HomeMy WebLinkAboutHIGH SWARTZ, LLPtioINSURANCE NOT ON FILE
�h WORK MAY NOT PROCEED
CLERK OF COUNCIL N-2021-061
LEGAL SERVICES AGREEMENT WITH
CFlv jq 7r d HIGH SWARTZ
Q,iZtVr1ati) 1�:i+
This AGREEMENT, made and entered into this 8th day of April, 2021, by and between High
Swartz, 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").
RECITALS
A. The City of Santa Ana and the City Attorney's Office desires to employ Attorneys to assist the in-
house attorneys for the City ("City Attorney") in Jonathan Vanloan v. City of Santa Ana, et al.,
United States District Court, for the Eastern District of Pennsylvania, Case No. 2:20-cv-06112-
WB ("Complaint").
B. The Attorneys' will act as the City Attorney's pro hac vice sponsor for the United States District
Court for the Eastern District of Pennsylvania, assist in the City Attorney's application for pro
hac vice and perform other associated legal services as required by the City.
C. City desires to employ Attorneys to assist in the provision of such legal services.
D. Attorneys represent that they are licensed to practice law in the Commonwealth of Pennsylvania
and admitted before the United States District Court for the Eastern District of Pennsylvania, have
experience and knowledge related to practicing in the United States District Court for the Eastern
District of Pennsylvania, pro hac vice sponsorship and providing legal advice regarding
Pennsylvania state law and federal civil rights matters in the Third Circuit 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 the Complaint filed against the City. 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, at the hourly rate of $300. Time will be billed
in 1/I Oth of an hour increments.
b. The total sum to be expended under this Agreement, shall not exceed $50,000, including
any extension periods However, nothing in this Agreement requires the Attorneys to work for no
compensation and if the value of the services exceeds $50,000 and City declines to exceed this cap,
Attorneys retain the right to withdraw as counsel for the City.
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.
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. Nothing in this Agreement shall compromise
the independent legal judgment of Attorneys and Attorneys reserve the right to withdraw as counsel for
City if irreconcilable differences arise regarding the provision of legal services by Attorneys to the City.
5. TERM The term of this Agreement shall commence on the date first written above for a one (1)
year term, 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.
6. 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.
7. 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 tern 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 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 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.
The City is aware that Attorneys have been retained to have been retained to represent the City
of Fountain in this same proceeding brought by Jonathan Vanloan. Attorneys have agreed to represent
both Cities in defense of this matter as long as there is a knowing and informed waiver of any conflict
created by this representation. The Pennsylvania Rules of Professional Conduct provide that an
attorney shall not represent a client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if: (i) the representation of one client will be directly adverse to
another client, or (ii) there is significant risk that the representation of one or more clients will be
materially limited by the lawyer's responsibilities to another client, former client, or third person, or by
a personal interest of the lawyer. Notwithstanding the existence of a concurrent conflict of interest, a
lawyer may represent a client if: (i) the attorney reasonably believes that the attorney will be able to
provide competent and diligent representation to each affected client; (ii) the representation is not
prohibited by law; (iii) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding before a tribunal;
and (iv) each affected client gives its informed consent.
It is Attorneys' view that their representation of each City may present a concurrent or future
conflict of interest. While both Cities have similar defenses and goals at this point, the Cities'
circumstances are not identical and they may develop diverging views as to how to proceed. However,
Attorneys believe that they will be able to provide competent and diligent representation to the both
Cities with respect to their defenses because of their similarity and they may receive the benefit of a
cost savings in the form cost sharing. The proposed representation is not prohibited by law, and does
not involve the assertion of a claim by one client against another client Attorneys represent in the same
matter. Accordingly, Attorneys believe they may proceed with the representation, provided consent is
obtained from both Cities.
Should the Cities' interests diverge, Attorneys may have to step back from representing one or
both of Cities depending on the circumstances.
By entering into this Agreement, the City waives the concurrent conflict of interest and/or the
potential future conflict of interest.
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 fax 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
Fax (714) 647-6515
To Attorneys: Richard C. Sokorai
High Swartz LLP
40 East Airy Street
Norristown, PA 19401
Fax (610) 275-5290
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 snail, 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 fax , 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. 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.
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 by City 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 maybe 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'
N-2021-061
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.
CITY OF SANTA ANA
ICristnc Ridge�
City Manager
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
Jose Montoya
Deputy City Attorney
ATTEST
aisy Gomez
Jerk of the Council
HIGH SWARTZ, LLP
By: Richard C. Sokorai, Esquire
Title: Partner
Francine R
Villareal
Digitally signed by Francine R.
Villareal
Date: 2021.04.21 10:07:27-07'00'
PENNSYLVANIA
CNALAWYERS PROFESSIONAL LIABILITY POLICY
DECLARATIONS
Agency Branch: Policy Number:
740558 912 596805740
1. NAMED INSURED AND MAILING ADDRESS:
High Swartz LLP
40 East Airy Street
Norristown, PA 19404
Insurance is provided by Continental Casualty Compan.
151 North Franklin Street, Chicago, IL 60606
A Stock Insurance Company.
NOTICE TO POLICYHOLDERS:
This is a Claims Made and Reported policy. It
applies only to those claims that are both first made
against the insured and reported in writing to the
Company during the policy period. Please review
the policy carefully and discuss this coverage with
vour insurance agent or broker.
2. POLICY PERIOD:
Inception: 06/30/2020 Expiration: 06/30/2021
at 12: 01 A.M. Standard Time at the address shown above.
3. LIMITS OF LIABILITY: Each Claim: $ 2,000,000
Inclusive of Claims Expenses Aggregate: $ 5,000,000
4. DEDUCTIBLES: Aggregate: $ 25,000
Inclusive of Claims Expenses
5. POLICYPREMIUM: $ 41,291.00
Includes New Admittee Credit of $ 0.00
Includes Lawyers Data Breach and Network Security Premium, see coverage endorsement if applicable
6. FORMS AND ENDORSEMENTS ATTACHED AT INCEPTION:
CNA-72064-PAC (Ed. 05/2016), CNA-71607-PAC (Ed. 12/2012), G-118019-A (Ed. 12/2011), G-118024-A
(Ed. 04/2008), G-118029-A (Ed. 04/2008), G-121011-A (Ed. 04/2008), G-145184-A (Ed. 06/2003)
7. WHO TO CONTACT: To report a claim:
CNA — Claims Reporting
P.O. Box 8317
Chicago, IL 60680-8317
Fax: 866-773-7504 / Online: www.cna.com/claims
Email: SpecialtyProNewLoss@cna.com
Lawyers Claim Reporting Questions: 800-540-0762
06/30/2020
Countersignature Date Authorized Representative Date
CNA-71607-PAC (Ed. 12-12)
Page 1
�oRaN
RiskMwagementDMsfan
REVIEWED & APPROVED BY. -
Risk Management Analyst
XEO 05 001 01 16
Insurer:
CRUM&FORSTER
e, r*ioKax tOrarv�ar
The North River Insurance Company
EXCESS LIABILITY POLICY
DECLARATIONS
Policy Number: 550-112441-4
NOTICE: DEPENDING ON THE TERMS, CONDITIONS AND LIMITATIONS OF THE FOLLOWED POLICY, THIS
POLICY MAY (1) ONLY PROVIDE COVERAGE FOR LOSS FROM CLAIMS FIRST MADE OR FIRST MADE AND
REPORTED DURING ITS POLICY PERIOD; (2) HAVE ITS LIMIT OF LIABILITY REDUCED BY THE PAYMENT OF
DEFENSE COSTS AND/OR CLAIM EXPENSES; AND (3) NOT IMPOSE A DUTY TO DEFEND ON THE INSURER.
PLEASE READ THE FOLLOWED POLICY AND THIS POLICY CAREFULLY AND DISCUSS THE COVERAGE
PROVIDED THEREUNDER AND HEREUNDER WITH YOUR INSURANCE AGENT OR BROKER.
Item 1. Policyholder: HIGH SWARTZ LLP
Policyholder Address: 40 East Airy Street
Norristown, PA 19404
Item 2. Policy Period: From: 06/30/2020 (Effective) To: 06/30/2021 (Expiration)
(12:01 a.m. local time at the Policyholder Address shown above)
Item 3.
Limit of Liability:
$2,000,000
Item 4.
Total Underlying Limits: $2,000,000/$5,000,000
Item 5.
Premium:
$15,600
Item 6.
Claims Address:
E-Mail: mapsnol@cfins.com
Mail: Crum & Forster
Claims Department
305 Madison Avenue
Morristown, NJ 07962
Item 7.
Insurer Address:
Crum & Forster
Professional Risk
1 Marcus Boulevard, Suite 101
Albany, NY 12205
Item 8.
The following endorsements,
if any, are made a part of this Policy at issuance:
XEO 05 001
XEO Declarations
XEO 00 001
XEO Policy
MI 07 002 01 15
North River Signature Page
XEO 21 001
Pending and Prior Litigation Exclusion
XEO 24 010
Non -Following Form Sub -Limits - Underlying Exhaustion Recognized
XEO 70 001
PA Amendatory
IL P 001 01 04
OFAC Advisory Notice to Policyholders
Item 9. Schedule of Underlying Coverage:
Underlying Insurer
Underlying Policy
Underlying Limit
Underlying
Policy Period
*
Continental Casualty Company
596805740
$2,000,000/$5,000,000
06/30/2020 to 06/30/2021
Terms appearing in "Bold" typeface are used in this Policy with the meanings and values ascribed to them above;
however, subject to the Changes section, the "Followed Policy" means the policy in the chedule with an "*" at the
beginning of its row. RiskM—agementDMsian
r.
REVIEWED & APPROVED BY.-
P'. M44441
Risk Management Analyst
y NJ