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HomeMy WebLinkAbout25G - AGMT WITH RUTAN & TUCKER LLPREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 3, 2020 TITLE: APPROVE LEGAL SERVICES AGREEMENT WITH RUTAN & TUCKER LLP FOR LAND USE AND CALIFORNIA ENVIRONMENTAL QUALITY ACT LITIGATION SERVICES IN AN AMOUNT NOT TO EXCEED $150,000 /s/Kristine Ridge CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1sl Reading ❑ Ordinance on god Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager to execute an agreement for legal services with the law firm of Rutan & Tucker, LLP ("Rutan") for land use and California Environmental Quality Act ("CEQA") litigation services, effective March 3, 2020 until March 2, 2023, with a provision for a one-year extension exercisable by the City Manager and City Attorney in an amount not to exceed $150,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION Rutan is a preeminent law firm specializing in land use, entitlements, litigation, corporate and tax services, government and regulatory work, employment, and real estate services. Rutan has offices in Orange County, Palo Alto, and San Francisco, California. Pursuant to this legal services agreement, Rutan would be retained to defend the City of Santa Ana and Santa Ana City Council in the recently filed writ of mandate alleging failure to comply with CEQA pertaining to the approval of the development project at 2525 North Main Street in Santa Ana. Because Rutan provides a variety of services to public and private clients throughout Orange County, the firm may need a conflict waiver which is not unusual for regional law firms with expertise in CEQA and municipal law. As is the City's past practice, the City Manager will sign conflict waivers, if needed. The Development Agreement and applicable resolutions require the developer to defend and indemnify the City in the event of litigation regarding the project. Accordingly, the developer will be responsible for depositing funds with the City for payment of the legal services provided for pursuant to this agreement (Exhibit 1). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #5 - Community Health, Livability, Engagement and Sustainability, Objective 3 (facilitate diverse housing opportunities and support efforts to preserve and improve the livability of Santa Ana neighborhoods). 25G-1 Agreement for Legal Services with Rutan & Tucker, LLP March 3, 2020 Page 2 FISCAL IMPACT Developerwill be responsible for depositing funds with the City in the Planning and Building Agency Revenue, Expense Reimbursement account number 05316002-57000 for the cost of the Special counsel legal services under this agreement. Legal fees paid to the law firm will be paid out of the Planning and Building Agency Services, Contract Services -Professional account 05316021-62300 for the development project located at 2525 North Main Street. Sonia R. Carvalho City Attorney Minh Thai Executive Director Planning & Building Agency APPROVED AS TO FUNDS AND ACCOUNTS: Kathryn Downs, CPA Executive Director Finance and Management Services Agency Exhibit: 1. Agreement for Legal Services with Rutan & Tucker, LLP 25G-2 LEGAL SERVICES AGREEMENT WITH RUTAN & TUCKER, LLP This AGREEMENT, made and entered into this 3rd day of March, 2020, by and between Rutan & Tucker LLP ("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"). Collectively City and Attorneys are also referred to as "the Parties." RECITALS A. The City of Santa Ana and the City Attorney desires to employ Attorneys to assist the in- house attorneys for the City ("City Attorney") in the provision of legal services to the City, Borland use and/or litigation regarding compliance with the California Environmental Quality Act ("CEQA") and related matters by a firm with specialized expertise. B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge providing administrative, advisory and litigation services concerning personnel, labor and employment 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 advisory matters and litigation filed against the City related solely to that certain petition for writ of mandate filed in Orange County Superior Court captioned Santa Ana Citizens. for Responsible Development v. City of Santa Ana (OCSC No. 30-2019-01119794). 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, as and for payment in full for all services for the foregoing services, all attorneys will bill their time at $375/hour and time will be billed in 1/10th of an hour increments. b. The total sum to be expended under this Agreement, shall not exceed one hundred and fifty thousand dollars ($150,000), including any extension periods. C. City agrees to reimburse Attorneys for out-of-pocket expenses, including but not limited to, transcription, 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. N29212v4 2 5 G -3 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. REPORTING REQUIREMENTS a. 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/hearing date, party deposition dates, filing of motions for summary judgment or other significant motions, hearing date for motion for summary judgment or other significant motions, settlement conference date, and mediation date. b. For litigated matters, Attorneys also agree to provide the following reports: 1) 45 day initial evaluation of case and budget; 2) Periodic status updates 3) Updates on significant occurrences. C. For advisory matters, Attorneys shall provide periodic status updates not less than every 30 days and more often if, in the Attorney's professional experience it is necessary. 6. TERM The term of this Agreement shall commence on the date first written above and terminate on March 2, 2023, 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. #29212A 2 5 G -4 8. INSURANCE Prior to undertaking performance of work under this Agreement, Attorneys shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. 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. b. If Attorneys fails or refuses to produce or 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 terminate this 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; (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 a. Attorney cannot, without appropriate consents, represent any party if there is a conflict of interest with any of Attorney's other clients. In order to avoid conflicts of interest among clients, Attorney maintains an index of relevant names. In connection with this matter, Attorney has searched its index for the following names: (i) the City of Santa Ana and the City Council of the City of Santa Ana as client(s), (ii) Santa Ana Citizens for Responsible Development as an adverse party, and (iii) AC 2525 Main, LLC and the Discovery Science Center of Orange County as co-defendants. Please advise us, at or before the time you return the signed copy of this letter, if you know of any other individuals or entities which may be involved in this matter. In #292120 2 5 G -5 addition, please inform us at once if you learn in the future of other persons or entities who may be involved so we can make a conflict of interest search with respect to them. b. Conflicts Waiver. In undertaking this representation, Attorney's objective is to represent City to the best of its ability without forfeiting the continuing representation of Attorney's general clients. One purpose of this agreement, therefore, is to avoid Attorney's disqualification from representing clients which it represents on a more general basis or which it regularly represents in particular matters or controversies. Given the limited nature of Attorney's representation of the City in this matter, there are certain conditions to the engagement which Attorney would like to explain to the City and to which Attorney would like to secure the City's approval and consent. Attorney is a large law firm which has represented, and continues to represent, many different corporate and individual clients with various interests in numerous industries. It is possible that, during the time Attorney is representing the City's interests in this matter, the City may become involved in transactions and/or disputes in which the City's interests are adverse to those of one of Attorney's present or future clients. C. In addition, as discussed, the following is a list of active matters where in Attorney (though not necessarily the specific counsel who will represent the City in this matter) represents clients who are currently adverse to the City, both in non -litigation and litigation matters (the "Active Adverse Matters"): (i) City of Laguna Woods: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Laguna Woods. (ii) Main Place Shopping Town LLC: Current and future entitlement efforts related to the Main Place Mall. (iii) Shea Properties: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (iv) City of Laguna Beach: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Laguna Beach. (v) Net Development Cc: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (vi) St Anton Partners: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (vii) City of Irvine: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18-cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Irvine. #29212"4 25G-6 (viii) City of Dana Point: Any and all current and future (to be filed) litigation concerning homeless issues including but not limited to case Nos. USDC Case. No. 8:18- cv00155 and SAVC 20-00069-DOC-KES and any future litigation brought by the City of Santa Ana against the City of Dana Point. (ix) Michael Harrah/Caribou Industries/One Broadway Plaza: Current and future entitlement efforts related to various properties located in the City of Santa Ana. (x) Jamboree Housing Corporation: Current and future entitlement efforts related to various properties located in the City of Santa Ana. Therefore, as a specific condition to Attorney undertaking the City's representation, the City understands and agrees that Attorney may continue to represent the above -referenced clients in the Active Adverse Matters and/or may undertake in the future to represent existing or new clients in any matter that is not substantially related to our work for the City even if the interests of such clients in those other matters are directly adverse to the City's interests. Attorney agrees, however, that City's prospective consent to conflicting representation contained in the preceding sentence shall not apply in any instance where, as a result of Attorney's representation of City, Attorney has obtained proprietary or other confidential information of a nonpublic nature, that, if known to such other client, could be used in any such other matter by such client to the City's material disadvantage. City agrees to execute any other documents deemed reasonably necessary by Attorneys' clients to further effectuate City's waiver of such conflicts of interests. 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 first class or certified mail, postage prepaid, or sent by facsimile 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) Santa Ana, California 92702-1988 Facsimile (714) 647-6956 With a Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) I914310-Ton Santa Ana, California 92702 Facsimile (714) 647-6515 To Attorneys: Attention -John A. Ramirez, Esq. Rutan & Tucker LLP 611 Anton Boulevard, 14th Floor Costa Mesa, California 92626 Facsimile (714) 641-5100 #292120 n 5 ^ -7 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 facsimile, 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 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. 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. Asa 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. 16. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender, gender expression, age, national origin, ancestry, military and veteran status, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other #29212A 25G-8 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. BINDING ARBITRATION By signing this agreement, the Parties agree that if any dispute arises out of or relating to this Agreement, our relationship, or the services performed by us (including but not limited to any disputes regarding fees and expenses and any failure by City to pay such fees and expenses in accordance with this Agreement, claims of professional negligence, breach of contract or fiduciary duty, fraud or any claim based upon a statute), such dispute shall be resolved by submission to final and binding arbitration in Orange County, California, before a retired judge or justice of the California Superior Court of a higher court. The Parties agree that by agreeing to binding arbitration, they are waiving any right to a jury trial on any such dispute. If the Parties are unable to agree upon a retired judge or justice, each party will name one retired judge or justice and the two named persons will select a neutral judge or justice who will act as the sole arbitrator. Should the City elect to have any fee dispute arbitrated pursuant to non -binding arbitration under statutory or case law (including your rights to request mandatory fee arbitration under the rules of the Orange County Bar Association), then such non -binding arbitration shall determine only the issue of the amount of fees properly charged to the City. Any other claims or disputes between the Parties, including claims for professional negligence, shall remain subject to binding arbitration pursuant to this agreement. In the event of such an arbitration, the Parties shall be entitled to take discovery in accordance with the provisions of the California Code of Civil Procedure, but either party may request that the arbitrator limit the amount and scope of such discovery, and in determining whether to do so, the arbitrator shall balance the need for the discovery against the Parties' mutual desire to resolve disputes expeditiously and inexpensively. 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 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 #29212v4 2 5 G -9 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: DAISY PEREZ, CMC Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BylQJJd w'�_� Laura A. Rossini Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: S�TLt- � jPA —Cit�ONIA R. CARVALHO `Vy Attorney CITY OF SANTA ANA KRISTINE RIDGE City Manager RUTAN & TUCKER LLP an Name: Title: #29212v4 25G-10