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HomeMy WebLinkAbout25J - AGMT WITH RICHARDS WATSON & GERSHON FOR LEGAL SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 21, 2020 TITLE: APPROVE AGREEMENT WITH RICHARDS WATSON & GERSHON APC FOR LEGAL SERVICES IN AN AMOUNT NOT TO EXCEED $250,000 /s/Kristine Ri CITY MANAGER CLERK OF COUNCIL USE ONLY: F-ITUNT1.07iirs, ❑ As Recommended ❑ As Amended ❑ Ordinance on 1s' Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager to execute an agreement with the law firm of Richards Watson & Gershon APC ("RWG") for legal services for municipal advisory and litigation services including but not limited to elections work and employment matters, from June 1, 2020 until May 31, 2023, with an option to extend the term for a one-year period, in an amount not to exceed $250,000, subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION Currently, Richards Watson & Gershon APC (RWG) is representing the City and its employees or officers in two ongoing election litigation matters. The fiirm's current legal services agreement with the City expires on May 31, 2020. The City Attorney's Office utilizes RWG for specialized municipal litigation and advisory services and for overflow work when necessary. In particular, the City Attorney's Office has utilized RWG for elections matters. RWG is a well -regarded, full -service municipal law firm with five offices based in Central and Southern California. FISCAL IMPACT Specialized legal services during the term for this Agreement will be paid out of the City Manager Enforcement Services (Account No. 01203010-62300) and General Non -Departmental Contractual Services (Account No. 01105015-62300) funds. Future budget adjustments may be necessary to provide for future year costs (Fiscal Years 2020-21 through Fiscal Years 2022-23). Fiscal Year Accounting Unit -Account # Account Description Amount FY 19-20 01203010-62300 Contractual Services -Professional $10,000 FY 20-21 01105015-62300 Contractual Services -Professional $120,000 FY 21-22 01105015-62300 Contractual Services -Professional $60,000 FY 22-23 01105015-62300 Contractual Services -Professional $60,000 Exhibit: 1. Agreement with Richards Watson & Gershon APC for Legal Services 25J-1 LEGAL SERVICES AGREEMENT WITH RICHARDS WATSON & GERSHON This AGREEMENT, made and entered into this 21st day of April, 2020, 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"). Collectively City and Attorneys are also referred to as "the Parties." RECITALS A. The City of Santa Ana and the City Attorney desires to employ Attorneys to assist the in- house attorneys for the City ("City Attorney") in the provision of legal services to the City, for general municipal law advisory and litigation matters including but not limited to elections and employment -related 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 providing general municipal law advisory and litigation services 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 general municipal advisory and litigation matters, including but not limited to, elections matters filed against the City and to defend the City, its employees and its officials. 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, all attorneys will bill their time at $295/hour, all paralegal will bill their time between $145-$166/hour, and time will be billed in 1/10th of an hour increments. b. The total sum to be expended under this Agreement, shall not exceed two hundred and fifty thousand dollars ($250,000), including any extension periods. This subsection is not a cap on fees but only an appropriation of funding. 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 #33622v2 2 5J -2 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 due to questions re billing or any concerns with a billing statement until such time as those questions or concerns are resolved. Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand by Attorneys for payment. 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. NEERM(aseta11 cli7�6117 r, 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 triaaearing 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 3) Updates on significant occurrences. 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 tern of this Agreement shall commence on June 1, 2020 and terminate on May 31, 2023, 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. ##33622v2 2 5J -3 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 Prior to undertaking performance of work under this Agreement, Attorneys shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Attorneys shall maintain commercial general liability insurance, which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Attomy's negligent operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence and $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insured provisions. b. Worker's Compensation Insurance. In accordance with California State law, Attorneys, if Attorneys has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Attorneys agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. c. 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. d. The following requirements apply to the insurance to be provided by Attorneys pursuant to this section: (i) Attorneys shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be on a form approved by the City. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Attorneys fails or refuses to produce or 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 terminate this #33622v2 25J -4 Agreement. Such termination shall not affect Attorney's right to be paid for its time and materials expended prior to notification of termination. Attorneys waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 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. 10. CONFIDENTIALITY 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 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 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. Confidential information disclosed to either parry 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 (c) is independently developed by the Attorneys without reference to information disclosed by the City. 11. CONFLICT OF INTEREST Attorneys will comply with the California Rules of Professional Conduct and any other applicable federal, state or local law or regulation. Attorneys 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 Fax (714) 647-6956 4 #33622v2 2 5J -5 With a Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax (714) 647-6515 To Attorneys: Attention-Saskia Asamura, Esq. Richards Watson & Gershon APC 350 South Grand Avenue, 37s Floor Los Angeles, California 90071 Fax (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 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 fax, 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 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 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. 5 #33622v2 2 5J -6 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, gender identity, gender, gender expression, age, national origin, ancestry, military and veteran status, 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 wan -ants 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 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. G #33622v2 2 5J -7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: CITY OF SANTA ANA DAISY GOMEZ KRISTINE RIDGE Clerk of the Council City Manager APPROVED AS TO FORM: RICHAIPDS W. SONIA R. CARVALHO City Attorney (mot Q� Name: sari Title: SFIA By: X� A. R Laura A. Rossini Acting Chief Assistant City Attorney & GERSHON #33622v2 25J -$