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HomeMy WebLinkAbout2004 CON Alfred De La Cruz, Esq - Special Trial CounselAGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND ALFRED M. DE LA CRUZ THIS AGREEMENT is entered into this 3rd day of September , 2004, by and between the CITY OF NATIONAL CITY, a municipal corporation (the "CITY"), and Alfred M. De La Cruz, Attorney at Law, of the Law Firm of Manning & Marder, Kass, Ellrod, Ramirez, LLP (the "CONTRACTOR"). RECITALS WHEREAS, the CITY desires to retain a CONTRACTOR to provide legal services for the CITY. WHEREAS, the CITY has determined that the CONTRACTOR is a California licensed attorney and is qualified by experience and ability to perform the services desired by the CITY, and the CONTRACTOR is willing to perform such services. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. ENGAGEMENT OF CONTRACTOR. The CITY hereby agrees to engage the CONTRACTOR as special trial counsel to the City and the CONTRACTOR hereby agrees to perform the services of special trial counsel hereinafter set forth in accordance with all terms and conditions contained herein. The CONTRACTOR represents that all services required hereunder will be performed directly by the CONTRACTOR or under direct supervision of the CONTRACTOR. 2. SCOPE OF SERVICES. The CONTRACTOR will perform legal services as assigned by the City Attorney. The CONTRACTOR shall be responsible for all work assigned by the City Attomey. The CONTRACTOR may hold or appear at meetings as requested by CITY staff, as needed, or at the direction of the City Attorney. The scope of work may also include, but is not limited to, conferences, hearings, court sessions, depositions (preparation and participation), correspondence, preparation and review of legal documents, legal research, supervision of outside counsel and litigation, and telephone calls. 3. COMPENSATION AND PAYMENT. The compensation for the CONTRACTOR shall be based on monthly billings covering time and work performed. The hourly rate for CONTRACTOR will be $150. Billings may include costs incurred personally by CONTRACTOR in the course of work performed for CITY, such as process server's fees, fees fixed by law or assessed by courts or other agencies sanctions, court reporters' fees, long distance and cellular telephone calls, messenger and other delivery fees, postage, office photocopying, parking, mileage, facsimile use, investigation expenses, computerized research charges, consultants' fees, expert witness fees, travel costs 2004 Agreement Alfred M. De La Cruz, Esq. Special Trial Counsel (including coach airfare and hotel accommodations), and other similar items. Monty invoices will be processed for payment and remitted within fourteen (14) days from receipt of invoice. The CONTRACTOR shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at his office at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement, for inspection by the CITY and for fumishing of copies to the CITY, if requested. 4. LENGTH OF AGREEMENT. Duration of this Agreement shall be at the discretion of the parties and shall continue indefinitely at the pleasure of the parties. 5. INDEPENDENT CONTRACTOR. CONTRACTOR, hereto in the performance of this Agreement, will be acting in an independent capacity and not as an agent, employee, partner or joint venturer with CITY. Neither the CONTRACTOR nor the CONTRACTOR'S employees are employees of the CITY and are not entitled to any of the rights, benefits, or privileges of the CITY's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of the CONTRACTOR and the CONTRACTOR'S employees, and it is recognized by the parties that a substantial inducement to the CITY for entering into this Agreement was, and is, the professional reputation and competence of the CONTRACTOR and his employees. Neither this Agreement nor any interest herein may be assigned by the CONTRACTOR without the prior written consent of the City Attorney. This provision does not apply, however, to assignment and supervision by CONTRACTOR of outside attorneys hired by CITY for other matters that the City Attorney directs. 6. COMPLIANCE WITH APPLICABLE LAW. The CONTRACTOR, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. 7. LICENSES, PERMITS, ETC. The CONTRACTOR represents and covenants that he has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice his profession. The CONTRACTOR represents and covenants that the CONTRACTOR shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for the CONTRACTOR to practice his profession. 8. STANDARD OF CARE. The CONTRACTOR, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the CONTRACTOR'S profession currently practicing under similar conditions and in similar locations. 9. NON-DISCRIMINATION PROVISIONS. The CONTRACTOR shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, 2004 Agreement 2 Alfred M. De La Cruz, Esq. Special Trial Counsel or medical condition. The CONTRACTOR 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. 10. CONFIDENTIAL INFORMATION. The CITY may from time to time communicate to the CONTRACTOR certain confidential information to enable the CONTRACTOR to effectively perform the services to be provided herein. The CONTRACTOR shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the CITY. The CONTRACTOR shall limit the use and circulation of such information to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 10, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of the CONTRACTOR, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of the CONTRACTOR without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to the CONTRACTOR by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. The CONTRACTOR shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the CITY. In his performance hereunder, the CONTRACTOR shall comply with all legal obligations he may now or hereafter have respecting the information or other property of any other person, firm or corporation. 11. INDEMNIFICATION AND HOLD HARMLESS. The CONTRACTOR agrees to defend, indemnify, and hold harmless the City of National City, its officers, employees and volunteers, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of the CONTRACTOR's negligent performance of this Agreement. This indemnity is not intended to act as a guarantee or warranty of the success of any legal service provided hereunder, which service will be provided to the level of expertise identified in Section 8 above. 12. WORKERS' COMPENSATION. The CONTRACTOR shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of Califomia, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the CITY and its officers, and employees from andagainst all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the CITY or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by the CONTRACTOR under this Agreement. 2004 Agreement 3 Alfred M. De La Cruz, Esq. Special Trial Counsel 13. INSURANCE. The CONTRACTOR, at his sole cost and expense, shall purchase and maintain throughout the term of this agreement, the following insurance policies: occurrence. A. Legal Malpractice Insurance with minimum limits of $1 Million per B. Comprehensive general liability insurance, with minimum limits of $1,000,000 combined single limit per occurrence, covering all bodily injury and property damage arising out of his operation under this Agreement. C. Workers' compensation insurance covering all of CONSULTANT's D. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance, with the exception of the CITY defending and indemnifying CONTRACTOR for actions institued against CONTRACTOR for prior performance of CITY related work. E. Said policies shall provide for thirty (30) days prior written notice to CITY of cancellation or material changes. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the CONTRACTOR shall maintain such insurance coverage for one years after expiration of the term (and any extensions) of this Agreement. G. Any aggregate insurance limits must apply solely to this Agreement. H. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. 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 Attorney. If the CONTRACTOR does not keep all of such insurance policies in full force and effect at all times during the terms of this Agreement, the CITY may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. 14. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorney's fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. employees. 2004 Agreement 4 Alfred M. De La Cruz, Esq. Special Trial Counsel 15. TERMINATION. A. This Agreement may be terminated with or without cause by the CITY. Termination without cause shall be effective only upon 30-days' written notice to the CONTRACTOR. B. This Agreement may also be terminated immediately by the CITY for cause in the event of a material breach of this Agreement, misrepresentation by the CONTRACTOR in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the CITY. C. Termination with or without cause shall be effected by delivery of a written Notice of Termination to the CONTRACTOR as provided for herein. D. In the event of termination, all finished or unfinished documents prepared by the CONTRACTOR, whether paper or electronic, shall immediately become the property of and be delivered to the CITY, and the CONTRACTOR shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the CITY by the CONTRACTOR's breach, if any. E. The CITY further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting the CONTRACTOR; (2) a reorganization of the CONTRACTOR for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of the CONTRACTOR. F. The CONTRACTOR agrees to provide two (2) weeks notice of termination. 16. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by ovemight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the CITY: George H. Eiser, III City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 To the CONTRACTOR: Alfred M. De La Cruz, Esq. Manning & Marder, Kass, Ellrod, Ramirez, LLP 401 West A Street Suite 1900 San Diego, CA 92101-7908 2004 Agreement 5 Alfred M. De La Cruz, Esq. Special Trial Counsel Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 17. CONFLICT OF INTEREST OBLIGATIONS. During the term of this Agreement, the CONTRACTOR shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. The CONTRACTOR represents that he has no knowledge of any financial interests that would require him to disqualify himself from any matter on which he might perform services for the CITY. The CONTRACTOR shall be strictly liable to the CITY for all damages, costs or expenses the CITY may suffer by virtue of any violation of this Paragraph by the CONTRACTOR. 18. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. 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. Captions. 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. 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. E. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. F. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. G. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. H. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 2004 Agreement 6 Alfred M. De La Cruz, Esq. Special Trial Counsel I. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. J. 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, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) 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 '01441 Nick Inzunza Mayor APPROVED AS TO FORM: George H. Eiser, III City Attorney MANNING & MARDER, KASS, ELL ; D, RAMIREZ, LLP Byi Alfred Attorney - aw uz, Esq. 2004 Agreement 7 Alfred M. De La Cruz, Esq. Special Trial Counsel City of National City, California COUNCIL AGENDA STATEMENT 02OO'1- `f JIEETING DATE September 21, 2004 AGENDA ITEM NO. 4 ITEM TITLE2ESOLUTION OF THE CITY COUNCIL AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH ALFRED M. DE LA CRUZ, ESQ. TO PROVIDE SERVICES AS SPECIAL TRIAL COUNSEL PREPARED BY George H. Eiser, III EXPLANATION (Ext. 4221) DEPARTMENT City Attorney The City from time to time retains outside counsel to provide legal representation to the City and its officials and employees in litigation matters. The proposed resolution would authorize an agreement for legal services on an as -needed basis with Alfred M. De La Cruz, Esq., a partner in the Law Firm of Manning & Marder, Kass, Ellrod, Ramirez, LLP. Mr. De La Cruz has provided background information about himself and his law firm, and has been interviewed by the City Attorney and the Risk Manager. Mr. De La Cruz is well qualified and has agreed to provide representation at the rate of $150 per hour, which is competitive with the rates paid by the City to other attorneys who provide legal services to the city. Environmental Review X N/A • Financial Statement Funds are budgeted. Approved By Finance Director Account No. 6e21 -1,25'O/ STAFF RECOMMENDATION Adopt resolution. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below ) Biographical information Agreement Resolution No. 200t( 177 A-200 (9/99) RESOLUTION NO. 2004 —177 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING. THE MAYOR TO EXECUTE AN AGREEMENT WITH ALFRED M. DE LA CRUZ, ESQ. TO PROVIDE SERVICES AS SPECIAL TRIAL COUNSEL WHEREAS, the City desires to retain an attorney to provide services as specialtrial counsel; and WHEREAS, the City has determined that Alfred M. De La Cruz, Esq. of the Law Firm of Manning & Marder, Kass, Ellrod, Ramirez, LLP is a California licensed attorney and is qualified by experience and ability to perform the services desired by the City, and is willing to perform such services. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute an agreement with Alfred M. De La Cruz, Esq. of the Law Firm of Manning & Marder, Kass, Ellrod, Ramirez, LLP to provide services as special trial counsel for the City. Said agreement is on file in the office of the City Clerk. PASSED AND ADOPTED this 21stday of September, 2004. Nick I zunz Mayor • ATTEST: 4 Mich : el Dalla, C. 7Clerk APPROVED AS TO FORM: George H. iser, III City Attorney Passed and adopted by the Council of the City of National City, California, on September 21, 2004, by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Ungab. Nays: None. Absent: Councilmember Inzunza. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Mayor of the City of National City, California City Clerk of the City f National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2004-177 of the City of National City, California, passed and adopted by the Council of said City on September 21, 2004. City Clerk of the City of National City, California By: Deputy Alfred M. De La Cruz graduated from the University of California Boalt Hall School of Law (J.D. 1990), where he was President of his class. He served on the editorial staff of both the High Technology Law Journal and La Raza Law Journal. He began his legal practice as a Deputy District Attorney in 1990. He successfully prosecuted numerous insurance fraud cases, including multimillion dollar conspiracies, while working in the Insurance Fraud Division. In his career he has tried over 88 jury trials to verdict and tried over 300 court trials. He also drafted and/or participated in over 20 search warrants involving attorneys and/or medical providers. He has taught classes for both the L.A.P.D. and the L.A. County Sheriff Department in the areas of testifying skills and search and seizure law. Prior to attending law school, Mr. De La Cruz -worked as a mechanical engineer for TRW Inc. where he specialized in computer simulations. He received his Bachelor of Science degree in Mechanical Engineering from the University of California, Irvine in 1984. Mr. De La Cruz is the managing partner of the San Diego office. City of National City Office of the City Clerk 1243 National City Boulevard, National City, California 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 28, 2004 Alfred M. De La Cruz, Esq. Manning & Marder, Kass, Ellrod, Ramirez, LLP 401 West A Street Suite 1900 San Diego CA 92101-7908 Dear Mr De La Cruz, On September 21, 2004, Resolution No. 2004-177 was passed and adopted by the City Council of the City of National City, authorizing the Mayor to execute an agreement with Alfred M. De La Cruz, Esq. to provide services as Special Trial Counsel. We are forwarding a certified copy of the above Resolution and one fully executed original agreement. Sincerely, aikiH(Lu-41 a L Alvarez, CMC C Deputy City Clerk /mla Enclosure cc: City Attorney 64 Recycled Paper