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HomeMy WebLinkAbout2012 CON Kane, Ballmer & Berkman - Legal ServicesAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND KANE, BALLMER & BERKMAN THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE CITY OF NATIONAL CITY, a municipal corporation (the "CITY") and KANE, BALLMER & BERKMAN, a law corporation (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 provide as -needed professional legal services pertaining to redevelopment related matters subject to this Agreement. Article 2. Scope of Services. The CITY shall have the right in its sole discretion to determine the particular services to be performed by the FIRM under this Agreement. These services may include the following: advising and drafting documents related to the City and applicable provisions of Assembly Bill X1 26 (2011-2012 151 Ex. Sess.) ("AB 26") as amended by Assembly Bill 1484 ("AB 1484", Chapter 26, Statutes 2012). It is expected that the FIRM will work with the City Attorney and CITY staff. Article 3. as follows: Compensation. Compensation paid under this Agreement shall be Senior Principal: $275 per hour Principal: $225 per hour Of Counsel: $225 per hour Senior Counsel: Kendall D. Berkey $225 per hour Senior Associate: $190 per hour Associate: $165 per hour Paralegal: $100 per hour Legal Assistant $85 per hour 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 agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the City Attorney and the FIRM. The CITY shall not be obligated to pay the FIRM amounts not discussed, budgeted, and agreed to before being incurred by the FIRM. 1 C. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $50,000 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of- pocket disbursements exceed this amount without written authorization of the CITY. D. The FIRM shall keep the CITY advised monthly as to the level of attorney hours and client services performed under Article 1. The FIRM will not charge the CITY for travel time; however, the FIRM may charge for work performed for the CITY during any travel time. E. 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 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 travel and 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 or except as set forth in Exhibit A, attached hereto and incorporated herein by this reference, with the exception that travel related expenses shall not be reimbursed to FIRM: (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) Travel and meals. 2 (9) Late payment charge and/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. F. Bills from the FIRM should be submitted to Claudia Gacitua Silva, 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. G. 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. appropriate. H. Billing Format. Each billing entry must be complete, discrete and (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. 3 (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. I. 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. Article 4. 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 5. 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 6. 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 7. 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. In the event the FIRM and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the FIRM in this Agreement, the CITY or the FIRM shall give to the other written notice. 4 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 and/or the compensation payable to the FIRM. Article 8. Indemnification. The FIRM agrees to indemnify and hold the CITY and its agents, officers, and employees 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, or employees. Article 9. Insurance. The FIRM shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CITY. At its sole cost and expense, the FIRM shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. Commercial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). B. For all of the FIRM's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. C. Errors and omissions insurance in an amount not less than two million dollars ($2,000,000) per claim. D. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CITY and its elected officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1) the insurer waives the right of subrogation against the CITY and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CITY; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CITY by certified mail. Before this Agreement shall take effect, the FIRM shall furnish the CITY with copies of all such policies upon receipt of them, or a certificate evidencing such insurance. The FIRM may effect for its own account insurance not required under this Agreement. Article 10. 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 5 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 11. 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 12. Effective Date and Term. This Agreement shall be effective upon execution by the FIRM and CITY and continue until written notice of cancellation. 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 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 City shall be addressed to: Claudia Gacitua Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: Brad Raulston Director of Community Development 1243 National City Boulevard National City, CA 91950-4301 6 Notice to the FIRM shall be addressed to: Kendall D. Berkey, Esq. Kane, Ballmer & Berkman 402 West Broadway; 4th Floor San Diego, CA 92101 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 15. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 16. Miscellaneous Provisions. A. Time of Essence. Time is of the essence for each provision of this Agreement. B. California Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The FIRM covenants and agrees to submit to the personal jurisdiction of any state court in the State of California for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement. This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CITY and the FIRM. D. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. E. 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. F. 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. G. 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. 7 H. 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 have executed this Agreement on the day of August, 2012. CITY OF NATIONAL CITY Leslie Deese, City Manager APPROVED AS TO FORM: KANE, BALLMER & BERKMAN (Corporation - signatures of two corporate officers) By: Murray O. K By: C1a? u Gac Silva (Print Name City Attorne e, Senior Principal u (Title) 8 Name EXHIBIT A KANE, BALLMER & BERKMAN, A Law Corporation PUBLIC RATE SUMMARY Senior Principal $275/hour Principal $225/hour Of Counsel $225/hour Senior Counsel $225/hour Senior Associate $190/hour Associate $165/hour Paralegal $100/hour Legal Assistant $ 85/hour CLASSIFICATION OF ATTORNEYS AND OTHER PROFESSIONALS Status Billable Rate Murray 0 Kane Senior Principal $275/hour Royce K. Jones Senior Principal $275/hour Susan Y. Apy Principal $225/hour Glenn F. Wasserman Of Counsel $225/hour Donald P. Johnson Of Counsel $225/hour Bruce Gridley Senior Counsel $225/hour Deborah L. Rhoads Senior Counsel $225/hour Kendall D. Berkey Senior Counsel $225/hour Todd C. Mooney Senior Associate $190/hour Guillermo A. Frias Senior Associate $190/hour Gustavo Lamanna Associate $165/hour Theodore M. Ballmer Associate $165/hour Edward Kang Associate $165/hour NOTE: The same hourly rate is applicable to Court appearances. 9 Travel, subsistence, and other out -of pocket expenses authorized in connection with the performance of duties under the Agreement would include, along with any other such authorized expenses: a. The amount of the actual cost of coach class transportation by common carrier or at the per mile rate established by the IRS, if travel is performed by privately -owned vehicle; b. Reasonable subsistence expenses, supported by detailed records in the amount of actual costs; c. Taxi fares, long distance telephone calls, postage, online legal research and similar expenditures in the amount of the actual cost; d. Duplication costs for all copies at cost of twenty-five (25) cents per page, and facsimile costs at one dollar (1.00) per page; and e. Fees and costs incurred by the FIRM in engaging consultants and experts approved by the client. The FIRM shall not be reimbursed for secretarial or typist services for normal office operating expense, with the exception of word processing fees, but only if noted in the rate schedule. The FIRM shall be reimbursed for actual litigation costs, fees and expenses, such as fling fees, expert witness fees, charges for service of process and costs of investigation. 10 Mayor Ron Morrison Council Members Alejandra Sotelo-Solis Louis Natividad Mona Rios Rosalie Zarate August 19, 2012 Kendall DeMatteo Berkey, Esq. Kane Ballmer & Berkman 402 West Broadway, 4th Floor San Diego, CA 92101 NIA NAT. i7fit X VCAR +ORATED Office of the City Attorney City Attorney Claudia Gacitua Silva Deputy City Attorney Jennifer Knight RE: Agreement for Legal Services dated August, 2012, and First Amendment to Agreement for Legal Services dated February 1, 2011 Dear Ms. Berkey: Enclosed please find fully -executed originals of the above -referenced agreements for your files. Thank you. + V ! Ginny Miller Executive Assistant Enclosures cc: City Clerk 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327