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HomeMy WebLinkAboutBUCHALTER NEMER 1-2012INSURANCE NOT ON BILE N-2016-001 ORK MAY NT PROCEED (' CLERK OF COUNCIL DACE: 9Nl 6 2plg SPECIAL LEGAL COUNSEL SERVICES AGREEMENT Cy PDA This AGREEMENT, made and entered into this day of November, 2015, by and Ql ahi between Buchalter Nemer, a Professional Law 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. B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge in the field of aviation law 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 legal services to assist with a legal matter concerning the Orange County Airport Land Use Commission (ALUC) and legal review of Findings prepared to overrule the ALUC pertaining to The Heritage Project, as requested by the City Attorney to do so (the "Project"). 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. City will be responsible for advising Attorneys whether any document Attorneys have prepared or received and sent to City for City's approval or review reflects the principal terns of this Agreement, general strategy or other expectations, as the case maybe. 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 $410 an hour for lead counsel, $290 an hour for associates and $190 an hour for paralegals. B. REIMBURSEMENT FOR COSTS City agrees to reimburse Attorneys for out-of- pocket expenses in addition to the hourly fees incurred working on the City's matter, 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. All expenses most have supporting documentation submitted with the invoice. 3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the services performed, dates and number of hours, and an itemization of expenses related thereto with supporting documentation (i.e. receipts, invoices, copy of check, etc). Payment is due upon receipt, but in no event later than thirty calendar days after the date of the statement. Buchalter also reserves the right to suspend further work at any time that there is an outstanding statement more than thirty calendar days past due. 4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the City Attorney, as aforesaid, shall be and remain under, and subject to the control and direction of said City Attorney at all stages, and that they shall at all times keep the City Attorney informed of all matters pertaining thereto. City will keep Attorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to City Attorney any and all files then in their possession concerning each and every matter or proceeding in which they represented the City pursuant to this Agreement. 5. REPORTING REQUIREMENTS Attorneys agree to keep the City Attorney, Director of Planning & Building (or his designee), and anyone other person(s) designated by the City informed of significant events in the Project. Attorneys also agree to provide the City with an evaluation of the Project and estimated timeframe and budget. Any estimate will be an estimate only and not a Quarantee that the actual fees, costs or time will be in the amount of, or limited to, the estimate. City will be responsible for Attorneys' actual legal fees and costs, regardless of whether they are greater or less than the estimate. 6. 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 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. In the event of any express or implied extension, the terms of this Agreement shall continue to govern. 7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, in the performance of their covenants hereunder, Attorneys are and shall be independent contractors, and not officers or employees of City. 8. INSURANCE 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. 2 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 performance of services specified under this Agreement. 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, e-mail or other electronic 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.Q. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Attorneys: Barbara Lichman, Esq. Buchalter Nemer 18400 Von Karman Ave., Suite 800 Irvine, California 92612-0514 Phone: (949) 224-6292 Facsimile: (949) 720-0182 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 or e-mail, 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. 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 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. 15. INTERNAL FIRM COMMUNICATIONS During Buchalter's representation of City, the occasion may arise for Buchalter to consult with its own counsel — its General Counsel or other Buchalter attorneys working with its General Counsel who do not perform work for City on its matter or matters, or with outside counsel — at Buchalter's sole expense. To the extent that Buchalter is addressing its own rights or responsibilities, a conflict of interest might be deemed to exist between Buchalter and City as to such consultation or resulting communications, 4 particularly if a dispute were to arise between City and Buchalter regarding City's matter or matters. A condition of this engagement is that City hereby consents to such future consultation occurring and waives any claim of conflict of interest based on such consultation or resulting communications that could otherwise disqualify Buchalter from continuing to represent City, even if doing so might be deemed adverse to City's interests. City acknowledges that such communications are protected by Buchalter's attorney client and work product privileges from disclosure to City and agree that City will not seek to discover or inquire into them. Nothing in the foregoing shall diminish or otherwise affect Buchalter's obligation to keep City informed of material developments in City's representation, including any conclusions arising out of internal firm communications to the extent that such communications affect City's interests. If City should have any questions concerning the consent requested in this paragraph, please feel free to discuss them with us before signing and returning this letter. City is also encouraged to seek independent counsel regarding the import of this consent. Moreover, City remains completely free to seek independent counsel's advice at any time, even if City decides to sign this Agreement and consents to this consultation. City's signing this Agreement confirms that City has waived any conflict regarding such consultation. 16. DISPUTE RESOLUTION Attorneys and City agree that, if any dispute arises out of or relating in any way to this Agreement, City's relationship with Attorneys regarding attorneys' fees or costs, or the services performed (including but not limited to disputes and claims of negligence, breach of contract or fiduciary duty, fraud or any claim based upon a tort or statute), such dispute shall be resolved by submission to binding arbitration in Orange County, California, before a retired judge or justice. If Attorneys and City are unable to agree on a retired judge or justice, each party will name one retired judge or justice and the two named persons will select a neutral judge or justice who will act as the sole arbitrator. That binding arbitration will be conducted and resolved pursuant to the Judicial Arbitration and Mediation Service ("JAMS") Streamlined Arbitration Rules & Procedures in effect at the time of any such dispute. Any decision of the arbitrator may be confirmed by a court of competent jurisdiction and the ensuing judgment may thereafter be enforced in the same manner as a judgment in a civil action. The ensuing judgment may also be appealed pursuant to California Code of Civil Procedure section 1294.2. 17. 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. 18. 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. W 19. 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 compensate 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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: �� D Maria, D. Huizar Cleric of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney Lisa Storck Assistant City Attorney RECOMMEND APPROVAL: ;�,r:.rit.1 Hassanl-lagli, E7.e utive Director Planning & Building Agency CITY OF SANTA ANA David Ca`vazc City Manager BUCHALTER NEMER By:14UL106W Name: Barbara E. Lichman Title: Of Counsel Tax ID No. 95-2640846 Mitre -Ramirez, Norma From: Storck, Lisa Sent: Thursday, January 07, 2016 1:32 PM To: Huizar, Ana; Mitre -Ramirez, Norma Subject: RE: Agreeement with Buchalter Nemer Norma — it is my understanding that the legal services agreements no longer have a "not to exceed amount' however, yes, this contract is only for one project (The Heritage) and the legal fees we pay will be reimbursed by the Developer (and should not exceed $25K). Lisa E. Storck Asst. City Attorney P:(714)647-5201 F: (714) 647-6515 This email is confidential and may be protected from disclosure by the attorney-client and/or work -product privilege. This email is intended for the person to whom it is addressed. If you receive this email in error, please advise the sender and delete the original email. No claim of privilege is intended to be waived by sending the email in error to a third party. From: Huizar, Ana Sent: Thursday, January 7, 2016 1:30 PM To: Mitre -Ramirez, Norma <NMitre-Ramirez@santa-ana.org> Cc: Storck, Lisa <LStorck@santa-ana.org> Subject: FW: Agreeement with Buchalter Nemer Not sure if Lisa has replied to this email. Let me know. Ana A. Huizar Management Aide Planning and Building Agency City of Santa Ana ahuizar(a)santa-ana.ora (714) 667-2717 From: Huizar, Maria Sent: Thursday, January 07, 2016 1:07 PM To: Huizar, Ana Subject: FW: Agreeement with Buchalter Nemer Meant for you.... O 1