HomeMy WebLinkAboutReso - CC - 022-2018RESOLUTION NO. 022-2018
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH BURKE, WILLIAMS & SORENSEN, LLP
FOR LABOR RELATIONS CONSULTATION SERVICES
WHEREAS, the City enjoys a mutually respectful relationship with the bargaining
units representing City employees; and
WHEREAS, in support of this relationship, the City partners with a consultant to
provide professional labor relations services; and
WHEREAS, City staff issued a Request for Proposals (RFP) for consultant
services for Labor Relations: and
WHEREAS, the City received proposals from six firms meeting minimum
qualifications, and evaluated them initially on the basis of the written proposals and then
through follow-up questions, select interviews, and reference checks; and
WHEREAS, Burke Williams & Sorensen, LLP was selected as the best qualified
to provide the needed services in support of the City's labor relations; and
WHEREAS, due to exigent circumstances, the City made a management
decision to utilize the services of the selected consultant prior to the execution of the
agreement on a limited but urgent matter involving a single bargaining unit; and
WHEREAS, staff requests, as part of its action on this item, that Council ratify the
expenditure for the limited consultation services provided in December 2017.
NOW, THEREFORE, BE IT RESOLVED, that the City Manager is authorized to
execute the agreement with Burke Williams & Sorensen LLP, attached hereto as Exhibit
A.
I
Michael BrownrjXg, Mayor
I, Meaghan Hassel -Shearer, City Clerk of the City of Burlingame, ceftify that the
foregoing resolution was introduced at a regular meeting of the City Council held on the
5th day of February, 2018, and was adopted thereafter by the following vote:
AYES: Councilmembers: BEACH, BROWNRIGG, COLSON, KEIGHRAN, ORTIZ
NOES: Councilmembers: NONE
ABSENT: Councilmembers: NONE
Meaghan asset-Shearer, City Clerk
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF BURLINGAME
AND BURKE, WILLIAMS & SORENSEN, LLP.
THIS AGREEMENT is by and between BURKE, WILLIAMS & SORENEN, LLP.
("Consultant") and the City of Burlingame, a public body of the State of California ("City").
Consultant and City agree:
1. Services. City wishes to obtain the services of Consultant to provide legal advice
and representation on labor relations and employment matters. Consultant shall provide the
Services set forth in Exhibit A, attached hereto and incorporated herein. No representation
outside of the matters set forth in Exhibit A shall be provided by Consultant to the City. No
representation of any officers, employees, or any other persons or entities affiliated with the City
shall be provided unless such representation is expressly included in Exhibit A. Consultant will
provide those legal services reasonably required to represent the City. Separate arrangements
must be agreed to for services including administrative charges or litigation. Services in any
matter not described above will require a separate written agreement or a written modification to
this Agreement.
2. Compensation. For providing services as specified in this Agreement, City will
pay by the hour at Consultant prevailing rates for all time spent on City matters by Consultant
legal personnel. Current hourly rates through December 31, 2018 are:
$295-$310 Partners
$260 Senior Associates
$250 Associate Attorneys
$150 Paralegals
The above rates shall be increased annually beginning after December 31, 2018 by an amount
equal to the Consumer Price Index (CPI -U) for the San Francisco Area for the previous year.
It is understood that Consultant will incur various costs and expenses in performing legal
services under this Agreement. City agrees to pay for all costs, disbursements and expenses in
addition to the hourly fees. Except for the items listed below, all costs and expenses will be
charged at Consultant's cost.
In -office photocopying/page: $ .20
In -office color photocopying/page $ 1.00
Facsimile charges/page: $ 1.00
Mileage/mile: $ 0.54.5 (or current IRS rate)
City agrees to pay transportation, meals, lodging and all other costs of any necessary out-of-town
travel by Consultant's personnel.
To aid in the preparation or presentation of City's case, it may become necessary to hire expert
witnesses, consultants, investigators, and outsourced support services. City agrees to pay such
fees and charges. Consultant will select any expert witnesses, consultants, investigators or
support services to be hired, and City will be informed of persons chosen and their charges.
Additionally, City understands that if the matter proceeds to court action or arbitration, City may
be required to pay fees and/or costs to other parties in the action. Any such payment will be
entirely the responsibility of City.
Consultant shall submit invoices on a periodic basis. All bills submitted by Consultant shall
contain sufficient information to determine whether the amount deemed due and payable is
accurate. Bills shall include a brief description of services performed, the date services were
performed, the number of hours spent and by whom, a brief description of any costs incurred and
the Consultant's signature.
3. Term. This Agreement commences on full execution hereof, for a period of five
years, at which time the performance of the firm will be evaluated. Upon mutual agreement at
that time, the contract may be extended by the City Manager for a period of up to three years.
4. Assignment and Subcontracting. A substantial inducement to City for entering
into this Agreement is the professional reputation and competence of Consultant. Neither this
Agreement nor any interest herein may be assigned or subcontracted by Consultant without the
prior written approval of City. It is expressly understood and agreed by both parties that
Consultant is an independent contractor and not an employee of the City.
5. Insurance. Consultant, at its own cost and expense, shall carry, maintain for the
duration of the Agreement, and provide proof thereof, acceptable to the City, the insurance
coverages specified in Exhibit B, "City Insurance Requirements," attached hereto and
incorporated herein by reference. Consultant shall demonstrate proof of required insurance
coverage prior to the commencement of services required under this Agreement, by delivery of
Certificates of Insurance to City.
6. Indemnification. Consultant shall indemnify, defend, and hold City, its directors,
officers, employees, agents, and volunteers harmless from and against any and all liability,
claims, suits, actions, damages, and causes of action arising out of, pertaining or relating to the
negligence, recklessness or willful misconduct of Consultant, its employees, subcontractors, or
agents, or on account of the performance or character of the Services, except for any such claim
arising out of the sole negligence or willful misconduct of the City, its officers, employees,
agents, or volunteers. It is understood that the duty of Consultant to indemnify and hold
harmless includes the duty to defend as set forth in section 2778 of the California Civil Code.
Notwithstanding the foregoing, for any design professional services, the duty to defend and
indemnify City shall be limited to that allowed pursuant to California Civil Code section 2782.8.
Acceptance of insurance certificates and endorsements required under this Agreement does not
relieve Consultant from liability under this indemnification and hold harmless clause. This
indemnification and hold harmless clause shall apply whether or not such insurance policies shall
have been determined to be applicable to any of such damages or claims for damages.
7. Termination and Abandonment. This Agreement may be cancelled at any time
by City for its convenience upon written notice to Consultant. In the event of such termination,
Consultant shall be entitled to pro -rated compensation for authorized Services performed prior to
the effective date of termination provided however that City may condition payment of such
compensation upon Consultant's delivery to City of any or all materials described herein. In the
event the Consultant ceases performing services under this Agreement or otherwise abandons the
project prior to completing all of the Services described in this Agreement, Consultant shall,
without delay, deliver to City all materials and records prepared or obtained in the performance
of this Agreement. Consultant shall be paid for the reasonable value of the authorized Services
performed up to the time of Consultant's cessation or abandonment, less a deduction for any
damages or additional expenses which City incurs as a result of such cessation or abandonment.
8. Ownership of Materials. All documents, materials, and records of a finished
nature, including but not limited to final plans, specifications, video or audio tapes, photographs,
computer data, software, reports, maps, electronic files and films, and any final revisions,
prepared or obtained in the performance of this Agreement, shall be delivered to and become the
property of City. All documents and materials of a preliminary nature, including but not limited
to notes, sketches, preliminary plans, computations and other data, and any other material
referenced in this Section, prepared or obtained in the performance of this Agreement, shall be
made available, upon request, to City at no additional charge and without restriction or limitation
on their use. Upon City's request, Consultant shall execute appropriate documents to assign to
the City the copyright or trademark to work created pursuant to this Agreement. Consultant shall
return all City property in Consultant's control or possession immediately upon termination. City
understands under Consultant's document retention policy, Consultant normally destroys files five
(5) years after a matter is closed, unless other arrangements are made with City.
9. Compliance with Laws. In the performance of this Agreement, Consultant shall
abide by and conform to any and all applicable laws of the United States and the State of
California, and all ordinances, regulations, and policies of the City. Consultant warrants that all
work done under this Agreement will be in compliance with all applicable safety rules, laws,
statutes, and practices, including but not limited to Cal/OSHA regulations. If a license or
registration of any kind is required of Consultant, its employees, agents, or subcontractors by
law, Consultant warrants that such license has been obtained, is valid and in good standing, and
Consultant shall keep it in effect at all times during the term of this Agreement, and that any
applicable bond shall be posted in accordance with all applicable laws and regulations.
10. Conflict of Interest. Consultant warrants and covenants that Consultant presently
has no interest in, nor shall any interest be hereinafter acquired in, any matter which will render
the services required under the provisions of this Agreement a violation of any applicable state,
local, or federal law. In addition, Consultant will restrict from engaging in activities on behalf
the City that produce a direct or indirect financial gain for Consultant, other than the agreed-upon
compensations, without the City's informed consent. In the event that any conflict of interest
should nevertheless hereinafter arise, Consultant shall promptly notify City of the existence of
such conflict of interest so that the City may determine whether to terminate this Agreement.
Consultant further warrants its compliance with the Political Reform Act (Government Code §
81000 et seq.) respecting this Agreement.
11. Whole Agreement and Amendments. This Agreement constitutes the entire
understanding and Agreement of the parties and integrates all of the terms and conditions
mentioned herein or incidental hereto and supersedes all negotiations or any previous written or
oral Agreements between the parties with respect to all or any part of the subject matter hereof.
The parties intend not to create rights in, or to grant remedies to, any third party as a beneficiary
of this Agreement or of any duty, covenant, obligation, or undertaking established herein. This
3
Agreement may be amended only by a written document, executed by both Consultant and City's
City Manager, and approved as to form by the City's City Attorney. Such document shall
expressly state that it is intended by the parties to amend certain terms and conditions of this
Agreement. The waiver by either party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Agreement. Multiple copies of this Agreement
may be executed but the parties agree that the Agreement on file in the office of City's City Clerk
is the version of the Agreement that shall take precedence should any differences exist among
counterparts of the document. This Agreement and all matters relating to it shall be governed by
the laws of the State of California.
12. Capacity of Parties. Each signatory and parry hereto warrants and represents to
the other parry that it has all legal authority and capacity and direction from its principal to enter
into this Agreement and that all necessary actions have been taken so as to enable it to enter into
this Agreement.
13. Severability. Should any part of this Agreement be declared by a final decision
by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the
authority of either parry to enter into or carry out, such decision shall not affect the validity of the
remainder of this Agreement, which shall continue in full force and effect, provided that the
remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give
effect to the intentions of the parties.
14. Notice. Any notice required or desired to be given under this Agreement shall be
in writing and shall be personally served or, in lieu of personal service, may be given by (i)
depositing such notice in the United States mail, registered or certified, return receipt requested,
postage prepaid, addressed to a party at its address set forth in Exhibit A; (ii) transmitting such
notice by means of Federal Express or similar overnight commercial courier ("Courier"), postage
paid and addressed to the other at its street address set forth below; (iii) transmitting the same by
facsimile, in which case notice shall be deemed delivered upon confirmation of receipt by the
sending facsimile machine's acknowledgment of such with date and time printout; or (iv) by
personal delivery. Any notice given by Courier shall be deemed given on the date shown on the
receipt for acceptance or rejection of the notice. Either party may, by written notice, change the
address to which notices addressed to it shall thereafter be sent.
15. Miscellaneous. Except to the extent that it provides a part of the definition of the
term used herein, the captions used in this Agreement are for convenience only and shall not be
considered in the construction of interpretation of any provision hereof, nor taken as a correct or
complete segregation of the several units of materials and labor.
Capitalized terms refer to the definition provide with its first usage in the Agreement.
When the context of this Agreement requires, the neuter gender includes the masculine,
the feminine, a partnership or corporation, trust or joint venture, and the singular includes the
plural.
The terms "shall', "will", "must' and "agree" are mandatory. The term "may" is
permissive.
The waiver by either parry of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same
or a different provision of this Agreement.
When a party is required to do something by this Agreement, it shall do so at its sole cost
and expense without right to reimbursement from the other party unless specific provision is
made otherwise.
Where any party is obligated not to perform any act, such parry is also obligated to
restrain any others within its control from performing such act, including its agents, invitees,
contractors, subcontractors and employees.
IN WITNESS WBIEREOF, Consultant and City execute this Agreement.
CITY OF BURLINGAME Burke, Williams & Sorensen, LLP
501 Primrose Road 1503 Grant Road, Suite 200
Burlingame, CA 94010 Mountain View, CA 94040
Date:
Lisa K. Goldman
City Manager
Meaghan Hassel -Shearer
City Clerk
Approved as to form:
I�
Timothy L. Davis
Partner
Janet Cory Sommer
Partner
Federal Employer ID Number:
License Number:
Expiration Date:
Kathleen Kane
City Attorney
Attachments:
Exhibit A Scope of Services
Exhibit B City Insurance Provisions
EXHIBIT A
Consultant shall represent City and provide legal advice and representation on labor relations
and employment matters as requested by City.
M4611016.1
INSURANCE REQUIREMENTS
Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries
to persons or damages to property which may arise from or in connection with the performance of the
work hereunder and the results of that work by the Contractor, his agents, representatives, employees or
subcontractors.
Minimum scope of Insurance Coverage shall be at least as broad as:
1. Commercial General Liability (CGL): Insurance Services Office (ISO) Form CG 00 01 12 04
covering CGL on an "occurrence" basis, including products -completed operations, personal &
advertising injury, with limits no less than $1,000,000 per occurrence. If a general aggregate limit
applies, either the general aggregate limit shall apply separately to this project/location or the
general aggregate limit shall be at least $2,000,000.
2. Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if
Contractor has no owned autos, hired, (Code 8) and non -owned autos (Code 9), with limit no less
than $1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation insurance as required by the State of California, with Statutory Limits,
and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily
injury or disease.
4. Professional Liability (Errors and Omissions) Insurance appropriate to the Contractor's
profession, with limit no less than $1,000,000 per occurrence or claim, $2,000,000 aggregate.
If the contractor maintains higher limits than the minimums shown above, the City
requires and shall be entitled to coverage for the higher limits maintained by the contractor.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, and volunteers are to be covered as insureds on the auto
policy with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on
behalf of the contractor and on the general liability policy with respect to liability arising out of work or
operations performed by or on behalf of the Contractor including materials, parts or equipment furnished
in connection with such work or operations. General liability coverage can be provided in the form of an
endorsement to the Contractor's insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20
10 and CG 20 37 forms if later revisions used).
Primary Coverage
For any claims related to this contract, the Contractor's insurance coverage shall be primary insurance
as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor's
insurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except after
thirty (30) days' prior written notice (10 days for non-payment) has been given to the City.
Waiver of Subrogation
Contractor hereby giants to City a waiver of any right to subrogation which any insurer of said Contractor
may acquire against the 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 the City has received a waiver of subrogation endorsement
from the insurer.
Deductibles and Self -Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The City may
require the Contractor to purchase coverage with a lower deductible or retention or provide proof of
ability to pay losses and related investigations, claim administration, and defense expenses within the
retention.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than AN11, unless
otherwise acceptable to the City.
Claims Made Policies (note — should be applicable only to professional liability, see below)
If any of the required policies provide claims -made coverage:
1. The Retroactive Date must be shown, and must be before the date of the contract or the
beginning of contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5)
years after completion of the contract of work.
3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form
with a Retroactive Date prior to the contract effective date, the Contractor must purchase
"extended reporting" coverage for a minimum offve (5) years after completion of work.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements or copies of the
applicable policy language effecting coverage required by this clause. All certificates and endorsements
are to be received and approved by the City before work commences. However, failure to obtain the
required documents prior to the work beginning shall not waive the Contractor's obligation to provide
them. The City reserves the right to require complete, certified copies of all required insurance policies,
including endorsements required by these specifications, at any time.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk,
prior experience, insurer, coverage, or other special circumstances.