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HomeMy WebLinkAboutCOLANTUONO, HIGHSMITH & WHATELY, PCINSURANCE ON FU; WORK MAY PROCEED UNTIL INSURANCE .X,F) Fs, 1 -------- ._ .... . - CLCRKCOUNCIL SPECIAL LEGAL COUNSEL SERVICES AGREEMENT "t This AGRREMENT, made and entered into this` yli clay of October, 2014, by and between Colantuono, Highsmith & Whatley, PC, a California Professional Corporation ( "Attorneys "), and the City of Santa Ana, a charter city and municipal corporation duly organized grid existing under the constitution and laws of Clue State of California ( "City"), RECITALS " A, City desires to employ Attorneys to assist the 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 lnnowledge in the field of public entity finance issues, specifically, User Utilities Tax, and Class Action litigation defense and desire to undertake said services. NOW TIdEREFORF, in consideration of the mutual and respective promises, and subject to the terns and conditions hereinafter set forth., the parties agree as follows: I. RETENTION OF ATTORNEYS City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney in litigation services related to City matters and other legal issues when and as requested by the City Attorney to do so. Attorneys accept said retontiou and agree to perform, in timely and ofdcient manner, all such services as may be requested by the City Attorney, Attorneys shall coutirnn 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 payroorat in full for all of said services in regard to each slash action, compensation at the rate of $375 an hots for Michael G, Colantuono and holly 0, Whatley, $305 an hour for Charlie LaPlaute and $245 an hour for Let Aslanian in attorney billing. Paralegal work will be charged at $160 an hour. A- 2014 -242 B. gBlKRLJRSEXEN:L'OR C QaT� City agrees to reimburse Attorneys for out -o£ pocket expenses, including but not limited to, mileage, export 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, Any costs in excess of$5,000 "require City Attorney approval prior to incurring the expense. Alt expenses must have supporting documentation submitted with the invoice. 3. MI ?,TROD OF PAYMF+NT Attorneys shalt submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto with supporting documentation (Le. receipts, invoices, copy of check, etc), 1 25H -12 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 Linder, 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 infonned of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any represantation 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 anyone other persan(s) designated. by the City informed of significant events in the litigation, including but not limited to trial date, filing of motions for summary judgment, hearing date for motion for summary judgment, settlement conference date, and mediation date, Attorneys also agree to provide the following reports: a. 45 day initial evaluation of case and budget; and b. Pre -trial report 90 days before trial; 6. TERM The term of this Agreement shall confrence on the date first written above and terminate three (3) years from said commencement date, unless terminated earlier pursuant to Section 13 below. The term of this Agreement may be extended upon a writing executed by both . parties, including the City Manager and the City Attorney for the City. 7. INDEPENDENT CONTRACTORS It is annually 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. 1N511RRANCE 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 rolbse to produce and maintain the insurance required by this section, or fail or refuse to furnish the City with required proof that insuranco 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. 7. 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 oat of Attorneys' negligent or wrongful performance or conduct of this Agreement. 8. CONFIDENTIALITY If Attorneys receive from the City information, which due to the nature of suoh information is reasonably understood to be confidential and/or proprietary, Attorneys agree that it shall not use or disoioso 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 2 yy�� 25H-13 information of like irnportancc, 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 ineans, 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 Attomeys without reference to information disclosed by the City. 9. CONFLICT OF INTEREST CLAUS F 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. 10. 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 snail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clork 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) 617 -6515 To Attorneys: Michael G. Colantuono, Esq, Colantuono, Highsmith & Whately, PC 11364 Pleasant Valley Road Penn Valley, CA 95946 Fax: (530) 432-7356 A party may chatigo its address by giving notice in writing to the ottter party. Thareafter, any notice, tender, demand, delivery, or other commiuucation 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 telefacsiinile, communication shit be effective or deemed to have been given twonty- #our (24) Hours after the time set forth on 3 25H-14 the tr<vrsmission report: issued by the transmitting facsimile machine, addressad as set forth above, For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be exoluded 11. 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 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 patty 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. 12. 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. 13. 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 alt services performed by Attorneys prior to receipt of such notice of tennination. As a condition of such payment, Attorneys shalt deliver to the City all files and records generated under this Agreement as of such date. Attorneys may terminate this agreement, subject to their o'b'ligation to provide reasonable notice 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 any litigation in which Attorneys may be involved. t4. AlSCRIANATJON Attorneys shall not discriminate, because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recrrutment, 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 taws and regulations, 15. JURISDICTION — VENUE This .Agreement has bean 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 rq 4 26 H -15 action or proceeding that clay be brought or arise out of, in connection with or by reason of this Agreement. 16. MISCELLANE'O_U6 PRO7yJSIONS 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. IN WITNESS WHEREOF, the parties hereto have execrated this Agreement the clay and year first above written. ATTEST: r Clerl< of the Cormeil Maria D. IIuizar APPROVED AS TO FORM: SONIA.R. CARVAL,I,1'0 City Attorney Sy: .' eMSandova7 hief Assistant City Attorney CITY OF � -TA ANAL J David Cavazos City Manager COLANTUONO, HIGHSMIT'H & WHXFLBY, IBC; Sy. Name: Michael G. Colantuono Title: PHrtner _ Tax ID No. AC"RDV CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDDIYYYY) CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, 4/17/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(tes) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement s). PRODUCER CO gobin Paul Shaw Moses Mendenhall and Associates PHONE (fi26)799 -7513 F .(6267799 -8784 625 Fair Oaks Ab`U`gLESEU robinmsmmainsurance. com Suite 15S INSURERS AFFORDING COVERAGE NAICN South Pasadena CA 91030 INSURER A:CitizenS Insurance Co an of m 31534 INSURED INSURER B:Carolina Casualty Ina Co. COLANTUONO, HIGHSMITH & INSURER C- $ 2,000,000 WHATLEY, PC. INSURER D: 11364 PLEASANT VALLEY RD INSURER E: -MADE OCCUR PENN VALLEY CA 95946 INSURER F: COVERAGES CERTIFICATE NIIMRFR•CL154904 qP4 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE S eR POLIO NUMBER P LIOYEPP POLDDYEXP LIMITS X COMMERCIALGENERALUAEILITY CLAIMS ❑X EACHOCCURRENCE $ 2,000,000 A -MADE OCCUR a are' $ 300,000 $ 5,000 OB39898667 4 /1/2015 4/1/2016 MED EXP(An one person PERSONAL& AM INJURY $ 2,000,000 AGGREGATE LpIIMoII.T. APPLIES PER: GENERAL AGGREGATE $ 4,000,000 GEN'L X POLICY ❑jpOT LOG PRODUCTS- COMPIOPAGG $ 4,000,000 Employee Bents $ 1,000,000 OTHER; AUTOMOBILE LIABILITY COMONE ING LIMIT $ Eaawi n A ANY AUTO BODILY INJURY (Per person) $ AU OS SCHEDULED AUTOS AUTOS 0839898667 4 1/2015 / 4/1/2016 BODILYINJURV PeraccHeni $ HIRED AUTOS NONOWNE'D AUTOS R PE TY DAMAGE $ P r cden UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS.MADE DEC) RETENTION $ WORKERS COMPENSATION PT TUTS AND EMPLOYERS'LIABILITY YIN ERH E.L. EACH ACCIDENT $ 11000,000 ANY PROPRIETORIPARTNERIEXECUTIVE OFFICERWEM8ER EXCLUDED? ❑NIA E.L. DISEASE -EA EMPLOYE $ 1 D00-0-,000 A (Mandatory in NH) tt yos, describe under w939898674 4/1/2015 4/1/2016 E.L. DISEASE • POLICY LIMIT 1 000 ODO DESCRIPTION OF OPERATIONS baop B 1360590 4/4/2015 4/4/2016 2,000,00014,000,000 PROFESSIONAL LIABILITY 25,000 DEDUCTIBLE DESCRIPTION OF OPERATIONS I LOCATIONS /VEHICLES IACORD 101, Additional RV r cheduly, may be ansahotl i fmorespeceis required) CERTIFICATE HOLDER IS AN ADDITIONAL INSURED.M PECTS GENERAL LIABILITY FOR WORK PERFORMED BY NAMED INSURED 5, TO rORM P - ose Sandoval ttorney CITY OF SANTA ANA 20 CIVIC CENTER PLAZA 7TH FL SANTA ANA, CA 92701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. REPRESENTATIVE Paul /RSP -; `b _ riahts AUL)KO LO t2U14 1UT) The ACORD name and logo are registered marks of ACORD INSD2512414e11