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HomeMy WebLinkAboutBRERETON, MOHAMED & TERRAZAS LLPINSURANCE NOT ON FILE WORK MAY NOT PROCEED CITY CLERK DATE: MAY 2 0 1014 0. GFO Co) (S. Mar PROFESSIONAL SERVICES AGREEMENT WITH BRERETON, MOHAMED. & TERRAZAC LLP This AGREEMENT, made and entered into this 221d day of April, 2024, by and between BRERETON, MOHAMED, & TERRAZAS LLP, a limited liability partnership ("Attorneys"), and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the constitution and laws of the State of California ("City"). RECITALS A. The City of Santa Ana and the City Attorney's Office desire to employ Attorneys to assist the in-house attorneys for the City ("City Attorney") in the provision of legal consultation and litigation services to the City. B. Attorneys represent that they are licensed to practice law in the State of California, have -Special-experienceand-knowledge-for-litigation and-legafconsultationsomises-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: I. 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 legal consultation and litigation matters. 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 compensation at the following rates: Partners $375.00 an hour, Associates $325.00 an hour and Paralegals $165.00 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 $50,000. Any subsequent amendment to this Agreement that increases the not to exceed amount will require approval by the City Council. 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. N-2024-174 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 authorization from City Attorney before retaining experts and consultants. vi. Automobile travel wiII be reimbursed at the standard mileage rate in effect at the timeuf billing..by-tic-ldernsl Rmemre.Service.-----__- vii. Any costs in excess of $S,000 require City Attorney approval prior to incurring the expense. All expenses must have supporting documentation submitted with the invoice. 3, MPTHOD OF PAYW T_ 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. CON IROL 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 Piles then in their possession concerning each and every matter or proceeding in which they represented the City pursuant to this Agreement. 5. R13PORTING REQUIt2EWNTS Attorneys agree to keep the City Attorney, and any other person(s) designated by the City Attorney, informed of significant events in the Actions, 6. TERM The term of this Agreement shall commence on the date first written above and terminate upon the conclusion of the legal consultation and/or litigation matters undertaken herein, unless terminated earlierpursuantto Section 15 below. The term of this Agreement maybe extended for up to one (1) year upon a writing executed by both parties, including the City Manager and the City Attorney. 7, 2M PENDENT 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. 1N5_1MANCE Prior to undertaking performance of work under this Agreement, Attorneys shall maintain and shall require any subcontractors to obtain and maintain insurance as described below for the entire Term of this Agreement against claims for injuries to persons or damage to _property which_may_arise frA or -in connection with -services, products -and ruatedalssupplied_uo. City. Total cost of such insurance shall be borne by Attorneys. MINIMUM SCOPE AND LIMIT OF INSURANCE 1. Professional Liability Insurance; with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 aggregate. If Attorneys maintain broader coverage and/or higher limits than the minimum requirements for each lino of coverage shown above, 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 City. Other Insurance Provisions The above required insurance policies are to contain or be endorsed to contain the following provisions; 1. City, its City Council, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds, under Attorneys' CGL, Professional Liability, and Automobile Liability policies, with respect to any liability arising out of work or operations performed by or on behalf of the Instructor including materials, parts, equipment, and personnel furnished in connection with such work or operations. 2. Attorneys' insurance company(ies) agrees to waive all rights of subrogation against City, its City Council, its officers, officials, employees, agents, and volunteers for losses paid under the terms of any policy which arise from work performed by Attorneys' under this Agreement. 3. For any claims related to this contract, Attorneys' insurance coverage shall be primary acid any insurance maintained by City, its City Council, its officers, officials, employees, agents, or volunteers shall not contribute with it. 4. A severability of interest provision must apply for all the additional insureds, ensuring that Attorneys' insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the insurer's limits of liability. 5. Insurance policies required herein shall provide that coverage shall not be canceled, suspended, voided, reduced in coverage or in limits, non -renewed by the carrier, or materially changed except after thirty (30) days prior written notice has been given to City. Ten (10) days prior written notice shall be provided to City for policy cancellation or non-renowal due to non-payment of premium. 6. Certificate Holder on each Evidence of Insurance certificate shall be: City of Santa Ana, Attention: Sonia R. Carvalho, City Attorney, City Attorney's Office, 20 Civic Center Plaza M-29, Santa Ana, CA 92701. The name and location of project must be included in the Description of Operations section of each certificate. Self-lnsured Retentions Self -insured retentions must be declared to and approved by the City. The City may require the Attorneys -to purehawcoverage-with a lower -retention or- provide-proof-of-abilityto-payL lasses and related investigations, claim administration, and defense expenses within the retention. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the Side of California with a current A.M. Best rating of no less than A:VII, unless otherwise acceptable to City. Verification of Coverage Attorneys shall furnish City with original Certificates of insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Attorneys' obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 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 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 acid 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 Attomoys' 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. 10. CONF11}ENTIALITY 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 Avork- 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 • COTJPLICT OF WIRR&ST 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, NO'ITCE 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 92702-1.988 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: David I. Terrazas, Esq. Partner Brereton, Mohamed, & Tenazas LLP 1362 Pacific Avenue, Suite 221 Santa Cruz, California 95060 Fax:(831)459-8298 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,--Ffsont-by-mail—communication shall.be-effective-or deemed ta.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 asset forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 13. EXCLUSIVrI Y 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 heroof, 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 noticeoftermination. 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_wch rase, City agrees to secure new counsel as quickly as possible and to cooperate fully in the sub$irtrtion of the new counsel as counsel ofrecord in in the Actions. 16, j L0N-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 Ioeal 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 PRO'VI, IS ONS 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 tees, 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. COUNCE_ RRPAA UTS; 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 shalt have the same force and effect as an original, City further acknowledges that it has read and received a copy the Rill 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. N-2024-174 IN WITNESS WHEREOF, the patties hereto have executed this Agreement the day and year first above written. ATTEST: APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By 1 Tamara Bogosian Senior Assistant City Attorney CITY OF OFoSANTA ANA Alvaro Nunez Acting City Manager y�z�/Z- y BRERETON. MOHAMED, & TERRAZAS LLP By: Name: David J. errazas Title: Partner