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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.