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HomeMy WebLinkAbout25E - AGMT - EMPLOYMENT CM - CA - COTCREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 2, 2014 TITLE: AMENDMENTS TO EMPLOYMENT AGREEMENTS FOR CITY MANAGER, CITY ATTORNEY, AND CLERK OF THE COUNCIL a6l� -'r'-MD C,4 k,,tt5 CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1' Reading ❑ Ordinance on 2"' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Direct and authorize the Mayor and the Clerk of the Council to execute the amendment to Employment Agreement outlining the terms and conditions of the continued appointment of David Cavazos as the City Manager for the City of Santa Ana. 2. Direct and authorize the Mayor and the Clerk of the Council to execute the amendment to Employment Agreement outlining the terms and conditions of the continued appointment of Sonia Carvalho as the City Attorney for the City of Santa Ana. 3. Direct and authorize the Mayor and the Clerk of the Council to execute the amendment to Employment Agreement outlining the terms and conditions of the continued appointment of Maria Huizar as the Clerk of the Council for the City of Santa Ana. DISCUSSION CITY MANAGER The Santa Ana City Charter Section 500 authorizes the City Council to appoint a City Manager. The City Manager is the chief administrative officer of the City who, under the direction of the City Council, is responsible for the proper administration of all affairs of the City. In August 2013, the City Council executed an employment agreement appointing David Cavazos as City Manager effective October 21, 2013. With the leadership of the City Council, Mr. Cavazos has utilized his knowledge and experience to restructure the organizational culture at City Hall and move the City forward in a positive direction. During the past 10 months, Mr. Cavazos accomplished his goals and objectives and received a positive evaluation from the City Council. Highlights of Mr. Cavazos' goals and accomplishments include: implementation of the City's Five -Year Strategic Plan, improved fiscal stability and responsibility, promoted economic development, fostered a culture of innovation and efficiency, enhanced public safety and customer service delivery. The 25E -1 Amendments to Employment Agreements for City Manager, City Attorney, and Clerk of the Council September 2, 2014 Page 2 of 3 proposed agreement amends the term /automatic annual renewal of Mr. Cavazos' existing agreement by establishing a three year term from October 21, 2014 through October 20, 2017. Additionally, the proposed agreement amends Section 2.2.7 Housing Allowance and 2.2.7(b) Housing Allowance (Temporary) of the agreement. CITY ATTORNEY The City Charter Section 701 authorizes the City Council to appoint a City Attorney. The City Attorney is the legal advisor for the Council. He or she provides general legal advice on all aspects of City business and represents the City in legal actions. In April 2012 the City entered into a Professional Services agreement with Best Best and Krieger LLP providing that Sonia Carvalho would serve as City Attorney. The agreement provided for a "hybrid" City Attorney in that Ms. Carvalho would serve in the traditional in- house City Attorney role and would remain a partner at BB &K. For the past two years and five months this business model has worked well for the City and the City Attorney received a positive evaluation by the City Council. The City has benefited from Ms. Carvalho's knowledge and experience and from the daily access that staff has had to the many experts in BB &K's full- service firm. Similar to the original agreement, the proposed agreement provides for Ms. Carvalho to serve as City Attorney; it permits staff to utilize additional BB &K attorneys at a cap of $230,000 for each Fiscal Year and authorizes the City Manager or the City Council to engage BB &K for special litigation or reimbursable projects that may arise from time -to- time under the rates established by the agreement. This component of the agreement ensures that only the City Manager or the City Council can approve special engagement letters. The proposed agreement contains a reduction of $30,000 per year for Ms. Carvalho's services and includes a broader General Services /Retainer category which like the previous agreement authorizes additional services. The total BB &K contract amount for both City Attorney and general services cannot exceed $500,000 in any Fiscal Year. Additional Specialized Legal Services can be approved by the City Manager or the City Council and would require the City to identify a funding source at the time the services are approved. CLERK OF THE COUNCIL The City Charter Section 701 authorizes the City Council to appoint a Clerk of the Council. The Clerk of the Council is responsible for providing information and maintaining official City records, preparing City Council documents, postings and agendas, ensuring compliance with the Brown Act and Political Reform Act in accordance with all applicable federal, state and local laws, and for conducting municipal elections. In July of 2009, the City Council adopted Resolution 2009 -038 appointing Maria Huizar to the position of Clerk of the Council. In an effort to remain consistent with the appointment 25E -2 Amendments to Employment Agreements for City Manager, City Attorney, and Clerk of the Council September 2, 2014 Page 3 of 3 process for the City Manager and City Attorney, the City Council approved an employment agreement delineating the terms and conditions of Ms. Huizar's continued appointment to the position. The proposed amendment to employment agreement prepared by the City Attorney's office, a copy of which is attached, includes the following new provisions: City agrees to combine deferred compensation into base salary. Proposed change will require deletion of Section 2.2.1 Deferred Compensation in Agreement to be consistent with other Executive Managers. The City Council shall review and discuss Clerk of the Council's annual performance in or around July of each year and shall be eligible for Management Performance Based Salary Adjustments, same as Executive Management. • City agrees that Clerk of the Council will be eligible for payment for unused sick leave, same as provided to Executive Management. STRATEGIC PLAN Approval of this item supports the City's efforts to meet Strategic Plan Goal No. 7 Team Santa Ana, Objective No. 4, Establish employee compensation that attracts and retains a highly qualified workforce. FISCAL IMPACT Funds are available in the City Manager's Office account for compensation and benefits (account no. 01103010 - various); City Attorney's Office and other departmental contractual services (account no. various - 62300); and the Clerk of the Council Office account for compensation and benefits (account no. 01107031 - various) for $1,852 in Fiscal Year 2014 -2015, and $12,206 will be budgeted in Fiscal Year 2015 -2016. Edward 5y Executive Director Personnel Services APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez Executive Director Finance & Management Services Agency Attachments: Exhibit 1 — Amendment to the City Manager Employment Agreement Exhibit 2 — Professional Services Agreement for City Attorney Services Exhibit 3 — Amendment to Clerk of the Council Employment Agreement 25E -3 25E -4 CITY OF SANTA ANA FIRST AMENDMENT TO THE CITY MANAGER EMPLOYMENT AGREEMENT This First Amendment to the City Manager Employment Agreement ( "Agreement ") is entered into as of the 2 "d day of September, 2014 (the "Effective Date "), between the City of Santa Ana (hereinafter referred to as the "City ") and David Cavazos (hereinafter referred to as the "City Manager" or the "Employee "). City and City Manager/Employee are sometimes referred to in this Agreement as "Party" and collectively as "Parties." RECITALS: WHEREAS, on August 51h, 2013 the City Council of the City appointed and employed Employee as City Manager of the City pursuant to the Charter of the City of Santa Ana ( "City Charter "), and WHEREAS, the Parties set forth the terms and conditions of said City Manager's employment in an agreement entitled the City of Santa Ana City Manager Employment Agreement ( "Agreement ") effective that same date, and WHEREAS, the Parties desire to amend certain provisions of the Agreement as set forth herein. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, the Parties hereto agree as follows: Section 1, TERM /AUTOMATIC ANNUAL RENEWAL, shall be deleted in its entirety and replaced with the following: 1. Term /Automatic Annual Renewal. This Agreement shall be deemed effective for a three (3) year term beginning on October 21, 2014 and terminating on October 20, 2017, unless terminated earlier in accordance with Section 9 hereof. This three (3) year term will, pursuant to the provisions below, automatically extend from year to year unless City Council takes action to prevent the automatic extension. In the event the City Council does not want this Agreement to automatically extend, it will provide written notice to City Manager that the Agreement will not be extended and consequently will terminate as of the end of the current term. If action is not taken by City Council within three (3) months before the expiration of the term of this Agreement on October 20, 2017, this Agreement shall on July 20, 2017, automatically extend for one (1) year from October 21, 2017 until October 20, 2018. For Exhibit A 55394.00002 \7406419.1 25E-5 each succeeding year that the City Council does not take action to extend or terminate this Agreement by three (3) months before the then current end of the Agreement, the Agreement shall automatically extend for an additional year. For example, if action is not taken by the City Council to extend or terminate this Agreement by July 20, 2018, the Agreement shall on that date automatically extend for one (1) year from October 21, 2018, to October 20, 2019, and if the City Council doesn't take action to extend or terminate this Agreement by July 20, 2019, it will automatically extend for one (1) year from October 21, 2019 to October 20, 2020. Section 2.2.7, HOUSING ALLOWANCE, shall be deleted in its entirety and replaced with the following: 2.2.7 Housing Allowance It is understood that City Manager intends to reside in the City of Santa Ana during his employment as City Manager, and that initially he will require a temporary residence while he is purchasing a permanent residence in the City. Further, it is understood that the City Council desires that City Manager reside within the City of Santa Ana and believes that such residence would be of benefit to the City and enhance City Manager's performance as City Manager, and therefore, the City will pay City Manager the following allowances and assistance. Section 2.2.7(b), HOUSING ALLOWANCE, shall be deleted in its entirety and replaced with the following: (b)Housing Allowance (Temporary) Upon the termination of the Temporary Housing Assistance provided for in Section 2.2.7 (a), City shall pay City Manager a housing allowance in the amount of $2,000.00 per month up until October 16, 2016. Said housing allowance shall be contingent upon City Manager residing within the City. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this First Amendment to the City Manager Employment Agreement as of the 2nd day of September, 2014. EMPLOYEE /CITY MANAGER David Cavazos 55394.00002 \7406419.1 251E-6 CITY OF SANTA ANA Miguel A. Pulido Mayor ATTEST: Clerk of the Council Maria D. Huizar 55394.00002 \7406419.1 Approved as to Form: Sonia P,. Carvalho Joseph Straka Assistant City Attorney 25t -7 25E -8 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF SANTA ANA AND BEST BEST AND KRIEGER LLP FOR CITY ATTORNEY SERVICES This PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (the "Agreement ") is effective as of the 2nd day of September, 2014, by and between the law firm of BEST BEST & KRIEGER LLP, a California limited liability partnership (`BB &K "), and the CITY OF SANTA ANA, a charter city and municipal corporation (the "City "). The term "City" shall also include all boards, commissions, financing authorities, and other related bodies of City. 1. APPOINTMENT City Council hereby appoints and designates Sonia R. Carvalho ( "Carvalho ") as the City Attorney, and hires BB &K as its City Attorney, to render such legal services as are customarily rendered by such officials and as further specified herein and as required by Santa Ana Charter Sections 703, including, but not limited to, attending meetings of the City Council, Successor Agency, Housing Authority, and other boards and bodies of City, and its affiliated agencies, as directed by the City. Notwithstanding the foregoing appointment, the designated City Attorney may be established from time to time or modified solely by resolution of the City Council. BB &K represents it employs, or will employ at its own expense, all personnel required for the satisfactory performance of any and all tasks and services set forth herein, except that BB &K shall not be required to hire any person already employed by the Office of the City Attorney who may be assigned tasks by, and who is supervised by Carvalho. BB &K shall not replace the designated City Attorney (or any successor to such person) without the City Council's prior approval. A temporary assignment of another attorney besides Carvalho due to vacation, illness or leave if necessary will be done only with the approval of the City Council. City Attorney may appoint various assistants and deputies as Carvalho deems appropriate through the City's Personnel Department without the need for amendment hereof, but only with the prior written approval of the City Manager. 2. SCOPE OF WORK AND DUTIES A. General City Attorney Services: BB &K, specifically Carvalho, shall, as directed by the City, perform any and all work necessary for the provision of City Attorney services to City, including, without limitation, the following: (i) Attend all meetings of the City Council, and provide advice or opinion in writing whenever requested to do so by the City Council or by any of the officers, boards, commissions, committees, officers, and employees of the City, in accordance with such policies and procedures as may be established by City from time to time; (ii) Attend, as necessary, all meetings of other boards and commissions on request of the City Council; -1- 55394.00000 \9187497.1 Exhibit B 25E -9 (iii) Represent and advise the Mayor, Mayor Pro Tem, City Council, City Manager, and all City officers in all matters of law pertaining to their respective offices; (iv) Be available for telephone consultation with the Mayor, Mayor Pro Tem, City Council, City Manager, and City staff, as needed on legal matters that are within their area of operation and maintain regular office hours at City Hall as requested by the City Council at times mutually agreed to by the City Council and Carvalho, attend Executive Team staff meetings, meet with the Mayor, Mayor Pro Tem and individual Council members as necessary; (v) Utilizing staff in the Office of the City Attorney or contract staff approved in this Agreement or other agreements approved by the City Manager or City Council, (1) prepare or review necessary legal documents: such as ordinances and resolutions, purchase agreements, leases, deeds, easements and licenses; bond size, amount and offering terms and conditions; public works construction documents, including bid specifications, contracts, bonds, insurance, liens and related documents; memoranda of understanding; franchise agreements; and similar legal documents; (2) prosecute on behalf of the people such criminal cases for violation of the Charter or City ordinances; and of misdemeanor offenses and infractions arising upon violations of the laws of the state as in her opinion, or that of the City Council warrant her attention; (3) represent and advise the City on pending and potential litigation as requested by the City and monitor pending and current legislation and case law as appropriate; (vi) Supervise and manage all work of subordinate staff, including supervision of all staff of the Office of the City Attorney; (vii) Supervise and manage all outside legal services; (viii) Represent and advise the Successor Agency and Housing Authority and related officials in all matters of law pertaining to their offices; and (ix) Perform other related legal duties as requested by City. B. Additional General /Retainer Services: City shall utilize in -house City Attorney staff, to the extent they are available, to perform the legal work. However, BBK may provide Additional General City Attorney Services and general municipal services as Retainer Services. C. Additional Specialized Legal Services: When requested in writing by the City Manager or the City Council, BB &K will also provide such specialized legal services, including, but not limited to: eminent domain, finance, telecommunications, water, waste and storm water, waste management, transportation, enterprise, environmental, toxics, mining, water, tort defense, general litigation, personnel, labor representation, code enforcement, criminal prosecution, successor agency, housing, and other matters. Additional Specialized Legal Services may only be provided when the City Manager or the City Council approves a specific engagement letter for the matter. D. Reimbursable Services: Where legal services are subject to cost recovery from a third party, such as a developer, a special district or special grants or funding BB &K may perform those services upon the approval of the City Manager as set forth in a specific -2- 55394.00000 \9187497.1 25E -10 engagement letter for the matter. Such Reimbursable Services would primarily be provided for in the case of specialized services such as, but not limited to, acquisition and eminent domain, environmental review under the California Environmental Quality Act (CEQA), development projects, real estate transactions and special economic development agreements. E. General Communication: The City Attorney will keep City informed as to the progress and status of all pending matters in accordance with such procedures as the City may establish from time to time. The City Attorney is expected to manage, control and oversee the delivery of legal services in a competent, professional, and cost - effective manner. All legal services shall be properly supervised and all personnel shall be qualified to handle the work assigned. If, with the approval of the City Council, outside special counsel is retained, unless otherwise directed by the City Council, such special counsel shall be under the direction of Carvalho or existing in -house City Attorney staff. F. Coordination of Services: All legal services shall be coordinated under the direction of the City Council. Notwithstanding any other provision contained herein, any Additional Specialized Legal Services can only be authorized by the City Manager or City Council in writing. Nothing in this Agreement shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign a legal matter of City from or to BB &K. G. Project Participation: BB &K provides Project Participation to all municipal clients to ensure that the clients and their appointed and elected officials are up to date at all times on matters such as public policy and ethics and the California Environmental Quality Act. Project Participation is based on a cost - sharing basis. City agrees to Project Participation for public policy and ethics and CEQA. 3. CITY DUTIES City agrees to provide such information, assistance, cooperation, and access to books, records, and other information as is necessary for BB &K to effectively render its professional services under this Agreement. The City desires services to be rendered whenever possible on site; as such the City, at City's expense, will make available sufficient office space, furniture, telephones, computers, mobile devices and wireless services, facsimile machines, and secretarial support, as may be necessary therefore. City further agrees to abide by this Agreement, and to timely pay BB &K's bills for fees, costs, and expenses, as established by this Agreement. City shall also directly reimburse Carvalho for any transportation, travel or meal expenses incurred by her in the performance of this Agreement. However, nothing in this Section, or any other part of this Agreement, shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign legal matters of City from or to BB &K. 4. PERSONNEL City Attorney /BBK staff may be modified only as provided in Section 1 above and except as so provided, City Attorney will exercise discretion to utilize whichever attorney(s) (and staff) it determines to be best suited to render efficient and effective legal services under this 55394.00000 \9187497.1 WI 25E -11 Agreement. City Attorney shall also, in accordance with City's rules and regulations, have authority to hire staff in the Office of the City Attorney. 5. COMPENSATION A. Compensation shall be as set forth in Exhibit A. B. Payment of Compensation shall be as set forth in Exhibit B. 6. BOND OR FINANCIAL SERVICES Notwithstanding the foregoing, (i) in the event City Council requests that BB &K serve separately as Bond Counsel for the issuance of City bonds, the compensation provisions set forth in Exhibit A -1 shall apply. where legal services are subject to cost recovery from a third party, such as a developer, the hourly rate for BB &K's legal services will be the applicable private hourly rate of the respective BB &K attorney, with or without a discount as negotiated at the time the new matter is approved. 7. COSTS AND OTHER CHARGES BB &K may incur various costs and expenses in rendering the legal services required by this Agreement which, if customary and necessary for the performance of legal services hereunder, with the prior approval of the City Council shall be reimbursable by City. These costs and expenses are described in more detail in Exhibit A. All clerical services, ordinary travel costs (e.g., from the BB &K office to court or City Hall), and miscellaneous expenses (e.g., telephone and facsimile charges) are included within the rates set forth above, and there shall be no additional charges for such expenses when BB &K is providing General City Attorney services, pursuant to section 2(A), above. When BB &K is providing Special Legal Services or Additional Specialized Legal Services, pursuant to sections (B) or (C), above, City agrees to reimburse BB &K for travel or parking and expenses such as experts' or consultant fees, or litigation expenses such as court reporters, which shall be passed through to the City at the actual costs thereof. Reimbursable costs shall not include any overhead or administrative charge by BB &K or BB &K's cost of equipment or supplies except as provided herein. Any item of expense must be explained in writing and approved by the City Manager or Council in advance. The City will not reimburse BB &K for costs for which no backup materials are provided. City Attorney may determine it necessary or appropriate to use one or more investigators, consultants, or experts in rendering the legal services required (particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. City Attorney will not, however, retain the services of any investigators, consultants, or experts without the prior written approval of the City Manager. City Attorney will select any investigators, consultants, or experts to be hired only after approval of City Manager. Extraordinary travel expenses, including transportation, meals, and lodging, when incurred on behalf of the City shall be reimbursed by City only with the prior written approval of City Manager. 55394.00000 \9187497.1 me 25E -12 El? lW.1v-r MAIrS BB &K shall render to City a statement for fees, costs, and expenses incurred on a monthly basis. The Statement for General Legal Services shall be a single invoice for the compensation as set forth in Exhibit A. Statements for all other services shall indicate the basis of the fees, including the hours worked, the hourly rate(s), and a brief description of the work performed. Separate billing categories can be established to track costs associated with City funding categories or to track project costs, or such other basis as the City may direct. Reimbursable costs shall be separately itemized. The City reserves the right to require additional substantiation of any claimed expense or item billed by BB &K. Any work product or memoranda or other written material described in the invoices shall be produced to the City Council as requested. Services under this Agreement shall be billed in one -tenth of an hour (i.e., six minute) increments. Under no circumstances shall BB &K use "block billing" procedures, wherein a list or a series of activities is done with only an aggregate amount of time specified. All tasks set forth in BB &K's billing documentation shall be highly specific and highly detailed. Overly generalized listings of task descriptions such as "research," "pre -trial preparation," "review contract," or "prepare for negotiations," will not be acceptable without an additional description of the work performed. BB &K shall provide a detailed description that will provide a meaningful record to an independent auditor reviewing said task description. BB &K shall carefully examine all bills submitted for services rendered under this Agreement to ensure that appropriate billing practices are employed in billing the City hereunder. To that end, BB &K agrees that: A. They shall only bill for time which is specifically devoted to the scope of work; B. They shall not bill for the use of legal professionals for secretarial work or administrative work; C. They shall only devote resources that are reasonably necessary for the performance of the required services; and D. They shall utilize a billing format that sets forth sufficient detail to permit full scrutiny by City or any City- retained auditors, of all charges, except as specified in Exhibit "A." Payments shall be made by City within thirty (30) days following receipt of the statement, except for those specific items on an invoice which are contested or questioned and are returned by City with a written explanation of the question or contest, within thirty (30) days of receipt of the invoice. 9. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT The experience, knowledge, capability and reputation of BB &K, its partners, associates, and employees, was a substantial inducement for City to enter into this Agreement. Therefore, BB &K shall not contract with any other person or entity to perform, in whole or in part, the legal -5- 55394.00000A9187497.1 25E -13 services required under this Agreement without the written approval of City. In addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily, or by operation of law, whether for the benefit of creditors, or otherwise, without the prior written approval of City. Adding attorneys to BB &K, changes in the partnership, name changes and similar changes shall not be deemed a transfer or assignment requiring approval of City or amendment hereof. 10. INDEPENDENT CONTRACTOR BB &K shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which BB &K, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of BB &K employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. 11. INSURANCE BB &K shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: A. Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than a combined single limit of One Million Dollars ($1,000,000.00), and One Million Dollars ($1,000,000.00) products and completed operations. B. Workers' Compensation Insurance. A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure and provide legal defense for both BB &K and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by the Contractor in the course of carrying out the work or services contemplated in this Agreement. C. Automobile Insurance. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than a combined single limit liability of One Million Dollars ($1,000,000.00). Said policy shall include coverage for owner, non - owner, leased and hired cars. D. Errors and Omissions Insurance. A policy of professional liability issuance written on a claims made basis in an amount not less than Three Million Dollars ($3,000,000.00). Except for the policy of professional liability insurance, all of the above policies of insurance shall be primary insurance and shall name City, its officers, employees and agents as additionally insured. Except for the policy of professional liability insurance, the insurer shall -6- 55394.0000089187497.1 25E -14 waive all rights of subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. Except for the policy of professional liability insurance, all of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are cancelled, the attorney shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City. Failure to do so is cause for termination. 12. INDEMNIFICATION A. BB &K agrees to indemnify City, its officers, employees and agents against, and will hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities ") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the work, operations or activities of BB &K, its agents, employees, subcontractors, or invitees, provided for herein or arising from the acts or omissions of BB &K hereunder, or arising from BB &K's performance of or failure to perform any term, provision, covenant or condition of this Agreement, except to the extent such claims or liabilities arise from the negligence or willful misconduct of City, its officers, agents or employees. B. City acknowledges BB &K is being appointed as City Attorney pursuant to the authority of Government Code Section 36505, and has the authority of that office. Accordingly, the City is responsible pursuant to Government Code Section 825 for providing a defense for the City Attorney for actions within the scope of its engagement hereunder. Therefore, City agrees to undertake its statutory duty and indemnify BB &K, its officers, employees and agents against and will hold and save each of them harmless from, any and all claims or liabilities that may be asserted or claims by any person, firm or entity arising out of or in connection with the work, operations or activities of BB &K within the course and scope of its performance hereunder, but nothing herein shall require City to indemnify BB &K for liability arising from its own negligence or alleged negligence. In connection herewith: (i) City will promptly provide a defense and pay any judgment rendered against the City, its officers, agency or employees for any such claims or liabilities arising out of or in connection with such work, operations or activities of City hereunder; (ii) In the event BB &K, its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against City for such damages or other claims solely arising out of or in connection with the work operation or activities of City hereunder, City agrees to pay to BB &K, its officers, agents or employees any and all costs and expenses incurred by attorney, its officers, agents or employees in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 13. NOTICES Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified, or by delivery of same into the custody of the United States Postal Service, or its lawful successor; postage prepaid and addressed as follows: -7- 55394.00000 \9187497.1 25E -15 CITY: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attn: City Manager ATTORNEY: Best Best & Krieger LLP 18101 Von Karman Avenue Suite 1000 Irvine, CA 92612 (949) 263 -2600 Attn: Sonia R. Carvalho and copy to Managing Partner 14. NON - DISCRIMINATION In connection with the execution of this Agreement, BB &K shall not discriminate against any employee or applicant for employment because of race, religion, marital status, color, sex, handicap, sexual persuasion, or national origin. BB &K shall take affirmative action to ensure that applicants are employed, and that employees are treated fairly during their employment, without regard to their race, religion, color, sex, marital status, handicap, sexual persuasion, or national origin. Such actions shall include, but not be limited to, the following: employment, promotion, demotion, transfer, duties assignment; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 15. TERM, DISCHARGE AND WITHDRAWAL This Agreement shall commence on date first set forth above, and shall remain in full force and effect until terminated by either party hereto. City may discharge BB &K at any time, upon at least thirty (30) days' written notice to Carvalho. The City Attorney shall have no right to hearing or notice, and may be discharged with or without notice. BB &K may withdraw from City's representation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least sixty (60) days' written notice to City. In the event of such discharge or withdrawal, City will pay BB &K professional fees and costs, in accordance with this Agreement, for all work done (and costs incurred) through the date of cessation of legal representation, including, without limitation, proration of the monthly retainer amount to the date of such cessation. City agrees to execute, upon request, a stipulation in such form as to permit BB &K to withdraw as City's attorneys of record in any legal action then pending. BB &K shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel. 16. CONFLICTS BB &K represents that it currently has no client with interests adverse to those of the City with respect to this Agreement. BB &K shall not accept cases that may include causes of action against the City. -8- 55394.00000 \9187497.1 25E -16 WANOW 9 99 DI IIV IFI] I W.10 11 all) lid I This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. In the event of any dispute hereunder, forum shall be the Superior Court, Santa Ana County. 18. INTEGRATED AGREEMENT: AMENDMENT This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. No prior oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 19. CORPORATE AUTHORITY The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that in so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 55394.00000\9187497.1 0 25E -17 IN WITNESS WHEREOF, the parties hereto have executed this Professional Services Agreement for City Attorney Services as of the date first set forth above. 55394.00000 \9187497.1 "CITY" CITY OF SANTA ANA, a charter city and municipal corporation By: MIGUEL A. PULIDO MAYOR Dated: September , 2014 ATTEST: LN MARIA D. HUIZAR CLERK OF THE COUNCIL Dated: "BB &K" BEST BEST & KRIEGEF, LLP,� By: JEFFREY S. BALLINGER PARTNER/MUNICIPAL PRACTICE GROUP LEADER Dated: September 2 , 2014 -10- 25E -18 EXHIBIT "A" BILLING RATES (1) For General City Attorney Services, City agrees to compensate BB &K in the amount of Twenty Two Thousand Five Hundred Dollars ($22,500) per month. The parties agree and understand that the City shall pay BB &K $22,500 regardless of the amount of hours billed for General City Attorney Services, in recognition that the City is securing the General City Attorney legal services and availability of Carvalho during the term of this Agreement. BB &K will issue an invoice that outlines the days and total amount of hours billed for "General Legal Services." These general entries will only require that the generalized topic of the legal services be described. For example, "General Legal Services -- Office Hours or Administration." (2) For Additional General and Retainer Services, City agrees to compensate BB &K in the annual maximum amount of Two Hundred Thirty Thousand Dollars ($230,000) per Fiscal Year. Additional General Services may be provided by BB &K at the sole discretion of the City Attorney or Chief Assistant City Attorney at the following rates: Partner -- $254/hr. Of Counsel -- $254/hr. Senior Associate -- $254/hr. Junior Associate -- $254/hr. Paralegal /Clerk -- $165/hr. Admin. Asst. -- $165/hr. Research Analyst -- $165 /hr. BB &K will issue an invoice that outlines the days and total amount of hours billed. These entries will describe the work performed. (3) Additional Specialized Legal Services shall include legal services described as Additional Specialized Legal Services in Section 2(C) of the Agreement or for any other services not specified, but requested by the City. All such matters may only be compensated after the City Manager or the City Council approves a specific engagement letter outlining the work to be performed. The engagement letter shall identify the staff person requesting the work, the project, and the hourly rates at which the work shall be performed. The rates for Additional Specialized Legal Services shall range between $175 and $225 per hour for paralegals and $225 and $350 per hour for attorneys, unless a separate legal services agreement between the City and BB &K is approved by the City Council 55394.00000 \9187497.1 Exhibit A 25E -19 (4) Reimbursable Services shall include those described in Section 2(D) of the Agreement. The hourly rate for such services will be the applicable private hourly rate of the respective BB &K attorney, with or without a discount as negotiated at the time the new matter is approved through a written engagement letter. (5) Bond and finance fees shall be as set forth in Section 6 of the Agreement and Exhibit A -1 set forth hereto. (6) Project Participation costs shall be no more than $5,000 per year for public policy and ethics and not more than $2,500 per year for CEQA. 55394.00000 \91&7497.1 Exhibit A 25E -20 EXHIBIT "A -1" BB &K SCHEDULE OF PUBLIC FINANCE FEES For bond counsel and special counsel services in connection with the financing of public facilities, BB &K shall be compensated, depending upon the type of bonds, certificates of participation or other obligations that are to be issued, based on the following schedules. Unless otherwise mutually agreed, our fees as bond counsel on these financings will be payable from proceeds of each series of the bonds upon their issuance. 1. Certificates of Participation and Revenue Bonds. For services in connection with the issuance and sale of certificates of participation and revenue bonds, BB &K shall be paid a fee which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount of the certificates of participation or bonds to be sold, computed as follows: .35% of the first $10 million of the amount of the certificates or bonds issued, plus .25% of the next $10 million of the amount thereof, plus .125% of the amount thereof, if any, over $20 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved. 2. Community Facilities Districts. For services in connection with the issuance and sale of bonds of community facilities districts, BB &K shall be paid a fee which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount of the bonds to be sold, computed as follows: .35% of the first $10 million of the amount of the bonds issued, plus .25% of the next $10 million of the amount thereof, plus .125% of the amount thereof, if any, over $20 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third parry, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved with respect to services rendered for the formation of or annexation to a CFD, as well as the negotiation and preparation of funding agreements and joint financing agreements. Hourly compensation shall be payable solely from deposits of third parties and bond counsel fees shall be payable solely from the proceeds of the sale of bonds. 3. Assessment Districts. For services in connection with the issuance and sale of bonds of assessment districts, BB &K shall be paid a fee which will be the greater of (i) $35,000 55394.00000\9187497.1 Exhibit A -1 25E -21 or (ii) an amount based on the total principal amount of the bonds to be sold, computed as follows: .35% of the first $6 million of the amount of the bonds issued plus, .25% of the next $10 million of the amount thereof, plus .125% of the amount thereof, if any, over $16 million. Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third party, at BB &K's option it may proceed on a hourly basis at the private posted rates of the attorneys involved with respect to services rendered for the formation of or annexation to an AD, as well as the negotiation and preparation of funding agreements and joint financing agreements. Hourly compensation shall be payable solely from deposits of third parties and bond counsel fees shall be payable solely from the proceeds of the sale of bonds. 4. Investment and Other Agreements. For investment agreements, derivative transactions or interest rate swaps relating to of any bond issue, a separate fee will be charged depending on the type of derivative. Generally, our fee for a derivative transaction mirrors our bond counsel fee. Review of investment agreements will be charged at our hourly rates. 5. Disclosure Counsel. Our disclosure counsel fees for financings of the City of Santa Ana in the range of $10 million to $30 million will be $25,000. Our disclosure counsel services will include preparation and delivery of a preliminary official statement, bond purchase contract, final official statement, and continuing disclosure undertaking. If the transaction exceeds $30 million, we will seek additional compensation based upon an arrangement with the City of Santa Ana. The fees include our disclosure counsel services described above together with travel expenses to two meetings at the City of Santa Ana offices. These fees do not include attendance at any ratings presentations of the City of Santa Ana or related expenses. If other services are requested by the City of Santa Ana which are not within the scope of those provided for above, they will be performed on an hourly basis at the private posted rates of the attorneys involved. Our fees for bond and disclosure counsel will be payable from proceeds of each series of the bonds upon their issuance, and are not contingent on the bonds being sold. 6. Issuer's Counsel Opinions. For all Issuer's Counsel Opinions provided by BB &K in connection with any bond financing, fees shall be the following: (1) for opinions on financings for which BB &K does not provide bond counsel and disclosure counsel services, $10,000; (2) for opinions on financings for which BB &K provides bond counsel services only, $5,000; (3) for opinions on financings for which BB &K provides disclosure counsel services only, $2,500; and (4) for opinions on financings for which BB &K provides both bond and disclosure counsel services, there will be no charge. 55394.00000 \9187497.1 Exhibit A -1 25E -22 7. Other Public Finance Services. If other services are requested by the City of Santa Ana which are not within the scope of those provided for above, they will be performed on an hourly basis at the at the private posted rates of the attorneys involved. 55394.00000 \9187497.1 Exhibit A -1 25E -23 Exhibit B BILLING STATEMENT AND PAYMENT BB &K's fees are charged on a monthly basis for and are generally billed monthly with payment due within thirty (30) days after the date of the bill. The current monthly rate for the City Attorneys will be set forth in the billing statement as well as the hourly rate and staff working on matters as provided by City Council will be set forth in the billing statement. Services under this Agreement shall not be billed in more than one -tenth of an hour (i.e., six minute) increments and shall represent the devotion of a full six minutes to a task before such an increment is billed. Under no circumstances shall BB &K use "block billing" procedures, wherein a list or a series of activities is done with only an aggregate amount of time specified. All tasks set forth in BB &K's billing documentation shall be highly specific and highly detailed, except as provided for in billing General Legal Services as set forth in Exhibit A. Overly generalized listings of task descriptions such as "research," "pre -trial preparation," "review contract," or "prepare for negotiations," will not be acceptable without an additional description of the work performed, except as provided for in billing general legal services as set forth in Exhibit A. BB &K shall provide a detailed description that will provide a meaningful record to an independent auditor reviewing said task description. The City reserves the right to require additional substantiation of any claimed expense or item billed by BB &K. Any work product or memoranda or other written material described in the invoices shall be produced to the City Council as requested. BB &K will incur various costs and expenses in performing legal services. These costs and expenses will be separately billed to the client and paid by client when BB &K is providing Additional Special Legal Services, pursuant to section or (C) of the Agreement, and include fees fixed by law or assessed by public agencies, litigation costs including deposition, reporter fees, and transcript fees, long distance telephone calls, messenger and other delivery fees, postage, photocopying and other reproduction costs when necessitated and authorized by the City, all based on the actual and reasonable cost. BB &K shall provide backup documentation. The monthly billing statements for fees and costs shall indicate the basis of the fees, including a detailed and auditable breakdown of the hours worked, the billable rates charged and description of the work performed. All bills are expected to be paid by the client within thirty (30) days following the date of the billing statement. Registration fees for attorneys attending conferences and seminars are paid by BB &K and are never charged to the City (unless expressly requested by the City). 55394.00000\9187497.1 Exhibit B 25E -24 25E -25 CITY OF SANTA ANA FIRST AMENDMENT TO CLERK OF THE COUNCIL EMPLOYMENT AGREEMENT This First Amendment to the Clerk of the Council Employment Agreement ( "Agreement ") is entered into as of the 2nd day of September, 2014 (the "Effective Date "), between the City of Santa Ana (hereinafter referred to as the "City ") and Maria D. Huizar (hereinafter referred to as the "Clerk of the Council" or the "Employee "). City and Clerk of the Council /Employee are sometimes referred to in this Agreement as "Party" and collectively as "Parties." RECITALS: WHEREAS, in July, 2009 the City Council of the City appointed and employed Employee as Clerk of the Council pursuant to the Charter of the City of Santa Ana ( "City Charter "), and WHEREAS, the appointment and terms of employment are set forth in Resolution No. 2009 -038, and WHEREAS, in July, 2012 the City Council and Employee desired, and did in fact commence setting forth certain benefits, established certain conditions of employment and set certain working conditions of the Clerk of the Council in an Employment Agreement rather than a Resolution. WHEREAS, the City and Clerk of the Council desire to amend certain provisions of the Agreement as set forth herein. WHEREFORE, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, the Parties hereto agree as follows: Section 1, TERM, shall be deleted in its entirety and replaced with the following: 1. Term. This Agreement shall be deemed effective for a term beginning on the Employee's amliversary date, August 17, 2014, and shall remain in effect, unless terminated earlier in accordance with Section 9 of the agreement. Section 2. 1, SALARY shall be deleted in its entirety and replaced with the following: Exhibit C 55394,00002 \7406419.1 25E-26 2.1 Salary City agrees to pay Clerk of the Council, and Clerk of the Council agrees to accept from City, as compensation for services rendered by Clerk of the Council pursuant to this Agreement, an annual base salary, commencing on August 17, 2014 set at Step 15 of EM 33 and payable in installment payments in the same manner and at the same times as the salaries of other executive managers of the City are paid. Section 2.2.1 Deferred Compensation shall be deleted in its entirety and replaced with the following: 2.2.1 Payment for Unused Sick Leave. City agrees to pay Clerk of the Council for unused sick leave upon cessation of employment on the same basis as unrepresented management employees of the City. Section 3.1 Management Performance Based Evaluation System shall be added as follows: 3.1 Management Performance Based Evaluation System. City shall establish for the Clerk of the Council a management performance -based evaluation system, same as unrepresented Executive Management (EM), the provisions of which are set forth in Resolution No. 1991 -066 and as amended from time -to -time. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have executed this First Amendment to Clerk of the Council Employment Agreement as of the 2nd day of September, 2014, EMPLOYEE /CLERK OF THE COUNCIL Maria D. Huizar 55394.00002 \7406419.1 25E-27 CITY OF SANTA ANA Miguel A. Pulido Mayor ATTEST: 55394.00002 \7406419,1 Approved as to Form: S nia R. Carvalho, Best,Best & Krieger City Attorney 25E -28