HomeMy WebLinkAboutItem 24 - Approve Legal Services Agreement with Burke, Williams & Sorensen, LLPCity Attorney's Office
www.santa-ana.org/city-attorneys-office
Item # 24
or City of Santa Ana
20 Civic Center Plaza, Santa Ana, CA 92701
Staff Report
July 18, 2023
TOPIC: Approve Legal Services Agreement with Burke, Williams & Sorensen, LLP for a
Three -Year Term and Compensation not to Exceed $500,000
AGENDA TITLE
Approve a Specialized Legal Services Agreement with Burke, Williams & Sorensen,
LLP for a Three -Year Term and Compensation not -to -Exceed $500,000 (General Fund)
RECOMMENDED ACTION
Authorize the City Manager to execute a legal services agreement with the law firm of
Burke, Williams & Sorensen, LLP ("BWS") for litigation matters concerning the
abatement of public nuisances for a three-year term to terminate June 30, 2026 and
compensation in an amount not to exceed $500,000, subject to non -substantive
changes approved by the City Manager and City Attorney.
DISCUSSION
BWS was previously engaged by the City Council on March 4, 2020 to represent the
City in specialized nuisance cases, including the City's lawsuit against the Orange
County Association for Mental Health ("MHA") concerning the operation of their multi-
service center at 2416 S. Main Street in the City. This case, filed in January 2020, is
complex and has been litigated heavily in the succeeding three plus years. MHA has
been represented, pro bono, by Sheppard Mullin, a large nationwide law firm. Disability
Rights California, a legal non-profit, intervened and joined the case in April 2020, on
behalf of three clients who allege they would be negatively affected if MHA were closed
as a result of the City's lawsuit. Due to COVID-19-related delays and subsequent
appellate review sought by the Defendants, the trial in this matter was not able to
commence until June 7, 2023.
The law firm of Burke, Williams & Sorensen, LLP is a well -regarded, municipal law firm
specializing in litigation and abatement of public nuisances. BWS was previously
selected from a pool of several firms based on its deep resources, expertise, and
understanding of the pertinent legal and factual issues. BWS has more than 100
attorneys and 10 offices in California. The City Attorney's Office retained BWS based
on the experience and skill of its counsel.
Approve Legal Services Agreement with Burke, Williams & Sorensen for Three -Year
Term and Compensation Not to Exceed $500,000
July 18, 2023
Page 2
Due to the complex and significant ongoing trial being handled by BWS, this agreement
provides a three-year term for a total of $500,000 in compensation. The term and
amount account for the time -intensive and substantial nature of the expected trial and
provides a realistic budget for outside counsel to vigorously prosecute the City's action
against MHA at trial, including the costs of expert witnesses. The agreement also
provides resources for the City to take advantage of BWS' experience and skills on
additional public nuisance cases, which may arise during the term of this agreement.
FISCAL IMPACT
Funds are available in the General Non -Departmental fund contractual services
(Account No. 01105015- 62300) and will be budgeted in future fiscal years as follows.
Future fiscal year funding will be included in the proposed budgets for City Council
consideration.
Fiscal Year
Amount
2023-24
$200,000
2024-25
$150,000
2025-26
$150,000
Total
$500,000
EXHIBIT(S)
1. Legal Services Agreement with Burke, Williams & Sorensen, LLP
Submitted By: Sonia Carvalho, City Attorney
Approved By: Kristine Ridge, City Manager
LEGAL SERVICES AGREEMENT WITH
BURKE, WILLIAMS & SORENSEN, LLP
This AGREEMENT, made and entered into this 18th day of July 2023, by and between Burke,
Wiliams & Sorensen, 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 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, for public nuisance litigation related matters by a firm with specialized expertise.
B. 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.
C. Attorneys represent that they are licensed to practice law in the State of California, have
special experience and knowledge related to litigation matters concerning public nuisances,
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 related to the abatement of public nuisances within the 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, as and
for payment in full for all services for the foregoing services, Partners will be billed at the rate of $325
an hour, Associates at a rate of $300 an hour, and paralegals at a rate of $145 an hour. Time will be
billed in 1/10th of an hour increments.
b. The total sum to be expended under this Agreement, shall not exceed $500,000,
including any extension periods. This amount includes compensation by the City for any outstanding
payment for services rendered by Attorneys under Agreement #N-2020-065, as amended, and
services provided since July 1, 2023.
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.
i. In-house printing, copying, and reproduction charges will be reimbursed at the
rate of 20 cents per page.
ii. The City will not reimburse Attorneys for Lexis, Westlaw or other paid legal
research subscription services for ordinary legal research. However, the City will reimburse
Attorneys for extraordinary legal research costs related to a complex legal matter or assignment
and if pre -approved in writing by the City Attorney.
iii. The City will not reimburse Attorneys for ordinary document management
systems used for discovery purposes unless such technology is deemed necessary by the City
Attorney and if pre -approved in writing by City Attorney.
iv. Attorneys agree to directly pay for vendors, consultants, or experts, and then
seek reimbursement from the City.
V. Attorneys agree to seek written authorization from City Attorney before
retaining experts and consultants.
vi. Automobile travel will be reimbursed at the standard mileage rate in effect at
the time of billing by the Internal Revenue Service.
vii. 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. City will not pay interest on unpaid monthly statements.
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;
2
6. TERM The term of this Agreement shall commence on the date first written above and
terminate on June 30, 2026, 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.
8. INSURANCE Attorneys shall provide to the Executive Director of Human Resources
proof of 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. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01
covering CGL on an "occurrence" basis, including products and completed
operations, property damage, bodily injury and personal & advertising injury with
limits no less than $2,000,000 per occurrence. If a general aggregate limit applies,
either the general aggregate limit shall apply separately to this project/location (ISO
CG 25 03 or 25 04) or the general aggregate limit shall be twice the required
occurrence limit.
b. Automobile Liability: Insurance Services Office Form Number CA 0001 covering,
Code 1 (any auto), or if Consultant has no owned autos, Code 8 (hired) and 9 (non -
owned), with limit no less than $1,000,000 per accident for bodily injury and
property damage. (Not required if consultant does not use an automobile to perform
services)
Workers' Compensation: Insurance as required by the State of California, with
Statutory Limits, and Employer's Liability Insurance with limit of no less than
$1,000,000 per accident for bodily injury or disease.
d. Professional Liability Errors and Omissions Insurance appropriates to the
Consultant's profession, with limit no less than $2,000,000 per occurrence or claim,
$2,000,000 aggregate.
If Attorneys maintain broader coverage and/or higher limits than the minimums
shown above, the City requires and shall be entitled to the broader coverage and/or
the higher limits maintained by Attorneys. Any available insurance proceeds in
excess of the specified minimum limits of insurance and coverage shall be available
to the City.
Other Insurance Provisions - The insurance policies are to contain, or be endorsed
to contain, the following provisions:
i. Additional Insured Status- The City of Santa Ana, its officers, officials,
employees, and volunteers are to be covered as additional insureds on the
CGL policy with respect to liability arising out of work or operations
performed by or on behalf of Attorneys including materials, parts, or
equipment furnished in connection with such work or operations. General
liability coverage can be provided in the form of an endorsement to
Attorneys' insurance (at least as broad as ISO Form CG 20 10 11 85 or if
not available, through the addition of both CG 20 10, CG 20 26, CG 20 33,
or CG 20 38; and CG 20 37 forms if later revisions used).
ii. Primary Coverage- For any claims related to this contract, Attorneys'
insurance coverage shall be primary coverage at least as broad as ISO CG
20 01 04 13 as respects the City of Santa Ana, its officers, officials,
employees, and volunteers. Any insurance or self-insurance maintained by
the City of Santa Ana, its officers, officials, employees, or volunteers shall
be excess of Attorneys' insurance and shall not contribute with it.
iii. Notice of Cancellation- Each insurance policy required above shall state
that coverage shall not be canceled, except with notice to the City.
f. Waiver of Subrogation- Attorneys hereby grant to City a waiver of any right to
subrogation, which any insurer of said Attorneys may acquire against the City by
virtue of the payment of any loss under such insurance. Attorneys agree to obtain
any endorsement that may be necessary to affect this waiver of subrogation, but
this provision applies regardless of whether or not the City has received a waiver
of subrogation endorsement from the insurer.
g. Self -Insured Retentions - Self -insured retentions must be declared to and approved
by the City. The City may require the Attorneys to purchase coverage with a lower
retention or provide proof of ability to pay losses and related investigations, claim
administration, and defense expenses within the retention. The policy language
shall provide, or be endorsed to provide, that the self -insured retention may be
satisfied by either the named insured or City.
h. Acceptability of Insurers - Insurance is to be placed with insurers authorized to
conduct business in the state with a current A.M. Best's rating of no less than ANII,
unless otherwise acceptable to the City.
Claims Made Policies - If any of the required policies provide coverage on a claims -
made basis:
i. The Retroactive Date must be shown and must be before the date of the
contract or the beginning of contract work.
ii. Insurance must be maintained and evidence of insurance must be provided
for at least five (5) years after completion of the contract of work.
4
iii. If coverage is canceled or non -renewed, and not replaced with another
claims -made policy form with a Retroactive Date prior to the contract
effective date, the Attorneys must purchase "extended reporting" coverage
for a minimum of five (5) years after completion of contract work.
j. Verification of Coverage — Attorneys shall furnish the City with original
Certificates of Insurance including all required amendatory endorsements (or copies of the
applicable policy language effecting coverage requiredby this clause) and a copy of the
Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to
Entity before work begins. However, failure to obtain the required documents prior to the
work beginning shall not waive the Attomey's obligation to provide them.The City reserves
the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time.
k. Subcontractors - Attorneys shall require and verify that all subcontractors maintain
insurance meeting all the requirements stated herein, and Attorneys shall ensure that City
is an additional insured on insurance required from subcontractors.
1. Special Risks or Circumstances — City reserves the right to modify these
requirements, including limits, based on the nature of the risk, prior experience, insurer,
coverage, or other special circumstances
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 retumed/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.
5
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 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: Attention: Mark Austin, Partner
Stephen McEwen, Partner
Burke, Williams & Sorensen, LLP
18300 Von Karman Avenue, Suite 650
Irvine, CA 92612
Facsimile: 949-863-3363
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
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.
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. NON-DISCRIMINATION Attorneys shall not discriminate because of race, color, creed,
religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical
conditions, genetic information, or military and veteran status, age, national origin, ancestry, or
disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching,
training, utilization, promotion, termination or other employment related activities or any services
provided under this Agreement. 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
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.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST:
Jennifer L. Hall
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Kyle C el resen
AssiAft City Attorney
CITY OF SANTA ANA
Kristine Ridge
City Manager
BURKE, WILL MS & SORENSEN LLP
By: fz /VA
Name: Mark J. Austin
Title: Partner