HomeMy WebLinkAboutBURKE WILLIAMS & SORENSEN LLPNOT ON FILE N-2020-065
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1C OF COUNCIL
J E, LEGAL SERVICES AGREEMENT WITH
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This AGREEMENT, made and entered into this 4th day of March, 2020, by and between Burke,
Williams & Sorensen, 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
c ("City"). Collectively City and Attorneys are also referred to as "the Parties."
co RECITALS
c A. The City of Santa Ana desires to employ Attorneys to assist the in-house attorneys for the
City ("City Attorney") in the provision of legal services to the City
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 litigation
regarding the abatement of public nuisances, 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 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 litigation related to the abatement of public nuisances within the City of
Santa Ana. 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 for the foregoing services, Partners will be billed at the rate of $325
an hour, Associates at a rate of $300 an hour, and paralegals at a rate of $145 an hour. Time will be
billed in I/1 Oth of an hour increments.
b. The total sum to be expended under this Agreement, shall not exceed fifty thousand
dollars ($50,000), including any extension periods
C. City agrees to reimburse Attorneys for out-of-pocket expenses, including but not
limited to, transcription, mileage, copying costs, service of process, and mail services authorized by
the City Attorney 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 require City Attorney approval prior to
incurring the expense. All expenses must have supporting documentation submitted with the 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.). 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, 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 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
a. Attorneys agree to keep the City Attorney, and any other person(s) designated by the
City Attorney, informed of significant events in the Actions, including but not limited
to trial/hearing date, party deposition dates, filing of motions for summary judgment
or other significant motions, hearing date for motion for summary judgment or other
significant motions, settlement conference date, and mediation date.
b. For litigated matters, Attorneys also agree to provide the following reports:
1) 45 day initial evaluation of case and budget;
2) Periodic status updates re important depositions, expert witness designation,
expert witness depositions, pertinent discovery issues; and
3) Pre-trial report 90 days before trial.
c. For advisory matters, Attorneys shall provide periodic status updates not less than
every 30 days and more often if, in the Attorney's professional experience it is
necessary.
6. TERM The term of this Agreement shall commence on the date first written above and
terminate on March 3, 2022, 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 the City Attorney.
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.
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8.rNSURANCE 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 tenn 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 right, at the City's election, to forthwith terminate this Agreement. Such tennination
shall not affect Attorneys' right to be paid for its time and materials expended prior to notification
of termination.
9.rNDEMNIFICATION 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.
I 0. CONFIDENTIALITY All infonnation 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 work 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 infonnation and any written
product in connection with Attorneys' retention under this Agreement, shall be marked as
"PRIVILEGED A D CONFIDENTIAL I 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.CO FLICT OF INTEREST CLAUSE Attorneys will comply with the California Rules of
Professional Conduct and will seek any conflict of interest waiver that may be necessary.
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
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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: Attention: Mark Austin, Partner
Stephen McEwen, Partner
Burke, Williams & Sorensen, LLP
1851 E. First Street, #1550
Santa Ana, CA 92705
Facsimile (949) 863-3350
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
as set forth above. For purposes of calculating these time frames, weekends, federal, state, County
or City holidays shall be excluded.
13. EXCLUSWITY 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 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 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
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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.
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 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 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
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 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 received 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
ATTEST:
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By:
Kyle C ellesen
Assi t City It
RECOMMENDED F R APPROVAL:
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NIA R. R ALHO
City Atto ey
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CITY OF SANTA ANA
istine Ridge
City Manager
BURKE, WILLIAMS & SORENSKN, LLP