C. Additional Insured. The commercial general and automobile liability policies shall contain an endorsement naming the City, its officers, employees, agents and volunteers as additional insureds.
D. Primary and Non-Contributing. The insurance policies required under this Section 10 shall apply on a primary non-contributing basis in relation to any other insurance or selfinsurance available to City. Any insurance or self-insurance maintained by City, its officers, employees, agents or volunteers, shall be in excess of Consultant’s insurance and shall not contribute with it.
E. Consultant’s Waiver of Subrogation. Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect 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.
F. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be approved by the City. The City may require the Consultant to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
G. Cancellations or Modifications to Coverage. Consultant shall not cancel, reduce or otherwise modify the insurance policies required by this Section 10 during the term of this Agreement. The commercial general and automobile liability policies required under this Agreement shall be endorsed to state that should the issuing insurer cancel the policy before the expiration date, the issuing insurer will endeavor to mail thirty (30) calendar days’ prior written notice to City. If any insurance policy required under this Section 10 is canceled or reduced in coverage or limits, Consultant shall, within two (2) business days of notice from the insurer, phone, fax or notify City via certified mail, return receipt requested, of the cancellation of or changes to the policy.
H. City Remedy for Noncompliance. If Consultant does not maintain the policies of insurance required under this Section 10 in full force and effect during the term of this Agreement, or in the event any of Consultant’s policies do not comply with the requirements under this Section 10, City may either immediately terminate this Agreement or, if insurance is available at a reasonable cost, City may, but has no duty to, take out the necessary insurance and pay, at Consultant’s expense, the premium thereon. Consultant shall promptly reimburse City for any premium paid by City or City may withhold amounts sufficient to pay the premiums from payments due to Consultant.
I. Evidence of Insurance. Prior to the performance of services under this Agreement, Consultant shall furnish City’s Risk Manager with a certificate or certificates of insurance and all original amendatory endorsements evidencing and effecting the coverages required under this Section 10. All certificates and endorsements are to be received and approved by the City’s before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant’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. The Consultant shall maintain current endorsements on file with City’s Risk Manager. Consultant shall provide proof to City’s Risk Manager that insurance policies expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Consultant shall furnish such proof at least two (2) weeks prior to the expiration of the coverages. The 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.
J. Indemnity Requirements not Limiting. Procurement of insurance by Consultant shall not be construed as a limitation of Consultant’s liability or as full performance of Consultant’s duty to indemnify City under Section 10 of this Agreement.
K. Subcontractor Insurance Requirements. Consultant shall require and verify that each of its subcontractors who perform services under this Agreement to maintain insurance coverage that meets all of the requirements of this Section 10, and Consultant shall ensure that the City is an additional insured on insurance required from subcontractors.
11. Mutual Cooperation.
A. City’s Cooperation. City shall provide Consultant with all pertinent data, documents and other requested information as is reasonably available for Consultant’s proper performance of the services required under this Agreement.
B. Consultant’s Cooperation. In the event any claim or action is brought against the City relating to Consultant’s performance or services rendered under this Agreement, Consultant shall render any reasonable assistance that City requires.
12. Records and Inspections. Consultant shall maintain full and accurate records with respect to all matters covered under this Agreement for a period of no less than the date of final resolution of a claim plus five (5) years. Consultant shall, without charge, provide City with access to the records during normal business hours. City may examine and audit the records and make transcripts therefrom, and inspect all program data, documents, proceedings and activities.
13. Termination or Suspension of Agreement.
A. Right to Terminate or Suspend. City may terminate or suspend this Agreement at any time, at will, for any reason or no reason, after giving written notice to Consultant at least ten (10) calendar days before the termination or suspension is to be effective. Consultant may terminate this Agreement at any time, at will, for any reason or no reason, after giving written notice to City at least sixty (60) calendar days before the termination is to be effective.
B. Obligations upon Termination. Consultant shall cease all work under this Agreement on or before the effective date of termination specified in the notice of termination. In the event of City’s termination of this Agreement due to no fault or failure of performance by Consultant, City shall pay Consultant based on the percentage of work satisfactorily performed up to the effective date of termination and the agreed upon terms in Exhibit A. In no event shall Consultant be entitled to receive more than the amount that would be paid to Consultant for the full performance of the services required by this Agreement.
14. Force Majeure. Consultant shall not be liable for any failure to perform its obligations under this Agreement if Consultant presents acceptable evidence, in City’s sole judgment, that such failure was due to strikes, lockouts, labor disputes, embargoes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, governmental restrictions, governmental regulations, governmental controls, judicial orders, enemy or hostile governmental action, civil commotion, fire or other casualty, or other causes beyond Consultant’s reasonable control and not due to any act by Consultant.
15. Notices. Any notices, consents, requests, demands, bills, invoices, reports or other communications which either party may desire to give to the other party under this Agreement must be in writing and conclusively deemed effective: (a) on personal delivery, (b) on electronic mail delivery to or from City and Consultant’s email domains (@covinaca.gov and @ahcalaw.com respectively), (c) confirmed delivery by reputable document delivery service or courier service during Consultant’s and City’s regular business hours, or (d) five (5) business days after deposit in the United States mail, by first class mail, postage prepaid, and addressed to the party to be notified as set forth below:
If to City: If to Consultant:
Attn: Suzanne Stone, Attn: Daniel S. Alderman,
Human Resources and Risk Manager Managing Partner
City of Covina Alderman & Hilgers, LLP
125 E. College Street 225 S. Lake Ave., Suite 600
Covina, California 91723 Pasadena, CA 91101
16. Non-Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor or applicant for employment because of race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information, sexual orientation or other basis prohibited by law.
Consultant will take affirmative action to ensure that subcontractors and applicants are employed, and that employees are treated during employment, without regard to their race, color, religious creed, sex, gender, gender identity, gender expression, marital status, national origin, ancestry, age, physical disability, mental disability, medical condition, genetic information or sexual orientation.
17. Prohibition of Assignment and Delegation. Consultant shall not assign any of its rights or delegate any of its duties under this Agreement, either in whole or in part, without City’s prior written consent. City’s consent to an assignment of rights under this Agreement shall not release Consultant from any of its obligations or alter any of its primary obligations to be performed under this Agreement. Any attempted assignment or delegation in violation of this Section 17 shall be void and of no effect and shall entitle City to terminate this Agreement. As used in this Section 17, “assignment” and “delegation” means any sale, gift, pledge, hypothecation, encumbrance or other transfer of all or any portion of the rights, obligations, or liabilities in or arising from this Agreement to any person or entity, whether by operation of law or otherwise, and regardless of the legal form of the transaction in which the attempted transfer occurs.
18. No Third-Party Beneficiaries Intended. Except as otherwise provided in Section 9, this Agreement is made solely for the benefit of the parties to this Agreement and their respective successors and assigns, and no other person or entity may have or acquire a right by virtue of this Agreement.
19. Waiver. No delay or omission to exercise any right, power or remedy accruing to City under this Agreement shall impair any right, power or remedy of City, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this Agreement shall be (1) effective unless it is in writing and signed by the party making the waiver, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states.
20. Exhibits. Exhibits A and B constitute a part of this Agreement and are incorporated into this Agreement by this reference. If any inconsistency exists or arises between a provision of this Agreement and a provision of any exhibit, the provisions of this Agreement shall control.
21. Entire Agreement. This Agreement and all exhibits referred to in this Agreement constitute the final, complete and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersede all other prior or contemporaneous oral or written understandings and agreements of the parties. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty except those expressly set forth in this Agreement.
22. Amendment of Agreement. This Agreement may be amended only by a writing signed by both parties. The City Manager is authorized to sign an amendment to this Agreement on the City Council’s behalf and without the City Council’s prior approval to make the following nonsubstantive modifications to the Agreement: (a) name changes; (b) extensions of time; (c) nonmonetary changes in the scope of work; and (d) termination of the Agreement.
23. Headings. The headings in this Agreement are included solely for convenience of reference and shall not affect the interpretation of any provision of this Agreement or any of the rights or obligations of the parties to this Agreement.
24. Word Usage. Unless the context clearly requires otherwise, (a) the words “shall,” “will” and “agrees” are mandatory and “may” is permissive; (b) “or” is not exclusive; and (c) “includes” or “including” are not limiting.
25. Time of the Essence. Time is of the essence in respect to all provisions of this Agreement that specify a time for performance; provided, however, that the foregoing shall not be construed to limit or deprive a party of the benefits of any grace or use period allowed in this Agreement.
26. Governing Law and Choice of Forum. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in interpreting this Agreement. Any dispute that arises under or relates to this Agreement (whether
contract, tort or both) shall be resolved in a municipal, superior or federal court with geographic jurisdiction over the City of Covina.
27. Severability. If a court of competent jurisdiction holds any provision of this Agreement to be illegal, invalid or unenforceable for any reason, the validity of and enforceability of the remaining provisions of this Agreement shall not be affected and continue in full force and effect.
28. Authority to Execute Agreement. The person or persons executing this Agreement on behalf of Consultant warrants and represents that he or she has the authority to execute this Agreement on behalf of the Consultant and has the authority to bind Consultant to the performance of its obligations hereunder.
The parties, through their duly authorized representatives, are signing this Agreement on the date stated in the introductory clause.
City: Consultant:
City of Covina, Alderman & Hilgers, LLP
a California municipal corporation a California limited liability Partnership By:
Name:
Title:
ATTEST:
By:
Name: Fabian Velez
Title: Deputy City Clerk
APPROVED AS TO FORM:
By:
Name: Candice K. Lee
Title: City Attorney
By:
Name: Daniel Alderman
Title: Managing Partner
By:
Name:
Title:
(Two signatures of corporate officers required
for corporations under Corporations Code
Section 313, unless corporate documents
authorize only one person to sign this
Agreement on behalf of the corporation.)
EXHIBIT “A”
BILLING RATES SCHEDULE
Hourly rates are based on time spent by Consultant on City’s behalf and reflect the skill and experience of the attorney or other legal personnel rendering services on the City’s behalf. Time is accrued on an incremental basis for such matters as telephone calls (minimum 0.10 hour), and letters (minimum 0.10 hour), and on an actual basis for other work.
Provider
Hourly
Rates
Attorney: $ 180.00
Administrative Assistant/ Paralegal: $ 125.00
Other Servicers, Costs, Expenses Fee/Expense
Photocopies $ 0.10/page
These rates will remain the same for the time period through September 25, 2025. Thereafter, Consultant shall notify the City in writing, thirty (30) days prior to a rate increase. These rates will cover the following services:
• Defense of Third-Party Liability Claims and consulting services including as described in EXHIBIT “B”
Fees, Costs, and Expenses will be billed in addition to professional fees. Costs include overnight mail, messenger service, copying costs, facsimile service, filing fees, and fees paid to third parties to accomplish the work under the Contract. Attorney will consult with and obtain approval from client before incurring any extraordinary costs.
Consultant will bill the client monthly and payment is due within 30 days of receipt of billing for services and are payable to “Alderman & Hilgers, LLP”.
• Provide a Written Report/Updated Case Summary with Any Recent Developments to the Risk Manager and the Excess Insurance Carrier (If applicable) • Provide a Written Report/Updated Case Summary with Any Recent Developments to the Risk Manager and the Excess Insurance Carrier (If applicable) • and the Excess Insurance Carrier (If applicable)
• Provide a Cost Estimate to the Risk Manager and the Excess Insurance Carrier per hour.
Consultant shall advise City when expected items of significant cost may be incurred, and shall require City approval in advance.
EXHIBIT “B”
SCOPE OF SERVICES
SERVICES TO BE RENDERED
Consultant shall perform legal services for City relating to defense of litigated liability claims brought against the City. Consultant shall review and establish an initial budget for each case, which shall be presented to the Risk Manager and updated as necessary.
Consultant shall review new claims and provide guidance to the Risk Manager in an effort to avoid potential litigation for non-litigated claims. Consultant shall review correspondence and other documentation as needed.
Consultant shall oversee and manage all aspects/phases of litigated liability claims brought against the City with the intention of mitigating any loss and protecting the City, including identifying opportunities for subrogation or dismissal of claims. Consultant shall coordinate fact finding and inspections with City staff.
City shall compensate Consultant for all services performed by Consultant on an hourly basis in an amount according to the Fee Schedule attached as Exhibit “A.” All payments for services will be made by the City after Risk Manager review and approval.
REPORTING REQUIREMENTS
1. Consultant shall provide to the City's Human Resources/ Risk Manager, or designee, appropriate reports/ case summaries throughout all phases of each case. All reports, oral or written, must be directed to the City's Human Resources/ Risk Manager, or designee, marked confidential (if written), and treated as confidential at all times. Reports shall be done in substantially the following manner:
2. Consultant shall submit regularly and upon request of the City's Human Resources/ Risk Manager, detailed status reports updating City on relevant aspects of each case, including the estimated and updated case budget.
3. Consultant shall notify the City of any settlement proposal received whether such proposal is oral or in writing. Oral reports of settlement demands will be followed up as soon as practical by a written confirmation of the demand. When time allows, offers or counteroffers to be initiated by Consultant shall be in writing and contain the details of the proposal along with Consultant's recommendation and be submitted to the City for approval prior to communicating any such offer or counteroffer to other parties.
4. Consultant shall immediately report orally to the City's Human Resources/ Risk Manager in person or by telephone any event or discovery which is of an urgent nature or requires the immediate attention of the City. When requested, Consultant shall follow up such oral report with a written summary reiterating such event or discovery. Consultant shall immediately advise the City's Human Resources/ Risk Manager in writing if an actual or potential conflict of interest arises or is discovered. Close Case File.
5. Consultant shall submit a closing report to the City at the conclusion of representation of a claim.
6. Consultant shall retain records according to the City’s Retention Policy.
EXHIBIT “C”
INSURANCE REQUIREMENTS
The Consultant shall maintain throughout the duration of the term of the Agreement, liability insurance covering the Consultant and designating City including its elected or appointed officials, directors, officers, agents, employees, volunteers, or consultants, as additional insured against any and all claims resulting in injury or damage to persons or property (both real and personal) caused by any aspect of the Consultant's work, in amounts no less than the following and with such deductibles as are ordinary and reasonable in keeping with industry standards. It shall be stated, in the Additional Insured Endorsement, that the Consultant's insurance policies shall be primary as respects any claims related to or as the result of the Consultant's work. Any insurance, pooled coverage, or self-insurance maintained by the City, its elected or appointed officials, directors, officers, agents, employees, volunteers, or consultants shall be non-contributory. The Additional Insured Endorsement shall not apply to the Professional Liability Insurance.
Professional Liability Insurance:
a. General Aggregate $2,000,000
General Liability:
a. General Aggregate $2,000,000
b. d. Each Occurrence $1,000,000
Workers' Compensation:
a. Workers' Compensation Statutory Limits
Automobile Liability
a. Any vehicle, combined single limit $1,000,000
per accident for bodily injury and
property damage
The Consultant shall provide thirty (30) days advance notice to City in the event of material changes or cancellation of any coverage. Certificates of insurance and additional insured endorsements shall be furnished to City thirty (30) days prior to the effective date of this Agreement. Refusal to submit such certificates shall constitute a material breach of this Agreement entitling City to any and all remedies at law or in equity, including termination of this Agreement.
If proof of insurance required under this Agreement is not delivered as required or if such insurance is canceled and not adequately replaced, City shall have the right but not the duty to obtain replacement insurance and to charge the Consultant for any premium due for such coverage. City has the option to deduct any such premium from the sums due to the Consultant.