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HomeMy WebLinkAboutMCCUNE & HARBER, LLP 3INSURANCE ON FILE t-WORK MAY PROCEED N-2018-174 IL INSURANCE EXPIRES CLERK OF COUNCI DATE: 9- y28'J SPECIAL LEGAL COUNSEL SERVICES AGREEMENT ®'.CA00) tThis AGREEMENT, is made and entered into this 17th day of August, 2018, by and een McCune & Barber, LLP, a limited liability partnership ("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 C"City"), RECITALS A. City desires to employ Attorneys to assist the in-house attorneys for the City ("City Attorney") in the provision of legal services to the City; and B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge related to civil litigation matters concerning general liability, personnel and municipal law, 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 OP ATTORNEYS 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, 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, Attorneys will represent Councilmembers Michelle Martinez and Juan Villegas for their depositions, and other matters as may arise in the case of Rojas v. City of Santa Ana. 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. 2. COMPENSATION FOR SERVICES RENDERED a. City agrees to compensate Attorneys, and Attorneys agree to accept from City for payment in full for all services for the foregoing services, a billing rate for Partners at the rate of $275 an hour. Time will be billed in 1/10th of an hour increments. b. The total sum to he expended under this Agreement, shall not exceed $25,000, 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, 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. McCune & Harber, LLP Special Legal Counsel Services Agreement 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. At Attorneys' 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 summary judgment, 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 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. 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. 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. 2 McCune & Harber, LLP Special Legal Counsel Services Agreement 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 or wrongful performance or conduct 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 attorney-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; (e) 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 covenant that it presently has no interests and shall not have interests, direct or indirect, that would conflict in any manner with performance of services specified under this Agreement. 12. 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 fust 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. Sox 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. Sox 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 McCune & Harber, LLP Special Legal Counsel Services Agreement To Attorneys: Dana John McCune, Esq. McCune & Harber, LLP 515 S. Figueroa St., Ste. 1100 Los Angeles, CA 90071 Fax: (213) 689-2501 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. 13. 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 instrument that are inconsistent with, or in addition to, the terns and conditions hereof, shall not bind or obligate Attorneys or the City. Each parry 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 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. 15. 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. McCune & Herber, LLP Special Legal Counsel Services Agreement 16. 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. 17, 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. 18, 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. 19. 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 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. 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. [signature page to follow] McCune & Harber, LLP Special Legal Counsel Services Agreement IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. LK Paris I 1. Hui7ar .'°. RECOMMENDEDC erk of the Council •APPROVAL SONIA R. CARVALHO City Attorney Office APPROVED AS TO FORM: SONIA R. CARVALHO City Attot`iI"dy Ryan CITY OF SANTA ANA mmfu,A Raul Godinez I City Manager & HARBER, LLP --4'�sS3 CERTIFICATE OF LIABILITY INSURANCE DATE(MNUDDIYYYY) 0312072018 THIS CERTIFICATE IS ISSUED ASA MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BYTHE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: if the certificate holder is an ADDITIONAL INSURED, the pollcy(les) must have ADDITIONAL INSURED provisions or he endorsed. If SUBROGATION IS WAIVED, subject to the terns and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such ondorsement(s). PRODUCER NAM Anna AOdonian Pours $Assoalales Insurance Brokere CA License PU814733 N-`20'18-174 IMPHONE - (800) 578-8802 L (818) 449-9321 Alc. Not � ADDRESS: aandoniNSURERmsasaoacom 5790 Canoga Ave. #400 INSURER(fiI APFOft01N0 COVE AGE NAIL p Woodland Hills CA 91367 INSURERA: AmerICBn ALIO Ins. Co,7FF ---�' 21849 INSURED INSURERS: Technology Insurance Co.. Inc. MCCUNE & HARDER, LLP. INSURER C : Aspen Specialty Insurance 515 S Figueroa St, Ste 1100 INSURER 0: INSURER E :�•~ 1 LOS Angeles CA 90071 1INSURER F•� COVERAGES CERTIFICATE NUMBER; 18-19 PKGIWCIE&O REVISION NUMBER: THIS IS TO CERTIPYTHATTHE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REOUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ,TR, TYPE OF INSURANCE AUTHORIZED REPRESENTATIVE POLICY NUMBER IDD Y MMIDD LIMITS COM MERCIAL GENERAL LIABILITY C 2,000,000 EACHO GUR ENCS $ rr $ 100,000 CLAIMS -MAGE 0 OCCUR _ MED XP An on croon $ 10,000 A AZC80921232 0411812018 04118/2019 PERSONAL a ADV INJURY $ 2,000,000 O N'L AGGREGATE LIMITAPPLIES PER: GFNERAI.A GREGATE $ 4,000,000 POLICY C] PRO- fel JECT (J LUC PROOUCTB-COMP/OPAOG Included $ OTHER AUTOMOBILE LIABILITY IalziI L $ Included ANYAUTO BODILY INJURY (Per ponem) $ AOWNED I$ SCHEDULED AUTOS ONLY AUTOS AZO80921232 04718/2018 04/18!2019 BODILY INJURY (Par accidene $ v x HIRED NON -OWNED A b AUTOS ONLY AUTO$ONLY P id n UMBRELLALIAS Id OCCUR EACHOCCURRENCE S EXCESS UAB CLAIMS -MADE A OR OATF, DEO RETENTION Is WORKERS COMPENSATIONP R 0 H- 19 AND EMPLOYERS' LIABILITY YIN D ANY PROPRIETORIPARTNER/EXECUTIVE OFRCENMEMBER EXCLUDED/ TWC3706030 05/15/2018 05/15/2019 E. L. EACHADCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1.000,000 (Mandatory In NH) If yea desc,"order E.L. DISEASE - POLICY LIMIT $ 1.000,000 DESCRIPTION OF OPERATIONS baPo _ Limit of Liability 11000,000 Professional Liability C LR0081M18 06!04/2018 O6/04/2019 .Aggregate Limit 11000,000 Retention 35,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Romer" Schedule. may be atei It more space is required) alliAiROVP AS TO FORM 11A,y+' CERTIFICATE HOLDER "---s;--9 �F _ "fes CANCRu. ATIQN - - - / t A�SiSta `City Attorney SHOULD ANY OF THEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE V THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Evidence of Insurance ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1908.2016 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD ACORbr CERTIFICATE OF LIABILITY INSURANCE `„++" BATE (MMIODNYYY) 03/20/2018 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEN D, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER CONTACT Anna Andonlan NAME: Poms &Associates Insurance Brokers PHO Et (800) 578-8802 Tq C No : (8-` 18) 449-9321 CA License #0814733 q DRESS: aandonian@Pomsassoc.com 5700 Canoga Ave. #400 INSURERIS) AFFORDING COVERAGE NAIC all Woodland Hills CA 91367 INSURER A. American Auto Ins. Co./FF 21849 INSURED INSURER B: Technology Insurance Co., Inc, MCCUNE & HARBER, LLP. INSURER C: Aspen Specialty Insurance ......_._.� 515 S Figueroa St, Ste 1100 1 INSURER D: INSURER E, . Los Angeles CA 90071 ............. r 1 INSURER F: COVERAGES CERTIFICATE NUMBER: 18-19 PKGIWC/E&O REVISION NUMBER: THIS IS TO CERTIFYTHATTHE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TOTHE INSURED NAMEDABOVE FORTHE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ICY LTR TYPE OF INSURANCE INS 0 POLICY NUMBER MM/010 F MM EXP OD/9YYY LIMITS X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE 0 OCCUR EACHOCCURRENCE 2,000,000 PREMISES 1 100,000 MED EXP Anyone error 10,000 PERSONAL &ADV INJURY $ 2,000,000 A AZC80921232 04/18/2018 04/18/2019 GEN'L AGGREGATE LI MIT APPLIES PER: X POLICY JJECT M LOC GENERAL AGGREGATE $ 4,000,000 PRODUCTS - COMP/OP AGG $ Included $ OTHER: AUTOMOBILE LIABILITY CD BI DSINGLE IMIT $ Included Ea ccld0 BODILY INJURY (Per person) $_ ANYAUTO A OWNED SCHEDULED AUTOS ONLY AUTOS AZC80921232 04/18/2018 04/18/2019 BODILY INJURY Per accident) $ HIRED NON -OWNED X AUTOS ONLY /�. AUTOS ONLY 'PROPERTYO AGE $ Peraccitl n $ UMBRELLA LIAR OCCUR EACH OCCURRENCE EXCESS UAB CLAIM -MADE AGGREGATE $ OED RETENTION $ $ WORKERS COMPENSATION PER OT - X B AND EMPLOYERS' LIABILITY 1'/N ANY PROPRIETOR/PARTNERIEXECUTIVE OFFICERIMEMBER EXCLUDED? © (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A TWC3706030 05/15/2018 05/15/2019 STATUTE E E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE -POLICY LIMIT $ 1,000,000 C Professional Liability LR0061 M18 06/04/2018 06/04/2019 Limit of Liability 1,000,000 Aggregate Limit 1,000,000 Retention 35,000 DESCRIPTION OF OPERATIONS I LOCATIONS 1 VEHICLES (ACORD 101, Addlllonal Remarks Schedule, may be attached If more space Is required) BO AS TO (1ORM Evidence of Insurance Attorney I SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE @ 1988.2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD