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HomeMy WebLinkAbout2021 CON Colantuono, Highsmith & Whatley, PC - representing the CityAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY AND COLANTUONO, HIGHSMITH & WHATLEY, PC THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY") and COLANTUONO, HIGHSMITH & WHATLEY, PC (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 the preparation and implementation of ballot measures, or to take other appropriate steps, to a) convert the office of City Clerk to an appointive position; b) convert the office of Treasurer to an appointive position; c) modify the City Council election process so it is not tied to incumbents; and any other election related legal services requested by the City. 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: assistance to the City Attorney's office in compliance with applicable law, preparation of ordinances and ballot materials, and assistance with implementation. 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 Partner: $ 350 per hour Senior Associate: $ 350 per hour Associate: $ 325 per hour Paralegal/Legal Assistant: $ 160 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. Upon the City Attorney's request, the FIRM agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the City Attorney and the FIRM. The CITY shall not be obligated to pay the FIRM amounts not discussed, budgeted, and agreed to before being incurred by the FIRM. C. The CITY has appropriated or otherwise duly authorized the payment of an amount not to exceed $25,000 for legal services and out-of-pocket disbursements pursuant to this 1 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 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. 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, provided, however, that expenses for travel and meals must be authorized by the City Attorney before the travel is undertaken. 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. Every effort will be made to pay bills promptly. F. Bills from the FIRM should be submitted to Charles Bell Jr., City Attorney, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and 2 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 disbursement records customarily maintained by the FIRM for billing evaluation and review purposes shall be made available to the CITY in support of bills rendered by the FIRM. G. The FIRM agrees to forward to the CITY a statement of account for each one -month period of services under this Agreement, and the CITY agrees to compensate the FIRM on this basis. The FIRM will consult monthly with the CITY as to the number of attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. appropriate. H. Billing Format. Each billing entry must be complete, discrete and (1) Complete. (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be referenced ("telephone call re: trial brief," "interview in preparation for deposition"). (e) paralegal, etc.) should be included. 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 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 unless these expenses are authorized by the City Attorney. (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 3 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 may review staffing to ensure 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. A1I tasks typically considered associate work should be considered for assignment to a paralegal. (2) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded or the attorney leaves the FIRM. The CITY will not pay the costs of bringing a new attorney up to speed. (3) If more than one attorney is going to perform the same task, prior approval from the CITY must be had. This includes document review. Article 4. Independent Contractor. The FIRM shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the FIRM without prior written consent of the CITY. Retention of the FIRM is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the FIRM including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the FIRM pursuant to this Agreement is for the sole use of the CITY. All such work product shall be confidential and not released to any third party without the prior written consent of the CITY. Article 6. Compliance with Controlling Law. The FIRM shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the FIRM shall comply immediately with any and all directives issued by the CITY or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CITY shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the FIRM and the CITY cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the FIRM in this Agreement, the CITY or the FIRM shall give to the other written notice. 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 S. 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 result or arise from the negligent, reckless or wrongful acts or omissions of the FIRM and its agents, officers, or employees in performing the work or other 4 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 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, at its sole cost and expense, shall purchase and maintain throughout the term of this Agreement, the following insurance policies: A. Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per claim. B. Automobile Insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non -owned, and hired vehicles. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. C. Commercial General Liability Insurance, with minimum limits of either $2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and $2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property damage arising out of its operations, work, or performance under this Agreement. The policy shall name the CITY and its officers, agents, employees, and volunteers as additional insureds, and a separate additional insured endorsement shall be provided. The general aggregate limit must apply solely to the "location". The "location" should be noted with specificity on an endorsement that shall be incorporated into the policy. D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of FIRM'S employees and employers' liability insurance with limits of at least $1,000,000 per accident. E. The aforesaid policies shall constitute primary insurance as to the CITY, its officers, officials, employees, and volunteers, so that any other policies held by the CITY shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the CITY's Risk Manager, at the address listed in subsection G below, of cancellation or material change. F. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, the FIRM shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. G. The Certificate Holder for all policies of insurance required by this Section shall be: City of National City c/o Risk Manager 1243 National City Boulevard National City, CA 91950-4397 5 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 H. Insurance shall be written with only insurers authorized to conduct business in California that hold a current policy holder's alphabetic and financial size category rating of not less than A:VII according to the current Best's Key Rating Guide, or a company of equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is provided by non - admitted "surplus lines" carriers, they must be included on the most recent List of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements. I. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the CITY'S Risk Manager. If the FIRM does not keep all insurance policies required by this Article 10 in full force and effect at all times during the term of this Agreement, the CITY may treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. J. All deductibles and self -insured retentions in excess of $10,000 must be disclosed to and approved by the CITY. CITY reserves the right to modify the insurance requirements of this Article 10, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. K. If the FIRM maintains broader coverage or higher limits (or both) than the minimum limits shown above, the CITY shall be entitled to the broader coverage or higher limits (or both) maintained by the FIRM. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY. 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 ensure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The FIRM agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause. Article 12. Effective Date and Term. This Agreement shall be effective upon execution by the FIRM and CITY and continue until written notice of cancellation. This Agreement may be terminated at any time by either party with sixty (60) days' written notice to the other. Notice of termination by the FIRM shall be given to the City Attorney. 6 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 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 Iaw 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 Agency shall be addressed to: Charles E. Bell, Jr. City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: Leah Munoz City of National City 1243 National City Boulevard National City, CA 91950-4301 and to: cbell@nationalcityca.gov leahm@nationalcityca.gov Notice to the FIRM shall be addressed to: (For all purposes except payment of invoices) Alena Shamos, Esq. Colantuono, Highsmith & Whatley, PC 790 East Colorado Boulevard, Suite 850 Pasadena, CA 91101-2109 and to: ashamos@chwlaw.us (For payment of invoices) Colantuono, Highsmith & Whatley, PC 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945-5091 and to: AccountsReceivable@chwlaw.us Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 15. Retention Of Files; Transfer Of Documents. The CITY agrees that the FIRM may, in its discretion, maintain all or part of the CITY's client file in electronic format. The 7 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 FIRM may store part or all of the CITY's documents using secure cloud storage services. If so, the FIRM will apply all reasonable methods to maintain the confidentiality of your files, just as it does for your non -digital information. The CITY's data will be password protected and encrypted using currently available technology. Clients requiring information from their files may obtain that information only by written request to the FIRM. The CITY also agrees that following termination of its attorney -client relationship with the FIRM, the FIRM will not be required to maintain the CITY's client file for more than two years. If the CITY asks the FIRM to deliver its file, the CITY agrees that delivery of an electronic version, together with any materials that cannot be saved electronically, satisfies the FIRM's obligation to release all the CITY's client papers and property to it. Two years after termination of the relationship, and after reasonable notice, the CITY agrees that the FIRM will be free to destroy the CITY's client file, including all electronic records. The FIRM may also discharge its obligation to maintain the CITY's file before two years expire by mailing a copy to the CITY at the address last known to the FIRM. The CITY agrees that "reasonable notice" means the FIRM's mailing a notice of its intent to destroy the CITY's client file to the CITY at that address. Article 16. Dispute Resolution. The CITY and the FIRM agree that in the event of a dispute arising between them concerning the performance, compensation, or any of the terms and conditions of this Agreement, the party raising such dispute agrees to notify the other party of the existence of the dispute in writing and to seek a resolution of such dispute through negotiation. The CITY and the FIRM are entitled to require that any fee dispute be resolved by binding arbitration in Los Angeles or Nevada Counties pursuant to the arbitration rules for legal fee disputes of the respective County Bar Association. The CITY and the FIRM further agree that all disputes between them regarding the services rendered or fees charged not resolved via County Bar fee arbitration will be submitted to binding arbitration in Orange County to be conducted by ADR Services, Inc. in accordance with its commercial arbitration rules. THE CITY SHOULD REVIEW THIS PARAGRAPH CAREFULLY AND, IF IT WISHES, SEEK INDEPENDENT LEGAL COUNSEL REGARDING IT, AS THE CITY AND THE FIRM ARE AGREEING TO FOREGO SIGNIFICANT RIGHTS IN THE EVENT OF A DISPUTE BETWEEN THEM, INCLUDING THE RIGHT TO A JURY TRIAL Article 17. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 18. 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 8 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116,4 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. The FIRM maintains a conflict of interest index which lists all FIRM clients and matters in which the FIRM represents them. The FIRM will not represent any party with an interest that may be adverse to an indexed person without first determining if a professional conflict of interest would arise. The FIRM proposes to index the CITY as "City of National City" with respect to this Agreement. The CITY acknowledges that the FIRM serves as General Counsel of the San Diego County LAFCO and provides special counsel services to a number of other local governments in the County of San Diego on matters unrelated to this Agreement's Scope of Services. The informed written consent of all clients is required whenever a law firm represents clients with potentially or actually adverse interests, even in unrelated matters. California Rule of Professional Conduct 1.7 provides, in relevant part: (a) A lawyer shall not, without the informed written consent* from each client and compliance with paragraph (d), represent a client if the representation is directly adverse to another client in the same or a separate matter. (d) Representation is permitted under this rule only if the lawyer complies with paragraphs (a), (b), and (c), and: (1) the lawyer reasonably believes* that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; and (3) the representation does not involve the assertion of a claim by one client against another client represented by -the lawyer in the same litigation or other proceeding before a tribunal. (Terms followed by asterisks are defined elsewhere in the Rules.) The FIRM believes it can represent all its clients while also representing the others. And the scope of this representation is not adverse to LAFCO or its other local government clients. Accordingly, the CITY's retention of the FIRM to represent the CITY's consent to such representation, and agreement to waive any conflict of interest that does or may hereafter exist. The CITY further agrees. and consents to the FIRM representing it and the FIRM continuing to represent its existing general and special counsel clients, and new clients, on matters unrelated to the Scope of Services set forth in this Agreement, even if the CITY has a legal conflict or other 9 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.a adversity with that other client, such as a different position on a claim against a risk pool, a boundary dispute, a commercial dispute, any other disagreement. The CITY agrees not to share with the FIRM any confidential information unrelated to the Scope of Services which might impair the FIRM's ability to represent its existing general and special counsel clients and other local governments in unrelated matters notwithstanding any legal conflict or other adversity between CITY and those other local governments. As previously set forth herein, the CITY has the right to consult independent counsel before signing this Agreement. 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. I. Counterparts and Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which will for all purposes be deemed to be an original, and all of which taken together will constitute one and the same document. The counterparts of this Agreement and all other actions and documents executed in connection herewith may be executed and delivered by facsimile or other electronic signature by any of the parties to any other party and the receiving party may rely on the receipt of such document so executed and delivered by facsimile or other electronic means as if the original had been received. The parties agree that the electronic signature of a party to this Agreement and any other actions and documents related to this Agreement, shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. The parties agree that any electronically signed document (including this Agreement) shall be deemed (i) to be "written" or "in writing," (ii) to have been signed and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files IN WITNESS WHEREOF, the parties have executed this Agreement on the 2 vntt day of 0Ct04;r , 2021. CITY OF NATIONAL CITY By: Br Raefi, City Manager COLANTUONO, HIGHSMITH & WHATLEY, PC (Corporation — signatures of two corporate officers) By: Holly O. Whatley, Esq. 10 City of National City and Colantuono, Highsmith & Whatley, PC Legal Services Agreement 266116.4 APPROVED AS TO FORM: By: Charles E. Bell, Jr. City Attorney COLANTUONO, HIGHSMITH & WHAT..Fv PC By: Michael G. Colantuono • 1 1 City of National City and Colantuono, Highsmith & Whatley. PC Legal Services Agreement 266116.4