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Home My WebLink AboutSTEPHAN, ORINGHER, RICHMAN & THEODORA 1A - 2006 ...,\uKI\NCE NOI ON HLt WORK MAY NOI PROCEED CLERK OF COUNCIL DATE: OCT 2 5 2006 0: UtD (;2.) lr S(~ A-2006-209 FIRST AMENDMENT TO LEGAL SERVICES AGREEMENT This AGREEMENT, made and entered into this third day of October, 2006 by and between Stephan, Oringher, Richman, Theodora & Miller, P.C. (hereinafter "Attorneys"), and the City of Santa Ana, a charter city and municipal corporation of the State of California ("City"). RECITALS A. The parties hereto entered into a certain agreement dated May 8, 200 I hereinafter referred to as "said agreement as amended," for the purpose of employing ATTORNEYS to assist the City Attorney in the defense of actions for damages against the City, its agencies, officers and employees. B. CITY and ATTORNEYS desire to amend the fee schedule of said agreement as amended. 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. SCOPE OF SERVICES Attorneys agree to provide all services necessary to defend the City from claims and lawsuits filed against the City (the "Scope of Work"). 2. COMPENSATION City agrees to compensate Attorney, and Attorneys agree to accept from City, as and for payment in full for all of said services in regard to each such action, compensation at a maximum rate of$195.00 per hour. The City shall reimburse Attorneys for their actual and reasonable out -of-pocket expenses incurred within the scope of services under this Agreement. Permissible expenses shall include long distance telephone charges, travel (subject to prior approval by the City Attorney), photocopying and telefacsimile charges, filing fees and other similar expenses that are usually incurred in connection with legal representation. Attorneys agree that without written consent of City, only the following attorneys and paralegals shall be allowed to bill for services under this agreement: Martha Shen-Urquidez David Mead Efrat Cogan Jeffrey Hook Lisa Barley Jerome Friedberg Paul Sorce City, shall, within 30 days of receipt ofa bill for services rendered, pay Attorneys' fees and costs, as identified in this AGREEMENT, subject to the City's accounting procedures. 3. TERM This Agreement shall commence on the date first written above, and shall continue until otherwise terminated pursuant to section 12 of this agreement. 4. INDEPENDENT CONTRACTOR Attorneys shall, during the entire term of this Agreement, be construed to be independent contractors and not employees of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Attorneys performs the services which are the subject matter of this Agreement; however, the services to be provided by Attorneys shall be provide in a manner consistent with all applicable standards and regulations governing such services. Attorneys shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Attorneys shall provide proof to the City Attorney of Professional Liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000,000 per claim, and maintain such insurance throughout the Term. If Attorneys fails or refuses to produce and maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to 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. Attorneys waive the right to receive compensation and agree to indemnify the City for any work performed prior to approval of insurance by the City. 6. CONFIDENTIALITY If Attorneys receives 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 agrees 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 2 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 apply7 to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault or 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 oflaw; or (e) is independently developed by the Attorneys without reference to information disclosed by the City. 7. 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. 8. 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: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) PO Box 1988 Santa Ana, California 92702 telefacsimile (714) 647-6515 To Attorneys: Stephan, Oringher, Richman, Theodora & Miller, P.c. 2029 Century Park East, 6th Floor Los Angeles, California 90067 Attn: Martha Shen telefacsimile (310) 551-0283 A party may change its address by gibing 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, any notice, tender, demand, delivery, or other 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, any notice, tender, demand, delivery, or other 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 3 forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 9. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Attorneys, and supersedes ay 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, that terms and conditions hereof, shall not bind or obligate Attorneys nor 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 party, which are not embodied herein. 10. 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 to this Agreement performed by City personnel or by other Attorneys retained by City. 11. TERMINATION This Agreement may be terminated by either party upon thirty (30) days written notice of termination to the other party. In such event, Attorneys shall be entitled to receive and the City shall pay Attorneys compensation for all services performed by Attorneys prior to the receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, Attorneys shall deliver to the City all files and records generated under this Agreement as of such date. b. Payment need not be made for work that fails to meet the standard of performance specified in the Recitals of this Agreement. 12. DISCRIMINATION Attorneys shall not discriminate because ofrace, 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 4 an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. CONTROL OF LEGAL MATTER Attorney 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. Attorneys further agree, that if and when their employment 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. 14. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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. 15. 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 the 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. 5 SANTA ANA CITY ATTY Fax:714-647-6515 Oct 11 2006 13:57 P.07 IN WITNESS WHEREOF. the parties hereto have executed this Agreement the day and year first above written. ATTEST: ~. Patricia E. Healy Clerk of the Cooncil APPROVED AS TO FORM: ~L City Attorney CITY OF SANr A ANA: ~[ c...--'David N. Ream . 1"- City Manager STEPHAN, ORINGHER, RlCHMAN , THEODORA & MILLER, P.c. Partner T. Qv, ~"'u 6 .O:. ') 2C:6 3 34?W ( SC, ~ 1_ a w \0 '35' 2 ~~&-o~ --- 2 Professional Liability Division Chums' (800) 531-2297 Customer Service: (888) 972-1795 Sales: (800) 299-4331 Prepared for: Contact: Policy NUIIlber: Policy Term: Policy Period; Type oflnsumnce: Attorneys: Retro Date: ~ GREAlAMERICAN.. INSURANcE GROUP LEGAL PROFESSIONAL LIABILITY BINDER OF COVERAGE FOR Stepban, OrlDgber, Rlcbman, Tbeodora & Mil/er, P.c. 2029 Century Park East, Sixth Floor Los Angeles, CA 90067 mamarino@sortm.com Phone: (310) 788-3600 Fu;: (310) 277-0634 Thursday, August 31, 2006 Stephanie Hwwitz - AON Risk Services of New York Miles D. Amarino LPL5542283 One Year 9/112006 to 9/112007 Legal Professional Liability-Claims Made Form CG8042 48 attorneys, 2 of counsels and 2 independent contralJtorn 3/11199] Thank you for choosing Great American as the legal professionalliabiJity carrier for your finn. This letter coufirms that you have accepted our insumnce quotation which has heen bouod, effective 12:01 A.M. Standard Time, Friday, September 01, 2006. Limits per Claim: Limits Aggregate: S 10,000,000 SIO,OOO,OOO Deductible: Early Reporting Deductible: S100,OOO S100,OOO fjff? / , www.groatamarlcanlawyar.com Gn.>t~hunraaQr"~.~&r..,.G-o.,,M~lc;.o.p~~IniIm'II\YGlolp ej. ~c: '. 1) 2886 ;. :LF~ . . so; T . a w dtt:: 0 ,u cl . f18/ et12flB6 11 , e3 2123446197 RISK SPECIALISTS CO. ~ 0 ';;! F. 3 PAGE B1/85 r Risi( Sp6CilJ/~tll Complmy of NY. Inc. 80 Pine Street. 4'" Floor New YOlk. NY 70005 212-770-213.2 Fax: 212-344-3281 Confirmation of Blndin!{ bate: September 1, 2006 To: Aon Risk Services, Inc. 55 East 52"" St. N.Y.. N.Y. Attn: Stephanie Hurwitz From: Mik,e McGlone Insured: Stephen. Oringher, Richman, Theodora &. Miller, P.C. 2029 Century Park East Sixth Floor Los Angeles. CA. 900B7 2907 ( We have received confirmation of binding from Lexington Insurance Company for the following coverage: Policy No: 759 9989 Eft. Date: 9/01/2006 Exp. Date: 9/01/2007 Coverage: Excess lawyers' Profe~sionlll Liability Policy Form: Aon issued Memorandum of Insurance limits of U2!lblllty: $5,000,000 each clalm!$5.000,000 annualllggraQete excess of $10.000,000 each cleim/$1 0,000.000 annual aggregatll excess underlying Retention of $100,000 each and Bvery claim! $100,000 lInnual aggregate Defense Expenses are: Inside the policy limit Deductible: $100,000 each and every claim! $100,000 annual aggregate Inclusive of claim Ilxpense & in the evant LexIngton becomes llrsl dollar. \. ~p5