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HomeMy WebLinkAboutContracts & Agreements_131-2009_CCv0001.pdf AGREEMENT BETWEEN KINKLE, RODIGER& SPRIGGS AND THE CITY OF REDLANDS FOR SPECIAL, COLNSEL SERVICES This agreement for special counsel services ("Agreement") is entered into by and between the City of Redlands, hereafter referred to as the "City," and the law firm of Kinkle, Rodiger & Spriggs, hereafter referred to as "KRS," and deemed effective as of August 19, 2009 ("Effective Date"). City and KRS are sometimes individually referred to herein as a"Party"and, together, as the"Parties." RECITALS WHEREAS, from time to time, the City receives Government claims alleging liability on the City's part,and is subsequently served with actions to enforce such alleged liability; and WHEREAS, KRS is familiar with and competent in defending public agencies against Government claims, and KRS represents to the City that KRS's attorneys are approved to represent and to defend the City as required by law for actions filed against the City: NOW, "THEREFORE, in consideration of the remuneration hereinafter set forth, KRS agrees to defend all claims or actions referred by the City, arising from alleged liability of the City, on the following terms and conditions: AGREEMENT I. KRS shall have the right to decline any action referred. by the City. KRS shall determine that it has no conflict of interest prior to accepting any action assigned by the City. KRS shall not accept actions that may include causes of actions against the City. It is understood that the contractual relationship of the KRS to the City is that of an independent defense attorney. 2. Each action referred to KRS by the City shall be submitted with the understanding that professional fees shall be paid at the rate and the payment cycle shown on Exhibit "A" to this Agreement. 3. KRS shall work cooperatively with the City to resolve, in the best interests of the City, all claims and lawsuits filed against the City. KRS shall initiate contact with the City Attorney, or City Attorney's authorized designee, for the authority to recommend the settlement of any claim or and lawsuit assigned to it by the City to the Redlands City Council. KRS shall make available, upon request by the City,the attorney handling the action for which a settlement is proposed for the purpose of appearing at the City Council ift closed sessions to answer questions pertaining thereto,thus facilitating the City Council's decision on the matter. 4. KRS is subject to all relevant requirements contained in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-91, enacted August 21, 1996 (the "Law"), and the laws and regulations promulgated subsequent thereto. KRS shall cooperate with the City in implementation of all relevant regulations promulgated under the Law. JAr44nMgrcen1Cnts\Kmk1e Rodiger&-SpriggsAoc 5. The term of this Agreement shall commence on its Effective Date and shall continue until terminated as set forth herein. Any Party to this Agreement shall have the right to terminate this Agreement at any time by giving thirty (30) days' prior written notice to the other Party. Should any Party to this Agreement choose to terminate this Agreement, KRS shall continue to provide legal services if so agreed to in writing by the City, and KRS shall be compensated therefore on the same terms and conditions as hereinbefore set forth, until the conclusion of such action for any matters previously referred to KRS (prior to the notice of termination). 6. Without limiting or diminishing the KRS' obligation to indemnify or hold the City harmless, KRS shall procure and maintain or cause to be maintained, at its sole cost and expense, the following insurance coverages during the term of this Agreement: A. Workers' Compensation: If KRS has employees as defined by the State of" California, KRS shall maintain statutory Workers* Compensation Insurance as prescribed by the laws of the State of California. The policy shall include Employers' Liability, including Occupational Disease, with limits not less than $1,000,000 per person per accident. The policy shall be endorsed to waive subrogation in favor of the City. B. Commercial General Liability: Commercial General Liability insurance coverage, including but not limited to, premises liability, contractual liability, products and completed operations liability, personal and advertising injury, and cross liability coverage and employment practices liability, covering claims which may arise from or out of KRS' performance of its obligations hereunder. The policy shall name the City and its elected and appointed officials, their respective officers, employees, agents and representatives as additional insureds. The policy's limit of liability shall not be less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2)times the occurrence limit. C. Vehicle Liability: If vehicles or mobile equipment are used in the performance of KRS's obligations under this Agreement, KRS shall maintain liability insurance for all owned, non-owned or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. The Policy shall name the City and its elected and appointed officials,officers, employees, agents and representatives as additional insureds. D. Professional Liability Insurance: KRS shall maintain Professional Liability Insurance providing coverage for the KRS' performance of work included within this Agreement, with a limit of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate. If KRS' Professional Liability Insurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and KRS shall purchase at his sole expense either (i) an Extended Reporting Endorsement (also known as Tail (:overage); or (ii) Prior Dates Coverage from new insurer with a retroactive date back to the date of, or prior to, the L'Cal,djmAgrecmentAKinkle Rodiger&Sprigg:.doc 2 inception of this Agreement; or (iii) demonstrate through Certificates of Insurance that KRS has maintained continuous coverage with the same or original insurer. Coverage provided under the above-referenced items will continue for a period of five (5) years beyond the termination of this Agreement. E. General Insurance Provisions—All Lines: (1) Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an A M Best rating of not less than A: VIII (A:8) unless such requirements are waived, in writing, by the City. If the City waives a requirement for a particular insurer, such waiver is only valid for that specific insurer and only for one policy term. (2) KRS' insurance carriers must declare their insurance deductibles or self-insured retentions. If such deductibles or self-insured retentions exceed $500,000 per occurrence, such deductibles and/or retentions shall have the prior written consent of the City before the commencement of operations under this Agreement. Upon notification of deductibles or self insured retention's unacceptable to the City, and at the election of the City. KRS' carriers shall either: (i) reduce or eliminate such deductibles or self-insured retention's as respects this Agreement with the City, or (ii) procure a bond which guarantees payment of losses and related investigations, claims administration, and defense costs and expenses. (33) KRS shall cause KRS' insurance carriers to furnish the City with either (i) a properly executed original Certificates of Insurance and certified original copies of Endorsements effecting coverage as required herein, and (ii) if requested to do so orally or in writing by the City, provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and etTect. Further. said Certificates and policies of insurance shallcontain the covenant of the insurance carriers that thirty (.30), days' prior written notice shall be given to the City prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. In the event of a material modification, cancellation, expiration, or reduction in coverage, this Agreement shall terminate forthwith, unless the City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverages set forth herein and the insurance required herein is in M force and effect. (4) It is understood and agreed to by the Parties and the insurance company, that the Certificates of Insurance and policies shall so covenant and shall be construed as primary insurance, and the City's insurance and/or deductibles andilor self-insured retention's or self-insured programs shall not be construed as contributory. (5) If this Agreement, including any extensions thereof, exceeds five l^.caidjm'Agree(nentslKitik,le Rudiger&SpriggpAtx 3 (5) years, the City reserves the right to adjust the types of insurance required under this Agreement and the monetary limits of liability for the insurance coverage's currently required herein, if, in the City's reasonable judgment, the amount or type of insurance carried by the KRS has become inadequate. (6) KRS shall pass down the insurance obligations contained herein to all tiers of subcontractors working under this Agreement. (7) The insurance requirements contained in this Agreement may be met with programs of self-insurance acceptable to the City. (8) KRS agrees to notify the City of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement. 7. Hold Harmless/Indemnification: KRS shall defend, indemnify and hold harmless the City, its elected and appointed officials, officers, employees, agents and representatives from any liability whatsoever, based or asserted upon any services of KRS, its officers, employees, subcontractors, agents or representatives arising out of or in any way relating to this Agreement, including but not limited to the property damage, bodily injury, or death, or any other element of any kind or nature whatsoever, arising from the performances of KRS, its officers, agents, employees, subcontractors, agents or representatives under this Agreement. With respect to any action or claim subject to indemnification herein by KRS, KRS shall, at its sole cost, have the right to use counsel of its own choice and shall have the right to adjust, settle, or compromise any such action or claim without the prior consent of the City; provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes KRS' indemnification to the City as set forth herein. KRS' obligation hereunder shall be satisfied when KRS has provided to the City, the appropriate form of dismissal relieving the City from any liability for the action or claim involved. The specified insurance limits required in this Agreement shall in no way limit or circumscribe KRS' obligations to indemnify and hold harmless the City herein from third party claims. In the event there is conflict between this Section 7 and California Civil Code Section 2782, this Section 7 shall be interpreted to comply with Civil Code 2782. Such interpretation shall not relieve the KRS from indemnifying the City to the fullest extent allowed by law. 8. All notices shall be given in writing by personal delivery or by mail. Notices, sent by mail should be addressed as follows: City. City Attorney City of Redlands PO Box 3005 Redlands, CA 92373 KRS, Kinkle, Rodiger and Spriggs 3333 Fourteenth Street Riverside, California 921501 [:',caldini\AgfeemetitslKijtklc Rodiger&Sptiggs.doc 4 When so addressed, such notices shall be deemed given upon deposit in the United States Mail. Changes may be made in the names and addresses of the person to who notices and payments are to be given by giving notice pursuant to this section. 9. This Agreement, including the Exhibit incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement. Any amendment to this Agreement shall be in writing, approved by City and signed by City and KRS. 10, In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, in addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for use of in-house counsel by a Party. CITY OF REDLANDS KINKLE, RODIGER& SPRIGGS By: B i arrison, Mayor race rE---."DiseAouse, Partner Attest: City 5* 1:-,.caldj,-n\AgreementsiKink-le Rudiger&Spriggs,dm 5 Exhibit "A" For use with the AGREEMENT FOR PROFESSIONAL SERVICE I Professional Services: [X] General Liability 2Hourly Rate: $155 Hourly for partner $145 Hourly for Senior Associate 3. Billing Cycle: [ ] Quarterly [ X ] Monthly 4, Effective Date: Effective date August 19. 2009 through August 19, 2011 5. Contract is for: [X] Single case assignment 6. Firm Name: Kinkle, Rodiger and Spriggs 3333 Fourteenth Street Riverside, California 92501 ttomey Signature Date Bruce E. Disenhouse Print Name L�cMdjm\AgreementsWinkle Rudiger&Spriggg,doc 6