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HomeMy WebLinkAboutMCCLUNG, CHARLES E. 1N-2018-177 0. CA'0 Ct) a*n old* 'Phis AGR13LMENT, is made and entered into this lGth day of August, 2018, by and vv between Charles E..Me, lung, Jr. ("Attorney"), 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. City desires to employ Attorney to assist the in-house attorneys for the City ("City Attorney") in the provision of legalcu sricessda'tltity, sand B. Attorney represents that he is licensed to practice law in the State of California, has special experience and knowledge related to civil litigation matters concerning general liability, personnel and municipal law, and desires to undertake said services. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terns and conditions hereinafter set forth, the parties agree as follows; 1. R1 TIENTION O Al"l'ORNLY City hereby agrees to and does retain Attorney, for the compensation hereinafter specified, to assist the City Attorney with litigation filed against the City, for general advice, representation of Councilmembers and legal review on a case-by-case basis when urgent matters arise to defend the City, its employees and its officials. Specifically, Attorney -will represe nt Mayor'IWligitel Pulido igr,his deposition, and, other matters as may arise in the caseof Rojas v. City of Santa Ana. Attorney accepts said retention and agrees to perform, in a timely and efficient manner, all such services as may be requested by the City Attorney. Attorney shall confirm his acceptance of work requested by City in writing by e-mail or letter. 2. CO NSATION FOR SER U.CI S R1 N17I RG1?. a. City agrees to compensate Attorney, and Attorney agrees to accept from City for payment in full for all services for the foregoing services, a billing rate of $275 an hour. Time will be billed in I Jl 0th of an hour increments. b. The total sum to be expended under this Agreement, shall not exceed .$25,000; including any extension periods. C. City agrees to reimburse Attorney 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. Inhouse printing, 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. . Ml? I QL) OF PAYMENT Attorney 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 Attorney on its behalf are due and owing within 30 days of the work being performed. At Attorney's discretion, he may choose to defer payment.. Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand by Attorney for payment. Unless expressly stated thereon, monthly statements generated by Attorney shall not constitute written demand, but shall simply be a written reflection of work performed and fees incurred. ' 4. CQNIM OF LLGAI MA"I rERS Attorney agree that each and every matter or proceeding in which he undertakes 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 lie shall at all times keep the City Attorney informed of all ratters pertaining thereto, City will keep Attorney informed of, all significant developments in matters relating to any representation undertaken by Attorney. Attorney further agrees, if and when his retention hereunder is terminated by City, as hereinafter specified, lie shall return to City Attorney any and all files then in his possession concerning each and every matter or proceeding in which he represented the City pursuant to this Agreement, 5. _REPORTING REOUIitTMLNTS Attorney agrees 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 summaiy judgment, hearing date for motion for summary judgment, settlement conference date, and mediation date. Attorney also agrees to provide the following reports: a. 45 day initial evaluation of case and budget; and b. Pro -trial report 90 days before trial; ---.T-ERM 'Elie term of this Agreement shall commence on the date first written above and terminate on Angust.16,.2019, unless terminated earlier pursuant to Section 15 below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney. 7. DLPLNDENT CQNTRAC"I'QRS It is mutually agreed by and between the parties that, in the performance of his covenants hereunder, Attorney are and shall be independent contractors, and not officers or employees of City, & INSURANCE Attorney 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 Attorney fails or refuses to produce and. maintain the insurance required by this section, or fails or refuses 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. Stich termination shall not affect Attorney's right to be paid for its time and materials expended prior to notification of termination. 9. INDEMNWICATIQN Attorney agrees 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 Attorney's negligent or wrongful perfonnaance or conduct related to this Agreement. 10. CON IDENTIALITY All information and documents shared with Attorney as well as all work performed by Attorney in connection with this Agreement should be treated as strictly confidential. Moreover, all communications between Attorney and City shall be treated as protected by the attorney-client privilege and the attorney work product doctrine. Accordingly, information received by Attorney 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. Attorney 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 Attorney' retention under this Agreement, shall be marked as "PRIVILEGED AND CONFIDENTIAL, / ATT*RNEY-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-usc and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Attorney, disclosed in a publicly available source; (c) is in rightful possession of the Attorney without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Attorney without reference to-infirmation disclosed by the City. 11, CONFLICT" OF INTEREST CLAUSE Attorney covenants that it presently has no Interests and shalt not have interests, direct or indirect, that would conflict in any manner with performance of services specified under this Agreement. 12, NO'l ICE 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 racsirnile (714) 647.6515 To Attorney: Charles E, McClung, Jr. 580 Broadway, Ste. 215 Laguna Beach, CA 92651 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 telefaesimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission repot issued by the transmitting facsimile machine, addressed as set forth above. I*or purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 13. QCLIISIVTTY AND AM12N13 v1EN'IThis Agreement represents the complete and exclusive statement between the City and Attorney, 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 Attorney, The panties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Attorney 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. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Attorney, Attorney 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 Attorney retained by City. 15, TERMINATION This Agreement may be terminated by City at any time. In such event, Attorney shall be entitled to receive and the City shall pay Attorney compensation for all services perfbrnned by Attorney prior to receipt of such notice of termination. As a condition of such payment,. Attorney shall deliver to the City all files and records generated under this Agreement as of such date, Attorney may terminate this agreement, subject to his 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. 16. DISCRIM[ AN T10N Attorney 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. Attorney affirms that he is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 17. JUR_ISDI' jON — YW E 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 Change 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. 18.ISCl;I.I ANEt US i'ROVISIUNS Each undersigned represents and warrants that its signature herein. below has the power, authority and right to bind his 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, 19. COUNTERPARTS; SIGNA'iURES 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 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. 20. NQ GUARANTEES City understands and acknowledges that there are certain risks and uncertainties in the pursuit of any matter for which Attorney have been retained, that law is not an exact science, that Attorney has made no representations or guarantees of success regarding the conclusion of any particular matter, and that all expressions relative thereto are matters of Attorney's opinion only. In other words, Attorney makes no representations or guarantees of success regarding any matter. [signature page to follow] IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. AT FEST: /0/Maria D. Hulzar Clerk of the Council RECOMMENDED FOR APPROVAL: SONIA R. CARVALHO City Attorney Office APPROVED AS TO FORM: SONIA R. CARVALT-10 City Attgrtjey, , By:4 Ryan CITY OF SANTA ANA Raul odinez ll City Manager ATTORNEY g CharlkEe- LAWYERS' MUTUAL INSURANCE COMPANY PROFESSIONAL LIABILITY POLICY THE DECLARATIONS POLICY NUMBER : LPDE07462 RNL. OF POL. NO.: LPDD07462 1. NAMED INSURED AND ADDRESS: CHARLES E. MCCLUNG, JR. LAWYER AND MEDIATOR INDIVIDUAL 580 BROADWAY, SUITE 215 LAGUNA BEACH, CA 92651 2. LAWYERS WHO ARE PARTNERS OF, STOCKHOLDERS IN, OR EMPLOYEES OF THE NAMED INSURED: SEE SCHEDULED LAWYERS ENDORSEMENT ATTACHED 3. PREDECESSOR FIRM: NONE 4. EFFECTIVE DATE OF THIS POLICY: 12:01 A.M. PACIFIC STANDARD TIME S. EXPIRATION DATE OF THIS POLICY: 12:01 A.M. PACIFIC STANDARD TIME 6. POLICY PREMIUM: 08-31-2018 08-31-2019 7. LIMITS OF LIABILITY: LIMIT OF LIABILITY EACH CLAIM 1,000,000 LIMIT OF LIABILITY POLICY AGGREGATE 3,000,000 DEDUCTIBLE (CLAIMS EXPENSES & DAMAGES): 5,000 - SEE POLICY PROVISIONS FOR FULL DESCRIPTION - 8. FORMS AND ENDORSEMENTS FORMING A PART OF THIS POLICY: FORM 1 REVISED 6/87 SLE CYBER TRIA-2002 $7,173 THESE DECLARATIONS, FORM 1 REVISED 6/87 AND ENDORSEMENTS AS LISTED IN ITEM 8 ABOVE, CONSTITUTE THIS POLICY, NUMBERED ABOVE. DATE OF TRANSACTION: 08-31-2018 LPL -R Rev. 8/1997 LAWYER$' MUTUAL INSURANqj COMFp f BYt :' 4 1. APYWVED AS TO FORM AN O. }IODGE Ant City Attorney