Loading...
HomeMy WebLinkAbout25F - AGMT - RECEIVERSHIP LITIGATION SUPPORT SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEMBER 18, 2013 TITLE: APPROVE AGREEMENT FOR RECEIVERSHIP LITIGATION SUPPORT SERVICES WITH SILVER & WRIGHT, LLP z CITY MA AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1st Reading ❑ Ordinance on 2ntl Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to approve an agreement with Silver & Wright, LLP for litigation related attorney services in an amount not to exceed $40,000, subject to non - substantive changes approved by the City Manager and City Attorney, DISCUSSION On March 21, 2013, the City entered into a Legal Services Agreement with Silver & Wright, LLP in the amount of $25,000 for assistance with code enforcement, receivership, and police legal support services. Pursuant to the terms of the initial agreement, Silver & Wright, LLP successfully completed the abatement of a public nuisance through a receivership action on behalf of the City that resulted in the demolition and removal of the Saddleback Inn. Silver & Wright, LLP also recovered over $65,000 in both legal and staff costs involved in that action. As a result of this achievement, the City would like to utilize Silver & Wright, LLP for additional receivership actions. Accordingly, staff is requesting that the Council approve a new agreement with Silver & Wright, LLP in an amount not to exceed $40,000. This agreement will remain in effect until expenditure of these funds. FISCAL IMPACT As a result of the success of the initial receivership, the City created a Receivership Fund Account (account no. 09801001 24042). The idea is to use the funds in this account to fund additional actions and to replenish that account through the recovery of legal and staff expenses in each action. 25F -1 APPROVED AS TO FUNDS AND ACCOUNTS: Aftt6� � ,�- Nt-,N� �� C , �) )��L — Sonia R. Carvalho Francisco Gutierrez City Attorney Executive Director Finance & Management Services Agency ROH 25F -2 LEGAL SERVICES AGREEMENT This AGREEMENT, made and entered into this day of November, 2013, by and between Silver & Wright LLP, a California limited liability partnership ( "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 "). 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 knowledge in the field of Code Enforcement, Receiverships and Police 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 City hereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney in transactional and litigation services related to City matters and other legal issues when and as requested by the City Attorney to do so. Attorneys accept said retention and agree to perform, in 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. PAYMENT FOR SERVICES RENDERED A. FEES City agrees to compensate Attorneys, and Attorneys agree to accept from City, as and for payment in full for all of said services in regard to each such action, compensation at the rates set forth in Exhibit A, attached hereto and made a part hereof by this reference. The total sum to be expended pursuant to this Agreement shall not exceed $40,000 during the term of this Agreement. B. REIMBURSEMENT FOR COSTS City agrees to reimburse Attorneys for out -of- pocket expenses, including but not limited to, mileage, expert 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. 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. 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 25R -3 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. TERM The term of this Agreement shall commence on the date first written above and terminate upon the depletion of the maximum contract amount, unless terminated earlier pursuant to Section 13 below. 6. 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. 7. INSURANCE 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 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 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 out 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 such information is reasonably understood to be confidential and /or proprietary, Attorneys agree that it shall not use or disclose 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 information of like importance, 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 means. 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. 9. 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. 25R -4 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 mail, postage prepaid, or sent by telefacsimile 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 Telefacsimile (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 Telefacsimile (714) 647 -6515 To Attorneys: Silver & Wright, LLP 4000 Barranea Parkway, Suite 250 Irvine, CA 92604 Telefacsimile: (949) 385 -6428 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 telefacsimile, 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. 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 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. 25F -5 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 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. Attorneys may terminate this agreement, subject to their obligation 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. 14. 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. 15. 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. 16. 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. /% 251 -6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. frW_IIM6116 Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney BY: Ryan O. Hodge Assistant City Attorney CITY OF SANTA ANA David Cavazos City Manager SILVER & WRIGHT, LLP By: _ Name: Title: Tax ID No. 25F-7 SILVER & WRIGHT LLP Matthew R. Silver msilver @silverwrightlaw.com 4000 Barranca Parkway, Suite 250 Irvine, CA 92604 Phone: (949) 385-6431 Fax: (949) 385-6428 November 12, 2013 DELIVERED VIA EMAIL Ryan Hodge, Esq. Assistant City Attorney City of Santa Ana RHodge @santawla.org Re: Proposed Litigation Budget City of Santa Ana v US Bank 805 E. Chestnut Ave., Santa Ana Dear Mr. Hodge, Curtis R. Wright cwright @silverwrightlaw.com 3281 East Guasti Road, Suite 700 Ontario, CA 91761 Phone: (909) 833-5420 Fax: (949) 385-6428 The purpose of this letter is to provide the City with a proposed litigation budget to represent the City of Santa Ana ( "City ") from initiation through the ultimate resolution of the above- referenced case. The budget is based on the blended hourly rate of $189 per hour for attorneys and $11.0 per hour for paralegals and clerks. The budget assumes the matter will resolve at the receiver's final accounting, and without trial or dispositive motion. Pursuam to State law, the Court should resolve this matter at the final accounting. In addition, any appeals are not included in the budget, as they are difficult to predict. Discovery is also not included, as it is normally nominal, if existent at all, in receivership actions. Litigation Budget 1. Draft Notice & Order and research for same, plus service of same — 5 hours - $945 2. Draft, record and serve lis pendens — 3 hours - $567 3. Draft and serve 3 day notice —1.5 hours - $283.50 4. Draft and file complaint, civil case cover sheet, summons, etc. — 20 hours - $3780 5. Service of process work (3 day notice and complaint packet — assumes quick service) — 2 hours - $378 25F -8 6. Draft, file and serve motion to appoint receiver, declarations, notice, order, etc. — 40 hours - $7560 7. Review opposition, draft, file and serve reply —15 hours - $2835 8. Inspections of subject property with receiver, staff and opposing counsel — 4 hours - $756 9. Meetings with receiver and city staff — 5 hours - $945 10. Communications with receiver, opposing counsel and staff, including updates, and direction from staff and to receiver —10 hours - $1890 11. Review and respond to receiver's court filings and oppositions from opposing parties — 25 hours - $4725 12. Court appearances (initial hearing, case management conferences, accounting and motion hearings, etc.) — 30 hours - $5670 13. Demands on receiver for City's costs and attorneys' fees (mid -case and at final accounting), review and respond to oppositions -- 20 hours - $3780 14. Case disposition, final ,judgment, notices and case wrap up —12 hours - $2268 Total hours: 192.5 Total attorneys' fees through case disposition: $36.382.50 Estimated costs (preliminary title report service of process mailin�sl• $1_ 500 Grand total: $37,882.50 These attorneys' fees are recoverable fi•om the subject property by law, and we have already determined that the subject property contains enough value to fulfill the City's recovery. We will ask the Court to sign an order allowing the City to recover the fees and costs it incurs out of the receivership estate, as we did in the Saddleback Inn case. Our usual strategy is to make two demands on the estate for repayment: one after the Court approves the receiver's action plan (very soon), and another at the final accou citing. This will help ensure the City is made whole, and perhaps allow the City to use the intermediate funds for other projects. Please feel free to contact me if you wish to discuss further. r Very Truly Yours, Matthew R. Silver, Esq. SILVER & WRIGHT, LLP Attorneys at Law N 25F -9 25F -10