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HomeMy WebLinkAbout2016 CON Lounsbery Ferguson Alton & Peak - Legal ServicesAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND LOUNSBERY, FERGUSON, ALTONA, & PEAK THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") entered into this 22nd day of November, 2016, is made between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY") and LOUNSBERY, FERGUSON, ALTONA & PEAK (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 in representing the CITY in connection with an investigation, 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: Conduct two investigations in response to recent complaints of harassment received by the City. It is expected that the FIRM will work with the City Attorney and CITY staff Further, terms and conditions are found in Exhibit "A", which is attached hereto and incorporated by reference. Article 3. Compensation. Compensation paid under this Agreement shall be as follows: Of Counsel: $ 275 per hour A. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $10,000.00 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. The and the FIRM may agree to a lesser amount for individual projects within the Scope of Services. B. 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. C. The CITY further agrees to reimburse the FIRM, in accordance with the procedures set forthin 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 (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. Every effort will be made to pay bills promptly. D. Bills from the FIRM should be submitted to George H. Eiser, III, Interim 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. E. The FIRM agrees to forward to the CITY a bill for each one -month period of services under this Agreement, and the CITY agrees to compensate the FIRM on this basis.. F. 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) (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 should be included. Legal Services Agreement, 2016 2 Between City of National City and Lounsbery, Ferguson, Altona & Peak 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. G. 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. 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. 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. 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 by the negligent Legal Services Agreement, 2016 3 Between City of National City and Lounsbery. Ferguson, Altona & Peak acts or omissions or willful misconduct 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 after thirty (30) days' notice by the insurer to the CITY by certified mail. 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. Legal Services Agreement. 2016 4 Between City of National City and Lounsbery, Ferguson, Altona & Peak 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: City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: City Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Notices to the FIRM shall be addressed to: James P. Lough, Esq. Lounsbery, Ferguson, Altona & Peak 960 Canterbury Place Suite 300 Escondido, CA 92025 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. Legal Services Agreement, 2016 5 Between City of National City and Lounsbery, Ferguson, Altona & Peak 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 the San Diego Superior Court 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. H. Counterparts. This Agreement may be signed in counterparts. I. 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 hereto have executed this Agreement on the date and year first above written. CITY OF NATIONAL CITY LOUNSBERY, FERGUSON, ALTONA & PEAK By�� �hst Leslie Deese, City Manager APPROVED AS TO FORM: By: c.)v ' 241 George H. Eiser, III Interim City Attorney Yer Legal Services Agreement, 2016 6 Between City of National City and Lounsbery, Ferguson, Altona & Peak Exhibit A LOUNSBERY FERGUSON ALTONA & PEAK LLP RECEIVED SCONDIDO AND SAN DIEGO 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LFAP.com DEC 1 2016 City of National City City Attorney's Office SPECIAL COUNSEL JOHN W. WITT David W. Ferguson Phone: 760-743-1201 November 28, 2016 George Eiser, Interim City Attorney City of National City 1243 National City Boulevard National City, CA 91950 RE: INDEPENDENT PERSONNEL INVESTIGATION (Filed October 27, 2016) Dear Mr. Eiser: This letter will set forth the terms of our engagement to perform an independent personnel investigation on behalf of the City of National City regarding a complaint made by Martha Acosta, on October 27, 2016. I understand that the following individuals may also be implicated as parties to the complaint: Vice Mayor Jerry Cano. Please read this letter carefully, and if you have any areas of change or concern, promptly let me know. I. SCOPE OF ENGAGEMENT The scope of our engagement will be to investigate a complaint brought by Martha Acosta to the City at the direction of the City. James P. Lough will be the primary investigator in this investigation. My understanding is that you and Deputy City Manager Stacey Stevenson will be our point of contact for coordination purposes The scope of our work will be to promptly and thoroughly investigate Martha Acosta's allegations by interviewing the witnesses we determine are necessary for a thorough examination of the issues raised in the complaint, reviewing any relevant documents or files, and gathering information about the City and/or any background information we deem relevant. We anticipate reviewing documents related to Martha Acosta's employment before conducting interviews. It is my understanding that at the conclusion of the investigation, we will prepare a written report explaining the investigative steps we took and our findings and conclusions regarding Martha Acosta's allegations, using a preponderance of the evidence standard. If, as a result of this engagement, we are called upon by any person to respond to a subpoena, or give deposition or trial testimony, the City agrees that such services shall be compensable under this engagement agreement at the agreed -upon rates. George Eiser LOUNSBERY FERGUSON ALTONA & PEAK LLP 10/27/16 Acosta Personnel Investigation November 28, 2016 Page 2 of 2 I want to underscore our understanding that the City is retaining us to conduct an independent investigation. This means that we will have the discretion as to how to conduct the investigation, including what documents to review and which witnesses to interview, and the City will assist us by providing the documents and witness access as requested. This also means that our findings and conclusions will be based solely on our independent assessment of the evidence. We do not know where the investigation will lead, but you have our commitment to provide the City with a candid assessment, no matter what conclusions we may reach. II. BASIS FOR FEES AND COSTS Lounsbery Ferguson Altona & Peak has established an hourly rate for each attorney, paralegal, analyst and law clerk in the Firm. These hourly rates are based on a variety of factors, including the experience and expertise of each individual. The regular hourly rate for James Lough is $500, but for this matter we have agreed to a reduced rate of $275 per hour. For transcription of interview tapes, if necessary, the rate will be $75 per hour. Associate legal research, if authorized, will be at $200 per hour. The specific bases on which fees, costs and expenses are computed, our practice sending invoices, how we handle past due accounts, and the like, are set forth in greater detail in the enclosed sheet entitled "Standard Terms", which we incorporate in this letter. We will not require any separate retention payment in connection with this investigation. III. CONCLUSION Thank you for your careful review of this letter. If you approve the terms of this letter and our understanding of our respective responsibilities, please sign it and return it to us. Please note that, as we do not have complete information about the parties to the complaint or the lawyer retained by Martha Acosta, if any, we have not yet been able to complete a conflict check. Our retention is conditioned on the successful completion of a conflict check. If you have any questions about this engagement, please feel free to contact me. Sincerely, DAVID FERGUSON DWF:kld George Eiser LOUNSBERY FERGUSON ALTONA & PEAK LLP 10/27/16 Acosta Personnel Investigation November 28, 2016 Page 3 of 3 The foregoing is agreed: DATED: ) 01 • S • 1 LP CITY OF NATIONAL CITY Name: tzede L. ..e Client Taxpayer I.D. No.: Exhibit A LOUNSBERY FERGUSON ALTONA & PEAK LLP 960 Canterbury Place, Suite 300 Escondido, California 92025-3870 Telephone (760) 743-1201 Facsimile (760) 743-9926 www.LFAP.com REcEIVED DEC 1 2016 City of National City CityAttorney's O/rCe ESCONDIDO AND SAN DIEGO SPECIAL COUNSEL JOHN W. WITT David W. Ferguson November 28, 2016 George Eiser, Interim City Attorney City of National City 1243 National City Boulevard National City, CA 91950 Phone: 760-743-1201 RE: INDEPENDENT PERSONNEL INVESTIGATION (Filed November 3, 2016) Dear Mr. Eiser: This letter will set forth the terms of our engagement to perform an independent personnel investigation on behalf of the City of National City regarding a complaint made by Anita Brinkley, on November 3, 2016. I understand that the following individual may also be implicated as a party to the complaint: Josie Flores Clark. Please read this letter carefully, and if you have any areas of change or concern, promptly let me know. I. SCOPE OF ENGAGEMENT The scope of our engagement will be to investigate a complaint brought by Anita Brinkley to the City at the direction of the City. James P. Lough will be the primary investigator in this investigation. My understanding is that you and Deputy City Manager Stacey Stevenson will be our point of contact for coordination purposes The scope of our work will be to promptly and thoroughly investigate Anita Brinkley's allegations by interviewing the witnesses we determine are necessary for a thorough examination of the issues raised in the complaint, reviewing any relevant documents or files, and gathering information about the City and/or any background information we deem relevant. We anticipate reviewing documents related to Anita Brinkley's volunteer status/employment before conducting interviews. It is my understanding that at the conclusion of the investigation, we will prepare a written report explaining the investigative steps we took and our findings and conclusions regarding Anita Brinkley's allegations, using a preponderance of the evidence standard. If, as a result of this engagement, we are called upon by any person to respond to a subpoena, or give deposition or trial testimony, the City agrees that such services shall be compensable under this engagement agreement at the agreed -upon rates. George Eiser National City Personnel Investigation November 28, 2016 Page 2 of 3 LOUNSBERY FERGUSON ALTONA & PEAK LLP I want to underscore our understanding that the City is retaining us to conduct an independent investigation. This means that we will have the discretion as to how to conduct the investigation, including what documents to review and which witnesses to interview, and the City will assist us by providing the documents and witness access as requested. This also means that our findings and conclusions will be based solely on our independent assessment of the evidence. We do not know where the investigation will lead, but you have our commitment to provide the City with a candid assessment, no matter what conclusions we may reach. II. BASIS FOR FEES AND COSTS Lounsbery Ferguson Altona & Peak has established an hourly rate for each attorney, paralegal, analyst and law clerk in the Firm. These hourly rates are based on a variety of factors, including the experience and expertise of each individual. The regular hourly rate for James Lough is $500, but for this matter we have agreed to a reduced rate of $275 per hour. For transcription of interview tapes, if necessary, the rate will be $75 per hour. Associate legal research, if authorized, will be at $200 per hour. The specific bases on which fees, costs and expenses are computed, our practice sending invoices, how we handle past due accounts, and the like, are set forth in greater detail in the enclosed sheet entitled "Standard Terms", which we incorporate in this letter. We will not require any separate retention payment in connection with this investigation. III. CONCLUSION Thank you for your careful review of this letter. If you approve the terms of this letter and our understanding of our respective responsibilities, please sign it and return it to us. Please note that, as we do not have complete information about the parties to the complaint or the lawyer retained by Anita Brinkley, if any, we have not yet been able to complete a conflict check. Our retention is conditioned on the successful completion of a conflict check. If you have any questions about this engagement, please feel free to contact me. Sincerely, David Ferguson DWF:kld George Eiser National City Personnel Investigation November 28, 2016 Page 3 of 3 The foregoing is agreed: LOUNSBERY FERGUSON ALTONA & PEAK LLP DATED: i al 5 I 1 tip CITY OF NATIONAL CITY By:�7u� __ _ Name: I...t.q:,11¢ T,b_ 2> Its: CAI-4 rf)are j Client Taxpayer I.D. No.: LOUNSBERY FERGUSON ALTONA & PEAK LLP STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES This statement sets forth the standard terms of our engagement as your attorneys. Unless modified in writing by mutual agreement, these terms will be an integral part of our agreement with you. Therefore, we ask that you review these terms carefully and contact us promptly if you have any questions. You should retain our engagement letter, including this statement of engagement terms, in your file. 1. The Scope of Our Work You should have a clear understanding of the legal services we will provide. Any questions that you have should be dealt with promptly. We will at all times act on your behalf to the best of our ability. Any advice concerning the outcome of your legal matters are expressions of our best professional judgment, but they are not guarantees. Such advice is necessarily limited by our knowledge of the facts and is based upon the state of the law at the time it is expressed. 2. Legal Opinions In the course of our representation, we will be asked to give advice on numerous matters. Advice falls into two categories: (i) advice based on the general knowledge of law and experience of the attorney involved; and (ii) advice, referred to as an opinion, expressed in a formal way after conducting as much research as we feel necessary to assure that the advice is based on a sound factual basis and reflects the most recent legal authority in the field. The former should not be relied upon as the position of the firm and does not provide the same level of assurance as the latter. An opinion is readily identifiable because it is signed in the name of the firm and not in the name of any individual attorney. 3. Who Will Provide the Legal Services Customarily, each client of the firm is served by a principal attorney contact. The principal attorney should be someone with whom you have confidence and with whom you have or are developing a professional relationship. You are free to request a change of principal attorney at any time. Subject to the supervisory role of the principal attorney, your work or parts of it may be performed by other lawyers and legal assistants. Such delegation may be for the purpose of involving lawyers or legal assistants with special expertise in a given area or for the purpose of providing service on the most efficient and timely basis. Whenever practicable, we will advise you of the names of those attorneys and legal assistants who work on your matters. March 18, 1996 LOUNSBERY FERGUSON ALTONA & PEAK LLP 4. How Fees Will Be Set In determining the amount to be charged for the legal services we provide to you, we will consider: • The time and effort required, the novelty and complexity of the issues presented, and the skill required to perform the legal services promptly; • The fees customarily charged in the community for similar services and the value of the services to you; • The time constraints imposed by you as our client and other circumstances, such as an emergency closing, the need for injunctive relief from court, or substantial disruption of other office business; • The nature and longevity of our professional relationship with you; • The experience, reputation and expertise of the lawyers performing the services; • The extent to which office procedures and systems have produced a high quality product efficiently. Among these factors, the time and effort required are typically weighted most heavily. We will keep accurate records of the time we devote to your work, including conferences (both in person and over the telephone), negotiations, factual and legal research and analysis, document preparation and revision, travel on your behalf, and other related matters. We record our time in units of tenths of an hour. The hourly rates of our lawyers and legal assistants are reviewed periodically and adjustments are made to reflect current levels of legal experience, changes in overhead costs, and other factors. Many of our attorneys have developed special expertise in a particular area of law and are able to deliver services in their specialty area with greater efficiency. These lawyers are assigned both regular and specialty rates. Their time will be charged at a specialty rate when they provide services in their specialty areas. We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. Whenever possible we will furnish such an estimate based upon our professional judgment, but always with a clear understanding that it is not intended to be a maximum or fixed fee quotation unless it is described as such in writing. The ultimate cost frequently is more or less than the amount estimated. For certain well-defined services, for example, a simple business incorporation, a simple will or trust, or an uncontested marriage dissolution, we will quote a fixed fee. It is our policy not to accept representation on a fixed fee basis except in such defined -services areas or pursuant to a special arrangement memorialized in writing and tailored to the needs of a particular client matter. In all such situations, the fixed fee arrangement will be set forth in writing. March 18, 1996 - 2 - LOUNSBERY FERGUSON ALTONA & PEAK LLP In undertaking representation of a client with a personal injury, wrongful death or certain other types of claims, we will, in appropriate circumstances, provide legal services on a contingent fee basis. Any such contingent fee arrangement must be reflected in a written contingent fee agreement. 5. Out -of -Pocket Costs and Expenses We incur on behalf of our clients a variety of out-of-pocket costs and internal expenses in the course of providing legal services. Typical of out-of-pocket costs are long distance telephone charges; courier and express delivery charges; telecopy and telex charges; outside printing and reproduction costs; filing fees; deposition and transcript costs; witness fees; travel expenses; charges made by outside experts and consultants, including accountants, appraisers, and other legal counsel (unless arrangements for direct billing have been made); and computerized legal research expenses. Typical of internal expense are our charges for Xerox copies and necessary overtime. We incur out-of-pocket costs as your agent and internal expenses on your behalf. Outof-pocket costs will be billed to you in the amount of the third party invoice. Internal expenses will be billed to you at our best estimate of our cost. Out-of-pocket costs and internal expenses will appear as "Expenses Advanced" in our statement for the month in which such costs are entered into our billing system. In certain cases this could be one or more months after the month in which the out-of-pocket cost or expense was incurred. 6. Deposits If you have agreed to pay an initial deposit in connection with an engagement, the following provisions, in addition to those in the engagement letter, will apply. Under California law, we are not allowed to realize the benefit of interest earned on any client trust account and our clients are not allowed the benefit of interest earned on their trust account deposits unless the funds are placed in a separate trust account. Normally, deposits of less than $7,000 will be placed in our unsegregated trust account and you will not receive the benefit of interest earned in that account. Any interest earned on deposits in this unsegregated account will be paid, as required by law, to the State Bar of California to fund legal services for indigent persons. Based upon written request, deposits of $7,000 or more will be placed in a segregated interest -bearing account, you will receive the benefit of interest earned, and you will be required to report such interest as income for income tax purposes. At the conclusion of our engagement or at such time as the initial deposit, or a portion of it, is unnecessary, the remaining balance or an appropriate part of it will be returned to you. Normally, if the initial deposit proves insufficient to cover current expenses and fees on at least a two -month basis, it will be necessary to increase the initial deposit or take other steps acceptable to us which assure that our statements will be paid in accordance with the terms of engagement. March 18, 1996 - 3 - LOUNSBERY FERGUSON ALTONA & PEAK LLP 7. Other Trust Deposits Other deposits which we receive from you will be placed in a trust account on your behalf. Deposits which are nominal in amount or are on deposit for only a short period of time will be placed by us in our unsegregated trust account. Other deposits will be placed in a segregated trust account for your benefit, you will receive the benefit of interest earned, and you will be required to report such interest as income for income tax purposes. 8. Payment Terms; Late Payment Charges Unless otherwise agreed in writing, statements will be submitted monthly. Each statement will be dated the date it is issued. A statement is payable on receipt and overdue if payment has not been received by us within thirty (30) days of its date. It is the intent of both of us that our statements be paid within such thirty -day period. Damages realized by us when statements are not paid as agreed are difficult to measure and therefore we agree that a reasonable estimate of such damages is 1.5% per month on the overdue amount. Accordingly, overdue amounts will be subject to a late payment charge of 1.5% per month. Payments received are applied first to accrued late payment charges and then to any remaining balance outstanding. 9. Disputes Over Billing Entries or Computations You agree to notify us in writing if you dispute any billing entry or computation. If you fail to do so within thirty (30) days after the date of a statement, all entries shall be deemed by both you and us to be fair and correct. 10. Termination of Engagement You may terminate our representation at any time, with or without cause, by notifying us. If such termination occurs, your papers and property will be returned to you promptly. Our own files pertaining to the case will be retained by us. Your termination of our services will not affect your responsibility for payment for legal services rendered and out-of-pocket costs incurred before termination and in connection with an orderly transition of the matter. We are subject to the California Rules of Professional Conduct which provide the circumstances under which we may withdraw from an engagement. Except where withdrawal from representation is with your consent, the most important matters which require or permit us to withdraw are where (i) our continued employment will result in a violation of the Rules of Professional Conduct or the State Bar Act, (ii) it is our judgment that the strategy insisted upon by you would involve illegal or unethical conduct, (iii) your conduct makes it unreasonably difficult for us to discharge our professional responsibilities, or (iv) you breach your agreement with us with regard to payment of expenses or fees. In litigation matters pending before a court or other tribunal, approval of the court or tribunal may also be required. We try to identify in advance and discuss with our clients any situation which may lead to our withdrawal. In such event, you agree to execute such court documents as may be necessary to permit us to withdraw in any legal action then pending. We reserve the right to withdraw from any engagement where such withdrawal is consistent with the California Rules of Professional Conduct. March 18, 1996 - 4 - LOUNSBERY FERGUSON ALTONA & PEAK LLP 11. Your Right to Arbitrate If you disagree with the amount of our fee, please take up the question with your principal attorney contact or with the firm's Chairman of the Partnership. Typically, such disagreements are resolved to the satisfaction of both sides with little inconvenience or formality. In the event of a fee dispute which is not readily resolved, you have the right to request arbitration under the supervision of the San Diego County, or in certain cases, the California State Bar Association, and we agree to participate fully in that process. March 18, 1996 - 5 - LOUNS-1 OP ID: OV 4WRO" CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/27/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Ahern Insurance Brokerage 9655 Granite Ridge Dr., #500 San Diego, CA 92123 Stephen T. Lowe INSURED Lounsbery Ferguson Altona & Peak, LLP 960 Canterbury Place, Ste. 300 Escondido, CA 92025-3836 CONT NAMEACT Stephen T. Lowe PHONE 858-571-7110 E-MAIL ADDRESS: slowe@aherninsurance.com INSURER(S) AFFORDING COVERAGE FAX No): 858-571-9010 NAIC / INSURER A : Greenwich Insurance Company INSURER B : 22322 INSURER C : INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR WVD POLICY NUMBER POLICY EFF (MMIDDIYYYY) POLICY EXP (MMIDD/YYYY) LIMITS COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ CLAIMS -MADE OCCUR DAMAGE TO RENTED PREMISES (Ea occurrence) $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PRO- JECT PER: LOC GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ $ AUTOMOBILE LIABILITY SCHEDULED COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAB EXCESS LIAB _ OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ DED RETENTION $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below / N N / A PER STATUTE OTH- ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ A Claims Made Lawyers Prof Liab LPB003096006 03/15/2016 03/15/2017 Per Claim 2,000,000 Aggregate 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Deductible: $25,000 Per Claim Retroactive Date: 03/15/1996 ATE HOLDER CANCELLATION City of National City 1243 National City Boulevard National City, CA ACORD 25 (2014/01) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE © 1988-2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD Mayor Ron Morrison Council Members Jerry Cano Alejandra Sotelo-Solis Mona Rios Albert Mendivil TO: FROM: SUBJECT: 4— CALI miteri »tar tint 1887 INCORPORATED Office of the City Attorney MEMORANDUM City Clerk Ginny Miller, Legal Assistant Agreement for Legal Services with Lounsbery Ferguson Altona & Peak, LLP Interim City Attorney George H. Eiser, III Senior Assistant City Attorney Nicole Pedone Deputy City Attorney Roberto M. Contreras DATE: January 10, 2017 Attached for your files, is a fully -executed original of the Agreement for Legal Services dated November 22, 2016 between the City of National City and the law firm of Lounsbery Ferguson Altona & Peak, LLP. They have already been provided with an original for their files. Thank you. ttachment 1243 National City Boulevard; National City, California 91950-4397 Tel.: (619) 336-4220 Fax: (619) 336-4327