HomeMy WebLinkAboutDevaney Pate Morris & Cameron, LLP - Litigation and Claim Issues - 2021AGREEMENT FOR LEGAL SERVICES
BY AND BETWEEN
THE CITY OF NATIONAL CITY
AND
DEVANEY PATE MORRIS & CAMERON, LLP
THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made as of the 16th
day of November, 2021 between THE CITY OF NATIONAL CITY, a municipal corporation, (the
"CITY") and DEVANEY PATE MORRIS & CAMERON, LLP, (the "FIRM"). This Agreement
sets forth the parties' mutual understanding concerning legal services to be provided by the FIRM
and the fee arrangement for said services.
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Article 1. Retainer. The CITY hereby retains the FIRM to assist in representing
the CITY in connection with Litigation and government claims issues, subject to this Agreement.
Article 2. Effective Date and Term. This Agreement shall be effective on November
2, 2021 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 germination by
the FIRM shall be given to the City Attorney.
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Article 3. Scope of Services. The CITY shall have the right in its sole discretion to
detennine the particular services to be performed 1y' the FIRM under this Agreement. These
� services may include the following: consultation with the City Attorney and Risk Management on
Government Claims, defense of the City on Litigated matters, advice and counsel to the City
Council, and communications with City staff as per the Proposal Letter attached as Exhibit A
("LEGAL SERVICES"). In addition, the City may increase the scope of work with the FIRM's
agreement, and such additional work rill be confirmed via a letter that shall bring such work
within the scope of this agreement. It is expected that the FIRM will work with the City Attorney
and CITY staff.
Article 4. Compensation. Compensation paid under this Agreement shall be as set
forth in the Proposal Letter attached as Exhibit A.
A. The FIRM shall not use more than one attorney for the same specific task
without the CITY'S approval. The FIRM may use the minimum number of attorneys for this
engagement consistent with good professional practice after consulting with and ,obtaining
approval by the CITY.
B. The FIRM agrees to document a plan and budget consistent with the scope
of services described above in Article 3 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 $75,000.00 per case for LEGAL SERVICES and out-of-pocket
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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 bilking 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/eicess of the rate approved by the Internal
Revenue Service for income tax purposes.
1 (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 ofthe 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 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 E. Bell, Jr., 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
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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 bevels 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 capacity� artier associateprofessional � >
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)t15ie to the nature of the CITY'S payment process, the CITY
will not pay any late charges. Every effort will be made to pay bills promptly.
I. Staffing. Every legal matter'should have a primarily responsible attorney
and a paralegal assigned. Ultimately, staffing is a CITY decision, and the CITY'S representative
may review staffing to insure that it is optimal to achieve the goals of the engagement at the least
cost.
(1) Paralegals are to be used to the maximum extent possible to enhance
efficiency and cost-effectiveness. All tasks typically considered associate work should be
considered for assignment to a paralegal. Written authorization from the CITY must be had before
associate hours billed exceed paralegal hours billed. ,.
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(2) Once an attorney is given primary responsibility for anengagement,
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.
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(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.
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Article 5. 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 6. 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 anythird party without the priorwritten consent
of the CITY.
Article 7. 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 Sttte of California shall govern and
control the terms and conditions of this Agreement.
Article 8. Accepfability 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.
If the FIRM and the CITY cannot agree to the quality or acceptability of the work, the manner of
performance, or the compensation payable to the FIRM in this Agreement, the CITY or the FIRM
shall give to the other written notice. WithJiten (10) business days, the FIRM and the CITY shall
each • re . are a re ort which sus ' s its their osition and file the same with .the other • art . The
CITY shall, with reasonable diligence, determine the quality or acceptability of the work, the
manner of performance or the compensation payable to the FIRM.
Article 9. Indemnffication. The FIRM agrees to indemnify, defend, and hold the
CITY and its agents, officers, employees, and volunteers 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 FARM 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, employees, or volunteers.
Article 10. Insurance. The FIRM, at its sole cost and expense, shall purchase and
maintain throughout the term of this Agreement, the following insurance policies:
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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 Lability 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 $2,0OO,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.
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D. Workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of FIRM' S employees and employers' liability insurance with
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`limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver
of subrogation in favor of the CITY. Said endorsement shall be provided prior to commencement
of work under this Agreement.
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 Risl Manager, at the address listed in subsection G below, of
cancellation or material chan e�
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
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
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equal financial stability that is approved by the CITY'S Risk Manager. In the event coverage is
provided by non -admitted "surplus dines" 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 germinate
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 in>urance proceeds in excess of the
specified minimum limits of insurance and coverage shall be ailable to the CITY.
Article 11. Drums 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 12. Non -Discrimination Provisions. The FIRM shall not discriminate against
any subcontractor, vendor, employee �r applicant for employment because of age, race, color,
gxgstry, religici2,.sex,.se u ' �a�a��,�nar'tal status, national on _ in,�ahy��c icano�_
medical condition. The FIRM will take positive action to insure that applicants are employed
without regard to their age ace, 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 nondiscrimination clause.
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,
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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:
City Attorney
City of National City
1243-National City Boulevard
National City, CA 91950-4397
cc: Executive Assistant to the City Attorney
City of National City
1243 National City Boulevard
National City, .CA 91950-4397
and to: cbell nationalcityca.gov
leahm@nationaicityc a. gov
Notice to the FIRM shall be addressed to:
cc:
Leslie E. Devaney
Devaney Pate Morris & Cameron, LLP,,
402 West Broadway, Ste. 1300
San Diego, CA 92101-3542
F
William C. Pate
Michelle C. tee, Assistant to William C. Pate
Devaney Pate Morris &tameron, LLP
402 West Broadwa Ste. 1300
San Diego, CA 92101-3542
and to: ldevaneyAdpmclaw.com
wpate@dpmclaw.com
mlee@dpmclaw.com
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Nothing contained in this Agreement shall preclude or render inoperative service
or such notice in the manner provided by law.
Article 15. Administrative Provisions.
Agreement.
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A. Time of Essence. Time is of the essence for each provision of this
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute but one and
the same instrument.
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C. Headings. Any captions to, or headings of, the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. California Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. The venue for any legal action arising under
this Agreement shall be in either state or federal court in the County of San Diego, State of
California,
E. Integrated Agreement. This Agreement including attachments and 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.
F. Severability. The unenforceability, invalidity, or illegality of any provision
of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
G. 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
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enforceability. /
H. Conflict ofinterest. 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.
T. No Obliga ions 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.
J. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules,
or provisions thereof conflict or are inconsistent with the terms and conditions contained in this
Agreement, the terms and conditions of this Agreement shall control.
K. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
CITY OF NATIONAL CITY
By:
Alejandra Sotelo-Soli ; ayor
APPROVED AS TO FORM:
By:
Charles E. Bell Jr., Cit,.. i' ttorney
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2021 Agreement
Legal Services
F
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DEVANEY PATE MORRIS &
CAMERON, LLP
(Corporation —signatures of two corporate officers)
B
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Title: Managing Partner
Esq.
By. , Esq.
Title: Partner
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City of National City and
Devaney Pate Morris & Cameron, LLP
DPMCDevaney Pate
MorrIs&CmeronLLP
November 1, 2021
V/A EMAIL ONLY
Mr. Charles E. Bel/Jr, Esq.
National City, City Attorney
Tort and Liability
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Bill Pate has over 20 years of experience defending public agencies in claims and litigation. California's
cities face an ever increasing burden of potential municipal tort litigation.
Bill's track record demonstrates tireless effort and devotion to vigorously defend municipalities. Take
the City of Del Mar for example. Bill has represented Del Mar since 2009. During that time the City has
been named in at least 52 lawsuits. Only seven cases are currently active. The City has prosecuted seversl
cases: one to shut -down a medical marijuana cooperative; another recovered $122,000.00 in unpaid PEG
fees from Time Warner Cable. The City has also sued to protect its right to appropriately regulate short
term rentals. The City has rarely paid money to settle cases. Only about ten percent of the litigated cases
have resulted in monetary settlements. The vast majority of cases have resolved in the City's favor,
including eight lawsuits where the City prevailed on motions for summary judgment. One of which was
recently held up on appeal--Hedayatzadeh v. Del Mar (2020) 44 Cal.App.5th 555. At least ten cases were
voluntarily dismissed, including a wrongful death matter involving a drunk driver, and a serious brain injury
bicycle accident where the City was indemnified by the contractor working on the Torrey Pines Bridge. Only
one matter proceeded all the way to a jury trial where the City successfully defended inverse condemnation
and property damage claims arising out of allegedly defective storm drains. The City won the appeal, a
published decision in the City's favor Eske/and v. City of De/ Mar (2014) 224 Cal.App.4th 936. The City
.. al.sc—{ar-euai1.ad.-a.ga.in-s.t e.r-atis—Wriis-aura-d-araus-ar iout—ar c-affi=ta r-ded_tlae_,
petitioners.
Bill Pate also has a published decision issued by the California Supreme Court, which at the time greatly
increased the protections afforded all public agencies from so-called "revival statutes" intended to increase
the right to pursue otherwise time -barred claims. Shirk v. Vista Unified (2007) 42 Cal.4t1' 201.
Bill has also successfully defended public agencies in alleged premises liability that run the gamut. His
cases have ranged from wrongful death arising out of criminal homicides, such as active shooters on public
campuses, to drowning in a public pool, to defective roadway cases, all the way to the more unusual
circumstances of an alleged wrongful death due to persons struck and killed by freight and passenger trains.
Mr. Pate defended the City of Chino in a five -fatality teenage death case arising out of an allegedly
dangerous roadway surface. The City of Chino settled the case, without contributing one penny to a multi-
million dollar settlement.
DPMC has also handled several lawsuits involving civil rights claims, and excessive force allegations
against law enforcement. DPMC has defended the County of San Diego in several lawsuits filed against the
402 W. Broadway, Suite 1300, San Diego CA 92101 ■ P: (619) ■ F: (19) 354-5035■www.DPMClaw.com
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Devaney Pate
Morris &CameronLIP
NATIONAL CITY
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Sheriff's Department filed by injured jail inmates and others taken into police custody. One suit resulted in
a jury trial in July of 2019. This case concerned police practices and conduct during an arrest and
subsequent need for medical attention following a citizen 911 call. The case went up on appeal and
eventually resolved for roughly half the jury verdict.
Despite its successful litigation track record, DPMC takes pride in proactively advising the City in
avoiding tort liability. It is the firm's experience that many tort situations can be avoided by a combination
of diligence on the park of the City, investigators, timely legal advice and strategy.
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DPMC by the Numbers
• 2 LANGUAGES
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• 5 FEMALE ATTORNEYS
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• 15 PRACTICE AREAS
• 38 PUBLIC AGENCY CLIENTS
• 200 YEARS OF PUBLIC PRACTICE
- Our IvIts8ion
To be passionate about public
service and committed to serrillg
the legal needs of California local.
public entities.
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CticeA•
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♦ Campaign &Elution Ethics
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Land Use & Real Estate
+ Employment Law
f Environmental & Construction
♦ Public Works
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Our Approach
Careful ;Client Selection
• ,Firm/Client.tit is paramount
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Strategic Planning
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Why DPMC is Your Best Choice
• Ideal firm/client fit DPMC-is the perfect legal partner
• Demonstrated success advising similar municipalities
Weil -versed in strategic partnerships with city councils
• deep bench strength — expert public entity attorneys
• Responsive and motivated — we succeed when you succeed!
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402 W. Broadway, Suite 1300, San Diego CA 1 1 1 P: (619) 354-5030 1 F: (619) 354-5035 www.DPMClaw.com
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I Devaney Pate
&loom Morris • CameronLLP
♦ The Public Agency Law Firm
DPMC Public Statement of Commitment
Devaney Pate Morris & Cameron (DPMC) condemns and stands against
racism and violence toward communities of color, and will work toward
positive change.
We acknowledge that racism and xenophobia continue in our society and
that unjust treatment and disrespect of people of color exist.
It is not enough to simply denounce racism. We must do something to help
make our society better. DPMC will start by having conversations with
people who have been victims of racism, listen instead of talk, and
encourage those around us to use their voices and power to call out
injustice.
To everyone on our community who are hurling, we stand with you. We will
listen and 'learn. And then, we will do better.
DPMC LOCATIONS:
Headquarters Office:
402 W Broadway
Suite 1300
San Diego, CA 92101
Phone: 619-3545.O3O
Fax: 619-354-5035
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Temecula Office:
One BetterWorid Circle
Suite 300
Temecula, CA 92590
Phone: 95i262-4491
Fax: 951-262-4495