documents expressly incorporated by reference,
the terms and conditions of this Agreement shall control.
18. SET-OFF AGAINST DEBTS.
CONTRACTOR agrees that CITY may deduct from any payment due to
CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under
any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments,
unpaid checks or other amounts.
19. W AIYERS.
The waiver by either party of any breach or violation of any term, covenant or condition of
this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any
other telm, covenant, condition, ordinance, law or regulation, or of any subsequent breach or
violation of the same or other term, covenant, condition, ordinance, law or regulation . The
subsequent acceptance by either party of any fee, perfonnance, or other consideration which may
become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding
breach or violation by the other party of any term, condition, covenant of this Agreement or any
applicable law, ordinance or regulation.
20. COSTS AND ATTORNEY'S FEES.
The prevailing party in any action brought to enforce the telms and conditions of this
Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs
(including claims administration) and attorney's fees expended in connection with such action.
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21. CITY BUSINESS LICENSE / OTHER TAXES.
CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY
business license as required by the San Rafael Municipal Code. CONTRACTOR shall pay any
and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for
any work performed under this Agreement, until CONTRACTOR has provided CITY with a
completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and
Certification).
22. APPLICABLE LAW.
The laws of the State of California shall govern this Agreement.
IN WITNESS WHEREOF, the paI1ies have executed this Agreement as of the day, month
and year first above written.
CITY OF SAN RAFAEL
ATTEST:
LINDSAY LARA, City Clerk
APPROVED AS TO FORM:
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BURKE, WILLIAMS & SORENSEN,
LLP,{tONT~OR
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CONTRACT ROUTING FORM
INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below.
TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER:
Contracting Department: City Attorney
Project Manager: Rob Epstein
Extension: (415) 722-1763
Contractor Name: Burke, Williams & Sorensen
Contractor's Contact: Michelle Marchetta Kenyon
Contact's Email: mkenyon@bwslaw.com
o FPPC: Check if Contractor/Consultant must file Form 700
Step RESPONSIBLE DESCRIPTION
DEPARTMENT
1 Project Manager a. Email PINS Introductory Notice to Contractor
b. Email contract (in Word) & attachments to City
Atty c/o Laraine.Gittens@cityofsanrafael.org
2 City Attorney a. Review, revise, and comment on draft agreement
and return to Project Manager
b. Confirm insurance requirements, create Job on
PINS, send PINS insurance notice to contractor
3 Project Manager Forward three (3) originals of final agreement to
contractor for their signature
4 Project Manager When necessary, * contractor-signed agreement
agendized for Council approval
*PSA> $20,000; or Purchase> $35,000; or
Public Works Contract> $125,000
Date of Council approval
PRINT CONTINUE ROUTING PROCESS WITH HARD COPY
5 Project Manager Forward signed original agreements to City
Attorney with printed copy of this routing form
6 City Attorney Review and approve hard copy of signed
agreement
7 City Attorney Review and approve insurance in PINS, and bonds
(for Public Works Contracts) ~ f.Vt..67' ~
8 City Manager / Mayor Agreement executed by Council au ~horized official
9 City Clerk Attest signatures, retains original agreement and
forwards copies to Project Manager
COMPLETED
DATE
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3/13/2018
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