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HomeMy WebLinkAbout2011 CON Seltzer Caplan McMahon Vitek - Investigative ServicesIN THE National Services note the NOTE TO FILE 07-26-11 MATTER OF: Agreement by and between the City of City and Seltzer Caplan McMahon Vitek for Investigative regarding the Complaint of Geoffrey Schrock. Please following: A FULLY EXECUTED ORIGINAL AGREEMENT WAS NEVER FILED WITH THE OFFICE OF THE CITY CLERK ORIGINATING DEPARTMENT: CDC X City Attorney City Manager Community Svcs. _ Engineering Finance Fire NTF Housing & Grants _ Human Resources MIS Planning Police Public Works SELTZER NORMAN T. SELTZER ROBERT CAPLAN GERALD L. MCMAHON REGINALD A. VITEK DAVID J. DORNE JAMES R. DAWE BRIAN T. SELTZER LIZABETH A. EMITH.CHAVEZ JOYCE A. MCCOY DENNIS J. WICKHAM JOHN H. ALSPAUGH JAMES P. DELPHEY ELINOR T. ME RIDETH MICHAEL G. NAROI THOMAS F. STEINKE NEAL P. PANISH SEAN T. HARGADEN DAVID ). ZUSKOFF CHARLES L. GOLDBERG PATRICK Q. HALL MICHAEL A. LEONE DANIEL A. ANDRIST 1, SCOTT SCHEPER LEE E. HEJMANOWSKI DANIEL E. EATON MONTY A. MCINTYRE GREGORY A. VEGA HOWARD 1. BARNHDRST II PAUL R. DATNOW JACK R. LEER AMANDA L. HARRIS MARNIE SMITH DAVID M. GREELEY CHARLES B. WITHAM RHONDA K. CRANDALL SCOTT ALAN MILLER OBERT (ROBIN) M. TRAYLOR LINDA PAPST de LEON JOSEPH P. MARTINEZ G. SCOTT WILLIAMS JEFFREY B. HARRIS MATTHEW M. MAHONEY ERIK L. SCHRANER CHRISTOPHER L. LUDMER TRACY A, WARREN DANIEL W. ABBOTT ANDREW D. BRCOYS CHRISTINE M. LA PINTA ANGELA A. WOOLARD JASON P. SWEENEY JASON M. SANTANA MICHAEL B. LEES 1. KEVIN MANN WES E. HENRICKSEN RACHEL M. SCATIZZI TODD E. HYATT MATTHEW 0. SELTZER EDWARD J. O'CONNOR IESSIKA K. JDHNSON KATHRYN B. QUARLES JAMES R. THOMPSON DAVID H. LICHTENSTEIN SNORES N. MYERS MARISSA A. MCARTHUR TREVOR B. POTTER JOSEPH M. MCMULLEN MICHAEL AMBROSE BRIAN M. RAGEN CHRISTIAN G. HEINRICH BRIAN M. KATUSIAN CAPLAN OF COUNSEL LAWRENCE S. BRANTON DAMES H. SIEGEL DAVID P. ROTH PETA LEWIS HALLISEY M GMAHON Claudia Gacitua Silva, Esq. City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 V ITEK A LAW CORPORATION March 9, 2011 www ELPYD COm 61g. 685 (001 6,9. 685.3100 I I.. 5. LI C R IJ H I' N OIL G O C A, DANIEL E. EATON, ESQ. ERt0FOI CrMv. COEH 619.685.3052 619. 702. 588o r.. Re: City of National City — Investigation re Complaint of Geoffrey Schrock Our File No. 09077.67157 Dear Ms. Silva: I. Engagement This letter sets forth the basis upon which our firm is engaged to represent the City of National City with respect to the above -referenced matter. The matter involves an investigation of a complaint by citizen Geoffrey Schrock. As you know, our firm represents from time to time applicants with land -use matters presented for the City's review and approval. Our firms undertaking of the estigatiou outlined in this letter, of course, 'will not preclude our representation of such applicants. IL Attorneys' Services, Fees and Costs It is difficult to predict with any reasonable degree of accuracy the nature and extent of legal services to be performed. We therefore have not made any commitment as to a maximum amount for fees or costs or as to the outcome of the matter. City of National City agrees to pay the usual fees charged from time to time by Mr. Eaton and additional attorneys in our firm who work on this matter under his supervision. Mr. Eaton's current hourly rate is $410. Other hourly rates which vary according generally to levels of experience are as follows: Senior members of the firm, $340 to $675: Associates. $200 to $400; Law Clerks, $150; Paralegals, $150 to $165; Word Processing. $40 to Si55 and Document Control Clerks, S25 to $40. Our hourly charges shall include time spent on the telephone, performing legal research, conferring with persons who may have relevant information, in court or in related proceedings, and performing all other services on your SELTZER CAPLAN McMAHON VITEK Mr. George Eiser, Esq. City of National City March 9, 2011 Page 2 behalf. If our firm adopts new usual hourly rates from time to time during the course of our representation, later charges will be billed and payable at such rates. No new rates will be adopted before January 1, 2012. Independent of and in addition to the fees for legal services to be rendered on your behalf, it may be necessary for our firm to incur costs and advance sums for items such as filing fees. process service fees, deposition transcripts, photocopying at 200/pg. if done in-house, expert witness' fees, investigator's fees, long-distance telephone charges, facsimile transmission charges at $1/pg. plus any long-distance telephone charges, travel expenses and other charges. We may request that you advance such costs; however, to the extent that our firm advances such costs on your behalf, it is agreed that you will reimburse us monthly and hold us harmless from liability for these costs. Certain vendors may be billing you directly for services performed at our request. We of course will identify all such vendors to you. III. Billing Statements and Correspondence We will send our detailed monthly statements addressed to you indicating the current status of National City's account, both for services rendered and for costs advanced. the statements will show the date of each service performed, who performed it. the time expended and rate involved. The statements will be due and payable in full monthly upon billing. You agree to review our firm's monthly statements promptly upon receipt and to immediately raise, in email or writing, any questions or concerns about the propriety of the charges. Payment of any statement will constitute your agreement that the charges therein were reasonable and appropriate. A late charge of ten percent (10%) per annum will he assessed on any portion of your account owing for both services performed and costs advanced remaining unpaid for more than 35 days after the date of any statement. To the extent you are or become indebted to this firm for fees and/or costs incurred, you hereby assign to the firm a lien, on all monies and property awarded to you. obtained by negotiation or otherwise recovered, for the amounts which may become due to the firm under this Agreement. You may seek the advice of an independent lawyer of your choice before making this assignment. Our practice is to furnish our clients with copies of pleadings and/or correspondence and to give verbal or written status reports from time to time concerning progress of a case. We will send all such copies and make all such reports to you unless we are requested in writing to do otherwise. We have not required that you deposit with us an initial retainer amount. We reserve the right to review this decision from time to time to determine whether or not a retainer amount for this matter is appropriate. S EITZER I C APLAN I M cM AHON VITEK Mr. George Eiser, Esq. City of National City March 9, 2011 Page 3 IV. Arbitration Provision Concurrently with this Agreement, you agree to and enter into the Arbitration Agreement attached as Exhibit "A," by which you and this firm agree that any controversy. claim or dispute which arises from or relates to this agreement or services rendered or to be rendered by this firm (including its attorneys and employees) shall be determined exclusively by submission to mandatory, binding arbitration, instead of by a lawsuit or resort to court action. V. Other Provisions It is important that you do not erase, destroy or alter any documents in paper or electronic format that are potentially relevant to the subject matter of this case. In this regard. please suspend any normal business practices. such as writing over electronic records. that v-'.ould result in such erasure, destruction or alteration. Naturally, once our file has been closed, we will not perform any services on your behalf concerning this matter. Thereafter, unless otherwise requested and agreed in writing. we will not notify you of changes in the law which may affect you or your interests with respect to this matter. We wish to advise you that it is the policy of our firm to destroy papers in tiles any time after 10 years from the conclusion of a matter. If for any reason you wish to prescn e the records or files from this matter, please request them from our office well belorc this time period elapses. No change, waiver or modification of any of the provisions of this agreement shall be effective unless in writing and signed by our firm. This letter contains our entire agreement concerning the services we will be performing and our compensation for such services and costs. We have made no representations or promises other than those expressly set forth in this agreement. Should you ask us to render additional legal services of the same general kind as requested by you in this matter, and should we agree to undertake them. and if no new written tee agreement is entered into, the terms and conditions of this agreement shall cvnn-,,i oar engagement for any such additional services. To confirm our agreement under the terms and conditions set forth above, please sign and return a copy of this letter to us on or before March 18, 2011. SELTZERICAPLAN M c M A H O N VITEK Mr. George Eiser, Esq. City of National City March 9, 2011 Page 4 We look forward to working with you. Very truly yours, SELTZER CAPLAN McMAHON VITEK A Law Corporation By: Daniel E. Eaton Vice President DEE/sc Enclosures APPROVED AND ACCEPTED: Dated: March 16, 2011 CLIENT: CITY 0 /NATIONAL CITY By: Chris Za City Manager SELTZER C APLAN McMAHON VITEK Mr. George Eiser, Esq. City of National City March 9, 2011 Page 5 EXHIBIT "A" ARBITRATION AGREEMENT THE UNDERSIGNED AGREE THAT ANY AND 'ALL CONTROVERSIES, CLAIMS OR DISPUTES (COLLECTIVELY "DISPUTES") WHICH ARISE FROM OR RELATE TO THE ENGAGEMENT OF OR SERVICES RENDERED OR 10 BE RENDERED BY SELTZER CAPLAN McMAHON VITEK (INCLUDING ITS ATTORNEYS AND EMPLOYEES) (COLLECTIVELY "THE LAW FIRM") SI IALi, BE DETERMINED EXCLUSIVELY BY SUBMISSION TO MANDATORY, BINDING ARBITRATION, INSTEAD OF BY A LAWSUIT OR RESORT TO COURT ACTION. SUCH DISPUTES MAY INCLUDE, WITHOUT LIMITATION, DISPUTES AS TO FEES, COSTS OR PROFESSIONAL MALPRACTICE (THAT IS, AS TO WI I Ell [FR ANY LEGAL SERVICES RENDERED WERE UNNECESSARY OR UNAUTHORIZED OR WERE IMPROPERLY, NEGLIGENTLY OR INCOMPETENTLY RENDERED). THE PARTIES TO THIS AGREEMENT, BY ENTERING INTO IT. ARE GIVING UP THEIR CONSTITUTIONAL RIGHTS TO HAVE ANY SUCH DISPUTES DECIDED IN A COURT OF LAW BEFORE A JURY, AND INSTEAD ARE ACCEPTING THE USI; OF ARBITRATION. ACCORDINGLY, THE CITY OF NATIONAL CITY ("CLIENT") IS ADVISED TO OBTAIN THE ADVICE OF INDEPENDENT COUNSEL BEFORE ENTERING INTO THIS AGREEMENT. ANY ARBITRATION PROCEEDING UNDER THIS AGREEMENT SHAI.I. BE CONDUCTED IN SAN DIEGO, CALIFORNIA, AND BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE Wi"ill I I ll. AAA's COMMERCIAL ARBITRATION RULES AND, IF APPLICABLE. THE AAA's SUPPLEMENTARY PROCEDURES FOR CONSUMER -RELATED DISPUTES ("CONSUMER RULES") AND CONSUMER DUE PROCESS PROTOCOI. ("PROTOCOL"). THE CLIENT AND THE LAW FIRM SHALL CAUSE A SINGLE ARBITRATOR TO BE SELECTED UNDER THE AAA's RULES AND SHALL SHARE EQUALLY THE ARBITRATOR'S FEES AND THE AAA's ADMINISTRATIVE FEES. EXCEPT, WHERE THE CONSUMER RULES AND THE PROTOCOL APPLY, THEY SHALL BE FOLLOWED. THE ARBITRATOR'S DECISION SHALL BE CONCLUSIVE, FINAL AND BINDING UPON THE PARTIES. THE LAWS OF THE STATE OF CALIFORNIA PERTAINING TO BINDING ARBITRATION ALSO SHALL APPLY. AND JUDGMENT ON 'HIE ARBITRA I OR's DECISION MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. NEITHER PARTY MAY SEEK AN APPEAL OR REVIEW OF THE ARBITRATORS SELTZER CAPLAN M cMAHON'VITEK Mr. George Eiser, Esq. City of National City March 9, 2011 Page 6 DECISION EXCEPT UPON THE GROUNDS SPECIFIED IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 1285 AND FOLLOWING. THE LAW FIRM: Dated: \qH THE CLIENT: SELTZER CAPLAN McM.AI ION VI I EK A Law Corporation By: Daniel E. Eaton, Vice President THE CITY OF NATIONAL CITY Dated: By: Name: -H-• CALI,FORNIA Mayor Ron Morrison Council Members Alejandra Sotelo-Solis Louis Natividad Mona Rios Rosalie Zarate March 17, 2011 NATIONAL e INCORPORATED Office of the City Attorney Daniel Eaton, Esq. Seltzer Caplan McMahon Vitek 2100 Symphony Towers 750 B Street San Diego, CA 92101-8177 City Attorney Claudia Gacitua Silva Legal Counsel George H. Eiser, III Senior Assistant City Attorney Jodi L. Doucette RE: Agreement for Legal Services Dear Dan: Enclosed please find a fully -executed original Agreement between the City of National City and Seltzer Caplan McMahon Vitek for investigative services for your files. Very truly yours, 1)P-ea Ginny 11 r Executive Assistant to the City Attorney Enclosure cc: City Attorney City Clerk 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327