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Home My WebLink AboutBurke, Williams & Sorensen - 2004-09-30IF i1. r�r Contracts Submittal to cj 1.;" CLr rJ/� CITY (IF City Clerk's Office r,uy T INGT011d HEACH, CA L'01,t f;Q; - I A +I: I S To: FJrYNN► City Clerk 1. Name of Contractor: BURKE, WILLIAMS & SORENSEN 2. Purpose of Contract:' For Example: Aerdit Services or Rater Quality Testing Huntington Lake —Huntington Central Park Consulting services re: Southern California MaterCompany v. City of Huntington Beach, Orange County Superior Court Case No. 04CCO8141 3. Amount of Contract: $50,000 Copy of contract distributed to: The ORIGINAL insurance certificatetwaiver sent to Risk Initiating Dept. l/ Management City Treasurer ORIGINAL bonds sent to Treasurer CITY CLERK'S OFFICE USE ONLY: Name/Extension :Cate O `t'.` '.i i r ?�=�f=- , i,ii�( Data Entry,i'iE {= E tfiii i A .,ha N " c ` 7D E Sri, City Attorneys Office 193, o ' 0.1 or.,"600.30 ,. Pendin Date: October 28, 2004� p j► �'� t t ( t i� t4 a�E s { t ��; I { f 1 } = 3 Sr _ { , E jj i t4 4 i ii tti i E 4 1 !i t 2� t}, °;# (� } E t, }�f= '} i� _ �' t RECORDS DIV_.Check Citv.Clerk'a Database for.Exictine File .4�11DONF... . g:/Attymisc/forms/city clerk contract transmittal.doc PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF HUNTINGTON BEACH AND BURKE, WILLIAMS & SORENSEN FOR LEGAL SERVICES RELATING TO EMINENT DOMAIN THIS AGREEMENT ("Agreement") is made and entered into this .30* dayof 2004, by and between the City of Huntington Beach, a municipal corporation of the State of California, hereinafter referred to as "CITY, and BURKE, WILLIAMS & SORENSEN, a limited liability partnership hereinafter referred to as "CONSULTANT." WHEREAS, CITY desires to engage the services of a consultant to represent the City in an eminent domain action entitled: Southern California Water Company v. City of Huntington Beach, Orange County Superior Court, Case No. 04CC08141; and Pursuant to documentation on file in the office of the City Clerk, the provisions of the Huntington Beach Municipal Code, Chapter 3.03, relating to procurement of professional service contracts have been complied with; and CONSULTANT has been selected to perform these services, NOW, THEREFORE, it is agreed by CITY and CONSULTANT as follows: 1. SCOPE OF SERVICES CONSULTANT shall provide all services as described in Exhibit "A," which is attached hereto and incorporated into this Agreement by this reference. These services shall sometimes hereinafter be referred to as the "PROJECT." CONSULTANT hereby designates BRUCE GRIDLEY, JOSEPH MONTES, MARK J. MULKERIN and STEVE McEWEN who shall represent it and be its sole contact and agent in all consultations with CITY during the performance of this Agreement. 1 Agreemts\2004\Burke Williams - SCWC 2. CITY STAFF ASSISTANCE CITY shall assign a staff coordinator to work directly with CONSULTANT in the performance of this Agreement. 3. TERM; TIME OF PERFORMANCE Time is of the essence of this Agreement. The services of CONSULTANT are to commence as soon as practicable after the execution of this Agreement by CITY (the "Commencement Date"). This Agreement shall expire on September 1, 2007, unless sooner terminated as provided herein. All tasks specified in Exhibit "A" shall be completed in a timely and professional manner. 4. COMPENSATION In consideration of the performance of the services described herein, CITY agrees to pay CONSULTANT on a time and materials basis at the rates specified in Exhibit "B," which is attached hereto and incorporated into this Agreement by this reference. 5. RESERVED 6. METHOD OF PAYMENT CONSULTANT shall be paid pursuant to the terms of Exhibit "B," which is attached hereto and incorporated by reference into this Agreement. 7. DISPOSITION OF PLANS, ESTIMATES AND OTHER DOCUMENTS CONSULTANT agrees that title to all materials prepared hereunder, including, without limitation, all original drawings, designs, reports, both field and office notices, calculations, computer code, language, data or programs, maps, memoranda, letters and other documents, shall belong to CITY, and CONSULTANT shall turn these materials over to CITY 2 Agreemts\2004\Burke Williams - SCWC upon expiration or termination of this Agreement or upon PROJECT completion, whichever shall occur first. These materials may be used by CITY as it sees fit. 8. HOLD HARMLESS CONSULTANT hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CONSULTANT's (or CONSULTANT's subcontractors, if any) negligent performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CONSULTANT, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CONSULTANT. will conduct all defense at its sole cost and expense and , CITY shall approve selection of CONSULTANT's. counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of' indemnification to be provided by CONSULTANT. 9. PROFESSIONAL LIABILITY INSURANCE CONSULTANT shall obtain and furnish to CITY a professional liability insurance policy covering the work performed by it hereunder. This policy shall provide coverage for CONSULTANT's professional liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and in the aggregate. The above -mentioned insurance shall not contain a self -insured retention, "deductible" or any other similar form of limitation on 3 Agreemts\2004\Burke Williams - SCWC the required coverage except with the express written consent of CITY. A claims -made policy shall be acceptable if the policy further provides that: A. The policy retroactive date coincides with or precedes the initiation of the scope of work (including subsequent policies purchased as renewals or replacements). B. CONSULTANT shall notify CITY of circumstances or incidents that might give rise to future claims. CONSULTANT will make every effort to maintain similar insurance during the required extended period of coverage following PROJECT completion. If insurance is terminated for any reason, CONSULTANT agrees to purchase an extended reporting provision of at least two (2) years to report claims arising from work performed in connection with this Agreement. 10. CERTIFICATE OF INSURANCE Prior to commencing performance of the work hereunder, CONSULTANT shall furnish to CITY a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall: A. provide the name and policy number of each carrier and policy; B. shall state that the policy is currently in force; and C. shall promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice; however, ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. 4 Agreemts\2004\Burke Williams - SCWC CONSULTANT shall maintain the foregoing insurance coverage in force until the work tinder this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverage shall not derogate from CONSULTANT's defense, hold harmless and indemnification obligations as set forth in this Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of the policy of insurance. CONSULTANT shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required. 11. INDEPENDENT CONTRACTOR CONSULTANT is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of CITY. CONSULTANT shall secure at its own cost and expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for CONSULTANT and its officers, agents and employees and all business licenses, if any, in connection with the PROJECT and/or the services to be performed hereunder. 12. TERMINATION OF AGREEMENT All work required hereunder shall be performed in a good and workmanlike manner. CITY may terminate CONSULTANT's services hereunder at any time with or without cause, and whether or not the PROJECT is fully complete. Any termination of this Agreement by CITY shall be made in writing, notice of which shall be delivered to CONSULTANT as provided herein. In the event of termination, all finished and unfinished documents, exhibits, report, and evidence shall, at the option of CITY, become its property and shall be promptly delivered to it by CONSULTANT. A-.reemts\2004\Burke Williams - SCWC 13. ASSIGNMENT AND DELEGATION This Agreement is a personal service contract and the work hereunder shall not be assigned, delegated or subcontracted by CONSULTANT to any other person or entity without the prior express written consent of CITY. If an assignment, delegation or subcontract is approved, all approved assignees, delegates and subconsultants must satisfy the insurance requirements as set forth in Sections 9 and 10 hereinabove. 14. COPYRIGHTS/PATENTS CITY shall own all rights to any patent or copyright on any work, item or material produced as a result of this Agreement. 15. CITY EMPLOYEES AND OFFICIALS CONSULTANT shall employ no CITY official nor any regular CITY employee in the work performed pursuant to this Agreement. No officer or employee of CITY shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 16. NOTICES Any notices, certificates, or other communications hereunder shall be given either by personal delivery to CONSULTANT's agent (as designated in Section 1 hereinabove) or to CITY as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. CITY and CONSULTANT may designate different addresses to which subsequent notices, certificates or other communications will be sent by notifying the other party via personal delivery, a reputable overnight carrier or U. S. certified mail -return receipt requested: 6 Agreemts\2004\Burke Williams - SCWC TO CITY: City of Huntington Beach ATTN: City Attorney 2000 Main Street Huntington Beach, CA 92648 17. CONSENT TO CONSULTANT: Bruce Gridley, Esq. Mark J. Mulkerin, Esq. Burke, Williams and Sorensen 611 West Sixth Street, Suite 2500 Los Angeles, CA 90017 When CITY's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 18. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 19. SECTION HEADINGS. The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are. merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 20. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining 7 Agreemts\2004\Burke Williams - SCWC covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 21. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate. original shall be deemed an original instrument as against any party who has signed it. 22. IMMIGRATION CONSULTANT shall be responsible for full compliance with the immigration and naturalization laws of the United States and shall, in particular, comply with the provisions of the United States Code regarding employment verification. 23. LEGAL SERVICES SUBCONTRACTING PROHIBITED CONSULTANT and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CONSULTANT understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for 8 Agreemts\2004\Burke Williams - SCWC CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CONSULTANT. 24. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 25. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the expiration or termination of this Agreement, shall so survive. 26. GOVERNING LAW This Agreement shall be governed and. construed in accordance with the laws of the State of California. 27. ENTIRETY The parties- acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiation, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise, have been made by that party or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. This Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this 9 Agreemts\2004\Burke Williams - SCWC Agreement, and supercede all prior understandings and agreements whether oral or in writing between the parties respecting the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. CONSULTANT, BURKE, WILLIAMS & SORENSEN, a CITY OF HUNTINGTON BEACH, limited liability partnership a municipal corporation of the State of California �1 i'Kti'Ij/i1y er i3�10y City Atto ey VV (Pursuant To HBMC §3. 03.100) o � Oels print name APPROVED AS TO FORM: City Attorney REVIEWED AND APPROVED: City Administratof (only for contracts 550, 000. 00 and over) 10 Agreemts\2004\13urke Williams - SCWC EXHIBIT #A EXHIBIT " A" A. STATEMENT OF WORK: (Narrative of work to be performed) CONSULTANT shall represent and defend the City in an eminent domain action entitled: Southern California Water Company v. City of Huntington Beach, Orange County Superior Court, Case No. 04CC08141. B. CONSULTANT'S DUTIES AND RESPONSIBILITIES: NOT APPLICABLE C. CITY'S DUTIES AND RESPONSIBILITIES: NOT APPLICABLE D. WORK PROGRAM/PROJECT SCHEDULE: NOT APPLICABLE 14 Agreemts\2004\Burke Williams - SCWC EXHIBIT #B EXHIBIT "B" A. Hourly Rate CONSULTANT'S fees for such services shall be based upon the following hourly rate and cost schedule: B. Travel Bruce Gridley Partner $250 per hour Mark J. Mulkerin Partner $200 per hour Joseph Montes Partner $200 per hour Stephen McEwen Associate $185 per hour Paralegal S 90 per hour Charges for time during travel are reimbursable as measured from the Orange County office of counsel. 2. Automobile expenses are limited to $.375 per mile. All other travel expenses must be approved in advance by CITY in writing. Requests for approval shall be submitted at least fourteen (14) days in advance, to allow for reduced transportation fares. Meals are not billable to CITY, without prior written consent of CITY. C. Billing 1. All billing shall be done monthly in one -tenth -hour (0.10) increments and matched to an appropriate breakdown of the time that was taken to perform that work and who performed it. Minimum billing charges are unacceptable. CONSULTANT shall only charge for actual time spent. For example, minimum of 0.2 hours for phone calls or 0.4 hours for letters is unreasonable unless that is an accurate measure of time spent. 2. Each month's bill should include a total to date. That total should provide, at a glance, the total fees and costs incurred to date for the case or matter. 3. Telephone, cellular phone and postage charges are billable at actual cost. A copy of all service bills/costs should accompany the billing for each single item that exceeds Seventy -Five Dollars ($75.00). The. fee for the sending or receiving of facsimiles shall not exceed Twenty-five Cents ($0.25) per page. CITY will not pay a fee or charge for telephone calls or facsimiles to CITY. Photocopier costs should be no more than the actual cost of duplication, or Fifteen Cents ($0.15) per page, whichever is less. 4. CITY will not pay for secretarial time or secretarial overtime. CITY will not pay for secretarial tasks or tasks that should be subsumed into CONSULTANT' overhead. For example, time spent for faxing, mailing, arranging for messengers and calendaring are not acceptable charges. 5. CITY will not pay for word processing charges. This includes per page or hourly charges. 6. CITY will not pay for computer research, i.e., Westlaw and Lexis. 7. CITY will not pay for billing or discussion of bills. If CITY has questions about billing or needs additional information on bills, that is not a chargeable event; CONSULTANT should respond without charging CITY for the time required. 8. CITY appreciates when CONSULTANT has researched an issue previously and uses that research on the present case. CITY has retained CONSULTANT because of its past experience. CONSULTANT shall not charge CITY for work it has done and billed another client for in the past. 12 Agreemts\2004\Burke Williams - SCWC CONSULTANT shall submit to CITY an invoice for each monthly payment due. Such invoice shall: A) Reference this Agreement; B) Describe the services performed; C) Show the total amount of the payment due; D) Include a certification by a principal member of CONSULTANT's firm that the work has been performed in accordance with the provisions of this Agreement; and E) For all payments include an estimate of the percentage of work completed. Upon submission of any such invoice, if CITY is satisfied that CONSULTANT is making satisfactory progress toward completion of tasks in accordance with this Agreement, CITY shall approve the invoice, in which event payment shall be made within thirty (30) days of receipt of the invoice by CITY. Such approval shall not be unreasonably withheld. If CITY does not approve an invoice, CITY shall notify CONSULTANT in writing of the reasons for non -approval and the schedule of performance set forth in Exhibit "A" may at the option of CITY be suspended until the parties agree that past performance by CONSULTANT is in, or has been brought into compliance, or until this Agreement has expired or is terminated as provided herein. 10. Any billings for extra work or additional services authorized in advance and in writing by CITY shall be invoiced separately to CITY. Such invoice shall contain all of the information required above, and in addition shall list the hours expended and hourly rate charged for such time. Such invoices shall be approved by CITY if the work performed is in accordance with the extra work or additional services requested, and if CITY is satisfied that the statement of hours worked and costs incurred is accurate. Such approval shall not be unreasonably withheld. Any dispute between the parties concerning payment of such an invoice shall be treated as separate and apart from the ongoing performance of the remainder of this Agreement. 13 Agreemts\2004\Burke Williams - SCWC REVISED COPY -7ATE ACORDTM CERTIFICATE OF LIABILITY INSURANCE D09/21/2004' PRODUCER 805-493-5401 PRIMARY & EXCESS INS'SERVICES, INC. A NETWORKED INSURANCE AFFILIATE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. PO BOX 2002 BESSEY@PRIMARYINS.COM I THOUSAND OAKS, CA 91358-2002 INSURERS AFFORDING COVERAGE NAIC # INSURED INSURERA: HARTFORD CASUALTY INS.CO INSURERS: UNDERWRITERS AT LLOYD'S LONDON BURKE, WILLIAMS & SORENSEN, LLP INSURERc: EMPLOYERS COMPENSATION INS CO 611 W. SIXTH STREET, 25TH FLOOR INSURERD: LOS ANGELES, CA 90017 INSURER E: I COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DD' I POLICY EFFECTIVE POLICY NUMBER DATEIMMIDDIYYI_ POLICY EXPIRATION LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 A X COMMERCIALGENERj'A�LL�IABILITY CLAIMS MADE i JC I OCCUR 72UUNUR4713 8/01/04 8/O1/05 PREMISES Eaoccurence $ 300,000- MED EXP (Any one person) $ 10,000 PERSONAL 8 ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'LAGGREGATELIMIT APPLIES PER: PROOUCTS,COMP/OPAGG $ 2,000000 I X POLICY � PRO LOC A �AUTOMOBILE LIABILITY- ANY AUTO 72UUNUR4713 8/01/04 8/01/05 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILYINJURY (Per person) - $ ALL OWNED AUTOS - SCHEDULEDAUTOS - - •- X BODILY INJURY (Peraccident) $ HIREDAUTOS NON,OWNEDAUTOS APPR VED) T FOR j X PROPERTY DAMAGE (Per accident) I $ - GARAGE LIABILITY ff JEWIFER M GRATH, lty t0 a\�w F� AUTO ONLY, EA ACCIDENT $ OTHERTHAN EAACC AUTOONLY: AGG is ' ANYAUTO R I .1 f $ ESSIUMBRELLAALIIABILITY EACHOCCURRENCE $ 10,000,000 A .EXC OCCUR CLAIMS 72XHUUR4585 8/01/04 8I01/05 AGGREGATE $ .10000 000 is Is DEDUCTIBLE X RETENTION $ NO SIR - - I $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE - OFFICER/MEMBEREXCLUDED9 I SEE ENDORSMENT ISSUED 4/l/2004 BY ISU / STANTON UNDER FN320961-01 4/1/2005 X T CRY LIMITS O R I : E.L. EACH ACCIDENT s 1,000,000 E.L. DISEASE, EA EMPLOYEE $ 1,000,000 .II es, describe under SPECIAL PROVISIONS below - E.L. DISEASE > POLICY LIMIT $ 1,000,000 OTHER B LAWYERS PROFESSIONAL BO / 595 EO 045840 2004 5/15/2004 5/15/2005 LIMIT $10,000,000 PER CLAIM AND LIABILITY I ANNUAL AGGREGATE; SIR: $250,000 DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS lb a w e CERTIFICATE. HOLDER IS INCLUDED AS AN ADDITIONAL INSUREDS UNDER POLICY 72 UUNUR4713 AS RESPECTS THE FIRM'S WORK FOR THE CITY OF HUNTINGTON BEACH, ITS AGENTS, OFFICERS AND EMPLOYEES. THIS CERTFICIATE SUPERCEDES AND REPLACES CERTIFICATE DATED SEPTEMBER 15, 2004. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES CANCELLED BEFORE THE EXPIRATION yyB��E�yy DAYS DATE THEREOF, THE ISSUING INSURER WILL'2M7E9CV19R)TMAIL 3ySSyWyRIITTTEN CITY OF HUNTINGTON BEACH 4�D0 NOTICE TO THE CERTIFICATE OLDEIF AMED TO HE L VRE'TP6P/`m& ATTN: SCOTT FIELD, ASST CITY ATTORNEY PO BOX 190 l QixI"XWAYMIMU xxX HUNTINGTON BEACH, CA 92648 . AUTHORIZED REPRESENTATIJ ` IS/ JOHN ABESSEY� � I AA Vy ACORD 25•(2001/08) `%U ' AC D CORPORATION 1988 s , , it 'INSURANCE AND INDEMNIFICATION. WAIVER HB MODIFICATION REQUEST- 1. Requested by: John Fuiii, Deputy City Attorney 2. Date: April 17, 2002 3. Name of contractor/permittee: Burke Williams & Sorensen 4. Description of work to be performed: To provide general legal services. 5. Value and length of contract: $50,000 -to be determined 6. Waiver/modification request: Waive the $250,000 deductible on the Professional Liability 7. Reason for request and why it should be granted: Unable to comply with our insurance requirements of no deductible. The firm has the capacity to absorb the deductible 8. identify the risks to the City in approving this waiver/modification: There may be a possibility that the City would have to pay the $250,000 deductible. Department Head Signature i) Zd Z. Date/. APPROVALS Approvals must be obtained in the order listed on this form. Two approvals are required for a request to be granted. Approval from the City Administrator's Office is only required if Risk Management and the City Attorney's Office disagree. 1. Risk Management ❑'Approved ❑ Denied a zi Signature Date 2. City Attorney's Office _E� Approved ❑ Denied Q i a z. Signature ate 3. ..City Administrator's Office ❑ Approved ❑ Denied Signature Date If approved, the completed waiver/modification request is to be submitted to the City Attorney's Office along with the contract for approval. Once the contract has been approved, this form is to be filed with the Risk Management Division of Administrative Services a Wc:, Underwriting Members of the Syndic Ites ,hose definitive number: and .)roportions are shown in the Table attached hereto (her:: inafter referred to as 'th Underwriters'), hereby agree, in consideration of the p,, imer, to Us by or on behalf r f the Assured of the Premium specified in the Sch dole to insure against los inclr.;ding but not limited to associated expenses specified Nrein, if any, to the extel t and n the manner provided in this Policy. Thu Underwriters hereby bind themselves sevt rally and not jointly, each fir his : wn part and not one for another, and therefore eai i of I ie Underwriters (and h ; Exe,.:utors and Administrators) shall be liable onl fol' his own share of h Syndicate's proportion of any such Loss and of any s .ch F :penses. The. identity f each of the Underwriters and the amount of his shy a m: y be ascertained by it- Ass-. red or the Assured's representative on app)icat' m to Lloyd's Policy Signir ; Off c:e, quoting the Lloyd's Policy Signing Office. I arnb: - and date or referent sho.4,n in the Table. If tl:e. Assured shall make any claim knowing the san to be false or fraudulent,., rega •ds amount or otherwise, this Policy shall becom. void and all claim hereundo r shall be forfeited. In Witness whereof the General Manager of Llo d's 1' )licy Signing Office hl ; sigrod Ihis Policy on behalf of each of Us. �OSSA(P� Q04 LLUYUS ��t. POLICY SIGNING • OFFICE EMOSSMFNT W APPEARS HFRh C! ON ORIGINAL O O LLOYD'S POLICY SIGNING OFFICE (DOCUMENT _IbL General Manager fcy SIG NOTICE 1. THE INSURANCE POLICY THAT YOU HAVE PURCHASED IS BEING ISSUED BY AN INSURER THAT IS NOT LICENSED BY THE STATE OF CALIFORNIA, THESE COMPANIES ARE CALLED "NON ADMITTED" OR "SURPLUS LINE" INSURERS. 2. THE INSURER IS NOT SUBJECT TO THE FINANCIAL SOLVENCY REGULATION AND ENFORCEMENT WHICH APPLIES TO CALIFORNIA LICENSED. INSURERS. 3. THE INSURER DOES NOT PARTICIPATE IN ANY OF THE INSURANCE GUARANTEE FUNDS CREATED BY CALIFORNIA LAW. THEREFORE, THESE FUNDS WILL NOT PAY YOUR CLAIMS OR PROTECT YOUR ASSETS IF THE INSURER BECOMES. INSOLVENT AND IS UNABLE TO MAKE PAYMENTS AS PROMISED. 4. CALIFORNIA MAINTAINS A LIST OF ELIGIBLE SURPLUS LINE INSURERS APPROVED BY THE INSURANCE COMIVIISSIONER. ASK YOUR AGENT OR BROKER IF THE INSURER IS ON THAT LIST. 5. FOR ADDITIONAL INFORMATION ABOUT THE INSURER YOU SHOULD ASK QUESTIONS OF YOUR INSURANCE AGENT, BROKER, OR "SURPLUS LINE" BROKER OR CONTACT THE CALIFORNIA DEPARTMENT OF INSURANCE, AT THE FOLLOWING TOLL -FREE TELEPHONE NUMBER: 1-800-927-4357. 01/02 LSW1147 This page is intentionally left blank r LLOYD'S THE ASSURED IS REQUESTED TO READ THIS POLICY. IF IT IS INCORRECT, PLEASE RETURN IT IMMEDIATELY TO YOUR BROKER OR AGENT FOR ALTERATION. IN ALL COMMUNICATIONS THE POLICY NUMBER APPEARING OVERLEAF SHOULD BE QUOTED This page is intentionally left blank DECLARATIONS This Insurance is effected with certain Underwriters at Lloyd's, London (not incorporated). THIS IS A CLAIMS -MADE PROFESSIONAL LIABILITY INSURANCE POLICY. PLEASE READ CAREFULLY. Policy No: 595/E00458402004 1. Named Assured: Burke, Williams & Sorensen LLP Address: 611 West Sixth Street Suite 2500 Los Angeles California 90017 2. Period of Insurance: From: 15th May 2004 To: 15th May 2005 both days at 12.01 a.m. standard time at the address shown in number l above. 3. Limit of Liability: US$10,000,000 each and every Claim and in the annual aggregate including Claims Expenses 4. Deductible: US$250,000 each Clain and in the annual aggregate including Claims Expenses. 5. Premium: US$525,000.00 6. Retroactive Date: None Page I of 22 r 7. Notice of Claim: John Bessey at Primary and Excess Insurance Services California S. Service of Suit: Mendes and Mount 725 South Figueroa Street Los .Angeles California 90017 9. Notice of Election: John Bessey at Primary and Excess Insurance Services California 10. Date of Application: 16th April 2004 Dated in London: 1st July 2004 00297652D Page 2 of 22 LAWYERS PROFESSIONAL LIABILITY INSURANCE q NOTICE: This is a claims made form. Except to such extent as may otherwise be provided herein, the coverage afforded under this Insurance Policy is limited to liability for only those Claims that are first made against the Assured and reported to the Underwriters while the insurance is in force. The Limit of Liability available to pay Damages shall be reduced and may be completely exhausted by. payment of Claims Expenses. Damages and Claims Expenses shall be applied against the deductible. Please review. the coverage afforded under this Insurance Policy carefully and discuss the coverage hereunder with your insurance agent or.broker. I. INSURING AGREEMENTS The Underwriters agree with the Assured, named in the Declarations made a part hereof, in consideration of the payment of the premium and reliance upon the statements in the application . which is made a part of this Insurance Policy (hereinafter "Policy" or "Insurance"). and subject to the Limit of Liability, exclusions, conditions and other terms of this Insurance: A. Coverage To pay on behalf of the Assured Damages and Claims Expenses which the. Assured shall become legally obligated to pay because of any Claim or Claims, including Claims) for.Personal Injury as hereafter defined, first made against the Assured and reported to.the Underwriters during the Period of Insurance or Extended Reporting Period, arising out of any act, error or omission of the Assured in rendering or failing to render professional services for others in the Assured's capacity as a lawyer, Fiduciary or Notary Public, but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations and caused by the. Assured, except as excluded or limited by the terns, conditions and exclusions of this Policy. B. Defense and Settlement (Included in the Limit of Liability) 1. The Underwriters shall have the right and duty to defend, subject to the Limits of Liability, any Claim against the Assured seeking Damages which are payable under the terms of this ' Insurance, even if any of the allegations of the Claim are groundless, false or fraudulent. However, Underwriters shall not formally appoint defense counsel without the consent of the ; Named Assured, such consent not to be unreasonably withheld:' 2. It is agreed that the Limit of Liability available to pay Damages shall be reduced and may be completely exhausted by payment of Claims Expenses. Damages and Claims Expenses shall be applied against the deductible. 3. The Underwriters shall have the right to make,any investigation they deem necessary, including, without limitation, any investigation with respect to. the application and statements made in the application and, with respect to coverage. 4. If the Assured shall refuse to consent to any settlement or compromise recommended by the, . Underwriters and acceptable to the claimant and elects to contest the Claim, Underwriters' liability for any Damages and Claims Expenses shall not exceed the amount for which the Claim could have been settled plus the Claims Expenses incurred up to the time of such refusal, or the applicable Limit of Liability, whichever is less, and the Underwriters shall have the right to withdraw from the further defense thereof by tendering control of said defense to the Assured. 5. It is further provided that the Underwriters shall not be obligated to pay any Damages- or Claims Expenses, or to undertake or continue defense of any suit or proceeding after the applicable limit of the Underwriters' liability has been exhausted by payment of Damages or Claims Expenses or after deposit of the applicable Policy Limit in a court of competent Page 3 of 22 W_ jurisdiction, and that upon such payment, the Underwriters shall have the right to withdraw from the further defense thereof by tendering control of said defense to the Assured. II. DEFINITION OF ASSURED Each of the following is an Assured under this Insurance .to the extent set forth below: (a) if the Named Assured designated in Item 1 of the Declarations is an individual, the person so designated but only with respect to the conduct of a law practice of which.the individual is the sole proprietor; (b) if the Named Assured designated in Item 1 of the Declarations is a partnership, the partnership so designated; (c) any lawyers who are partners in the Named Assured including any incorporated partners and their shareholders but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations; (d) if the Named Assured designated in Item 1 of the Declarations is a Professional Corporation or Professional Association, the Professional Corporation or Professional Association so designated; (e) any lawyers who are stockholders or members of the Professional Corporation or the Professional Association but solely for acts on behalf of such Named Assured;' (f) any lawyer acting as "of counsel", but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations; (g) any employed lawyer or other employee but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations; (h) any person who previously qualified as an Assured under (c), (e), (f) or (g) above prior to the termination of the required relationship with the Named Assured, but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations; (i) any partnership, Professional Corporation or Professional Association, advised in writing to the Underwriters, of which the Named Assured is the successor; (j) any lawyer who during the Period of Insurance becomes a partner, member, stockholder or employee of the Named Assured but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations; (k) the estate, heirs, executors, administrators, assigns and legal representatives of any Assured in the event of such Assured's death, incapacity, insolvency or bankruptcy, but only to the extent that'such Assured would otherwise be provided coverage under this Insurance. M. . TERMORY This Insurance applies to acts, errors or omissions which take place anywhere in the world provided that Claim is first made against the Assured within the United States of America, its territories or possessions or Canada during the Period of Insurance or Extended Reporting Period when purchased in accordance with Clause IX. Page 4 of 22 IV. EXCLUSIONS The coverage under this Insurance does not apply to Damages or Claims Expenses incurred with respect: . (a), to any Clain arising out of any criminal; dishonest, fraudulent or malicious act, error or omission of any Assured, committed with actual, criminal, dishonest, fraudulent or malicious purpose or intent. However, notwithstanding the foregoing, the insurance afforded by. this Policy shall apply to Claims Expenses incurred in defending any such Claim or circumstance which might lead to a Claim, but shall not apply to any Damages which the Assured might become legally obligated to pay; (b) to punitive or exemplary damages, fines, penalties, sanctions or any damages which are a multiple of compensatory damages, except that if a Claim shall have been brought against the Assured seeking both compensatory and either punitive or exemplary damages, fines, penalties, sanctions or damages which are a multiple of compensatory damages, then any coverage which may be afforded by this Policy will apply to any Claims Expenses incurred, without liability, however, for such punitive or exemplary damages; fines, penalties, sanctions or damages which are a multiple of. compensatory damages; (c) to any Claim by one Assured under this Insurance against another Assured under this Insurance; (d) to any Clain arising out of bodily injury to, or sickness, disease or death of any person, or to injury to or destruction of 'any tangible property, including the loss of use thereof; (e) to any loss sustained by an Assured as a beneficiary or distributee of any trust ortstate; (f) to any Clain arising out of any Assured's activities as a trustee, partner, officer, director or employee of any employee trust, charitable organization, corporation, company or business other than that of the Named Assured; (g) to any Claim made by or against or in connection with any business enterprise (including the ownership, maintenance or care of any property in connection therewith), not named in Item I of the Declarations, which is owned by any Assured or in which any Assured is a trustee, partner, officer, director or employee (except where he is an employee solely by virtue of having been retained to perform legal services), or which is directly or indirectly controlled, operated or managed by any Assured in a non -fiduciary capacity; (h) to any .Claim or circumstance which might lead to a Claim in respect of which any Assured has given notice to the insurer of any other policy in force previous to the effective date of this Policy; (i) to any Claim arising out of any acts, errors, or omissions which took place prior to the effective date of this Insurance, if any Assured on the effective date knew or could have. reasonably foreseen that such acts, errors or omissions might be expected to be the basis of a Claim; 0) to any Claim arising out of any Assured's capacity as an elected public official or as anemployee of a governmental body, subdivision, or agency thereof unless the Assured is deemed an employee solely by virtue of rendering legal services to such governmental body, the remuneration for which services inures to the benefit of the Named Assured; (k) to any Claim arising out of any Assured's activities and/or capacity as a Fiduciary under the. Employee Retirement Income Security Act of 1974 and its amendment or any regulation or order issued pursuant thereto, except if the Assured is deemed to be a Fiduciary solely by reason of legal advice rendered with respect to any employee benefit plan; (I) to any Claim seeking the return or reimbursement of legal fees, costs or expenses paid to the Assured; Page 5 of 22 T_ (m) to any Claim directly or indirectly brought about by arising out of, or attributable to any actual or alleged violation of the Racketeer Influenced and Corrupt Organization Act, 18 USC Sections 1961 et seq., or any comparable state law, and any amendments thereto, or any rules or regulations promulgated thereunder; If a retroactive date is applicable to this coverage it will appear at Item 6 of the Declarations and the following exclusion shall apply: (n) to any Claim or circumstance that might lead to a Claim arising out of any act, error or omission which took place, or is alleged to have taken place, prior to the retroactive date as set forth in Item 6 of the Declarations. V. DEFINITIONS Whenever used in this Policy: A. "Personal Injury" means: 1. . false arrest, detention or imprisonment, wrongful entry or eviction or other invasion of the right of private occupance, or malicious prosecution; 2. libel or slander or other defamatory or disparaging material, or a publication or an utterance in violation of an individual's right of privacy. . B. "Claims Expenses" means: 1. fees charged by an attorney designated by Underwriters and consented to by the Named Assured, with such consent not to be unreasonably withheld; and 2. alI other fees, costs and expenses resulting from the investigation, adjustment, defense and appeal of a Claim, suit or proceeding arising in connection therewith, if incurred by the Underwriters, or by the Assured with the written consent of the Underwriters. 3. Claims Expenses does not include any salary, overhead or other charges by the Assured for any time spent in co-operating in the defense and investigation of any Claim or circumstance which might lead to a Claim notified under this Insurance. C. "Period of Insurance" means the period of time between the inception date shown in the Declarations and the effective date of termination, expiration or cancellation of this Insurance and specifically excludes any Extended Reporting Period hereunder. D. "Extended Reporting Period", if applicable, means the 12 month period of time after the end of the Period of Insurance for reporting Claims arising out of acts, errors or omissions which take place prior to the end of the Period of Insurance and otherwise covered by this Insurance. E. "Claim" means a demand received by any Assured for money or services including the service of suit or institution of arbitration proceedings against the Assured. F. "Fiduciary" except as set forth in Clause IV(k), means an Assured's capacity as an administrator, conservator, executor, guardian, trustee, receiver, escrow agent or any similar capacity. G. "Damages" means a monetary judgment, award or settlement. Whenever the singular form of a word is used herein, the same shall include the plural when required by context. Page 6 of 22 VI. LIMIT OF LIABII.ITY A. The Limit of Liability stated in the Declarations as "each and every claim" is the limit of the Underwriters' liability for all Damages and Claims Expenses arising out of the same, related or continuing professional services without regard to the number of Assureds, Claims or claimants. B. The Limit of Liability stated in the Declarations as "aggregate" is the total limit of the Underwriters' liability for all Damages and Claims Expenses arising out of Claims or circumstances which might lead to a Claim first made and reported to the Underwriters during the Period of Insurance or during the Extended Reporting Period and Claims arising out of the same, related or continuing professional services as such Claims or circumstances which might lead to a Clain. C. The Limit of Liability for the Extended Reporting Period shall be part of, and not in addition to, the Limits of Liability of the Underwriters for the Period of Insurance. VII. DEDUCTIBLE The deductible amount stated in the Declarations, shall be satisfied by payments by the Assured of Damages and Claims Expenses resulting from each Claim first made and reported to the Underwriters during the Period of Insurance and the Extended Reporting Period as a condition precedent to the payment by the Underwriters of any amounts hereunder and the Underwriters shall be liable only for amounts in excess of such Deductible subject to Underwriters' total liability not exceeding the limit set forth in Item 3 of the Declarations. The Assured shall make direct payments within the deductible to appropriate other parties designated by the Underwriters. VM. INNOCENT ASSURED A. Whenever coverage under this Insurance. would be excluded, suspended or lost: 1. because of any exclusion relating to criminal, dishonest, fraudulent or malicious acts, errors or omissions by any Assured, and.with respect to which any other Assured did not personally participate or personally acquiesce or remain passive after having personal knowledge thereof, or 2. because of non-compliance with Clause XI Notice of Claim or Circumstance that may lead to -a Claim, with respect to which any other Assured shall be in default solely because of the failure to give such notice or concealment of such failure by one or more Assureds responsible for the loss or damage otherwise insured hereunder, the Underwriters agree that such insurance as would otherwise be afforded under this Policy shall cover and be paid with respect to those Assureds who did not personally commit or personally participate in committing or personally acquiesce in or remain passive after having personal knowledge of (a) one or more of the acts, errors or omissions described in any such exclusion; or (b) such failure to give notice, provided that if the condition be one with which such Assured can comply, after receiving knowledge thereof, the Assured entitled to the benefit of Clause VM shall comply with such condition promptly after obtaining knowledge of the failure of any other Assured hereunder to comply therewith. B. With respect to this provision, the Underwriters' obligation to pay in such event shall be in excess. of the deductible and in excess of the full extent of any assets of any Assured to whom the exclusion applies. In no event shall the Underwriters' obligation to pay exceed the Limit of - . Liability stated in Item 3 of the Declarations. IX. EXTENDED REPORTING ENDORSEMENT A. In the event of cancellation or non -renewal of this Insurance by. Underwriters, the Named Assured designated in Item 1 of the Declarations shall have the right, upon payment in full and Page 7 of 22 q— not proportionally or otherwise in pan of 100% of the Premium set forth in Item 5 of the Declarations to have issued an endorsement providing a 12 month Extended Reporting Period for Claims first made against any Assured and reported to the Underwriters during the Extended Reporting Period, subject to the conditions set forth in the definition of Extended Reporting Period herein. In order for the Named Assured to invoke the Extended Reporting option, the payment of the premium for the Extended Reporting Period must be paid to Underwriters within 30 days of the non -renewal or cancellation. B. The Limit of Liability for the Extended Reporting Period shall be part of, and not in addition to, the Limits of Liability of the Underwriters for the Period of Insurance. C. The quotation by Underwriters of a different premium or deductible or Limits of Liability or changes in policy language for the purpose of renewal shall not constitute a refusal to renew_ by the Underwriters. D. The right to the Extended Reporting Period shall not be available to the Named Assured where cancellation or non -renewal by the Underwriters is due to non-payment of premium or failure of an Assured to pay such amounts in excess of the applicable Limit of Liability or within the amount of the applicable deductible. E. All notices and premium payments with respect to the Extended Reporting option shall be directed to Underwriters through the entity named in Item 9 of the Declarations. F. At the commencement of the Extended Reporting Period the entire premium shall be deemed earned, and in the event the Named Assured terminates the Extended Reporting Period for any reason prior to its natural expiration, Underwriters will not be liable to return any premium paid for the Extended Reporting Period. X. OTHER INSURANCE This insurance shall apply in excess of any other valid and collectible.insurance available to any Assured, unless such other insurance is written only as specific excess insurance over the Limit of Liability of this Policy. XI. NOTICE OF CLAIM, OR CIRCUMSTANCE THAT MAY LEAD TO A CLAIM A. If any Claim is made against the Assured, the Assured shall immediately forward to Underwriters through persons named in Item 7 of the Declarations every demand, notice, summons or other process received by him or his representative. B. If during the Period of Insurance the Assured first becomes aware of any act, error or omission that could reasonably be the basis for a claim it must give written notice to Underwriters through persons named in Item 7 of the Declarations during the Period of Insurance of. 1. the specific act, error or omission; and 2. the injury or damage which may result or has resulted from the act, error or omission; and 3. the circumstance by which the Assured first became aware of the act, error or omission. Any subsequent Claim made against the Assured which is the subject of the written notice shall be deemed to have been made at the time written notice was first given to Underwriters. C. A Claim shall be considered to be reported to the Underwriters when notice is first given to Underwriters through persons named in Item 7 of the Declarations of the Claim or of an act, error or omission which could reasonably be expected to give rise to a Claim. Page 8 of 22 D. AllClaims arising -out of the same, continuing or related professional services shall be considered a -single Claim and deemed to have been -made at the -time the first of the related Claims is reported to Underwriters and shall be subject to one Limit -of Liability. E. In the event.of non -renewal of this'Insurance by the Underwriters, the Assured shall have thirty (30) days from the expiration date of the Period of Insurance to notify Underwriters of Claims made against the Assured during the Period of Insurance which arises out of any act, error or omission which took place prior to the termination date of the Period of Insurance and otherwise covered by this Insurance. F. . If any Assured shall make any claim under this Policy knowing such claim to be false or fraudulent, as regards amount or otherwise, this Policy shall become null and void and all coverage hereunder shall be forfeited. XII. ASSISTANCE AND COOPERATION OF THE ASSURED The Assured shall co-operate with the Underwriters in all investigations, including investigations regarding the application and coverage under this Insurance and, upon the Underwriters' request, assist in making settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against -any person or organization other than an employee of any Assured who may be liable to the Assured because of acts, errors or omissions with respect to which insurance is afforded under this Policy; and the Assured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Assured shall not, except at his own cost, admit liability, make any payment, assume any obligation, incur any expense, enter into any settlement, stipulate to any judgment or award or otherwise dispose of any Claim without the consent of the Underwriters. XM. ACTION. AGAINST UNDERWRITERS No action shall lie against the Underwriters unless, as a condition precedent thereto, there shall have been full compliance with all terms of this Insurance, nor until the amount of the Assured's obligation to pay shall have been finally determined either by judgment or award against the Assured after actual trial or arbitration or by written agreement of the Assured, the claimant and the Underwriters. Any person or organization or the legal representative thereof who has secured such judgment, award or written agreement shall thereafter be entitled to make a Claim under this Policy to the extent of the, insurance,afforded by this Policy. No person or organization shall have any right under this Insurance to join the Underwriters as a party to an action or other proceeding against the Assured to determine the Assured's liability, nor shall the Underwriters be impleaded by the Assured or his legal representative. Bankruptcy or insolvency of the Assured or of the Assured's estate shall not relieve the Underwriters of any of their obligations hereunder._ X1tV. SUBROGATION In the event of any payment under this Insurance, the Underwriters shall be subrogated to all the Assured's rights of recovery therefor against any person or organization and the Assured shall execute and deliver instruments and papers and do whatever else is necessary to -secure such rights. The Assured shall do nothing after the payment of Damages by Underwriters to.prejudice such rights. XV. CHANGES Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this Insurance or estop the Underwriters from asserting any right under the terms of this Insurance; nor shall the terms of this Insurance be waived or changed, except by endorsement issued to form a part of this Insurance, signed by Underwriters.. Page 9 of 22 W_ XVI. CHANGE IN MEMBERSHIP OF FIRM Any additions to the list of lawyers in the application which take .place during the Period of Insurance must be immediately reported to Underwriters in the event that: 1. the total number of new lawyers brought into or added to the fum during the Period of Insurance increases the number of lawyers as stated in the application for coverage by 5 persons or 10% of the total number of lawyers listed in the application, whichever amount is greater; or 2. any lawyer brought into or added to the firm during the Period of Insurance had been or was in the process of being reprimanded or censured by any court or bar association or disbarred or prohibited from practicing in a specified area of law or before any court or administrative agency; or 3. prior to joining the firm, any Claim had been made against, the lawyer or the lawyer had become aware of circumstances that might lead to a Claim. Underwriters expressly reserve the right to demand a premium adjustment in the event that any additions to the list of lawyers in the application for this Insurance meet the criteria set forth in the paragraphs immediately above. XVII. MERGERS AND ACQUISITIONS The Named Assured shall be required to give written notice to the Underwriters prior to.the completion of a merger or acquisition by or of the Named Assured and Underwriters expressly reserve the right to demand a premium adjustment if this Insurance is to remain in force subsequent to any merger or acquisition. XVIII. ASSIGNMENT The interest hereunder of any Assured is not assignable. If the Assured shall die or be adjudged incompetent, this Insurance shall cover the Assured's legal representative as the Assured with respect to liability previously incurred and covered by this Insurance. XIX. CANCELLATION A. This Policy may be canceled by the Named Assured by surrender thereof to Underwriters or by mailing to Underwriters written notice stating when thereafter the cancellation shall be effective. This Insurance may be canceled by the Underwriters by mailing to the Named Assured at the address shown in the Declarations written notice stating when not less than 60 days thereafter such cancellation shall be effective. However, if the Underwriters cancel this Insurance because the Assured has failed to pay a premium when due this Insurance may be canceled by the Underwriters by mailing a written notice of cancellation to the Named Assured at the address shown in the Declarations stating when not less than 10 days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The time of surrender or the effective date and hour of cancellation stated in the notice shall become the end of the Period of Insurance. Delivery (where permitted by law) of such written notice either by the Named Assured or by the Underwriters shall be equivalent to mailing. B. If the Named Assured cancels this Insurance, earned premium shall be computed in accordance with the attached short rate table and procedure. If the Underwriters cancel this Insurance, earned premium shall be computed pro rata. Premium adjustment may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation. Page 10 of 22 XX. ENTIRE CONTRACT By acceptance of this Policy the Assured agrees that the statements in the Declarations and application are his agreements and representations, that this Insurance is issued in reliance upon the truth of such representations and that this Policy embodies all agreements existing between the Assured and the Underwriters relating to this Insurance. XXI. NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - DIRECT This Policy does not apply: I. Under any Liability. Coverage, to injury, sickness, disease, death or destruction: (a) with respect to which an Assured under the Policy is also an Assured under a nuclear energy liability policy issued by Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance Association of Canada, or would be an Assured under any such policy but for its termination upon exhaustion of its Limit of Liability; or (b) resulting from the hazardous properties of nuclear material and with respect to which (1) any person or organization is required to maintain financial. protection pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, or (2) the Assured is, or had this Policy not been issued would be, entitled to indemnity from the United States of America, or any agency thereof, under any agreement entered into by the United States of America, or any agency thereof, with any person or organization. II. Under any Medical Payments Coverage, or under any Supplementary Payments Provision relating to immediate medical or surgical relief, to expenses incurred with respect to bodily injury, sickness, disease or death resulting from the hazardous properties of nuclear material and arising out of the operation of a nuclear facility by any person or organization. III. Under any Liability Coverage, to injury, sickness, disease, death'or destruction resulting from the hazardous properties of nuclear material, if: (a) the nuclear material (1) is at any nuclear facility owned by, or operated by or on behalf of, an Assured or (2) has been dischargedor dispersed therefrom; (b) the nuclear material is contained in spent fuel or waste at any time possessed, handled, used, processed, stored, transported or disposed of by or on behalf of an Assured; or (c) the injury, sickness, disease, death or destruction arises out of the furnishing by an Assured of services, materials, parts or equipment in connection with the planning, construction, maintenance, operation or use of any nuclear facility, but if such facility is located within the United States of America, its territories or possessions or Canada, this exclusion (c) applies only to injury to or destruction of property at such nuclear facility. IV. As used in this endorsement: "hazardous properties" include radioactive, toxic or explosive properties; "nuclear material" means source material, special nuclear material or by-product material; "source material", "special nuclear material", and "by-product material" have the meanings given them in the Atomic Energy Act 1954 or in any law amendatory thereof; "spent fuel" means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in a nuclear reactor; "waste" means any waste material (1) containing by-product material and (2) resulting from the operation byany person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (a) or (b) thereof, "nuclear facility" means: Page 11 of 22 - 9- (a) any nuclear reactor, (b) any equipment or device designed or used for (1) separating the isotopes of uranium or plutonium, (2) processing or utilizing spent fuel, or (3) handling, processing or packaging waste, (c) any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the Assured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235, (d) any structure, basin, excavation, premises or place prepared or.used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations; "nuclear reactor" means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material. With respect to injury to or destruction of property, the word "injury" or "destruction" includes all forms of radioactive contamination of property. It is understood and agreed that, except as specifically provided in the foregoing to the contrary, this clause is subject to the terms, exclusions, conditions. and limitations of the Policy to which it is attached. XXII. SERVICE OF SUIT It is agreed that in the event of the failure of the Underwriters to pay any amount claimed to be due under this Insurance, the Underwriters, at the request of the Named Assured, will submit to the jurisdiction of a court of competent jurisdiction within the United States. This clause does not constitute and should not be understood to constitute an agreement by Underwriters that an action is properly maintained in a specific forum, nor may it be construed as a waiver of the Underwriters' rights to. commence an action in a court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as permitted the laws of the United States or of any State of the United States, all of which rights the Underwriters expressly reserve. It is further agreed that service of process in such suit may be made upon the persons named in Item 8 of the Declarations and that in any suit instituted against any one of them upon this policy the Underwriters will abide by the final decision of such court or of any Appellate Court in the event of an appeal. 2. The persons named in Item 8 of the Declarations are authorized and directed to accept service of process on behalf of the Underwriters in any such suit and/or upon the request of the Named Assured to give written undertaking to the Named Assured that they will enter a general appearance upon Underwriters' behalf in the event such a suit shall be instituted. Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefor, Underwriters hereon hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute or his successor or successors in office, as their we and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Named Assured or any beneficiary hereunder arising out of this policy of insurance, and hereby designate the persons named in Item 8 of the Declarations as the persons to whom the said officer is authorized to mail such process or awe copy thereof. 672HGC00002 (LAW 93) Page 12 of 22 - ' ADDITIONAL WORDINGS & CLAUSES ' NEW SHORT RATE CANCELLATION TABLE ENDORSEMENT (U.S.A.) ' Notwithstanding anything to ' ' the contrary contained herein and boconsideration otthe premium for which this Insurance iowritten itiuagreed that buthe event ofcancellation thereof by the Assured the Earned Premium shall be computed as follows: - SHORT RATE CANCELLATION TABLE A. For insurances written for one year: - Days Insurance Per cent. Days Insurance Per cent. in Force of One in Force of One Year Year Preooboo Premium � �'I _~ 5 154 - 156 .................................................... 2 .................................................... 6 157-180 .......... 54 � 3— 4 .................................................... 7 181-184 .......... 55 5— � --~--^—''-^''--'---'—' 8 - 1�5 %S7 --'---'--'----~''~~'' 56 � ' 7— 8 --.----.---.--.—...--.--- 9 l80_l?1 -..----..-----_-_---.--- �7 . 0. 10' ..................................................... lD 172-175 ..................................................... 58 11 - 12 ...................................................... 11 178- 170 � '---_—__---___._-- 59 13- 14 .................................................... 12 179-182 (8months) .................................. GQ 15- 18 .................................................... 13 183-107 .................................................... 61 17- 18 ..................................................... 14 I08- l91 ..................................................... 6Z ' 10- 20 --.,.~~.................................... 15 - l9%'l96. .................................................... 63 _ 21~22 .................................................... 16 197'280 .................................................... 84 33- 25 .................................................... l? 201 '2D5 .................................................... 65 28' 29 ......_-------------...---- 10 286-289 ..---`—.................................... 66 � 30- 32 (1month) ............................. ...... 19 210-214 (7months) .................................. 67 3-30 .................................................... 20 225-218 .................................................... 00 37- 40 .................................................... 21 219-223 .................................................... 69 41- 43 ..................................................... %% 224-228 .................................................... 70 44' 47 .................................................... 23 220-233 .................................................... 71 40' 51 ... . 24 233'237 .................................................... . 72 52- 54 ..................................................... 25 230'241 .................................................... 73 55- 50 .................................................... 26 242-246 (Wmonths) .................................. 74 59- 62 (% months) .................................. 27 247-250 ... 75 03 - 85 ...... 28 251 - 255 ..................................................... 76 68- 89 -_ ....... 29 256'280 --'_--__-._~-_--_''.- 77 70- 73 ---.-.---_—.---------..- 30 261 '284 .................................................... 78 74- 70 .................................................... 31 265'269 .................................................... 79 77' 00 .................................................... 92 270-273 (9months) ................ _---._-' 80 81' 03 .................................................... 33 274-278 .................................................... 01 04-07 .... 34 279-283 ...................................................... 02 � 00- 1 9 (3omoo��)--..—~._-----_. 35 283 207 ' ---__.--.---.--.--_..—.. 03 � 92- 94 .................................................... 36 280-291 .................................................... 04 95' 90 .................................................... 37 292-296 —. :............................................... 95 99' ]02 .................................................... 38 297 '3D1 .................................................... 06 183 ' 105 .................................................... 39 302 ' 3O5 (10n000ths) ................................ 87 � 186'109 .................................................... 40 386'310 .................................................... 08 DD' D3 ..................................................... 41 311'314 .................................................... 09 � 114- DM .................................................... 43 315 '3lg .................................................... 98 117' l2U .................................................... 43 320-323 .................................................... 91 Page 13 of 22 121 - 124 (4 months) ................................. 44 324 328 .................................................... 92 125 - 127 .................................................... 45 329 - 332 .................................................... 93 128 - 131 .................................................... 46 333 - 337 (11 months) ................................ 94 132 - 135 .................................................... 47 338 - 342 .................................................... 95 136 - 138 .................................................... 48 343 - 346 ......................................:............. 96 139 142 .................................................... 49 347 351 .................................................... 97 143 -146 .:................................................. 50 352 355 ................................................ 98 147 - 149 .................................................... 51 356 - 360 ..................................................... 99 150 153, (5 months) ................................. 52 361 365 (12 months) ............................... 100 B. For Insurances written for more or less than one year:- 1. If insurance has been in force for 12 months or less, apply the standard short rate table for annual insurances to the full annual premium determined as for an insurance written for a term of one year. 2. If insurance has been in force for more than 12 months: (a) Determine full annual premium as for an insurance written for a term of one year. (b) Deduct such premium from the full insurance premium, and on the remainder calculate the pro rata Earned Premium on the basis of the ratio of the length of time beyond one year the insurance has been in force to the length of time beyond one year for which the insurance was originally written. (c) Add premium produced in accordance with items (a) and (b) to obtain Earned Premium during full period insurance has been in force. 09/02/58 NMA45 RADIOACTIVE CONTAMINATION EXCLUSION CLAUSE -LIABILITY -DIRECT (U.S.A.) For attachment (in addition to the appropriate Nuclear Incident Exclusion Clause -Liability -Direct) to liability insurances affording worldwide coverage. In relation to liability arising outside the U.S.A., its Territories or Possessions, Puerto Rico or the Canal Zone, this Policy does not cover any liability of whatsoever nature directly or indirectly caused by or contributed to by or arising from ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel. 13/2/64 NMA1477 Page 14 of 22 SMALL ADDITIONAL OR RETURN PREMIUMS CLAUSE'(U.S.A.) NOTWITHSTANDING anything to the contrary contained herein and in. consideration of the premiumfor which this Insurance is written, it is understood and agreed that whenever an additional or return premium -of $2 or less becomes due from or to the Assured on account of the adjustment of a deposit premium, or of an alteration in coverage or rate during the term or for any other reason, the collection of such premium from the Assured will be waived or the return of such premium to the Assured will not be made, as the case may be. NMA1168 WAR AND TERRORISM EXCLUSION ENDORSEMENT Notwithstanding any provision to the contrary within this insurance or any endorsement thereto it is agreed that this insurance excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any of the following regardless of any other cause or event contributing concurrently or in any other sequence to the loss; war, invasion, acts of foreign enemies, hostilities or warlike operations (whether war be declared or not), civil war, rebellion, revolution, insurrection, civil commotion assuming the proportions of or amounting to an uprising, military or usurped power, or 2. any act of terrorism. For the purpose of this endorsement an act of terrorism means an act, including but not limited to the use of force or violence and/or the threat thereof, of any person or.group(s) of persons, whether acting alone or on behalf of or in connection with any organisation(s) or government(s), committed for political, religious, ideological or similar purposes including the intention to influence any government and/or to put the public, or any section of the public, in fear. This endorsement also excludes loss, damage, cost or expense of whatsoever nature directly or indirectly caused by, resulting from or in connection with any action taken in controlling, preventing, suppressing or in any way relating to 1 and/or 2 above. If the Underwriters allege that by reason of this exclusion, any loss, damage, cost or expense is not covered by this insurance the burden of proving the contrary shall be upon the Assured. In the event any portion of this endorsement is found to be invalid or unenforceable, the remainder shall remain in full force and effect. 08/10/01 NMA2918 MOLD EXCLUSION In consideration of the premium charged, it is hereby understood and agreed that the coverage afforded by -this Policy shall not apply to: A. CLAIMS or CLAIMS EXPENSES which, either in whole or in part, directly or indirectly, are for, based upon, relate to, or arise out of: Page 15 of 22 1F- The actual, potential, alleged or threatened formation, growth, presence, release or dispersal of any fungi, molds, spores or mycotoxins of any kind; or 2. Any action taken by any party in response to the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of fungi, molds, spores or mycotoxins of any kind, such action to include investigating, testing for, detection of, monitoring of, treating, remediating or removing such fungi, molds, spores or mycotoxins; B. Any governmental or regulatory order, requirement, directive, mandate or decree that any party take action in response to the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of any fungi, molds, spores or mycotoxins of any kind, such action to include investigating, testing for, detection of, monitoring of, treating, remediating or removing such fungi, molds; spores or mycotoxins; C. Underwriters will have no duty or obligation to defend any Insured with respect to any CLAIM or governmental or regulatory order, requirement, directive, mandate or decree which, either in whole or in part, directly or indirectly, is for, based upon, relates to, or arises out of the actual, potential, alleged or threatened formation, growth, presence, release or dispersal of any fungi, molds, spores or mycotoxins of any kind. This exclusion does not apply to Professional Services of the Assured. SPECIAL WARRANTY ENDORSEMENT (WARRANTED NO HIGHER LIMITS) In consideration of the premium charged, it is warranted that during the Period of Insurance the Assured will not purchase any media, technology or professional liability insurance excess of the Limit of Liability stated in the Declarations unless Underwriters hereon have agreed that such excess media, technology or professional liability insurance may be purchased. Underwriters expressly have the right to amend any of the terms and conditions of this Policy as a condition of agreeing that such media, technology or professional liability insurance may be purchased. PREMIUM PAYMENT WARRANTY IT IS HEREBY WARRANTED that all premium due to Underwriters under this policy is paid within 30 days from inception. Non -receipt by Underwriters of such premium, by midnight (local standard time) on the premium due date, . shall render this policy void with effect from Inception. 623AFB00082 Page 16 of 22 CHOICE OF LAW CLAUSE In consideration of the premium charged -for this Policy, is is hereby understood and agreed by both the Assured and Underwriters that any dispute concerning the interpretation of this Policy shall be governed by the laws of United States of America. ALL OTHER TERMS AND CONDITIONS OF THIS POLICY REMAIN UNCHANGED. 623AFBOOI 13 ASBESTOS EXCLUSION This Policy does not cover any liability whatsoever arising directly or indirectly out of or resulting from or in consequence of, or in any way involving Asbestos, or any materials containing asbestos in whatever form or quantity. This exclusion does not apply to Professional Services of the Assured. Page 17 of 22 This page is intentionally left blank Page 18 of 22 ENDORSEMENTS . Attaching to and forming part of this Policy. Endorsement No: 1 It is hereby understood and agreed that: 1. Thomas, Mort, Prosser and Knudsen and their predecessor firms are included as a Named Assured but only for acts, errors or omissions committed prior to 1st January 1999, for a sub -limit of US$5,000,000 each Claim and in the annual aggregate including Claims Expenses, which shall be part of and not in addition to the Limit of Liability stated in Item 3. of the Declarations. 2. Insuring Agreement I A Coverage is deleted and replaced as follows: L INSURING AGREEMENTS The Underwriters agree with the Assured, named in the Declarations made a part hereof, in consideration of the payment of the premium and reliance upon the statements in the application which is made a part of this Insurance Policy (hereinafter "Policy" or "Insurance") and subject to the Limit of Liability, exclusions, conditions and other terms of this Insurance: A. Coverage To pay on behalf of the Assured Damages and Claims Expenses which the Assured shall become legally obligated to pay because of any Claim or Claims, including Claim(s) for Personal Injury as hereafter defined, first made against the Assured and reported to the Underwriters during the Period of Insurance or Extended Reporting Period; arising out of any act, error or omission of the Assured in rendering or failing to render professional . services for others in the Assured's capacity as a lawyer, arbitrator, Fiduciary or Notary Public, but solely for acts on behalf of the Named Assured designated in Item 1 of the Declarations and caused by the Assured, except as excluded or limited by the terms, conditions and exclusions of this Policy. ALL OTHER TERMS AND CONDITIONS REMAIN UNALTERED Page 19 of 22 This page is intentionally left blank Page 20 of 22 . NEW AND RENEWAL POLICIES NOTICE OF TERRORISM INSURANCE COVERAGE UNDER THE U.S. TERRORISM RISK INSURANCE.ACT OF 2002 On November 26, 2002, the President of the United States'signed into law the Terrorism Risk Insurance Act of 2002 (the "Ace). Under the Act, you have a right to purchase insurance coverage for "insured loss" resulting from an "act of terrorism" on the same terms and in the same amounts as loss caused by other events covered by. your policy. (Each of these bolded terms is defined by the Act; those definitions control our grant of coverage under your policy). Scope of Coverage If you elect to purchase this terrorism coverage, only "insured loss" as defined by the Act will be covered under your policy. Coverage under your policy for losses that do not fall within the definition of "insured loss" is not affected by the Act or by this Notice. If your policy includes a terrorism exclusion or sublimit, that exclusion or sublimit still applies for losses arising from any acts or events that are not included in the Act's definition of "act of terrorism." In addition, under -the Act, if total "insured losses" of all property and casualty insurers reach $100 billion during any applicable period, we will not be liable under our policies for our portion of such losses that - exceed such amount. The amounts we pay to you under your policy may be reduced as a result. Because of this, we may reserve our rights when we make payments to you for "insured loss" and we may require an undertaking from you to return to us any overpayment. Federal Government Share of Compensation UNDER THE ACT, THE UNITED STATES GOVERNNIENT WILL REIMBURSE US FOR 90% OF OUR INSURED LOSSES IN EXCESS OF A DEDUCTIBLE UNTIL TOTAL INSURED LOSSES OF ALL PARTICIPATING INSURERS ' REACH $100 BILLION. OUR DEDUCTIBLE IS ESTABLISHED BY THE -ACT - AND IS BASED ON A PERCENTAGE OF OUR PREMIUMS. FOR 2003, THE DEDUCTIBLE WILL BE 7% OF THE APPLICABLE PREMIUMS; FOR 2004, THE DEDUCTIBLE WILL BE 10% OF THE APPLICABLE PREMIUMS; FOR 2005, THE DEDUCTIBLE WILL BE 15% OF THE APPLICABLE PREMIUMS. Premium Applicable to Terrorism Coverage If, as part of the coverage under your basic policy, you elect to purchase this terrorism coverage from us, you will be charged an additional premium of S52,500. You may elect not to purchase this coverage. If you reject the coverage, no additional premium will be charged and a Terrorism Exclusion for 01 acts of terrorism, / including those events covered by the Act, will be included with -your policy. For and on behalf of Underwriters at Lloyd's 2-00Of �f Date Bos9S�ooysgHo�oo� Policy Number I hereby elect to purchase Terrorism coverage in accordance with the above for a premium of $52,500. I hereby elect not to purc a Terrorism coverage in accordance with the above, Ai PROFESSIONAL SERVICE CONTRACTS PURCHASING CERTIFICATION 1. Requested by: JENNIFER McGRATH, City Attorney 2. Date: October 4, 2004 3. Name of consultant: BURKE, WILLIAMS & SORENSEN 4. Description of work to be performed: Legal representation in eminent domain action entitled "Southern California Water Company v. City of Huntington Beach, Orange County Superior COurt, Case No. 04CC08141." 5. Amount of the contract: $50,000.00 6. Are sufficient funds available to fund this contract?' ® Yes, ❑ No 7. Company number and object code where funds are budgeted: 10015101.69375 8. Is this contract generally described on the list of professional service contracts approved by the City Council'? ® Yes, ❑ No 9. Is this contract within $25,000 or 25% (whichever is less) of the amount stated on the list of professional service contracts approved by the City Council?' ® Yes, ❑ No 10. Were (at least) informal written proposals requested of three consultants? ® Yes, ❑ No 11. Attach list of consultants from whom proposals were requested (including a contact telephone number). 12. Attach proposed scope of work. 13. Attach proposed payment schedule. RPARD`AMADRIL, Manac Purchasing/Central Services If the answer to any these questions is "No," the contract will require approval from the City Council. Document2 October 4, 2004 134 PM Southern California Water Company v. City of Huntington Beach RFQ MAILING LIST Mitchell E. Abbott, Esq. Thomas F. Nixon, Esq. Richards, Watson, Gershon Woodruff, Spradlin & Smart 355 South Grand Ave., 401h Floor 701 South Parker Street Los Angeles, CA 90071-3101 Suite 8000 (213) 626-8484 Orange, CA 92668-4720 (213) 626-0078 Fax (714) 558-7000 714 835-7787 Fax Richard Jones, Esq. Michelle R. Vadon Jones & Mayer Burke, Williams & Sorensen 3777 N. Harbor Boulevard 18301 Von Karman Avenue, Suite 1050 Fullerton, CA 92835 Irvine, California 92612 (714) 446-1400 (949) 863-3363 (714) 446-1448 Fax Stradlin, Yocca, Carlson & Rauth Barry A. Ross, Esq. Attention: Managing Partner 1851 E. 1st Street, Suite 1100 660 Newport Center Drive, Suite 1600 Santa Ana, California 92705-4051 Newport Beach, CA 92660 (714) 285-1980 (949) 725-4000 (714) 285-1175 Fax GAFIELD\2003 RFQ\SCWC RFQ\RFQ Mailing List.doc