HomeMy WebLinkAboutDevaney Pate Morris & Cameron, LLP - General Legal Services Regarding Administrative Appeal Hearings - 2024 V
AGREEMENT FOR LEGAL SERVICES
BY AND BETWEEN
THE CITY OF NATIONAL CITY
AND
DEVANEY PATE MORRIS & CAMERON, LLP
THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made as of the 1st
day of August, 2024, between the CITY OF NATIONAL CITY, a municipal corporation, (the
"CITY")and DEVANEY PATE MORRIS&CAMERON,LLP(the"FIRM"). This Agreement
sets forth the parties' mutual understanding concerning legal services to be provided by the FIRM
and the fee arrangement for said services.
Article 1. Retainer. The CITY hereby retains the FIRM to assist in representing the
CITY in connection with as-needed, general legal services regarding administrative appeal
hearings, subject to this Agreement.
Article 2. Effective Date and Term. This Agreement shall be effective on August 1,
2024, through August 31, 2025. This Agreement may be terminated at any time by either party
with sixty(60)days' written notice to the other. Notice of termination by the FIRM shall be given
to the City Attorney.
Article 3. Scope of Services. FIRM shall provide, as-needed, general legal services
regarding administrative appeal hearings,including the following:represent the CITY in all phases
of administrative appeal hearings relating to the denial, suspension and/or revocation of massage
establishment permits.
Compensation for these administrative appeal hearing services shall be as set forth in
Article 4 of this Agreement.
Article 4. Compensation. Compensation paid under this Agreement shall be in
accordance with the rate schedule attached as Exhibit "A"to this Agreement.
A. The FIRM shall not use more than one attorney for the same specific task without the CITY'S
approval. The FIRM may use the minimum number of attorneys for this engagement
consistent with good professional practice after consulting with and obtaining approval by the
CITY.
B. The FIRM shall keep the CITY advised monthly as to the level of attorney hours and client
services performed under Article 3.
C. The CITY has appropriated or otherwise duly authorized the payment of an amount not-to-
exceed $25,000 for the Services identified in Article 3. In no event shall the total fees plus
out-of-pocket disbursements exceed this amount without written authorization of the CITY.
D. The CITY further agrees to reimburse the FIRM, in accordance with the procedures set forth
in this Article, for telephone, fax, mail, messengers, federal express deliveries, document
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reproduction, client-requested clerical overtime, lodging, and similar out-of-pocket expenses
charged by the FIRM as a standard practice to its clients generally, with the exception of meals.
In any billing for disbursements, the FIRM shall provide the CITY with a statement breaking
down the amounts by category of expense. The following items shall not be reimbursed,unless
the CITY has specifically agreed otherwise:
(1) Word Processing, clerical or secretarial charges, whether expressed
as a dollar disbursement or time charge.
(2) Storage of open or closed files, rent, electricity, local telephone,
postage, receipts or transmission of telecopier documents, or any other items traditionally
associated with overhead.
(3) Photocopy charges in excess of$.15 (fifteen cents) per page.
(4) Auto mileage rates in excess of the rate approved by the Internal
Revenue Service for income tax purposes.
(5) Secretarial overtime. Where case requirements demand overtime,
the CITY will consider reimbursement on a case-by-case basis. The CITY will not reimburse
overtime incurred for the convenience of the FIRM'S failure to meet deadlines known in
advance.
(6) Equipment, books, periodicals, research materials, Westlaw/Lexis
or like items.
(7) Express charges, overnight mail charges, messenger services or the
like, without the CITY'S prior consent. The CITY expects these expenses to be incurred in
emergency situations only. Where case necessity requires the use of these services, the CITY
will consider reimbursement on a case-by-case basis.
(8) Meals.
(9) Late payment charge or interest. Due to the nature of the CITY'S
payment process, the CITY will not pay any late charges or interest charges to bills. Every
effort will be made to pay bills promptly.
D. Bills from the FIRM should be submitted to Barry J. Schultz,City Attorney,
1243 National City Boulevard, National City, CA 91950-4301. The individual time and
disbursement records customarily maintained by the FIRM for billing evaluation and review
purposes shall be made available to the CITY in support of bills rendered by the FIRM.
E. The FIRM agrees to forward to the CITY a statement of account for each
one-month period of services under this Agreement, and the CITY agrees to compensate the
FIRM on this basis. The FIRM will consult monthly with the CITY as to the number of attorney
hours and client disbursements which have been incurred to date under this Agreement, and as
to future expected levels of hours and disbursements.
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F. Billing Format. Each billing entry must be complete, discrete and
appropriate.
(1) Complete.
(a) Each entry must name the person or persons involved. For
instance, telephone calls must include the names of all participants.
(b) The date the work was performed must be included.
(c) The hours should be billed in .10 hour increments.
(d) The specific task performed should be described, and the
related work product should be reference("telephone call re: trial brief,""interview in preparation
for deposition").
(e) The biller's professional capacity (partner, associate,
paralegal, etc.) should be included.
(2) Discrete: Each task must be set out as a discrete billing entry;
neither narrative nor block billing is acceptable.
(3) Appropriate.
(a) The CITY does not pay for clerical support, administrative
costs, overhead costs, outside expenses or excessive expenses. For example, the CITY will not
pay for secretarial time, word processing time, air conditioning, rental of equipment, including
computers, meals served at meetings,postage, online research,or the overhead costs of sending or
receiving faxes. Neither will the CITY pay for outside expenses such as messenger delivery fees,
outside photocopying, videotaping of depositions, investigative services, outside computer
litigation support services, or overnight mail.
(b) Due to the nature of the CITY'S payment process, the CITY
will not pay any late charges. Every effort will be made to pay bills promptly.
G. Staffing. Every legal matter should have a primarily responsible attorney
and a paralegal assigned. Ultimately, staffing is a CITY decision, and the CITY'S representative
may review staffing to insure that it is optimal to achieve the goals of the engagement at the least
cost.
(1) Paralegals are to be used to the maximum extent possible to enhance
efficiency and cost-effectiveness. All tasks typically considered associate work should be
considered for assignment to a paralegal. Written authorization from the CITY must be had before
associate hours billed exceed paralegal hours billed.
(2) Once an attorney is given primary responsibility for an engagement,
that person should continue on the legal matter until the matter is concluded or the attorney leaves
the FIRM. The CITY will not pay the costs of bringing a new attorney up to speed.
(3) If more than one attorney is going to perform the same task, prior
approval from the CITY must be had. This includes document review.
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Article 5. Independent Contractor. The FIRM shall perform services as an
independent contractor. It is understood that this contract is for unique professional services.
Accordingly,the duties specified in this Agreement may not be assigned or delegated by the FIRM
without prior written consent of the CITY. Retention of the FIRM is based on the particular
professional expertise of the individuals rendering the services required in the Scope of Services.
Article 6. Confidentiality of Work. All work performed by the FIRM including but
not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or
composed by the FIRM pursuant to this Agreement is for the sole use of the CITY. All such work
product shall be confidential and not released to any third party without the prior written consent
of the CITY.
Article 7. Compliance with Controlling Law. The FIRM shall comply with all
applicable laws, ordinances, regulations, and policies of the federal, state, and local governments
as they pertain to this Agreement. In addition, the FIRM shall comply immediately with any and
all directives issued by the CITY or its authorized representatives under authority of any laws
statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and
control the terms and conditions of this Agreement.
Article 8. Acceptability of Work. The CITY shall decide any and all questions which
may arise as to the quality or acceptability of the services performed and the manner of
performance, the acceptable completion of this Agreement and the amount of compensation due.
If the FIRM and the CITY cannot agree to the quality or acceptability of the work, the manner of
performance, or the compensation payable to the FIRM in this Agreement, the CITY or the FIRM
shall give to the other written notice. Within ten(10)business days,the FIRM and the CITY shall
each prepare a report which supports their position and file the same with the other party. The
CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the
manner of performance or the compensation payable to the FIRM.
Article 9. Indemnification. The FIRM agrees to indemnify, defend, and hold the
CITY and its agents, officers, employees, and volunteers harmless from and against all claims
asserted or liability established for damages or injuries to any person or property, including injury
to the FIRM'S employees, agents, or officers, which arise from or are connected with or caused or
claimed to be caused by the acts or omissions of the FIRM and its agents, officers, or employees
in performing the work or other obligations under this Agreement,and all expenses of investigating
and defending against same; provided, however, that this indemnification and hold harmless shall
not include any claims or liability arising from the established sole negligence or willful
misconduct of the CITY, its agents, officers, employees, or volunteers.
Article 10. Insurance. The FIRM, at its sole cost and expense, shall purchase and
maintain throughout the term of this Agreement,the following insurance policies:
A. Professional Liability Insurance (errors and omissions) with minimum
limits of$1,000,000 per claim.
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B. Automobile Insurance covering all bodily injury and property damage
incurred during the performance of this Agreement, which insurance shall apply to all owned,
non-owned and hired vehicles.
C. Commercial General Liability Insurance, with minimum limits of either
$2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and
$2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property
damage arising out of its operations, work, or performance under this Agreement. The policy shall
name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a
separate additional insured endorsement shall be provided. The general aggregate limit must apply
solely to the "location". The "location" should be noted with specificity on an endorsement that
shall be incorporated into the policy.
D. Workers' Compensation Insurance requirement will be waived by the
City if there are six (6) employees or fewer, consistent with state law.
E. The aforesaid policies shall constitute primary insurance as to the CITY, its
officers,officials, employees,and volunteers, so that any other policies held by the CITY shall not
contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior
written notice to the CITY's Risk Manager, at the address listed in subsection G below, of
cancellation or material change.
F. If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, the FIRM shall maintain such insurance coverage for three years after
expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must
be on or before the date of this Agreement.
G. The Certificate Holder for all policies of insurance required by this Section
shall be:
City of National City
do Risk Manager
1243 National City Boulevard
National City, CA 91950-4397
H. Insurance shall be written with only insurers authorized to conduct business
in California that hold a current policy holder's alphabetic and financial size category rating of not
less than A:VII according to the current Best's Key Rating Guide, or a company of equal financial
stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non-
admitted "surplus lines" carriers, they must be included on the most recent List of Approved
Surplus Line Insurers ("LASLI") and otherwise meet rating requirements.
I. This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are filed with and approved by the
CITY'S Risk Manager. If the FIRM does not keep all insurance policies required by this Article
10 in full force and effect at all times during the term of this Agreement, the CITY may treat the
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failure to maintain the requisite insurance as a breach of this Agreement and terminate the
Agreement as provided herein.
J. All deductibles and self-insured retentions in excess of$10,000 must be
disclosed to and approved by the CITY. CITY reserves the right to modify the insurance
requirements of this Article, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
K. If the FIRM maintains broader coverage or higher limits (or both) than the
minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits
(or both) maintained by the FIRM. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the CITY.
Article 11. Drug Free Work Place. The FIRM agrees to comply with the CITY'S
Drug-Free Workplace requirements. Every person awarded a contract by the CITY for the
provision of services shall certify to the CITY that it will provide a drug-free workplace. Any
subcontract entered into by the FIRM pursuant to this Agreement shall contain this provision.
Article 12. Non-Discrimination Provisions. The FIRM shall not discriminate against
any subcontractor, vendor, employee or applicant for employment because of age, race, color,
ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or
medical condition. The FIRM will take positive action to insure that applicants are employed
without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status,
national origin, physical handicap, or medical condition. Such action shall include but not be
limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff or termination, rates of pay or other forms of compensation, and selection for
training, including apprenticeship. The FIRM agrees to post in conspicuous places available to
employees and applicants for employment any notices provided by the CITY setting forth the
provisions of this non-discrimination clause.
Article 13. Notification of Change in Form. The FIRM has the right to effect changes
in form including but not limited to: the change in form from a partnership to a professional law
corporation; the change in form of any partner or partners from an individual or individuals to a
professional law corporation; the change in form of any corporate partner or partners to any
individual partners. The CITY shall be promptly notified in writing of any change in form.
Article 14. Notices. In all cases where written notice is to be given under this
Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail,
postage paid. When so given, such notice shall be effective from the date of mailing of the notice.
Unless otherwise provided by notice in writing from the respective parties, notice to the Agency
shall be addressed to:
City Attorney
City of National City
1243 National City Boulevard
National City, CA 91950-4397
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cc: Executive Assistant to the City Attorney
City of National City
1243 National City Boulevard
National City, CA 91950-4397
and to: bschultz(a,nationalcityca.gov
Leahm cr nationalcityca.gov
Notice to the FIRM shall be addressed to:
Wendy L. House
Devaney Pate Morris & Cameron, LLP
41955 Fourth Street, Suite 210
Temecula, CA 92590
Email: whouse(&,,dpmclaw.com
and to: asullivan@dpmclaw.com
ldevaney a,dpmclaw.com
Nothing contained in this Agreement shall preclude or render inoperative service
or such notice in the manner provided by law.
Article 15. Administrative Provisions.
A. Time of Essence. Time is of the essence for each provision of this
Agreement.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one and
the same instrument.
C. Headings. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. California Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. The venue for any legal action arising under
this Agreement shall be in either state or federal court in the County of San Diego, State of
California.
E. Integrated Agreement. This Agreement including attachments and exhibits
contains all of the agreements of the parties and all prior negotiations and agreements are merged
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in this Agreement. This Agreement cannot be amended or modified except by written agreement,
and mutually agreed upon by the CITY and the FIRM.
F. Severability. The unenforceability,invalidity, or illegality of any provision
of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
G. Waiver. The failure of the CITY to enforce a particular condition or
provision of this Agreement shall not constitute a waiver of that condition or provision or its
enforceability.
H. Conflict of Interest. During the term of this Agreement,the FIRM shall not
perform services of any kind for any person or entity whose interests conflict in any way with
those of the CITY. This prohibition shall not preclude the CITY from expressly agreeing to a
waiver of a potential conflict of interest under certain circumstances.
I. No Obligations to Third Parties. Except as otherwise expressly provided
herein,the execution and delivery of this Agreement shall not be deemed to confer any rights upon,
or obligate any of the parties hereto, to any person or entity other than the parties hereto.
J. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes.To the extent any exhibits,schedules,
or provisions thereof conflict or are inconsistent with the terms and conditions contained in this
Agreement, the terms and conditions of this Agreement shall control.
K. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
CITY OF NATIONAL CITY DEVANEY PATE MORRIS &
CAMERON,LLP
DocuSigned by:
By: By:(1)'—' EA'Sitt' . Vtualn,t,t1Es .
Benjamin A. Marti ez 01304710C93C4CD..
Leslie E. Devaney, Partner
City Manager Signed by:
OCAISAat
APPROVED AS TO FORM:
By: `—C24C6E3B4C7C4B3... , Esq.
fel4A4 Wendy L. House, Responsible Attorney
By:
Barry J. Sc It
City Attorney
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• Dpivic Devaney Pate
Morris&CameronLlp
September 17, 2024
Barry Shultz, Esq.
City Attorney
CITY OF NATIONAL CITY
1243 National City Blvd.
National City, California 91950
Re: Special Counsel Legal Services Agreement—Massage Administrative Appeals
On behalf of Devaney Pate Morris&Cameron,LLP("DPMC"or the"Firm"),I am pleased
to submit the Firm's proposal to provide special counsel legal services to the City of National City
("City") in connection with administrative appeal hearings involving the denial, non-renewal,
suspension or revocation of Massage Establishment Permits issued by the City.
Firm Introduction
As the City is aware, DPMC is a local law firm whose mission is passionate public service
and commitment to local cities such as National City. We currently provide City Attorney contract
services to the City of Del Mar and a host of special purpose and college districts. Our team, a
carefully selected and talented group of 11 lawyers,have a combined 200 years of complex public
agency experience.
Responsible Attorney Qualifications
I will be the primary attorney assigned to perform this Scope of Work. I bring over 15
years of combined legal and public agency experience to my law practice. Currently, I serve as an
Assistant City Attorney to the City of Del Mar, where I advise the City Council, Planning
Commission,and staff on general municipal and public entity law,including government relations,
the Brown Act, the California Public Records Act, the Fair Political Practices Commission
regulations, the Political Reform Act,public contracts, conflicts of interest, campaign finance and
elections law, administrative law, employment and personnel matters, the Health Insurance
Portability and Accountability Act, code enforcement, land use, planning and zoning, the
California Environmental Quality Act, public works, and prevailing wage laws and regulations. I
also assist the Victor Valley Community College District and Pauma Valley Community Services
District, and provide special counsel services to a number of other public agencies, such as the
City of Encinitas, City of Vacaville, City of Oakland Public Ethics Commission, San Diego
Community College District, and Chaffey Community College District. Additionally, I have
assisted the Cities of San Marcos, Murrieta, and Lemon Grove in providing contract city attorney
services, including representing San Marcos and Murrieta in administrative appeal hearings
relating to the revocation, suspension and/or denial of permits to operate massage businesses.
41955 Fourth Street,Suite 210,Temecula,CA 92590 1111 T:(951)262-4491 ■ F:(951)262-4495■ DPMCIaw.com
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Mr. Schultz, Esq.,City Attorney
CITY OF NATIONAL CITY
Special Counsel Legal Services Agreement—Massage Administrative Appeals
September 17,2024
Page 2 of 2
Scope of Work
The Scope of Work is focused on representing the City through all phases of an
administrative appeal hearing involving the denial, non-renewal, suspension or revocation of
Massage Establishment Permits issued by the City. Included in the Scope of Work will be a review
of the City's record of documents and evidence, together with the appellant's record. I will also
assist the City in preparing for and handling the administrative appeal hearing before a third-party
administrative hearing officer.
Compensation
Our proposed fee is based on our 2024 hourly fee rate of$225/hour for my services. This
rate reflects a combination of consulting and legal services. Our legal services would be subject
to a not-to-exceed amount of$25,000 to be paid 30 days from receipt of an invoice approved by
the City Attorney. I will proactively inform you no less than 60 days prior to when we near the
capped legal services amount. I am open to discussing the amount based on the City's budget
constraints and our collective thoughts on how much time will be involved.
I look forward to working with the City of National City. Please see the attached City
standard legal services contract for your consideration. Should you have any questions or wish to
discuss further do not hesitate to contact me.
Sincerely,
DEVANEY PATE MORRIS & CAMERON LLP
Wendy L. House
Enclosure as noted