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HomeMy WebLinkAbout2015 CON McDougal Love Exkis Bouhmer - Legal Defense ServicesAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND MCDOUGAL LOVE ECKIS BOEHMER & FOLEY THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY") and, MCDOUGAL LOVE ECKIS BOEHMER & FOLEY (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 the CITY by providing as -needed legal defense services, 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: municipal legal work, including defense, transactional and prosecutorial as needed and as determined by the City Attorney. It is expected that the FIRM will work with the City Attorney and CITY staff. Article 3. follows: Compensation. Compensation paid under this Agreement shall be as Litigation (Partner and Associate): $175 per hour Transactional (Partner and Associate): $165 per hour Paralegal/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, for each matter, 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. C. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $150,000 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: (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. (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. Legal Services Agreement 2 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley Every effort will be made to pay bills promptly. F. 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. 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. H. 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. 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 Legal Services Agreement 3 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 Legal Services Agreement 4 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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. 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; and (3) the policies cannot be cancelled or materially changed except Legal Services Agreement 5 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 November 18, 2015 through December 31, 2017. 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 Legal Services Agreement 6 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: Claudia Gacitua Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 Notice to the FIRM shall be addressed to: Steven E. Boehmer, Esq. McDougal Love Eckis Boehmer & Foley 8100 La Mesa Boulevard, Suite 200 La Mesa, CA 91942 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 supersedes all prior agreements as of the effective date. 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. Legal Services Agreement 7 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 17th day of November, 2015. CITY OF NATIONAL CITY B on Morrison, Mayor APPROVED AS TO FORM: By: a dia Gacitua Silva City Attor . y MCDOUGAL LOVE ECKIS BOEHMER & FOLEY By: Steven E. Boehmer, Esq. Legal Services Agreement 8 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley RESOLUTION NO. 2015 — 174 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A TWO YEAR AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND THE LAW FIRM OF MCDOUGAL, LOVE, ECKIS, BOEHMER & FOLEY TO PROVIDE LEGAL SERVICES THROUGH DECEMBER 31, 2017 FOR THE NOT TO EXCEED AMOUNT OF $150,000 WHEREAS, the City has a need for on -call law firms to provide legal support for matters such as litigation and specialized or temporary transactional work; and WHEREAS, the City previously engaged in a request for proposal ("RFP") process and obtained proposals from various firms for various types of work; and WHEREAS, in response to and as a result of that RFP process, the law firm of McDougal, Love, Eckis, Boehmer & Foley has been providing legal support on various on -going matters, including pending lawsuits against the City; and WHEREAS, this Agreement is needed for the continuation of pending matters and for on -call legal work. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a two-year Agreement for legal services with the law firm McDougal, Love, Eckis, Boehmer & Foley to provide legal services through December 31, 2017 for the not to exceed amount of $150,000. PASSED and ADOPTED this 17th day of Novem. 015. ATTEST: // Michael R. Dalla, C y Clerk PROVED S TO FO' audiaGacitu. Silva City Attorn on Morrison, Passed and adopted by the Council of the City of National City, California, on November 17, 2015 by the following vote, to -wit: Ayes: Councilmembers Mendivil, Morrison, Rios, Sotelo-Solis. Nays: None. Absent: Councilmember Cano. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California N 4iC/�v City e City o Natio nal of th onal City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2015-174 of the City of National City, California, passed and adopted by the Council of said City on November 17, 2015. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT MEETING DATE: November 17, 2015 CQO\y- a AGENDA ITEM NO. 18 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a two-year Agreement between the City of National City and the law firm of McDougal, Love, Eckis, Boehmer & Foley to provide legal services through December 31, 2017 for the not to exceed amount of $150,000. PREPARED BY: Claudia G. Silva Stacey Stevenson DEPARTMENT: Cit Attorney and PHONE: Ext. 4222 Ext. 4308 APPROVED BY: APPROVED BY: EXPLANATION: R 4 Management t'J// eat The City has a need for on -call law firms to provide legal support for matters such as litigation and specialized or temporary transactional work. The City previously engaged in a request for proposal process and obtained proposals from various firms for various types of work. In response to and as a result of that RFP process, the law firm of McDougal, Love, Eckis, Boehmer & Foley has been providing legal support on various on -going matters, including pending suits against the City. This Agreement is needed for the on -going continuation of work. The not to exceed amount is based on looking at averages for the past two years. Legal costs are not always predictable, thus if additional funding is needed, staff would return at that time. These services were anticipated and budgeted in the FY 2016 budget. FINANCIAL STATEMENT: ACCOUNT NO. APPROVED: "L' t l Finance APPROVED: MIS Funds are budgeted in Accounts 627-417-081-432-0000 and 001-405-000-213. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: STAFF RECOMMENDATION: Adopt proposed resolution BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Legal Services Agreement Resolution Qe�o1,vw • AGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND MCDOUGAL LOVE ECKIS BOEHMER & FOLEY THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY") and, MCDOUGAL LOVE ECKIS BOEHMER & FOLEY (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 the CITY by providing as -needed legal defense services, 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: municipal legal work, including defense, transactional and prosecutorial as needed and as determined by the City Attorney. It is expected that the FIRM will work with the City Attorney and CITY staff Article 3. follows: Compensation. Compensation paid under this Agreement shall be as Litigation (Partner and Associate): $175 per hour Transactional (Partner and Associate): $165 per hour Paralegal/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, for each matter, 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. C. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $150,000 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: (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. (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. Legal Services Agreement 2 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley Every effort will be made to pay bills promptly. F. 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. 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. H. 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. 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 Legal Services Agreement 3 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 mariner 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 Legal Services Agreement 4 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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. 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; and (3) the policies cannot be cancelled or materially changed except Legal Services Agreement 5 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 November 18, 2015 through December 31, 2017. 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 Legal Services Agreement 6 By and Between City of National City and November 17, 2015 —December 31, 2017 McDougal Love Eckis Boehmer & Foley notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: Claudia Gacitua Silva City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 Notice to the FIRM shall be addressed to: Steven E. Boehmer, Esq. McDougal Love Eckis Boehmer & Foley 8100 La Mesa Boulevard, Suite 200 La Mesa, CA 91942 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 supersedes all prior agreements as of the effective date. 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. Legal Services Agreement 7 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley 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 17th day of November, 2015. CITY OF NATIONAL CITY MCDOUGAL LOVE ECKIS BOEHMER & FOLEY By: By: Ron Morrison, Mayor Steven E. Boehmer, Esq. APPROVED AS TO FORM: By: Claudia Gacitua Silva City Attorney Legal Services Agreement 8 By and Between City of National City and November 17, 2015 — December 31, 2017 McDougal Love Eckis Boehmer & Foley RESOLUTION NO. 2015 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A TWO YEAR AGREEMENT BETWEEN THE CITY OF NATIONAL CITY AND THE LAW FIRM OF MCDOUGAL, LOVE, ECKIS, BOEHMER & FOLEY TO PROVIDE LEGAL SERVICES THROUGH DECEMBER 31, 2017 FOR THE NOT TO EXCEED AMOUNT OF $150,000 WHEREAS, the City has a need for on -call law firms to provide legal support for matters such as litigation and specialized or temporary transactional work; and WHEREAS, the City previously engaged in a request for proposal ("RFP") process and obtained proposals from various firms for various types of work; and WHEREAS, in response to and as a result of that RFP process, the law firm of McDougal, Love, Eckis, Boehmer & Foley has been providing legal support on various on -going matters, including pending lawsuits against the City; and WHEREAS, this Agreement is needed for the continuation of pending matters and for on -call legal work. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a two-year Agreement for legal services with the law firm McDougal, Love, Eckis, Boehmer & Foley to provide legal services through December 31, 2017 for the not to exceed amount of $150,000. PASSED and ADOPTED this 17th day of November, 2015. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil November 25, 2015 H-° CALIFORNIA ��--tuu�u -�.. ;CORPORATET�D Office of the City Attorney Steven B. Boehmer, Partner McDougal Love Eckis Boehmer & Foley 8100 La. Mesa Blvd, Suite 200 La Mesa, CA 91942 RE: Agreement for Legal Services Dear Mr. Boehmer: City Attorney Claudia Gacitua Silva Enclosed please find a fully -executed original Agreement for Legal Services dated November 17, 2015, between McDougal Love Eckis Boehmer & Foley and the City of National City for your files. Sincerely, if"4/' Ginny Miller Executive Assistant to the City Attorney Enclosure 1243 National City Boulevard; National City, California 91950-4301 Tel.: (619) 336.4220 Fax: (619) 336.4327