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HomeMy WebLinkAbout2015 CON Mazzarella and Mazzarella - Legal ServicesAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND MAZZARELLA & MAZZARELLA, LLP THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY" or "CLIENT") and MAZZARELLA & MAZZARELLA, 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 CLIENT hereby retains the FIRM to assist representing the CLIENT in connection with prosecution of claims against San Diego Unified Port District and related parties involving expansion and threatened expansion of asserted Port entitlements and disparate impact of Port activities on CITY, 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: Negotiation, Investigation, Discovery, Litigation and related activities necessary to accomplish the goals of the representation. It is expected that the FIRM will work with the City Attorney and CITY staff. Article 3. Compensation. Compensation paid under this Agreement shall be a combination of hourly fees and contingency fees as follows: A. Hourly Fees Partner: $ 200.00 per hour Senior Associate: $ 195.00 per hour Associate: $ 170.00 per hour Paralegal/Legal Assistant: $ 50.00 per hour B. Contingency Fees In addition to the Hourly Fees due to FIRM, the FIRM shall be entitled to a contingency fee which reflects approximately 50% of the contingency fee normally charged by the Firm. Such contingency fee is not set by Law, but is negotiable. If the CLIENT does not obtain a recovery in this case, then the CLIENT shall owe no contingency fee, but CLIENT shall pay the Hourly Fees, litigation costs and expenses due FIRM. If any recovery is obtained by FIRM for CLIENT in this case, whether by way of settlement, judgment, arbitration or otherwise, CLIENT agrees to pay the FIRM 12.5% of the AMOUNT RECOVERED if the case is resolved prior to filing of a lawsuit; 1 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 18.5% of any AMOUNT RECOVERED up to 60 days before the case is first set for trial or arbitration, and 20% of any AMOUNT RECOVERED thereafter through the end of trial or Arbitration. Compensation for appeal, if any, shall be negotiated and agreed upon separate from this agreement. For purposes of this Agreement, AMOUNT RECOVERED shall mean the total gross dollar amount actually paid by or recovered from the adverse party or parties, or any of them for the benefit of CLIENT, including amounts received as a result of settlement, award or judgment, before any reduction for litigation costs or expenses, Hourly Fees earned or liens and/or payments due to third parties. If payment of all or any part of the amount to be received will be deferred (such as in the case of any annuity, structured settlement or periodic payments schedule), the AMOUNT RECOVERED, for purposes of this AGREEMENT, will be any initial lump sum payment plus the present value at the time of settlement or other resolution of the payments to be received or the cost to adverse party or parties of the annuity or other deferred payment asset, whichever is higher. In such case, the full amount of attorney's fees due to the FIRM shall be paid out of the initial lump sum payment. In the event the initial lump sum payment is insufficient to pay the FIRM'S fees in full, the balance of the fees due to FIRM will be paid from subsequent payments of the recovery before and distribution to CLIENT. A Port Workshop is anticipated during the month of September. The parties have discussed the issue of non -cash benefits provided by the Port to the CLIENT but have not come to agreement on any such inclusion of non -cash benefits as part of the AMOUNT RECOVERED to be included in a contingency fee. The parties agree to revisit the discussion of non -cash benefits and the possible potential for inclusion of the same into the contingency fee after the September Port workshop. Any award of attorney's fees or sanctions awarded by the court to CLIENT or FIRM and recovered from the adverse party or parties, or any of them, for the benefit of CLIENT will be treated the same as any other amount recovered. All litigation costs and expenses not paid by CLIENT to FIRM prior to the time of settlement, award or judgment, including those described in Section E., below, shall be paid to FIRM at the time of such settlement, award or judgment, and may be paid from CLIENT'S recovery. If no recovery is obtained for CLIENT by way of settlement, trial, arbitration or otherwise, then no contingency fees will be due to FIRM and CLIENT will be responsible for payment of only the Hourly Fees and litigation costs and expenses due FIRM. C.. 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. D. 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 2 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement CITY shall not be obligated to pay the FIRM amounts not discussed, budgeted, and agreed to before being incurred by the FIRM. E. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $ 50,000.00 for legal services and out-of-pocket disbursements for hourly fees and associated litigation costs pursuant to this Agreement. In no event shall the total hourly fees plus out-of-pocket disbursements exceed this amount without written authorization of the CITY, which shall not be unreasonably withheld by CLIENT. F. 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. G. 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, travel expenses and similar out-of-pocket expenses charged by the FIRM as a standard practice to its clients generally. 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 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. H. Bills from the FIRM should be submitted to Claudia G. 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. I. 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 3 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 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. J. 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. K. 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 4 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 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. 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, nor will this indemnification and hold harmless include claims or liability for attorneys fees or costs awarded to the adverse party or parties which are based upon the non -negligent prosecution of the matter. 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). 5 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 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 one million dollars ($1,000,000) 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; and (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 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 as of August 11, 2015 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. 6 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 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: Claudia G. Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: Leslie Deese, City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Notice to the FIRM shall be addressed to: Daral B. Mazzarella, Esq. Mazzarella & Mazzarella, LLP 1620 Fifth Ave., Suite 600 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. 7 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement 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. 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 8th day of September , 2015. CITY OF NATIONAL CITY By: Leslie Deese, City Manger APPOVED AS TO FORM: Silva ey MAZZARELLA & MAZZARELLA, LLP (Corporation — signatures of two corporate officers) (Partnership — one signature) (Sole proprietorship — signature) By. Mark Mazzarella, Esq. 8 City of National City and Mazzarella & Mazzarella, LLP Legal Services Agreement ;,zzarella & dl Mazzarella e a LLP August 25, 2015 Claudia Silva, City Attorney City of National City 1243 National City Blvd. National City, CA 91950-4301 RECEIVED AUG 2 7 2015 City of Notional City City Attorncy's Office Re: Agreement for Legal Services City of National City v. San Diego Unified Port District Dear Ms. Silva: Please find enclosed two sets of signed original Agreements for Legal Services for your review. We look forward to receiving a fully executed set signed by you and Mayor Ron Morrison. Should you have any questions, or concerns, please give this office a call. Since ndrea Vasquez, regal Assistant to Mazzarella & Mazzarella : av Enclosures 1620 FIFTH AVENUE, SUITE 600, SAN DIEGO, CA 92101 • TEL (619) 238-4900 • FAX (619) 238-4959 • WWW.MAZZARELLALAW.COM Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil CALIFORNIA NATIONAL CI INCORPORATED Office of the City Attorney MEMORANDUM TO: City Clerk FROM: Ginny Miller, Legal Assista SUBJECT: City Attorney Claudia Gacitua Silva Deputy City Attorney Jennifer Knight DATE: September 9, 2015 Agreement for Legal Services between the City and Mazzarella & Mazzarella Law Firm Attached for your files, please find an original, fully -executed Agreement for Legal Services between the City and Mazzarella & Mazzarella Law Firm dated September 8, 2015. Thank you. Attachment 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327 CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk MAZZARELLA & MAZZARELLA Legal Services Ginny Miller (City Attorney) Forwarded Copy of Agreement to Mazzarella & Mazzarella