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HomeMy WebLinkAbout25E - AGMT LEGAL SERVICESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 16, 2018 TITLE: APPROVE AN AGREEMENT FOR SPECIAL LEGAL COUNSEL SERVICES WITH MANNING & KASS ELLROD RAMIREZ TRESTER, LLP RELATED TO POLICE LITIGATION AND PERSONNEL SERVICES {STRAGIC PLAN NO. 1, 3, 4, 5} Cl*MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on I" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and the Clerk of the Council to execute an agreement with Manning & Kass Ellrod Ramirez Trester, LLP related to police litigation and personnel services, for a three (3) year term from January 16, 2018 until January 15, 2021, for a maximum amount to be spent of $350,000 subject to non -substantive changes approved by the City Manager and the City Attorney. DISCUSSION Manning & Kass Ellrod Ramirez Trester, LLP is a highly reputable, full service law firm that has provided legal services to numerous cities, counties and other public entities since 1996. The firm, headquartered in Los Angeles, has more than 175 attorneys in six offices, including an office in Orange County. The firm's Government Entity Liability team has been successful in defending numerous municipalities in law enforcement civil liability, municipal liability, and employment litigation matters. Eugene Ramirez, a founding partner of the firm, specializes in municipal liability and police litigation. He has a reputation of receiving excellent results for public agencies in police matters and heads the firm's Governmental Entity Liability Team. Mr. Ramirez has been profiled in the California Lawyer Magazine for his law enforcement defense work and is frequently invited to speak to law enforcement agencies across the United States on use of force, handling high profile cases, and related matters. Manning & Kass was recently named by the Los Angeles Business Journal as the 24th largest firm in Los Angeles. Historically, the City's police personnel matters have been handled by outside counsel to avoid the potential for conflicts between an in-house city attorney who may have to later defend the same officer in subsequent litigation. The proposed hourly billable rate of $295 is competitive, and comparable to the hourly rate charged by other law firms who have represented the City, 25E-1 Agreement For Special Legal Counsel Services With Manning & Kass, Ellrod Ramirez Treater LLP Related to Pollee Litigation and Personnel Matters January 18, 2018 Page 2 The attached agreement for legal services is necessary to guarantee the continuity of services for the City In on-going personnel matters and related litigation that have imminent court hearings and court deadlines. Manning & Kass Is currently representing the City In three matters. This agreement will authorize the City Attorney to call upon Manning & Kass for legal services as necessary to defend existing and future police litigation and personnel matters. This contract has a three (3) year term with a not to exceed amount of $350,000. 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 Sustalnabllity. FISCAL IMPACT The special legal counsel services will be paid out of the Liability Fund (account no, 08009051- 82302) FY 2017-18 $175,000 FY 2018-19 $125,000 FY 2019-20_1 $50,000 APPROVED AS TO FUNDS AND ACCOUNTS: onla R. Ca alho Fran Isco utlerrez' City Attome Executive Director Finance & Management Services Agency Ellen Smiley Acting Executive Dir r Personnel Services Agency Exhibit — Legal Services Agreement with Manning & Kass, Ellrod Ramirez & Treater, LLP 25E-2 SPECIAL LEGAL COUNSEL SERVICES AGREEMENT This AGREEMENT, made and entered into this 16th day of January, 2018, by and between Manning.,.&�.Kass,-,Ellrod;. Ramirez; Trester,--a-wLimited 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 in-house attorneys for the City ("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 municipal litigation, specifically, police litigation and personnel matters, 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 with police litigation and personnel matters. Attorneys accept said retention and agree to perform, in a 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. Compensation shall be based on the actual amount of time spent in adequately performing the Services, and shall be billed at the rate of $295 an hour for all attorneys and $130 an hour for paralegal work. Time will be billed in 1/10th of an hour increments. _ b. The total sum to be expended under this Agreement, shall not exceed $350 060 during the term of this Agreement. C. 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. Copying charges will be reimbursed at the rate of 10 cents per page. 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.). 1 25E-3 4. CONTROL OF LEGAL MATIERS 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 any other person(s) designated by the City Attorney, informed of significant events in the Actions, 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 terminafe:thi6e`(3)'years from said commencement date, unless terminated earlier pursuant to Section 15 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. 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. 9. 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 to the extent caused by Attorneys' negligent or wrongful performance or conduct related to this Agreement. 10. CONFIDENTIALITY All information and documents shared with Attorneys as well as all work performed by Attorneys in connection with this Agreement should be treated as strictly confidential. Moreover, all communications between Attorneys and City shall be treated as protected by the attorney-client privilege and the attorney work product doctrine. Accordingly, 25E-4 information received by Attorneys from City should be kept in a secure place, and no information about this work may be disclosed to any third party without City's prior written approval. Attorneys shall provide materials directly to the City Attorney, Sonia Carvalho, or selected members of her office, as directed by the City Attorney. All such information and any written product in connection with Attorneys` retention under this Agreement, shall be marked as "PRIVILEGED AND CONFIDENTIAL / ATTORNEY -WORK PRODUCT" and shall be the property of the City Attorney's Office, and shall be returned/provided to the Office of the City Attorney with all copies upon the request of the City Attorney. 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. 11. 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. 12. 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 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.O. Box 1988 Santa Ana, California 92702 Facsimile (714) 647-6515 To Attorneys: Eugene Ramirez, Esq. Manning & Kass, Ellrod, Ramirez, Trester, LLP 801 South Figueroa, 15th Floor Los Angeles, California 90017 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 3 25E-5 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. 13. 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 terns 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. 14. 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. 15. 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 written reasonable notice of at least thirty (30) days 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 in the Actions. 16. 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 4 25E-6 defined and prohibited by applicable lave, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Attontcys affirm that it is an equal opportunity employer and shall comply with all applicable tedeml, state and local laves and regulations. 17. JURISDICTION - VENUEThis Agreement has been cxcwtcd and delivered in the State ofC'aliflornia and the validity, interpretation, performance, and enforcement ofany of the clauses of this Agreement shall be detemtined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be [lie venue R)r any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 18. 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 tents of this Agreement, and shall indemnify City fully, including reasonable costs and attonrey's fees, fbi- 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. 19. COUNTERPARTS: SIGNATOR ES This Agreement may be executed in counterparts, secured via facsimile or a -mail transmission or otherwise, each of which shall be deemed to be an original. Photocopies of any executed counterpart shall have the same force and effect as an original. IN W ITN ESS WH,E R-EOF, the parties hereto have executed this Agreement the day and year first above written. ATTEST: Maria D. Huizar Clerk of the Council RECO.M.-MENDED FOR APPROVAL.: 4�r iNIA R. CARVj 1. City Attorney Office APPROVED AS TO FORAM SONIA R.,C'ARVALAC) Senior Assistant City Attorney CITY OF SANTA ANA Raul Godincz 11 City Manager NIANNING & KASS, ELLROD, RAM.IRIZ TR.ESTF.R, LLP Eug a ii ez, Esq. Pa 25E-7 25E-8