HomeMy WebLinkAboutBEST, BEST & KRIEGER, LLPINSURANCE NOT ON FILE
WORK MAY -N.QT PROCEED
CLERK OF COUNCIL
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A-2018-227
This AGREEMENT, made and entered into this 18th day of September, 2018, by and between
Best, Best & Krieger LLP ("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").
A. The City of Santa Ana and the City Attorney's Office desires to employ Attorneys to assist
the in-house attorneys for the City in the provision of legal services to the City, for legal
analysis, audit and legal advice relater] to payroll practices, public employment taxation
matters, and employee benefit matters by a firm with specialized expertise.
B. Attorneys represent that they are licensed to practice law in the State of California, have
special experience and knowledge related to payroll practices, public employment taxation
issues, and employee benefit matters and desire to undertake said services.
NOW TIIEREPORE, in oonsideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows;
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A. City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and
for payment in full for all services for the Assignment, Partners will be billed at the rate of $3504425
an hour, $290 for all Assooiate0ension Consultant, and $180 an boor for paralegals and law clerks,
Time will be billed in 1110th of an hour increments.
b. The total sum to be expended under this Agreement, shall not exceed two hundred
thousand d ($200,000), 111 , A periods.
C. City agrees to reirnburso 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's Office in connection with the performance of duties under this Agreement. In-house
printing, copying, and reproduction charges will be reimbursed at the rate of 20 cents per page.
Automobile travel will be reimbursed at the standard mileage rate in effect at the time of billing by
the Internal Revenue Service, Any costs in excess of $5,000 requires the approval of a Senior
Assistant or Assistant City Attomeyprior to in
documentation submitted with the invoice, curring the expense. All expenses must have supporting
3• METHOD OF PAYMENT 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 (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.
4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or
proceeding in which they undertake to assist the City Attorney's Office, as aforesaid, shall be and
remain under, and subject to the control and direction of the assigned Senior Assistant CityAttomey
or Assistant CityAttomey at all stages, and that they shall at all times keep the CityAttorney's Office
informed of all matters pertaining thereto. City will keep Attorneys informed of all significant
developments in matters relating to the Assignment undertaken byAttorneys. Attorneys further agree_
if and when their retention hereunder is terminated by City, as hereinafter specified, ihey shall return
to City Attorney's Office any and all files then in their possession concerning the Assignment.
5. liEPORTING REQUIREMENTS Attorneys agree to keep the City Attorney's Office, and
any other person(s) designated by the City Attomey's Office, informed of significant findings and at
a minimum provide an update on the status of the Assignment every thirty (30) days. Attorneys also
agree to provide the City Attorney's Office an audit report(s) upon completion of the Assignment.
6. TERM The term of this Agreement shall commence on the date first written above and
terminate on December 31, 2019 unless terminated earlier pursuant to Section 15 below. The term of
this Agreement may be extended for up to one (1) year upon a writing executed by both parties,
including the City Manager and a Senior Assistant or Assistant City Attorney.
7. 1ND}tPENOENT CONTRACTORS It is mutually agreed by and between the parties that,
Ill 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's Office 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 famish
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.
9. IIVDEMNIFICATION 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.
10. CONFIDENTLAT ITy 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 `L'nis work may be disclosed to any third party without City's prior written approval.
Attorneys shall provide materials directly to the Senior Assistant City Attorney, Laura Rossini, or
selected members of the City Attorney's Office, as directed by Ms, Rossini. 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 retumed/provided to the Office of the
City Attorney with all copies upon the request of the City Attorney's Office. 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 facsimile 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: Laura Rossini, Senior Assistant City Attorney
City of Santa Ana
Office of the City Attorney
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile (714) 647-6515
To Attorneys: Attention Ms. Isabel Safle, Partner
Best, Best & Krieger, LLP
Post Office Box 1028
Riverside, California 92502
Facsimile: 951-686-3083
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 asset forth above. For
Purposes of calculating these time frames, weekends, federal, state, County or City holidays shall
be excluded.
13. EXCLUSBM ANI7 IyIENT 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 terns 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,
15. TERMINATION This Agreement maybe terminated by City at anytime. 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 noticeoftennination. Asaconditlonofsuchpayment,
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 if applicable. 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. DISC ATION 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 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
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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.
1s. 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. City
further acknowledges that it has read and receival a copy the full 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST:
Maria . Huizar
Clerk +• Councilf the
Laura A. Rossini
Senior Assistant City Attorney
1 '
Laura A. Rossini
Senior a
a
Raul Godinez II
City Manager
BEST, BEST & KRIEGER, LLP
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Partner