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HomeMy WebLinkAbout25E - LEGAL SRVS MMDa 0 • .' E416111111 0 • CITY COUNCIL MEETING DATE: MAY 19, 2015 TITLE: AGREEMENT FOR SPECIAL LEGAL COUNSEL SERVICES RELATED TO LEGAL CHALLENGES OF MEASURE BB — MEDICAL MARIJUANA INITIATIVE WITH RICHARDS, WATSON & GERSHON,APC (STRAGIC PLAN NOS. 1, 3, 4, 5) CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute an agreement with Richards, Watson & Gershon, APC, subject to non - substantive changes approved by the City Manager and City Attorney, for legal services related to legal challenges of Measure BB — Medical Marijuana Initiative at the specified rates, for a three -year term ending May 19, 2018, with provisions for one one -year extension, exercisable by the City Manager and the City Attorney for an amount not to exceed $500,000. DISCUSSION Richards, Watson & Gershon, APC, is well known for providing municipal law services to public entities and has done so since 1954. It represents more than 50 public agencies and serves as City Attorney for more than 25 cities. The firm is headquartered in Los Angeles, but has offices in Brea, Temecula, and San Francisco. The City Attorney's Office prepared a request for proposal for the defense of a series of seven (7) lawsuits filed against the City challenging the constitutionality of the City initiative known as Measure BB, and solicited responses from six law firms with specialty experience in defending these types of matters in state court. Richards, Watson & Gershon, APC was selected based upon its municipal law and trial expertise, reasonable billing rates, and significant experience in handling medical marijuana dispensary and zoning litigation matters at the trial and appellate court levels. The City Attorney recommends an agreement with the firm for a three (3) year term with an optional one (1) year extension for a contract amount not to exceed $500,000. The firm will provide legal services at the following rates: $295/an hour for all attorneys and $145 -$166 for paralegals. 25E -1 Special Legal Counsel Services May 19, 2015 Page 2 STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal No. 1 Community Safety, Goal No. 3 Economic Development, Goal No. 4. Government Financial Stability, and Goal No. 5 Community Health, Livability, Engagement and Sustainability. FISCAL IMPACT Funds are budgeted and available in the other contractual services account for the City Attorney's office for FY 2014 -15 in the amount of $80,000. Additionally, funds will be budgeted in other contractual services account for the City Attorney's office for FY 2015 -16 in the amount of $348,070 and for FY 2016 -17 in the amount of $71,930. APPROVED AS TO FUNDS AND ACCOUNTS: Sonia R. Carvalho Francisco Gutierrez City Attorney Executive Director Finance & Management Services Agency Exhlblt: Agreement 25E -2 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this _ day of May, 2015, by and between Richards, Watson & Gershon, a California Professional 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 in -house attorneys for the City ( "City Attorney") in the provision of legal services to the City, 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 municipal litigation, specifically, marijuana dispensary litigation and zoning regulation defense, 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 City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney with a series of lawsuits filed against the City challenging the constitutionality of the City initiative known as Measure BB — City Establishment of Medical Marijuana Collectives and Cooperatives, which are entitled (1) Edinger Marketing Center v. City of Santa Ana, Orange County Superior Court Case No. 30- 2015- 00769605, (2) Orange County Growers Association v. City of Santa Ana, Orange County Superior Court Case No. 30 -2014- 00762130, (3) Terra Collective, Inc. v. City of Santa Ana, Orange County Superior Court Case No. 30 -2014- 00762123, (4) Natures Holistic Alternative Patients Association v. City of Santa Ana, Orange County Superior Court Case No. 30- 201,5- 00782237, (5) Live2Love OC, Inc. v. City of Santa Ana, Orange County Superior Court Case No. 30- 2014 - 00762124, (6) Cream Your Dreams, Inc. v. City of Santa Ana, Orange County Superior Court Case No. 30- 2015 - 00781847, and (7) S.A.P.A. Enterprises, Inc. v. City of Santa Ana, Orange County Superior Court Case No. 30 -2015- 00786325 (collectively, the "Actions "). Said services may also include assisting with any other cases or matters involving Measure BB. Attorneys accept said retention and agree to perfonn, in a timely and efficient manner, all such services as may be requested by the City Attorney. Attorneys shall confmn 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 $295 an hour for all attorneys and $145 -166 an hour for paralegal work. Time will be billed in 1 /10th of an hour increments. The total amount of this Agreement shall not exceed $500,000. b. REIMBURSEMENT 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 City Attorney in connection with the performance of duties under this Agreement. Copying charges will be reimbursed at the rate of to cents per page. 25E -3 Any costs in excess of $5,000 require City Attorney approval prior to incurring the expense. All expenses must have supporting documentation submitted with (lie 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). 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 warder, 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, Director of Personnel, 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 suumrnary 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; 6. TERM The term of this Agreement shall commence on the date first written above and terminate three (3) years from said commencement date, unless teminated earlier pursuant to Section 13 below. The term of this Agreement may be extended for one (1) year at the City's option, upon a writing executed by both parties, including the City Manager and the City Attorney for the City. 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 City Attorney proof of Professional Liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim, and maintain such insurance throughout the 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 light, at the City's election, to forthwith terminate this Agreement. Such termination shall not affect Attorneys' right to be paid for its time and materials expended prior to notification of termination. 9. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harmless the City, its officers, agents, employees, and representatives from liability for personal injury, damages, restitution, judicial or equitable relief to the extent caused by Attorneys' negligent or wrongful performance or conduct related to this Agreement. 25E -4 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 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: Patrick Bobko, Esq. T. Peter Pierce, Esq. RICHARDS, WATSON, & GERSHON 355 South Grand Ave, 40th Floor Los Angeles, California 90071 -3101 Facsimile: (213) 626 -0078 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 25E -5 three (3) days after it has been deposited in the United States mail, duty registered or certified, with postage prepaid, and addressed as set forth above. If sent by tele£a.esimile, 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 terns 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 terns 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. ASSICrNMENT 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 assigntnent, 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. Attomeys may terminate this agreement, subject to their obligation to provide written reasonable notice of at least thirty (3 0) days to arrange alternative representation. In such case, City agrees to secure new counsel as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in in the Actions. 16. DISCRIMINATION Attorneys shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined arnd 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 4 25E -6 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar Cleric of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By:�.e.a✓J.ar ' Teresa L. Judd Assistant City Attorney CITY OF SANTA ANA David Cavazos City Manager RICHARDS, WATSON & GERSHON By: Name: Title: Partner Tax ID No. 25E -7 25E -8