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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. • 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. • 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 2021 Agreement Legal S lvic s Page 1 of 9 City of National City and Devaney Pate Morris & Cameron, LLP 2021 Agreement Legal Services 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 Page 2 of 9 City of National City and Devaney Pate Morris & Cameron, LLP 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. ,. J (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. 2021 Agreement Legal Services Page 3 of 9 City of National City and Devaney Pate Monis & Cameron, LIT • • (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. 1• 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: • 2021 Agreement Legal Services • Page 4 of 9 City of National City and Devaney Pate MorrisF & Cameron, LLP • 1 f • • 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. • D. Workers' Compensation Insurance in an amount sufficient to meet statutory requirements covering all of FIRM' S employees and employers' liability insurance with r `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 2021 Agreement Legal Services Page 5 of 9 I, City of National City and Devaney Pate Morris & Cameron, LLP • 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, 2021 Agreement Legal Services Page 6 of 9 City of National City and Devaney Pate Mon:is & Cameron, LLP 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 • 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. • 1 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. 2021 Agreement Legal Services Page 7 of 9 City ofNational City and Devaney Pate Morris is & Cameron, LLP 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 f,. 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. 2021 Agreement Legal Services Page 8 of 9 City of National City and Devaney Pate Morris & Cameron, LLP 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 } • 2021 Agreement Legal Services F F, -r DEVANEY PATE MORRIS & CAMERON, LLP (Corporation —signatures of two corporate officers) B ti Title: Managing Partner Esq. By. , Esq. Title: Partner II Page 9 of 9 RE 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 r 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 r Devaney Pate Morris &CameronLIP NATIONAL CITY t • U Page 2 • 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. • DPMC by the Numbers • 2 LANGUAGES • 4 DIVERSE ETHNlCITIES • 5 FEMALE ATTORNEYS • 12 ATTORNEYS • 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. • n CticeA• � Municipal Law ♦ Campaign &Elution Ethics + Water and Energy Land Use & Real Estate + Employment Law f Environmental & Construction ♦ Public Works ♦ Affordable Housing Our Approach Careful ;Client Selection • ,Firm/Client.tit is paramount • - 'Small, city and public ageneyfocus Foe ff ' Collaborative. Problem Solving • Goes beyond limitingliability • Creative ideas and strategies • Strategic Planning • Subject -matter expert attorneys • 'Long-term partnerships 'Client Access . • Mufti -channel communication • 24/7 availability Efficient Monitoting& Reporting • Custom activity reports • Trnsparent billing • 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! i 402 W. Broadway, Suite 1300, San Diego CA 1 1 1 P: (619) 354-5030 1 F: (619) 354-5035 www.DPMClaw.com I { 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 I Temecula Office: One BetterWorid Circle Suite 300 Temecula, CA 92590 Phone: 95i262-4491 Fax: 951-262-4495