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HomeMy WebLinkAboutItem 18 - Agreement for Special and Limited Legal Counsel ServicesHuman Resources www.santa-ana.org/hr Item # 18 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report July 20, 2021 TOPIC: Agreement for Special and Limited Legal Counsel Services AGENDA TITLE: Approve Agreement with Liebert Cassidy and Whitmore ("LCW") and Approve Amendment to Agreement with Atkinson, Andelson, Loya, Ruud, & Romo ("AALRR") to Provide Special and Limited Legal Counsel Services (General Fund) RECOMMENDED ACTION 1. Authorize the City Manager to execute an agreement with LCW to provide special legal counsel services not to exceed $100,000 for the duration of the term of the agreement expiring June 30, 2024, subject to non -substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager to execute an amendment to the agreement with AALRR to provide limited legal services by increasing the compensation amount by $50,000 (for a total not -to -exceed compensation amount of $100,000) for the duration of the agreement expiring April 14, 2024, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The City has a contractual relationship with LCW for labor negotiations with various unions. LCW has extensive experience working with public sector clientele throughout the State. The Human Resources Department ("HRD") would like to retain LCW to assist with personnel investigations and general Human Resources (HR) advice, including labor relations and other core HR services. Said agreement would be for a three-year term for a not -to -exceed amount of $100,000. On April 15, 2021, the City entered into an agreement with Atkinson, Andelson, Loya, Ruud, & Romo to provide limited legal services to conduct personnel investigations and provide legal advice related to such investigations. Staff reached out to multiple law firms to provide similar services. AALRR was amongs the first of said firms to be engaged and began providing services as needed by City staff. City staff is recommending this increase in compensation to conclude pending personnel investigations and allow staff to call upon AALRR for services, as necessary, to conduct additional investigations or respond to requests for legal advice stemming from said investigations. Agreement for Special and Limited Legal Counsel Services July 20, 2021 Page 2 FISCAL IMPACT Funds are budgeted and available in the Human Resources Services, Contract Services - Professional account (no. 01109050 — 62300) for FY 2021-22. The table below indicates the estimated expenditures by fiscal year for LCW. Any remaining balances not expended at the end of the agreement term will be carried forward for expenditure into FY 2022-23 and FY 2023-24. Fiscal Year Accounting Unit — Fund, Account Description Amount Account No. 2021-22 01109050-62300 Human Resources Services, $33,334.00 Contract Professional 2022-23 01109050-62300 Human Resources Services, $33,333.00 Contract Professional 2023-24 01109050-62300 Human Resources Services, $33,333.00 Contract Professional Total $100,000.00 Funds are budgeted and available in the following Human Resources Services, Contract Services -Professional account (no. 01109050 — 62300) for FY 2021-22. The table below indicates the estimated expenditures by fiscal year for AALRR. Any remaining balances not expended at the end of the agreement term will be carried forward for expenditure into FY 2022-23 and FY 2023-24. Fiscal Year Accounting Unit — Fund Description Amount Account No. 2021-22 01109050-62300 Human Resources Services, $30,000.00 Contract Professional 2022-23 01109050-62300 Human Resources Services, $10,000.00 Contract Professional 2023-24 01109050-62300 Human Resources Services, $10,000.00 Contract Professional Total $50,000.00 EXHIBIT(S) 1. Agreement for Limited Legal Services with Liebert Cassidy and Whitmore 2. First Amendment to Limited Legal Services Agreement with Atkinson, Andelson, Loya, Ruud, & Romo Submitted By: Jason Motsick, Executive Dir Human Resources Approved By: Kristine Ridge, City Manager LIMITED LEGAL SERVICES AGREEMENT This limited legal services agreement ("Agreement") is made and entered into this 20th day of July, 2021, by and between Liebert Cassidy & Whitmore, a Professional Law Corporation ("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. City desires to employ Attorneys to assist the Executive Director of Human Resources in providing Human Resources advice, conducting personnel investigations, labor negotiations and labor relations, and B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge in the field of public employment law and conducting personnel investigations. 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 City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the Executive Director of Human Resources as needed with Human Resources advice, conducting personnel investigations, labor negotiations, and employee relations. Attorneys accept said retention and agree to perform, in a timely and efficient manner, all such services as may be requested by the Executive Director of Human Resources. Attorneys shall confirm their acceptance of work requested by City in writing by e- mail or letter. 2. PAYMENT FOR SERVICES RENDERED a. FEES City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all services for the foregoing Actions, compensation at the rate of $390 an hour for all partners, $335 an hour for all senior associates, $220-$315 an hour (depending on experience) for all associates, $135 an hour for all paralegals. Time will be billed in 1/10th of an hour increments. If City requests that Attorney's support staff transcribe recorded interviews of witnesses, then Attorneys shall bill the support staff at $75 per hour for these transcription services. During the term of this Agreement, the total amount authorized for services pursuant to this Agreement is one hundred thousand dollars and no cents ($100,000.00). b. REIMBURSEMENT FOR COSTS City agrees to reimburse Attorneys for out-of- pocket expenses, including but not limited to, mileage, copying costs, service of process, mail services, and any relevant services authorized by the Executive Director of Human Resources in connection with the performance of duties under this Agreement. Copying charges will be reimbursed at the rate of 10 cents per page. Any costs in excess of $5,000 require approval of the Executive Director of Human Resources prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice. 006085.00005 13457441.1 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.). 4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the Executive Director of Human Resources, as aforesaid, shall be and remain under, and subject to the control and direction of said Executive Director of Human Resources at all stages, and that they shall at all times keep the Executive Director of Human Resources informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys under this Agreement. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to the Executive Director of Human Resources 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. PROVISIONS APPLICABLE TO PERSONNEL INVESTIGATION SERVICES A. LIMITATION ON LEGAL SERVICES The scope of this representation is limited. Attorneys will make factual findings, utilizing Attorneys' legal skills, knowledge, and experience in so doing. Attorneys will not render a legal determination whether there was unlawful discrimination, harassment, violation of public policy, or a violation of any other law or statute for investigations under this Agreement. The Santa Ana City Attorney will advise the City with respect to issues of attorney - client privilege, scope of privilege, waiver, and work product in connection with services provided under this Agreement. The City and Attorneys intend that Attorneys' investigations will be covered by the attorney -client privilege and attorney -work product privilege to the extent legally permitted, although Attorneys understand that the City may choose to waive the privilege in the future. The City specifically gives its informed consent to a limited scope engagement and understands that it may seek independent legal advice concerning the proposed limited scope engagement if it wishes. B. CITY COOPERATION City agrees to make available the witnesses and documents requested by Attorneys to permit Attorneys to perform this independent investigation. The City will designate an employee as the primary point of contact for the City for each investigation performed under this Agreement. This will include arranging access to witnesses and documents and arranging a location for interviews. C. REPORTING REQUIREMENTS Unless otherwise directed, Attorneys will provide a written report to the Executive Director of Human Resources for each investigation conducted under this Agreement. Upon the conclusion of any investigation, at the Executive Director of Human Resource's request, the Attorneys may also provide, in a privileged document separate from the report, recommendations to assist in resolution of any or all substantiated findings. 006085.00005 2 13457441.1 D. NO GUARANTEES It is understood that there is no guarantee or assurance that any particular result will be reached in any investigation conducted under this Agreement. E. RELATED POST -INVESTIGATION SERVICES If Attorneys are asked or required to prepare for and/or testify, including, without limitation, at deposition, trial, arbitration or any other proceeding, because of services rendered under this Agreement, if Attorneys must respond to subpoenas or discovery or otherwise respond or perform services with respect to any matter relating to or arising out of the services performed for City, City agrees to pay Attorneys for all time expended (including preparation time) at Attorneys' then current regular hourly rate and to reimburse Attorneys for reasonable costs and expenses incurred, whether or not the investigation has been concluded. This includes reasonable costs of legal representation. Payment is due upon presentation of a bill for services, costs, and expenses. 6. TERM The term of this Agreement shall commence on the date first written above and terminate three (3) years thereafter, 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 A. Attorneys shall provide to the Executive Director of Human Resources proof of 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: i. 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 $1,000,000 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. ii. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if Instructor has no owned autos, Code 8 (hired) and 9 (non -owned), with limits no less than $1,000,000 per accident for bodily injury and property damage. iii. Workers' Compensation: 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. 006085.00005 13457441.1 iv. Professional Liability_(errors and omissions) insurance: with a combined single limit of not less than $2,000,000 per claim, and maintain such insurance throughout the term of this Agreement. B. If the Attorneys maintains broader coverage and/or higher limits than the minimums shown above, the City of Santa Ana requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Attorneys. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City of Santa Ana. C. 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 the 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 the Attorney's 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 if a later edition is used). ii. Primary Coverage- For any claims related to this contract, the Attorney's 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 the Attorney's insurance and shall not contribute with it. iii. Notice of Cancellation- Certificate of Insurance shall provide thirty (30) day prior written notice of cancellation in a form approved by the City. D. Waiver of Subrogation- Attorneys hereby grants to City of Santa Ana a waiver of any right to subrogation, which any insurer of said Investigators may acquire against the Entity by virtue of the payment of any loss under such insurance. Attorneys agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the Entity has received a waiver of subrogation endorsement from the insurer. E. 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 Attorney's right to be paid for its time and materials expended prior to notification of termination. 006085.00005 4 13457441.1 9. INDEMNIFICATION A. 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 arising out of Attorneys' negligent or wrongful performance or conduct related to this Agreement. B. Since one the purpose of the Attorneys' engagement is to assist the City in determining the facts related to personnel complaints, the City agrees to the following limited indemnity language as to investigative services provided under this Agreement. The City agrees to indemnify, defend and hold Attorneys, its successors and assigns, and each of its officers and employees, harmless from any and all claims, suits, demands, losses and expenses, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms, or other entity arising out of Attorneys' performance or non-performance of its personnel investigation obligations under this Agreement, unless an error or erroneous omission by Attorneys cause such damage or loss. The City shall not indemnify Attorneys for any matter involving a claim by the City of professional negligence, or any matter for which Attorneys shall have been adjudicated to have acted in bad faith or engaged in willful misconduct or any conduct outside the scope of its retention under this Agreement. This Agreement in no way limits the Attorneys' liability for professional malpractice under California Rule of Professional Conduct 3-400. 10. CONFIDENTIALITY If Attorneys receive from the City information, which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Attorneys agree that it shall not use or disclose such information except in the performance of this Agreement, and further agree to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. 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. 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: 006085.00005 5 13457441.1 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 Fax: (714) 647-6956 Courtesy Copy: Executive Director of Human Resources City of Santa Ana 20 Civic Center Plaza (M-24) Santa Ana, California 92702 Fax: (714) 647-6930 To Attorneys: Attention: J. Scott Tiedemann, Managing Partner Liebert, Cassidy & Whitmore, APC 6033 W. Century Boulevard, 51h Floor Los Angeles, California 90045 Fax: (310) 337-0837 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. 006085.00005 6 13457441.1 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. 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, 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, email, 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. [Signatures are on the next page] 006085.00005 13457441.1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Daisy Gomez, CMC Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: LttnL3t- A. R9-40� Laura A. Rossini Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: Jason Motsick Executive Director of Human Resources CITY OF SANTA ANA Kristine Ridge City Manager LIEBERT, CASSIDY & WHITMORE, APC. By: Name: J. Scott Tiedemann Title: Managing Partner 006085.00005 13457441.1 FIRST AMENDMENT TO LIMITED LEGAL SERVICES AGREEMENT WITH ATKINSON, ANDELSON, LOYA, RUUD & ROMO APC THIS FIRST AMENDMENT to the above -referenced agreement is entered into on July 20, 2021, by and between Atkinson, Andelson, Loya, Rudd & Romo, a California Professional Law Corporation ("Attorneys"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). RECITALS A. The parties entered into Agreement No. N-2021-066, dated April 15, 2021, by which Attorneys agreed to provide limited legal services conducting personnel investigations ("Agreement"). B. The parties wish to amend the Agreement to add additional compensation to cover additional services under this Agreement. The Parties therefore agree: 1. Section 2a, Fees, is amended to increase the total agreement not to exceed amount from fifty thousand dollars and no cents ($50,000.00) to one hundred thousand dollars and no cents ($100,000.00); and 2. Except as modified by this First Amendment, all terms and conditions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement on the date and year first written above. ATTEST Daisy Gomez Clerk of the Council Signatures continue on the next page Page 1 CITY OF SANTA ANA Kristine Ridge City Manager APPROVED AS TO FORM Sonia R. Carvalho City Attorney By:L. A - Laura A. Rossini Chief Assistant City Attorney RECOMMENDED FOR APPROVAL Jason Motsick Executive Director Human Resource Agency Page 2 CONSULTANT � n Name: Title: INSURANCE NOT ON FILE WORK MAY NOT PROCEED N-2021-066 CLERK OF COUNCIL DATE: LIMITED LEGAL SERVICES AGREEMENT I APT O "This limited legal services agreement ("Agreement") is made and entered into this l-5 day of-M-&mh, 2021, by and between Atkinson, Andelson, Loya, Ruud & Romo, a Professional Law Corporation ("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. City desires to employ Attorneys to assist the Executive Director of Human Resources in conducting persoruiel investigations and providing legal advice related to such investigations to the City, and B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge iii the field of public employment law and conducting personnel investigations. 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 City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the Executive Director of Human Resources as needed with conducting personnel. investigations. Attorneys accept said retention and agree to perform, in a timely and efficient manner, all such services as may be requested by the Executive Director of Human Resources. Attorneys shall confirm their acceptance of work requested by City in writing by e-mail or letter. 2. PAYMENT FOR SERVICES RENDERED a. FEES City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all services for the foregoing Actions, compensation at the rate of $315 to $395 an hour for all attorneys (rate is dependent on experience) and not to exceed $150 an hour for necessary travel time. Time will be billed in I/10th of an hour increments. If a paralegal is utilized, the paralegal hourly rate shall be $175 an hour. If City requests that Attorneys support staff transcribe recorded interviews of witnesses, then Attorneys shall bill the support staff at $70 per hour for these transcription services. During the terra of this Agreement, the total amount authorized. for services pursuant to this Agreement is fifty thousand dollars and no cents ($50,000.00). b. REME URSEMENT FOR COSTS City agrees to reimburse Attorneys for out-of- pocket expenses, including but not limited to, mileage, expert witness fees, copying costs, service of process, and mail services authorized by the Executive Director of Human Resources in connection with the performance of duties under this Agreement. Copying charges will be reimbursed at the rate of 10 cents per page. Any costs in excess of $5,000 require approval of the Executive Director of Human Resources 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.). 006085.00005 13457441.1 4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the Executive Director of Human Resources, as aforesaid, shall be and remain under, and subject to the control and direction of said Executive Director of Human Resources at all stages, and that they shall at all times keep the Executive Director of Human Resources informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys under this Agreement. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to the Executive Director of Human Resources 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. LIMITATION ON LEGAL SERVICES The scope of this representation is limited. Attorneys will make factual findings, utilizing Attorneys' legal skills, knowledge, and experience in so doing. Attorneys will not render a legal determination whether there was unlawful discrimination, harassment, violation of public policy, or a violation of any other law or statute for investigations under this Agreement. The Santa Ana City Attorney will advise the City with respect to issues of attorney -client privilege, scope of privilege, waiver, and work product in connection with services provided under this Agreement. The City and Attorneys intend that Attorneys' investigations will be covered by the attorney -client privilege and attorney -work product privilege to the extent legally permitted, although Attorneys understand that the City may choose to waive the privilege in the future. The City specifically gives its informed consent to a limited scope engagement and understands that it may seek independent legal advice concerning the proposed limited scope engagement if it wishes. 6. CITY COOPERATION City agrees to make available the witnesses and documents requested by Attorneys to permit Attorneys to perform this independent investigation. The City will designate an employee as the primary point of contact for the City for each investigation performed under this Agreement. This will include arranging access to witnesses and documents and arranging a location for interviews. 7. NO GUARANTEES It is understood that there is no guarantee or assurance that any particular result will be reached in any investigation conducted under this Agreement. 8. REPORTING REQUIREMENTS Unless otherwise directed, Attorneys will provide a written report to the Executive Director of Human Resources for each investigation conducted under this Agreement, Upon the conclusion of any investigation, at the Executive Director of Human Resource's request, the Attorneys may also provide, in a privileged document separate from the report, recommendations to assist in resolution of any or all substantiated findings. 9. TERM The term of this Agreement shall commence on the date first written above and terminate three (3) years thereafter, unless terminated earlier pursuant to Section 19 below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney. 10. 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. 006085,00005 13457441.1 11. INSURANCE Attorneys shall provide to the Executive Director of Human Resources 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. 12. 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 arising out of Attorneys' negligent or wrongful performance or conduct related to this Agreement. Since the purpose of the Attorneys' engagement is to assist the City in determining the facts related to internal personnel complaints, the City agrees to the following limited indemnity language. The City agrees to indemnify, defend and hold Attorneys, its successors and assigns, and each of its officers and employees, harmless from any and all claims, suits, demands, losses and expenses, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms, or other entity arising out of Attorneys' performance or non-performance of its obligations under this Agreement, unless an error or erroneous omission by Attorneys cause such damage or loss. The City shall not indemnify Attorneys for any matter involving a claim by the City of professional negligence, or any matter for which Attorneys shall have been adjudicated to have acted in bad faith or engaged in willful misconduct or any conduct outside the scope of its retention under this Agreement. This Agreement in no way limits the Attorneys' liability for professional malpractice under California Rule of Professional Conduct 3- 400. 13. RELATED POST -INVESTIGATION SERVICES If Attorneys are asked or required to prepare for and/or testify, including, without limitation, at deposition, trial, arbitration or any other proceeding, because of services rendered under this Agreement, if Attorneys must respond to subpoenas or discovery or otherwise respond or perform services with respect to any matter relating to or arising out of the services performed for City, City agrees to pay Attorneys for all time expended (including preparation time) at Attorneys' then current regular hourly rate and to reimburse Attorneys for reasonable costs and expenses incurred, whether or not the investigation has been concluded. This includes reasonable costs of legal representation. Payment is due upon presentation of a bill for services, costs, and expenses. 14. CONFIDENTIALITY If Attorneys receive from the City information, which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Attorneys agree that it shall not use or disclose such information except in the performance of this Agreement, and further agree to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. 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 006085.00005 13457441.1 by operation of law; or (e) is independently developed by the Attorneys without reference to information disclosed by the City. 15. 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. 16. 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 92702-1998 Fax: (714) 647-6956 Courtesy Copy: Executive Director of Human Resources City of Santa Ana 20 Civic Center Plaza (M-24) Santa Ana, California 92702 Fax: (714) 647-6930 To Attorneys: Attention: Irma Rodriguez Moisa Atkinson, Andelson, Loya, Ruud & Romo, APC 12800 Center Coma Drive, Suite 300 Cerritos, California 90703 Fax: (562) 653-3333 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. 17. 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 006085.00005 13457441.1 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. 18. 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. 19. 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. 20. 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, 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. 21. 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. 22. 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. 23. COUNTERPARTS; SIGNATURES This Agreement may be executed in counterparts, secured via facsimile transmission, email, 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. 006085.00005 13457441.1 N-1,01t -06(a IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: F f Daisy Gomez, CMC Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: ltl� A. � Laura A. Rossini Chief Assistant City Attorney RECOMMENDED FOR APPROVAL: son Motsick Executive Director of Human Resources 006085.00005 13457441.1 CITY OF SANTA ANA Kristine Ridge City Manager ATKINSON, ANDELSON, LOYA, RUUD & ROMO, APC. By: Name: Inna Rodriguez Moisa Title: Partner Tax ID No. 95-3378600