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HomeMy WebLinkAbout25A - AGMT - LEGAL SERVICES PDREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: APRIL 18, 2017 TITLE: AGREEMENT FOR SPECIAL LEGAL COUNSEL SERVICES WITH CARPENTER, ROTHANS & DUMONT FOR POLICE LITIGATION DEFENSE SERVICES (STRAGIC PLAN NO. 1, 3, 4, 5) RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n° Reading ❑ Implementing Resolution ❑ Set Public Hearing For_ CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute a three (3) year agreement, effective April 18, 2017 through April 17, 2020 for a not to exceed amount of three million dollars ($3,000,000) with the law firm Carpenter, Rothans & Dumont for police litigation defense services subject to non - substantive changes approved by the City Manager and the City Attorney. DISCUSSION Since November 21, 2006, the law firm of Carpenter Rothans & Dumont has provided special legal counsel services to the City. The firm, headquartered in Los Angeles, specializes primarily in police litigation defense services in both federal and state court with an emphasis on civil rights matters involving public safety employees. Mr. Rothans, one of the founding partners of the firm who has practiced law for over thirty years, frequently serves as a Judge Pro Tern and specializes in defending police officers in complex civil rights, police practices, and wrongful death lawsuits involving allegations of excessive force. The attorneys at the firm are known for their tenacity, knowledge of the law, and attention to detail. Mr. Rothans, along with several other partners at the firm won defense verdicts in two police civil liability matters for the City of Santa Ana, (Cody Hernandez v. City of Santa Ana and Ignacio Leon v. City of Santa Ana). Both cases involved allegations that Santa Ana police officers used excessive force and violated the plaintiffs' civil rights. Many of the partners at the firm have argued before both the California Supreme Court and the Nine Circuit Court of Appeals and have successful defending numerous cities and their police departments throughout Southern California including Anaheim, Fullerton, Pomona and the City of Hawthorne. The firm has provided consistently good service at a competitive rate. This latest contract includes a modest increase for a newly blended rate for partners and associates of $200 an hour. This rate remains below standard industry rates for public entity 25A -1 Agreement For Special Legal Counsel Services With Carpenter Rothans & Dumont for Police Litigation Defense Services April 18, 2017 Page 2 defense. The City Attorney's Office supports the rate increase and this new contract for a three yearterm. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #1 Community Safety, Goal #3 Economic Development, Goal #4. Government Financial Stability, and Goal #5 Community Health, Livability, Engagement and Sustainability. FISCAL IMPACT Funding for this agreement will be from the liability fund. The special legal counsel services will be paid out of the Liability Fund (account no. 08009051- 62300) for the following fiscal years as follows:. FY 2016 -17 FY 2017 -18 FY 2018 -19 FY 2019 -20 4- llze-� Soni . Carvfl OitSrAttorney Edward Raya Executive Director Personnel Services Agency 08009051 62300 $250,000 $1,000,000 $1,000,000 $750,000 APPROVED AS TO FUNDS AND ACCOUNTS: cc VSp�`l \ii0 C4� AMY i .X.71 1l_ Francisco Gutierrez I r 0l Executive Director Finance & Management Services Agency Exhibit: Agreement for Special Legal Counsel Services with Carpenter, Rothans & Dumont. 25A -2 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this 18th day of April, 2017, by and between Carpenter, Rothans & Dumont, 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 terns and conditions hereinafter set forth, the parties agree as follows: I . RETENTION OF ATTORNEYS City hereby agrees to and does retain Attorneys, for the compensation hereinafter speciCed, 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. COMPENSATION FOR SERVICES RENDERED a. Fees City agrees to compensate Attorneys, and Attorneys agree to accept fi om City, as and for payment in full for all of said services in regard to each such action, compensation at the rate of $200 an hour for attorney billing. b. Compensation The total sum to be expended under this Agreement, shall not exceed $3,000,000.00 during the term of this Agreement, C. 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. All expenses must 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). 25A -3 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 Personnel, and anyone other person(s) designated by the City informed of significant events in the litigation, including but not limited to trial date, filing of motions for summary judgment, hearing date for motion for summary judgment, settlement conference date, and mediation date. Attorneys also agree to provide the following reports: a. 45 day initial evaluation of case and budget; and b. Pre -trial report 90 days before trial; 6. 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 13 below. The term of this Agreement may be extended upon a writing executed by both patties, including the City Manager and the City Attorney for the City. 7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the patties 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. 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 z 25A -4 information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic infornation. 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 infonnation disclosed by the City. 91 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. 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: Steven J. Rothans, 'Esq. Carpenter, Rothans & Dumont, LLP 500 S. Grand Avenue, 19th Floor Los Angeles, CA 90071. Facsimile: (213) 228 -0401 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) homy after the time set forth on 25A -5 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 it 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 terns or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the temis and conditions bercof, 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. 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 maybe terninated 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 Mace, 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 a 25A -6 California. Both parties ,Farther 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 terns 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. IN WITNESS WHEREOF, the panties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Iluizar m Clerk of the Council RECOMMENDED FOR APPROVAL: SONIA R. CARVALHO City Attorney Office APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: t ! �, % Sandra M. Schwarzmann Senior Assistant City Attorney CITY OF SANTA ANA Gerardo Monet Acting City Manager CARPENTER, ROTHANS & DUMONT, I,I.,P By: -- Name: Steven J. Rothans Title: Partner Tax ID No. 95- 4467855 25A -7 25A -8