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HomeMy WebLinkAbout25I - AGMT - SPECIAL LEGAL SRVSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 17, 2014 TITLE: APPROVE AGREEMENTS FOR SPECIAL LEGAL COUNSEL SERVICES WITH SILVER & WRIGHT, LLP; THE LAW OFFICES OF GUTIERREZ, FIERRO & ERICKSON, A PROFESSIONAL CORPORATION; LEXOLUTION, LLC; AND, THE LAW OFFICES OF PYKA, LENHARDT, SCHNAIDER, ZELL, A PROFESSIONAL CORPORATION J G'< CITY MANA ER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on to 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 agreements with Silver & Wright, LLP; The Law Offices of Gutierrez, Fierro & Erickson, a Professional Corporation; Lexolution, LLC; and, The Law Offices of Pyka, Lenhardt, Schnaider, Zell, a Professional Corporation for legal services at the specified rates, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION Silver & Wright, LLP: 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. On November 18, 2013, the City entered into another Legal Services Agreement with Silver & Wright, LLP in an amount not to exceed $40,000 for further receivership support services related to the property owned by U.S. Bank located at 805 E. Chestnut Avenue. Silver & Wright, LLP successfully resolved this action, which resulted in the demolition and removal of the structure on the property. Silver & Wright, LLP also recovered over $34,000 in both legal and staff costs involved in that action. 251 -1 Special Legal Counsel Services June 17, 2014 Page 2 As a result of these achievements, the City Attorney's Office would like to utilize Silver & Wright, LLP for additional receivership actions. The City Attorney's Office would also like to have the ability to utilize Silver & Wright, LLP for other legal services related to code enforcement and police services. Accordingly, staff is requesting that the Council approve a new agreement with Silver & Wright, LLP for such services to remain in effect for three (3) years. The Law Offices of Gutierrez, Fierro & Erickson, a Professional Corporation: The Law Offices of Gutierrez, Fierro & Erickson, a Professional Corporation, provides litigation defense for public entities. The City Attorney's Office would like to utilize this firm for such litigation services when such need arises. Accordingly, staff is requesting that the Council approve a new agreement with the Law Offices of Gutierrez, Fierro & Erickson, a Professional Corporation, for such services to remain in effect for two (2) years. Lexolution, LLC: Lexolution is a provider of temporary attorneys and paralegals who can supply the City with necessary assistance in times of need. Accordingly, staff is requesting that the Council approve a new agreement with Lexoluticn, LLC for such services to remain in effect for one (1) year. The Law Offices of Pyka, Lenhardt, Schnaider, Zell, a Professional Corporation: The Law Offices of Pyka, Lenhardt, Schnaider, Zell, a Professional Corporation, provides general tort defense for public entities. The City Attorney's Office would like to utilize this firm for such litigation services when such need arises. Accordingly, staff is requesting that the Council approve a new agreement with the Law Offices of Pyka, Lenhardt, Schnaider, Zell, a Professional Corporation, for such services to remain in effect for two (2) years. 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. All other legal services provided pursuant to these contracts shall be paid for out of the City Attorney's Office's Other Contractual Services Budget (account no. 01108032- 62300). Sonia R. Carvalho City Attorney ROH APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez Executive Director Finance & Management Services Agency 251 -2 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this day of June, 2014, 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. 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 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 251 -3 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 three (3) years from said commencement date, unless terminated earlier pursuant to Section 14 below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney for the City. 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 tennination shall not affect Attorneys' right to be paid for its time and materials expended prior to notification of termination. 8. 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. 9. 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. 10. 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 perfonnance of services specified under this Agreement. 251 -4 11. 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 Barranca 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. 12, 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. 3 251 -5 13. 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. 14. 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 tennination. 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. 15. 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, 16. 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. 17. 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 frilly, 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. 11 4 251 -6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar David Cavazos Clerk of the Council City Manager APPROVED AS TO FORM: SONIA R. CARVALHO SILVER & WRIGHT, LLP BY: Matthew R. Silver Partner Tax ID No. 46- 2127592 251 -7 EXHIBIT A FEE RATES (Attached) 251 -8 SILVER & A VRIG-HT LLP Attorneys at Law PROPOSAL TO PROVIDE LEGAL SERVICES FOR CODE ENFORCEMENT, RECEIVERSHIPS, POLICE PROSECUTIONS PRESENTED TO: CITY OF SANTA ANA 251 -9 PROPOSED SERVICES AND RATES A. CODE ENFORCEMENT 1. Criminal Prosecutions a. Police - Issued Citations For Public Peace Related Violations FLAT RATE: $475 per case; $159 per hour for trial. Mr. Silver and Mr. Wright have tremendous experience in criminally prosecuting misdemeanor and infraction violations of municipal codes. We have successfully prosecuted hundreds of cases involving all types of code violations, from excessive noise and public offenses to businesses operating without a business license and other operations violations. Our experience includes handling cases from investigation and case evaluation through trial and enforcement of probation. As always, we place the client in the best position possible to recover all of its fees and costs. Silver & Wright proposes a flat rate of $475 per criminal case, which includes assisting staff with the investigation, reviewing the evidence and the citation of complaint drafting, appearing in court at the arraignment, and pre -trial hearing, all connnunications with opposing counsel and City staff, and case updates. If the case proceeds to trial, a blended hourly rate of $159 for attorneys and $100 for paralegals and law clerics would apply to handle the trial readiness hearing, trial proceedings, and any subsequent appeals or conviction enforcement proceedings. b. Violations Based on Zoning, Public Nuisance, and Other Violations RATE: $159 per hour. As with general code enforcement prosecutions, we have successfully prosecuted hundreds of criminal cases based on violations of zoning regulations and public nuisance provisions. In Santa Ana, this would refer to criminal enforcement of Chapter 41 and Chapter 17, Article 1 (property based public nuisances'). Criminal prosecutions involving these types of violations often involve additional drafting, negotiations and court appearances, as well as enforcement efforts to ensure probation or civil compromise terms are being followed. As such, Silver & Wright would propose an hourly rate of $159 for attorneys and $100 for paralegals and law clerks. Cost recover; is particularly effective in these types of cases. 2. Civil Litigation RATE: $179 per hour. Code enforcement actions often necessitate civil litigation to enjoin and abate nuisances, and recover civil penalties. At Silver & Wright, we have handled numerous such lawsuits for cities with great success. We are particularly knowledgeable of the array of special cases and laws that apply to abatement of public nuisances and the particular procedures that will help ensure success for our clients. In addition, we are experts in identifying and implementing the right strategy and remedies for the particular situation. From marijuana dispensaries to substandard housing and land use 251 -10 violations, Mr. Silver and Mr. Wright have obtained numerous victories for public entity clients and have handled matters from inception through case disposition. For these services, Silver & Wright proposes a blended rate of $179 per hour for attorneys and $100 per hour for paralegals and law clerks. 3. Graffiti Enforcement and Restitution RATE: $179 per hour. Graffiti is not just an eyesore for communities, it also stifles the sense of safety and cohesion in a neighborhood and acts as a communication mechanism for gangs. Cleaning up graffiti costs cities and taxpayers tens to hundreds of thousands of dollars each year. At Silver & Wright, we recognize that cities should not bear the brunt of these costs, especially in these lean economic times when funds and personnel are limited. As such, our attorneys have developed and successfully implemented cutting -edge ordinances that allow cities to comprehensively attack graffiti, recover their costs and deter graffiti in the future. Our strategy involves maximizing a city's graffiti fighting powers under State law. We create tools for tides to recover their clean up and investigation costs, then penalize the taggers, and if a minor, the parents as well. In the last six months alone, we have obtained over $50,000 in judgments against taggers and their parents — cost recovery that otherwise would have been lost. Moreover, unlike juvenile court restitution, our cost recovery process does not stop when the juvenile's probation ends. This means cities have at least a 10 year window for recovery instead of just a few months or a year. This approach leads to reduced graffiti, more parental responsibility and supervision over their minors, and allows the city to maintain a source of revenue to clean up graffiti. One city reported a 50% decrease in graffiti expenses following these successful efforts. At the very least, this strategy sends a strong message to taggers and gang members that their conduct will not be tolerated. We would assist City staff in developing and implementing this program by drafting appropriate ordinances, working with enforcement officials to obtain the necessary evidence, prepare and issue demand letters to taggers and parents, conducting settlement negotiations, pursuing civil litigation to recover the city's costs and impose penalties, and helping the City enforce the judgment and recover its award. For these specialized and unique services, Silver & Wright proposes a blended hourly rate of $179 per hour for attorneys and $100 per hour for paralegals and law clerks. 4. Administrative Cost Recovery, Appeals and Nuisance Hearings RATE: $179 per hour. Mr. Silver and Mr. Wright have tremendous experience in administrative proceedings, including cost recovery hearings, appeals of administrative fines and actions, and nuisance abatement hearings. 251 -11 Cost recovery is one of out primary specialties. We helped cities develop and successfully implement cutting -edge cost recovery procedures that ensure clients recover as much of their attorneys' fees, court costs and staff costs as possible. We do this by drafting and helping staff implement ordinances that maximize recovery of fees and costs incurred in every nuisance abatement action, whether the abatement takes the form of a criminal, civil, administrative or self - help. In addition, we consider cost recovery as a component in providing advice to our clients regarding enforcement strategy, and then implement those strategies during the enforcement action to guarantee the agency will be in the best position possible to recover all of its expenses. Often, following an abatement by judicial, administrative or other action, the strategy calls for an administrative hearing to confirm the agency's costs and fees. Once confirmed, those expenses are recovered via an array of remedies, including nuisance abatement liens, special assessments, wage gamishments, attachments, and recovery agreements. We also effectively utilize lis pendens and other title clouding measures to ensure the City retains priority in property encumbrances and to help ensure recovery. Administrative proceedings can also be a cost - effective and minimally adversarial method to abate nuisances, handle appeals of administrative citations, liens and assessments, and meet due process requirements. We have handled numerous such matters for cities from inception through the appellate courts with excellent results. In one recent example, we successfully defended a city against two appeals of an administrative citation, then obtained a court order awarding the city its attorneys' fees involved in the process. We are up to date on the legal requirements for these hearings, including Nightlife / .Quintero issues, Fort Bragg revocation and expiration constraints and due process requirements. Our services to the City would include helping staff identify when administrative hearings are appropriate or required, helping ensure the City's administrative procedures are followed, preparing briefings for the hearings, representing City staff at the hearings, and ensuring the City is well positioned in the event of a writ or appeal to the Superior Court, and then helping the City recover its costs and attorneys' fees. For these services, Silver & Wright proposes a blended of $179 per hour for attorneys and $100 per hour for paralegals and law clerks for any administrative proceedings related to appeals of administrative citations, nuisance abatement determinations and cost recovery. This rate includes file review, preparing briefs and correspondence, assisting City staff with administrative procedures and representing City staff at the initial administrative hearing and subsequent appeals. 5. Gun Confiscations RATE: $179 per hour. At Silver & Wright, we have worked with cities to keep guns out of the hands of criminals and the mentally incapacitated. We have the particular expertise required to navigate the procedural and legal requirements to succeed in gun confiscation cases. 4 251 -12 For these services, Silver & Wright proposes a blended rate of $179 per hour for attorneys and $100 per hour for paralegals and law clerks. This rate includes drafting and filing documents with the court, obtaining and evaluating medical records, attending court hearings, settlement negotiations, preparing settlement documents and communicating with opposing counsel and City staff, as well as trials and appeals. 6. Ordinance Drafting and General Code Enforcement Services. RATE: $179 per hour. At Silver & Wright, we have helped numerous cities develop ordinances allowing them to aggressively and effectively deal with a wide variety of issues relating to cost recovery, nuisance abatement, property maintenance, graffiti, foreclosures, administrative citations and procedures, liens and assessments, public offenses and many others. For these services, and any miscellaneous and or general code enforcement related services not otherwise provided for in this proposal, Silver & Wright proposes a blended rate of $179 per hour for attorneys and $100 per hour for paralegals and law clerks. B. RECEIVERSHIPS RATE: $179 per hour Receiverships are a very powerful tool to abate dilapidated buildings and structures, to enforce judgments and preserve property interests. At Silver & Wright, we have experience in both Health & Safety Code based receiverships and Code of Civil Procedure based receiverships. Mr. Silver frequently teaches classes on receiverships for a local community college and throughout the State for code enforcement and building associations. We have also published articles on this unique and effective remedy. If handled correctly, two of the main benefits of Health & Safety Code based receiverships are guaranteed compliance and Hill recovery of attorneys' fees and staff costs. Cities can also avoid the costs and other difficulties involved in abating the nuisances itself by seeking a court appointed receiver to solve the problem — all at the expense of the nuisance property and its owner. With receiverships, the City never has to pay the actual costs of abating the nuisance conditions. We have handled several receiverships and successfully obtained complete nuisance abatement, judgments ensuring ongoing compliance and awards of full attorneys' fees and staff costs for our clients. Our unique expertise and strategies help ensure that cities are freed from the dangers and blight presented by substandard properties, and that they do not bear the costs of enforcement. For receivership services, Silver & Wright proposes a blended rate of $179 per hour for attorneys and $100 for paralegals and law clerks. C. PITCHESS MOTION DEFENSE FLAT RATE: $989 per motion; $179 per hour for wits and appeals. Pitcher motion defense is a very specialized area of the law based in statute, but heavily augmented by case law. Pitchess defense is vital for the City to show support for its police officers, to protect police officers' rights and privacy, and to maximize the effectiveness of law enforcement 5 251 -13 efforts. We closely monitor developments in case law affecting Pitchers motion defense and police officer rights to ensure that we can provide police departments the best defense possible when it comes to opposing motions to divulge police officer personnel files. At Silver & Wright, we take personal pride in supporting and defending police officers' rights, which shows in our dedicated and personal attention to these matters. For Pitchers motion defense, Silver & Wright proposes a flat rate of $989 per opposition to each motion, which includes reviewing the case file and motion pleadings, interviewing the officers, drafting and filing the opposition documents, and defending the officer and City at the hearing. If the results of the hearing are challenged by writ or appeal, we propose a blended rate of $179 per hour for attorneys and $100 per hour for paralegals and law clerks. D. BED LIGHT CAMERA PROSECUTION RATE: $154 per hour. Out attorneys have experience prosecuting red light citations and responding to related criminal discovery requests and demurrers. The enforcement of these citations and recovery of the fines often defines the success of the program. Silver & Wright has substantial expertise in this area and can provide the City with the best representation. For these services, we propose a blended rate of $159 per hour for attorneys and $100 per hour for paralegals and law clerks. ADDITIONAL INFORMATION A. EFFECTIVE COMMUNICATION Our mission at Silver & Wright is to provide the City with the best legal representation possible. To do so, we are committed to effectively communicating with City staff in every respect. We will make ourselves available to listen and accurately respond to the inquiries of City staff, and we will provide regular and timely updates regarding all pending matters. We understand and appreciate that time - sensitive demands require special attention. We will provide the City and staff with our direct phone numbers and email addresses to ensure immediate responses to staff needs. B. COSTS Reimbursement of costs advanced by Silver & Wright on behalf of the City, as well as other expenses, will be billed in addition to the amounts billed for fees. These normally include costs for court filing fees, process server fees, messenger fees, property tide research and litigation guarantees, printing and document reproduction, automobile mileage at the prevailing IRS rate, and other costs necessary for legal representation. We have no mark -up on these costs and we make no separate charges for administrative support. Our fees already include all overhead costs associated with our legal services. C. INSURANCE Silver & Wright carries professional liability, auto and commercial liability coverage in the amount of $2,000,000, as well as worker's compensation insurance in the amount of $1,000,000. We will be happy to provide the City with proof of insurance upon request. 251 -14 D. CONCLUSION We look forward to having the opportunity to support the City's enforcement and quality of life efforts. In recent years, the attorneys at Silver & Wright have pioneered efforts to deliver effective code enforcement legal services to cities on a cost neutral basis. Properly designed and implemented, code enforcement efforts can at least be cost neutral, and even a source of revenue for the City, which is especially important in these economically challenging times. Our experience, pricing, training, location, and uniquely qualified approach make Silver & Wright an ideal selection for the City's code enforcement, police services and red fight camera legal representation. If you require any additional information, please contact Matthew Silver at 949 -383- 6431 or msilvcr ®silverwrighdaw.com. Respectfully Submitted, SILVER & WRIGH r LLP M �a, d Matthew R. Silver Partner 251 -15 SILVER & WRIGHT LIT Attorneys at Law CITY OF SANTA ANA PROPOSED RATES FLAT RATES Criminal prosecution $475 /case • Police- issued /public peace Trial - criminal hourly rate citations Pitchess motion defense $989 /motion Writs & Appeals —civil hourly rate HOURLY Criminal prosecutions (all other) $159 /hour- attorneys Red light camera prosecutions $100 /hour— paralegals /clerks Civil enforcement $179 /hour - attorneys • Nuisance abatement $100 /hour — paralegals /clerks • Receiverships • Gun confiscations • Graffiti enforcement and restitution • Other litigation (slip & fall, other torts) Administrative hearings per SAMC • Nuisance • Costrecovery • Appeals • Snhey /Quintero General services /advice 251 -16 ATTORNEY CITY FEE AGREEMENT THIS AGREEMENT is made between GUTIERREZ, FIERRO & ERICKSON, A.P.C. ( "Attorney ") and the CITY OF SANTA ANA, a Municipal Corporation ( "City "). 11 Employment of Attorney. City retains and employs Attorney to represent the City in litigation matters assigned to Attorney by the City Attorney, 2. Compensation. City shall pay Attorney at the rate of $225 per hour for attorney time and $75 per hour for paralegal time, or as adjusted by Attorney and City from time to time, and those expenses and costs set forth in Paragraphs 3 and 4. 3. Expenses. In addition to the hourly rates described in Paragraph 2, City agrees to pay all reasonable and necessary expenses incurred by Attorney on behalf of City in connection with the litigation matters described herein including: (a) Any filing fees, permit fees, or other fees paid or advanced by Attorney on behalf of City in accordance with Paragraph 2. (b) Expense for the printing or reproduction of documents required in connection . with the services described herein to the extent that any such costs are advanced by Attorney under Paragraph 4, at actual cost. (c) Travel expenses at actual cost, including but not limited to air fare, taxicab fare, meals, and lodging incurred while representing City. 4. Costs. In addition to the hourly rates described in Paragraph 2 and expenses described in Paragraph 3, City agrees to pay all other costs incurred by Attorney or required of City for the litigation matters described herein. However, Attorney shall not be obligated to pay or advance any such expenses or costs, and Attorney may (1) request City to advance payment for any such expenses or costs or (2) arrange to have those expenses and costs directly billed to City. Notwithstanding this provision, Attorney may, at its sole option, advance such expenses or costs as Attorney deems appropriate and obtain reimbursement from City. The fact that Attorney elects to advance any particular expense or cost on behalf of City shall not be deemed to create an obligation to advance the same or similar expenses or costs at any future time. 5. Payment Upon Billing, Attorney shall submit monthly billing statements to the City Attorney of City that itemize the fees charged and the applicable rates under this Agreement and all expenses and costs for which Attorney is entitled to reimbursement. City agrees to pay said amounts within 21 days from the statement date. 6. Other Obligations of City. City agrees to cooperate with Attorney to the extent necessary for Attorney to discharge its duties under this Agreement. City's cooperation shall include, but not be limited to the following: (a) Provide Attorney with any necessary documents and other information promptly upon request; (b) Advise Attorney of City's address, telephone numbers, and trips by pertinent staff members longer than one (1) week in duration; and 1 of Attorney Fee Agreement Document No. 24908 251 -17 (c) Attend all appointments, meetings, conferences, depositions, proceedings, and other events at which City's presence is required. 7. Attorney's Insurance. Attorney maintains errors and omissions insurance coverage applicable to the services to be rendered by Attorney. S. Independent Contractor. The services to be rendered under this contract are those of an independent contractor. Attorney and Attorney's employees shall not be considered agents or employees of City for any purpose. Neither Attorney nor any of Attorney's agents or employees shall be entitled to any of the benefits that City provides for its employees. Attorney will be solely and entirely responsible for its acts and for the acts of its agents or employees during the performance of this Agreement. Attorney shall have no authority to bind City and Attorney shall not incur any debt, obligation or liability on behalf of City. 9. Termination. This Agreement may be terminated by written notice by either party to the other. 10. Withdrawal by Attorney. City acknowledges that failure to comply with City's obligations under this Agreement can result in Attorney's withdrawal from further representation of City under this Agreement. Attorney may withdraw from the representation of City with regard to the matters covered by this Agreement within a reasonable time after giving City notice of the withdrawal. 11. Arbitration. (a) It is understood and agreed that any claim arising out of the rendition or lack of rendition of services under this Agreement including claims of legal malpractice shall be determined by arbitration. This includes any claim that any legal services rendered under this Agreement were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered. At the sole option of City this arbitration provision may also include any dispute over legal fees as provided in § §6200 -6206 of the Business and Professions Code of the State of California. (b) All parties to this Agreement, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. City may wish to seek outside advice or counsel concerning this procedure. This arbitration provision may be rescinded within 30 days from the date of City's signature below by delivery of written notice to Attorney. (c) In rendering the award, the arbitrator will determine the rights of the parties according to the substantive laws of the State of California. (d) The proceedings will be administered by a single arbitrator mutually selected by the parties in accordance with the then existing practices and procedures. NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF LEGAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. 2of3 Attomcy Fee Agreement - Document No. 24908 251 -18 12. Notice. All notices under this Agreement shall be in writing and shall be delivered by personal service or by certified or registered mail, postage prepaid, return receipt requested, to the parties. Any written notice to any of the parties required or permitted hereunder shall be deemed to have been duly given on the date of service if served personally or if served by facsimile transmission (with confirmation of receipt), or seventy -two (72) hours after mailing. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as provided hereunder shall be deemed to be receipt of the notice, demand or request sent. Notices to the parties shall be addressed as follows: To City: City Attorney City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 To Attorney: Jimmy Gutierrez Gutierrez, Fierro & Erickson, APC 12616 Central Avenue Chino, CA 91710 Each party shall provide the other party with telephonic and written notice of any change in address as soon as practicable. 13. Entire Agreement. This Agreement contains all of the covenants and agreements between the parties with respect to the subject matter of this Agreement, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any party except those covenants and agreements embodied in this Agreement. No agreement, statement, or promise not contained in this Agreement shall be valid or binding. 14. Governing Law. The validity of this Agreement and of any of its terms or provisions, as well as the rights and duties of the parties under this Agreement, shall be construed pursuant to and in accordance with California law. Executed in duplicate on June 3, 2014, at Santa Ana, California. City of Santa Ana, Gutierrez, Fierro & Erickson, APC A Municipal Corporation A / � By: By: Miguel Pulido Its Mayor Its / i A R TO ROAM N IC CITY IS ENTITLED TO A SIGNEI Attorney Fee Agreement COPY OF THIS AGREEMENT. 251 -19 251 -20 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this day of June, 2014, by and between - - " — - - Lexolution, a California limited liability company (Coiupany ), 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 Company to assist the City Attorney in the provision of legal services to the City, and B. Company provides temporary attorneys licensed to practice law in the State of California and temporary paralegals to assist with providing legal services, and Company desires to undertake said services for the City. 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 COMPANY City hereby agrees to and does retain Company, 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. Company accepts said retention and agrees to perform, in timely and efficient manner, all such services as may be requested by the City Attorney. Company shall confinn its acceptance of work requested by City in writing by e -mail or letter. 2. PAYMENT FOR SERVICES RENDERED A. FEES City agrees to compensate Company, and Company agrees 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 incorporated by this reference. B. REIMBURSEMENT FOR COSTS The City agrees to reimburse Company and/or its employees for out -of- pocket expenses incurred by the Company's employees, including but not limited to, mileage, if incurred during the performance of duties under this Agreement and as authorized by the City Attorney. 3. METHOD OF PAYMENT Company shall submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto, if applicable. 4. CONTROL OF LEGAL MATTERS Company agrees that each and every assignment or proceeding in which it and/or its employees undertakes to assist the City Attorney shall be and remain under, and subject to the control and direction of said City Attorney at all stages, and that the City Attorney shall be kept informed of those matters and especially of significant developments in the matters undertaken by Company and/or its employees. Company further agrees, if and when its 251 -21 retention hereunder is terminated by City, as hereinafter specified, the Company and/or its employees 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 one (1) year from said commencement date, unless terminated earlier pursuant to Section 14 below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney for the City. 6. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that in the performance of the covenants hereunder, Company and/or its employees are and shall be independent contractors, and not officers or employees of City. 7. INSURANCE Company 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 Company fails or refuses to produce and 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 forthwith terminate this Agreement. Such termination shall not affect Company's right to be paid for its time and materials expended prior to notification of termination. 8. INDEMNIFICATION Company agrees 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 the negligent or wrongful performance or conduct under this Agreement by the Company and/or its employees. 9. CONFIDENTIALITY If Company and/or its employees receive from the City information, which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Company agrees that it shall not use or disclose such infonnation except in the performance of this Agreement, and further agrees 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 Company, disclosed in a publicly available source; (c) is in rightful possession of the Company without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Company without reference to information disclosed by the City. 10, CONFLICT OF INTEREST CLAUSE Company affirms 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. 2 251 -22 11. 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 (7I4) 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 Company: Lexolution, L.L.C. 1901 Avenue of the Stars, Suite 200 Los Angeles, CA 90067 Telefacsimile: (310) 461 -1471 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. 12. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Company, 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 Company. The parties agree that any terms or conditions of any invoice or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Company 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. 251 -23 13. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Company, Company 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. 14. TERMINATION This Agreement may be terminated by City at any tine. In such event, Company shall be entitled to receive and the City shall pay Company compensation for all services performed by Company prior to receipt of such notice of termination. As a condition of such payment, Company shall deliver to the City all files and records generated under this Agreement as of such date. Company may terminate this agreement, subject to its obligation to provide reasonable notice to the City so the latter can arrange alternative representation, if necessary due to the circumstances. 15. DISCRIMINATION Company 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. Company affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 16. 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 Iaws 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. 17. 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 terns of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injinies or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. [NEXT PAGE] 251 -24 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City AttorOy r By: Sandra Attorney CITY OF SANTA ANA David Cavazos City Manager LEXOLUTION, L.L.C. By: Name: Title: Tax ID No. 251 -25 EXHIBIT "A" FEE RATES (Attached) 6 251 -26 &Lexo1ut100nL.L.C, REPRESENTATIVE PROJECTS AND RATES 1. Litigation discovery (hard copy document review and electronic discovery). We consistently place teams of experienced contract attorneys to review documents and a -mails for responsiveness and privilege, create privilege logs, etc. over periods of from a few days to a year or more. Rates for such assignments are generally $48 to $58 per hour. 2. Trial preparation. We have regularly provided paralegals, as well as attorneys willing to function in this capacity, to assist lawyers in preparing for trials. Rates for paralegals are typically in the $25 to $38 per hour range and $40 to $50 per hour range for attorneys. 3. Substantive litigation. We have placed experienced and highly - qualified mid -level and senior litigators with law firms and companies. They have done research and writing, and even handled cases and arbitrations. They have been hired to fill in for people on maternity or other extended leave, or simply to assist with unusually heavy workload demands. Rates for such litigators usually range from $60 to $120 per hour depending on level of experience. 4. Corporate and real estate due diligence. Contract attorneys are frequently hired on a temporary basis to perform due diligence in connection with corporate transactions (sales and acquisitions of companies, for example) or multi- property real estate deals (mortgage reviews, lease abstracts, etc.) Our rates for such people range from $50 to $70 per hour. 5. Substantive corporate and rent estate transactional work. We have placed senior lawyers with prominent law firms and companies to assist with drafting and negotiating contracts and handling transactions in the areas of corporate, corporate finance and real estate. In some cases, particular expertise is required — for example, health care, insurance regulatory or conduit lending. Rates for such attorneys are typically between $60 and $125 per hour. 6. Foreign Language. We have placed paralegals and attorneys to review and /or summarize, in connection with litigation discovery or corporate due diligence, documents that are written in a foreign language. Recent examples include French, Spanish, Mandarin, Korean and Japanese, and we have candidates in our database with fluency in more than 25 languages. Rates for this type of work depends on language and availability and are typically $60 to $120 per hour. 251 -27 251 -28 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this day of June, 2014, by and between Pyka, Lenhardt Schnaider & Zell, LLP., 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"). 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 tort defense 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 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 rate of $175 an hour for attorney billing. 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. Any costs in excess of $5,000 require City Attorney approval prior to incurring the expense. 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 undertaken by Attorneys. Attorneys further agree, if and when their retention hereunder is 251 -29 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 two (2) years from said commencement date, unless terminated earlier pursuant to Section 13 below. The term of this Agreement may be extended upon a writing executed by both parties, including the City Manager and the City Attorney for the City. 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. 2 251 -30 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 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: Pyka, Lenhardt, Schnaider & Zell, LLP 837 North Ross Street Santa Ana, California 92702 Facsimile: (714) 667 -7806 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. 3 251 -31 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. 4 251 -32 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By:Cxtr Laura A. Rossini Senior Assistant City Attorney CITY OF SANTA ANA David Cavazos City Manager PYKA, LENHARDT, SC14NAIDER & ZELL,LLP By: _ Name: Title: Tax ID No. 5 251 -33 251 -34