Loading...
HomeMy WebLinkAbout25C - AGMT LEGAL SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 21, 2018 TITLE: APPROVE LEGAL SERVICES AGREEMENT WITH ATKINSON, ANDELSON, LOYA, RUUD & ROMO, APLC, RELATED TO ADMINISTRATIVE AND LITIGATION MATTERS FOR PERSONNEL, POLICE, AND GENERAL LIABILITY (STRATEGIC PLAN NO. 1,3,4,5) _ CIT, MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 151 Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute on-call legal services agreement with the law firm of Atkinson, Andelson, Loya, Ruud & Romo, APLC, ("AALRR") related to administrative and litigation matters concerning general liability, personnel and police for a three (3) year term ending on August 20, 2021, with an option to extend the term for up to one (1) year, in an amount not to exceed $500,000, including any extension period, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION The City Attorneys Office (CAO) handles and manages a variety of transactional and litigation matters. From time -to -time, the CAO will refer administrative and litigation matters to outside law firms with specialized expertise. There is an ongoing need for legal services related to administrative and litigation matters for personnel, police, and general liability as these matters often involve multiple parties, current and former employees and complex legal issues where specific expertise is required to defend the City, its employees and its officials. In specific, the proposed firm would be brought in to act as lead counsel in the matter of Rojas v. City of Santa Ana. On October 17, 2017, the City Attorney's Office engaged the law firm of Grossberg & Hoehn to represent the City in the Rojas matter. On July 26, 2018, the City Attorney's office was formally notified by Mr. Grossberg that, due to unforeseen medical issues with an attorney in his office, that Grossberg & Hoehn could no longer represent the City in this litigation. The City Attorney's Office immediately began searching for new counsel and selected AALRR due to AALRR's decades of experience representing public entity clients in all aspects of labor 25C-1 Legal Services Agreement — Atkinson, Andelson, Loya, Ruud & Romo August 21, 2018 Page 2 and employment matters. They represent cities, counties, housing authorities, transit agencies, California administrative agencies, water districts, and other special districts. The firm also represents law enforcement and fire agencies The proposed agreement will authorize the City Attorney to call upon AALRR for legal services as necessary to defend the City in the Rojas litigation or respond to other litigation or administrative matters. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal No. 1 Community Safety, Goal No. 3 Economic Development, Goal No. 4. Government Financial Stability, and Goal No. 5 Community Health, Livability, Engagement and Sustainability. FISCAL IMPACT The Personnel Department's Risk Management Liability Fund Account (Account No. 08009051- 62302) will be used to pay for the proposed contractual legal services. The costs for the Fiscal Years are projected as follows for a total amount of $500,000.00: FY 2018-19 200,000 FY 2019-20 200,000 FY 2020-21 100,000 APPROVED AS TO FUNDS AND ACCOUNTS: Sonia R. C Iho Sergio idal j1�I City Attorne Assistant Director City Attorne 's Office Finance & Management Services Agency Steven Pha Executive Director, Human Resources Exhibit: 1. Legal Services Agreement for Atkinson, Andelson, Loya, Ruud & Romo, W-aXRI 25C-2 LEGAL SERVICES AGREEMENT WITH ATKINSON, ANDELSON, LOYA, RUUD & ROMO, ALPC This AGREEMENT, made and entered into this 21st day of August, 2018, by and between Atkinson, Andelson, Loya, Ruud & Romo, a Professional Law Corporation ("Attorneys"), and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the constitution and laws of the State of California ("City"). RECITALS A. The City of Santa Ana and the City Attorney's Office desire to employ Attorneys to assist the in-house attorneys for the City ("City Attorney") in the provision of legal services to the City, for administrative and litigation related matters by a firm with specialized expertise. Specifically, Attorneys would be brought in to act as lead counsel representing the City in the matter of Rojas v. City of Santa Ana and to provide other general labor and employment work as requested by City Attorney, and, B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge related to administrative and litigation matters concerning general liability, personnel and police matters, and desire to undertake said services. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. RETENTION OF ATTORNEYS On an as -needed basis, and at the sole discretion of the City, City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney with litigation filed against the City, for general advice and legal review on a case-by-case basis when urgent matters arise in relation to personnel, police or general liability to defend the City, its employees and its officials. Attorneys accept said retention and agree to perform, in a timely and efficient manner, all such services as may be requested by the City Attorney. Attorneys shall confirm their acceptance of work requested by City in writing by e-mail or letter. COMPENSATION FOR SERVICES RENDERED a. City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all services according to the following: Partners will be billed at the rate of $325 to $395 an hour (depending on years of experience) and $225 to $275 an hour (depending on years of experience) for all Associates. Time will be billed in 1/10th of an hour increments. The 2018 hourly rate for Irma Rodriguez Moisa is $350 and the 2018 hourly rate for Alfonso Estrada is $325. Paralegals will be billed at the rate of $190 an hour. b. The total sum to be expended under this Agreement shall not exceed $500,000, including any extension periods. C. City agrees to reimburse Attorneys for out-of-pocket expenses, including but not limited to, mileage, copying costs, service of process, and mail services authorized by the City Attorney in connection with the performance of duties under this Agreement. In-house printing, 25C-3 copying, and reproduction charges will be reimbursed at the rate of 20 cents per page. Automobile travel will be reimbursed at the standard mileage rate in effect at the time of billing by the Internal Revenue Service. Any costs in excess of $5,000 require City Attorney approval prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice. 3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto with supporting documentation (i.e. receipts, invoices, copy of check, etc.). City acknowledges that the fees incurred for work performed by Attorneys on its behalf are due and owing within 30 days of the work being performed. Payment shall be made by City on all proper statements evidencing acceptable work performed prior to the start date of this Agreement. At Attomeys' discretion, they may choose to defer payment. Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand by Attorneys for payment. Unless expressly stated thereon, monthly statements generated by Attorneys shall not constitute written demand, but shall simply be a written reflection of work performed and fees incurred. 4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the City Attorney, as aforesaid, shall be and remain under, and subject to the control and direction of said City Attorney at all stages, and that they shall at all times keep the City Attorney informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to City Attorney any and all files then in their possession concerning each and every matter or proceeding in which they represented the City pursuant to this Agreement. 5. _REPORTING REQUIREMENTS Attorneys agree to keep the City Attorney, and any other person(s) designated by the City Attorney, informed of significant events in the Actions, including, but not limited to, trial date, filing of motions for summary judgment, hearing date for motion for summaryjudgment, settlement conference date, and mediation date. Attorneys also agree to provide the following reports: a. 45 day initial evaluation of case and budget; and b. Pre-trial report 90 days before trial. 6. TERM The term of this Agreement shall commence on the date first written above and terminate on August 20, 2021, unless terminated earlier pursuant to Section 15 below. The term of this Agreement may be extended for up to one (1) year upon a. writing- executed by both parties, including the City Manager and the City Attorney. 7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, in the performance of their covenants hereunder, Attorneys are and shall be independent contractors, and not officers or employees of City. 25C-4 8. INSURANCE Attorneys shall provide to the City Attorney proof of Professional Liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and maintain such insurance throughout the term of this Agreement. If Attorneys fail or refuse to produce and maintain the insurance required by this section, or fail or refuse to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Attorneys' right to be paid for its time and materials expended prior to notification of termination. 9. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the City, its officers, agents, employees, and representatives from liability for personal injury, damages, restitution, judicial or equitable relief to the extent caused by Attorneys' negligent performance related to this Agreement. 10. CONFIDENTIALITY All information and documents shared with Attorneys as well as all work performed by Attorneys in connection with this Agreement should be treated as strictly confidential. Moreover, all communications between Attorneys and City shall be treated as protected by the attomey-client privilege and the attorney work product doctrine. Accordingly, information received by Attorneys from City should be kept in a secure place, and no information about this work may be disclosed to any third party without City's prior written approval. Attorneys shall provide materials directly to the City Attorney, Sonia Carvalho, or selected members of her office, as directed by the City Attorney. All such information and any written product in connection with Attorneys' retention under this Agreement, shall be marked as "PRIVILEGED AND CONFIDENTIAL / ATTORNEY -WORK PRODUCT" and shall be the property of the City Attorney's Office, and shall be returned/provided to the Office of the City Attorney with all copies upon the request of the City Attorney. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Attorneys, disclosed in a publicly available source; (c) is in rightful possession of the Attorneys without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Attorneys without reference to information disclosed by the City. 11. CONFLICT OF INTEREST CLAUSE Attorneys may currently or in the future represent one or more other clients in matters involving the City. Attorneys undertake this engagement on the condition that Attorneys may represent another client in a matter in which the Attorneys do not represent the City, even if the interests of the other client are adverse to those of City, provided the other matter is not substantially related to the Attorney's representation of City and in the course of representing City, Attorneys of the Firm have not obtained confidential information of City material to the representation of the other client ("Permitted Adverse Representation"). City's consent to this arrangement is required because of its possible adverse effects on performance of the Attorney's duties as attorneys to remain loyal and available to those other clients and to render legal services with vigor and competence. Also, if an attorney does not continue an engagement or must withdraw therefrom, the client may incur delay, prejudice or additional cost such as acquainting new counsel for the matter. City agrees not to seek to disqualify the Firm from representing such other client in any Permitted Adverse Representation. 3 25C-5 12. ARBITRATION AND WAIVER OF JURY TRIAL The parties agree that all disputes which arise between the City and Attorneys, whether financial or otherwise regarding the attorney- client relationship, shall be resolved by binding arbitration. Each side shall bear their own costs and attorneys' fee s. The parties agree to waive their right to a jury trial and to an appeal. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, California 92702-1988 Facsimile (714) 647-6956 Courtesy Copy: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Attorneys: Irma Rodriguez Moisa, Esq. ATKINSON, ANDELSON, LOYA, RUUD & ROMO, ALPC 12800 Center Court, Ste. 300 Cerritos, CA 90703 Facsimile (562) 653-3333 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 14. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Attorneys, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Attorneys. The parties agree that any terms or conditions of any purchase order or other 25C-6 instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Attorneys or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 15. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Attorneys, Attorneys may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject of this Agreement performed by City personnel or by other Attorneys retained by City. 16. TERMINATION This Agreement may be terminated by City at any time. In such event, Attorneys shall be entitled to receive and the City shall pay Attorneys compensation for all services performed by Attorneys prior to receipt of such notice of termination. As a condition of such payment, Attorneys shall deliver to the City all files and records generated under this Agreement as of such date. Attorneys may terminate this agreement, subject to their obligation to provide written reasonable notice of at least thirty (30) days to arrange alternative representation. In such case, City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in in the Actions. 17. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Attorneys affirm that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 18. JURISDICTION — VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 19. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. 20. COUNTERPARTS: SIGNATURES This Agreement may be executed in counterparts, secured via facsimile transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. City 25C-7 further acknowledges that it has read and received a copy the full text Section 6148 of the California Business and Professions Code prior to signing this Agreement. 21. NO GUARANTEES City understands and acknowledges that there are certain risks and uncertainties in the pursuit of any matter for which Attorneys have been retained, that law is not an exact science, that Attorneys have made no representations or guarantees of success regarding the conclusion of any particular matter, and that all expressions relative thereto are matters of Attorneys' opinion only. In other words, Attorneys make no representations or guarantees of success regarding any matter. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council RECOMMENDED FOR APPROVAL: SONIA R. CARVALHO City Attorney's Office APPROVED AS TO FORM: SONIA R. CARVALHO CITY OF SANTA ANA Raul Godinez II City Manager ATKINSON, ANDELSON, LOYA, RUUD & ROMO, ALPC M Irma Rodriguez Moisa, Esq. Partner 25C-8