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HomeMy WebLinkAboutBOIES SCHILLER FLEXNER LLPA-2020-083 IIJSURANCE NOT REQUIRED WORK MAY PROCEED CLERK OF COUNCIL rill-M. ('LNaWJJ LkV4 $UIKNk-1 &J VIA ELECTRONIC MAIL City Attorney's Office for Santa Ana 20 Civic Center (M-29) :XJ P.O. Box 1988 "' Santa Ana, CA 92702 a rV o Re: Engagement Letter 0 Dear City Attorney's Office for Santa Ana: April 21, 2020 We are pleased to confirm that the City of Santa Ana ("you" or the "Client") has agreed to retain Boies•Schiller Flexner LLP ("we" or the "Firm") to assist the Client with advisory matters and litigation (the "Engagement") filed by the Client in the United States District Court for the Central District of California entitled City of Santa Ana v. County of Orange et al., Case No. 8:20-cv-00069-DOC (KESx) (the "Litigation"). The Firm's responsibilities for the Engagement will commence only upon your execution of this Engagement Letter. Scone of the Engagement The Firm's services are limited to representing the Client in the Engagement. The Firm is not being retained for any other matter or litigation, and is being retained only by the Client and not by any persons or entities related to the Client. This Engagement Letter contains the entire agreement between the Client and Firm with respect to the Engagement, and may only be amended pursuant to a further written document signed by both the Client and the Firm. The Client agrees to cooperate actively with the Firm in activities undertaken in connection with the Engagement, including, for example, providing complete and accurate information to the Firm on a timely basis, responding to telephone calls and emails from the Firm, assisting in preparing for litigation -related activities, and attending meetings and participating in conference calls with the Firm as requested. It is understood that the Firm is not being retained to engage in any activities, and will not engage in any activities, including political, public relations, or lobbying activities, that would require registration under the Lobbying Disclosure Act (LDA) or the Foreign Agents Registration Act (FARA). Control of Legal Matters The Firm agrees that each and every matter or proceeding in which they undertake to assist the Client in the Representation shall be and remain under, and subject to the control and direction of the Client at all stages, and that the Firm shall at all times keep the Client informed of all matters pertaining thereto. The Client will keep the Firm informed of all significant developments in matters relating to the Representation. Reporting Requirement The Firm agrees to keep the Client, and any other person(s) designated by the Client, informed of significant events in the Litigation, 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. The Firm also agrees to provide the following reports: 1) 45-day initial evaluation of case and budget to be due 45-days fi-om the signing of this letter; 2) Periodic status updates to be agreed upon by the parties; 3) Updates on significant occurrences. Independent Contractors It is mutually agreed by and between the Firm and the Client that, in the performance of their covenants hereunder, the Firm's attorneys are and shall be independent contractors, and not officers or employees of City. Billing Matters The Client agrees to pay the Firm its hourly fees for time spent on the Engagement. The Firm agrees to a blended hourly fee of $640 for Associates, Counsel, and Partners for this Engagement, with the initial 100 hours of attorney time provided at no charge. The Firm also agrees not to charge the Client for time Quyen Ta spends traveling in the performance of duties under this Agreement. The total sum to be expended by Client under this Agreement shall not exceed S350 000_. This amount is not intended to serve as a cap on fees due to the Firm for its services under this Agreement. If the Firm recovers attorneys' fees for its services in this matter, those fees will be donated to the City of Santa Ana. The Client agrees to reimburse the Firm 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. 2 The Firm will send invoices on a monthly basis, which are due and payable upon receipt. Payment of our invoices is required regardless of the outcome of the Engagement, including whether there is any recovery in connection with the Engagement, whether there is any award by a court or tribunal for some or all of our fees or expenses, and/or whether any or all of our fees are covered by insurance. Please note that the Firm's Taxpayer Identification Number is 65-1160056. Except for payments that are to be deposited in the Firm's client trust account, all payments to the Firm being made by wire transfer should be sent to the Firm's account at Wells Fargo Bank, N.A., Account Number: 2000030841415, Routing Number: 121000248. All payments to the Firm being made by ACH should be sent to the Firm's account at Wells Fargo Bank, N.A., Account Number: 2000030841415, Routing Number: 021101108. Please note there is a different routine number for payments made by wire and payments made by ACH. Any payments to the Firm made by check and all billing correspondence should be sent to Amy Habie, Chief Financial Officer, at our Boca Raton office located at 2200 Corporate Blvd., NW, Suite 400, Boca Raton, Florida 33431. We try to ensure that you are pleased with our services throughout our relationship and that any concerns you have about our services are discussed and resolved promptly. Accordingly, you agree to review our invoices carefully upon presentation and notify us in writing within twenty (20) business days if you have any questions or concerns. If you do not notify the Firm in writing of any concerns with an invoice within twenty (20) business days after presentation of that invoice, you agree that the invoice will be deemed conclusively binding, acceptable, fair and reasonable. If any concerns are expressed about an invoice, we will endeavor to respond promptly to those concerns. It is very important to our relationship and our ability to provide representation in this Engagement that any questions or concerns about the Firm's invoices be resolved as soon as possible. A fee of 1.0% per month, compounded monthly, will be charged on all sums that are not paid within thirty (30) days after presentation of an invoice. From time to time, you may ask the Firm to provide estimates or projections of fees or expenses for the Engagement. You agree that any such estimates or projections provided by the Firm, including any previously given and any given in the future, are not binding, and do not amend in any way the provisions of this Engagement Letter. No Guarantees During the course of the Engagement, the Client may seek the Firm's professional opinions or beliefs regarding the likely outcome of legal matters or the likely effectiveness of various courses of action. Any expressions (solicited or otherwise) on our part concerning such possible outcomes or courses of action are expressions of our best professional judgment and opinions, and are not guarantees. By signing this Engagement Letter, the Client acknowledges that the Firm has made no guarantees regarding the outcome of this Engagement. 3 Arbitration In the unlikely event that a dispute arises between the Client and the Firm arising from or relating to the Engagement, the parties agree that such dispute shall be finally settled by binding, confidential arbitration in Los Angeles, California under the JAMS Comprehensive Arbitration Rules and Procedures in force at the time such arbitration is commenced. Arbitration is an alternative to judicial resolution of disputes, and is conducted by a trained neutral that will decide the dispute and issue a binding decision. Under this arbitration agreement, you are waiving your right to file a claim against the Firm in a court of law. With limited exceptions, there is no appeal from the decision of an arbitrator and no right to a jury trial. The Client and the Firm confirm that each has read and understand the foregoing, and voluntarily agree to binding arbitration. In doing so, the Client and the Firm voluntarily give up important constitutional rights to trial by judge or jury, as well as rights to appeal. The Client may consult with an independent lawyer of the Client's choice to review these arbitration provisions, and this entire agreement, prior to signing this Agreement. Notwithstanding any of the above, the parties acknowledge that in any dispute over attorney's fees, costs or both subject to the jurisdiction of the State of California over attorney's fees, charges, costs or expenses, the Client has the right to elect arbitration pursuant to procedures as set forth in California Business and Professions Code Sections 6200-6206 (the Mandatory Fee Arbitration Act). If, after receiving a Notice of Client's Right to Fee Arbitration, the Client does not elect to proceed under the Mandatory Fee Arbitration Act procedures by failing to file a request for fee arbitration within 30 days, any dispute over fees, charges, costs or expenses, will be resolved by binding arbitration as provided herein. Arbitration pursuant to the Mandatory Fee Arbitration Act is non -binding unless the parties agree in writing, after the dispute has arisen, to be bound by the arbitration award. The Mandatory Fee Arbitration Act procedures permit a court trial after non -binding arbitration, or a subsequent binding contractual arbitration if the parties have agreed to binding arbitration, if either party rejects the award within 30 days after the award is mailed to the parties. Treatment of Personal Information The Firm is committed to protecting personal information, including but not limited to information subject to the California Consumer Privacy Act, Cal. Civil. Code Section 1798.100 et seq. ("CCPA"). The Firm may use information about the Client, which the Client or others provide to us, for the provision of legal services, for administration, and for marketing including advising you about our services, events, and publications. The Firm will also rd provide this information to such of its agents, contractors, and other parties as needed for the provision of legal services to you. You may, from time to time, provide us with personal information that you collect from California consumers that is subject to the protections of the CCPA. We will only process this personal information on your behalf as part of providing you with the legal and administrative services covered by this Engagement. We will not otherwise sell, retain, use, or disclose such personal information unless otherwise permitted under the CCPA. Conflicts of Interest and Waiver We have explained and you have agreed that as a result of the types of clients the Firm advises and the types of engagements in which we are involved, we may be requested during the Engagement to act for other persons on matters which are not substantially related to the Engagement, where the interests of the other persons, and the Firm's representation of them, may be adverse to the Client or its interests including adversity in litigation. In addition, because of the persons and entities that could be related to the Engagement, and the nature of the Firm's practice, during the course of the Firm's representation of the Client, the Firm may represent some of those persons and entities in matters other than the Engagement. In such circumstances, the Firm would, of course, not be relieved of any obligation we may have to retain in confidence any confidential information obtained from the Client and to refrain from using or disclosing such information in connection with any other representation we may undertake. You agree that our representation of you in this matter will not be asserted by you as an actual or potential conflict should we represent any party in a matter adverse to you which is unrelated to this Engagement or if the Finn represents a person or entity related to this Engagement in a matter unrelated to the Engagement. Your signature below confirms that you waive any and all potential and actual conflicts in this regard and agree not to seek our disqualification in any matter based upon such representation. You should consult with separate counsel about the conflict issues raised above. Your signature below confirms that you have been given adequate time to consult with counsel, that you waive any and all potential and actual conflicts to the extent permitted by applicable law, and that you agree not to seek our disqualification in any matter based upon such representation. Potential Claims against Other Lawyers We have informed you that one aspect of our practice is representing other lawyers and law firms when they are sued for professional negligence and that we typically avoid bringing claims for professional negligence against other lawyers or law firms. Consistent with the policy, our services on your behalf will not include advising you concerning potential claims against other lawyers or law firms who have provided services to you, including any advice concerning the statute of limitations applicable to F such claims. We encourage you to seek counsel from lawyers who specialize in bringing such claims if you believe that you may have a claim against another lawyer or law firm. Termination This Agreement shall commence on the date of execution by all required signatories and continue for a three-year period, unless terminated earlier pursuant to the provisions set forth immediately below. The term of this Agreement may be extended for up to two years upon a writing executed by the City Manager and the City Attorney. The Client may terminate this Engagement, and the Firm may terminate this Engagement, at any time for any reason by written notice, subject on our part to applicable rules of professional conduct. Unless previously terminated, this Engagement will terminate upon our sending you our final statement for services rendered. You agree that the total outstanding amount plus any additional amounts for legal services and other charges incurred up to the date of, and subsequently as a consequence of, termination will be immediately due and payable upon presentation of our final statement for services rendered. If, upon termination, you wish to have documents delivered to you, please advise us. For various reasons, including the minimization of unnecessary storage expenses, the Firm reserves the right to destroy or otherwise dispose of any documents or electronically stored information retained by us unless you specifically, and in writing, advise us otherwise. Should you wish the Firm to provide you with a copy of your file at the end of the Engagement, a copy will be provided to you at your expense. Consultation with Independent Counsel We have recommended, and you have acknowledged your understanding and agreement, that you should seek the advice of an independent lawyer of your choice regarding the terms of this Engagement Letter, and you acknowledge by your signature below that you have had a reasonable opportunity to do so. If the terms of this Engagement are agreeable to you please so indicate by signing below and returning this Engagement letter to me at Boies Schiller Flexner LLP, 44 Montgomery Street, 41 st Floor, San Francisco, CA 94104. 6 matter. We are pleased to represent you and look forward to working together on this Sincerely, Quyen Ta The foregoing is acknowledged, accepted and agreed to as of the Aday of April, 2020. CITY OF SANTA ANA Z- fM=INE RIDGE City Manager DAISY GOMEZ, CMC 'Clerk of the CouncIl APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By; a 'i" -fw L John AFunk Assistant City Attorney 7