LEGAL SERVICES AGREEMENT
CITY OF CHULA VISTA
AND
LOUNSBERY, FERGUSON, ALTONA & PEAK LLP
This Legal Services Agreement (“Agreemen t”) is entered into February 22, 2023 (“Effective Date”), by and between the City of Chula Vista (“City”) and Lounsbery Ferguson Altona & Peak LLP (“Attorney”).
RECITAL
Attorney represents it is qualified by virtue of experience, training, education, and expertise to accomplish the services to be provided under this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement. This Agreement shal l cover services rendere d from on or about February 22, 2023 until the next elected City Attorney is sworn into office.
2. Services to be Provided. The services to be performed by Attorney shall consist of the performance of any and all tasks an d services reasonably required to advise, assist, and fully and competently represent the City in all legal matte rs presented to Attorney and on any matters in litigation, wherein Attorney is consulted by, or appears on behalf of, the City. Attorney’s services shall include, but are not limited to, any and all reasonably required legal representation on behalf of the City in the capacity of Acting City Atto rney (collectively, the “Required Services”). A description of the anticipated scope of Required Services is attached as Exhibit A1.
3. Compensation - Attorney shall be compensated for performance of the Required Services as follows:
3.1 Amount. The total amount of service and costs to be paid under this Agreement shall not exceed $350,000 without the express written authorizat ion of the City prior to work or services performed. Any amounts incurred be yond that amount that were not so approved in writing, are subject to non-payment.
Prior to commencing services under this Agreement, Attorney shall obtain advance approval of the individual attorneys who will be performing any Required Services. Additionally, Attorney shall obtain advance approval of any changes to the individual attorneys performing any Required Services. The City shall compensa te Attorney for the Required Services satisfactorily performed and approved at the following hourly rates:
On-Site Time
8 Days per Month: $18,500 per month
[Includes 8 days per month on-site during business hours, including attendance at City Council meetings and other meetings held on those days.]
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 2 Acting City Attorney/Partner: $235
Associates: $190
Paralegals: $100
[To be charged for work performed by the Acting City Attorney, other than during on-site days, and by other firm members.]
Travel time shall be billed at the above hourly compensation rate for travel time incurred on days other than the 8 on-site days per month. Tr avel time shall not be billed for travel time associated with on the 8 on-site days per mont h. Except for reimbursable expenses as defined below, such hourly compensation shall be the sole and total remuneration for services rendered pursuant to this Agreement.
3.2 Billing. Attorney agrees to comply with all Billing Standards identified in Exhibit A2.
Attorney agrees to provide City with a detailed invoice for the Required Services performed each month, within thirty (30) days of the last day of the month in which the Required Services were performed. Invoicing shall begin on the first day of the month following the Effective Date of the Agreement.
The City does not pay for the preparation of billings or for discussions concerning billing.
The City will not accept and will not be responsib le for block or cumulative invoice entries.
Attorney shall not charge the City for more than one Attorney’s time when appearing at a meeting, in Court, or for performing any ta sk unless the City has expressly au thorized in writing the use of two or more attorneys for the appearance or task.
All billing for work performed under this Agreement shall be sent to the following:
City of Chula Vista Attorney’s Office
ATTN: Law Office Manager
276 Fourth Avenue
Chula Vista, CA 91910
3.3 Payment to Attorney. Upon receipt of a properly prepared invoice and confirmation that the Required Services detailed in the invo ice have been satisfactorily performed by Attorney, City agrees to pay Attorney for the approved amounts within thirty (30) days.
3.4 Reimbursements for Expenses . Attorney shall keep accu rate records of all costs, travel, and expenses. These records shall be made available to the City upon reasonable request.
The City will reimburse actual, reasonable, and necessary out of pocket expenses incurred by Attorney in performing any services under this Agreement as follows:
a) Photocopying charges at no more than $0.15 per page. b) Parking Fees at the actual amount charged to Attorney. c) Travel/Mileage at the current federal per mile rate. Any travel fees incurred outside of San Diego County must be authorized and approved in advance by the City.
d) Statutory Fees, Witness fees, Reporters fees, Stenographic transcription, jury fees and the cost of serving process actually incurred by Attorney.
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 3 e) Attorney may seek reimbursement for any actual, reasonable and necessary expenses incurred on items not identified above with the prior authorization and approval by the City.
The City will not reimburse Attorney for any additional charges incurred due to “rush” deliveries or “late” charges, unless such expenses are approved in writing and in advance by the City after the need for such services is determined by the City to be reasonably beyond the control of Attorney.
To obtain reimbursement, Attorney shall s ubmit a monthly summary of expenses, along with all supporting receipts, within thirty (30) days of the expense being incurred.
3.5 Expert Consultations and Witnesses. Expert consultations and witnesses, and any investigators, may be retained on terms acceptable to the City, authorized and approved in writing and in advance, for which the City shall reimburse the Attorney or pay inve stigators, consultants, or experts directly. In no event shall Attorney retain any service of any expert, investigator, or consultant without first receiving express authorization and approval from the City.
4. Insurance.
4.1 Professional Errors and Omissions Insurance. Attorney shall obtain and maintain in full force and effect at all times Professional E rrors and Omissions Liability Insurance. Such insurance shall provid e coverage in an amount not less than two million dollars ($2,000,000.00) per claim and four million dollars ($4,000,000.00) aggregate. The City reserves the right to require insurance for a higher coverage than the minimum limits noted above. All insurance carriers shall hold a Best rating of “A+” or be tter. The insurance policy require d under this paragraph shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage, or in limits, except after thirty (30) days prior written notice, by certified mail return receipt requested, given to the City. If the Attorney maintains higher limits than the minimums stated above, the City requires and shall be entitled to coverage for the higher limits maintained by the Attorney.
Said insurance policy shall be written on a polic y form coverage specif ically designed to protect against negligent acts and errors or omissions of Attorney. Any deductibles or self-insured retentions must be declared to and approved by the City. The City may require Attorney to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the deductible or retention.
Attorney shall, within ten (10) days after entering into this Agreement, and before commencing or performing any services under the Agreement, deposit with the City Attorney, a Certificate of Insurance certifying that all insurance required herein is, and will be, in full force and effect from the time the Agreement is entered into until the later of the date of expiration or termination of this Agreement. Should Attorney’s insurance policy terminate during the Agreement period, the Attorney shall renew the Certificates of Insurance at l east fifteen (15) days prior to expiration and submit to the City at least ten (10) days prior to expiration. Any delay in submission of current Certificates of Insurance may result in a delay of payment.
Attorney shall not commence any work under this Agreement until Attorney has obtained and submitted all City approved insurance.
All insurance required shall be carried only by responsible insurance companies licensed to do business in California. All policies shall c ontain language to the effect that: (1) the insurer
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 4 waives any right of subrogation against the City and the City’s elected officials, officers, employees, agents, and representa tives; and (2) insurance shall be primary non-contributing and any other insurance carried by the City shall be excess over such insurance. Attorney shall furnish the City with copies of all applicable policies promptly upon receipt.
Nothing in this section shall be construed to make Attorney other than an independent contractor for all purposes.
Attorney agrees to notify the City in the event that the limits shall fall below the coverage stated above or if the insurance policies noted here are allowed to lapse and substitute insurance is, or is not, obtained.
5. Indemnification. Atto rney agrees to protect, hold ha rmless, defend, a nd indemnify the City, its employees, elective or appointive boards, officers, agents, agenda and affiliates, from any and all loss, claims liabilities, expenses, or damages of any nature whatsoever, including Attorneys’ fees, arising out of or in any way connected with the misconduct, negligent acts, errors or omissions in the performance of the Required Services u nder Agreement by Attorney, Attorney’s agents, officers, employees, sub-contractors, or independent contractors of Attorney, except where the loss or liability arises out of the sole negligence or willful misconduct of the City.
6. City Agent. The City Manager, for the purpo ses of this Agreement, is the agent for the City. Whenever authorization or approval is required, Attorney understands that the City Manager has the authority to provide the authorization or approval.
7. Independent Contractor. Attorney, and anyone employed by Attorney, are not and shall not be, deemed employees of the City. Attorney is solely responsible for the payment of employment taxes, workers compensation taxes, and any other taxes for employees.
8. Conflict of Interest. Attorney represents th at they presently have no material financial interest other than that which may be held by the general public and shall not acquire any interest, direct or indirect, in any contract or decision made on behalf of the City which may be affected by the services to be perfo rmed by Attorney under this Agreemen t. Attorney furthe r agrees that no person having any such interest shall be employed by them. If Attorney or their employees acquire a direct or indirect personal interest, such intere st shall be immediately di sclosed to the City and the interested individual shall abstain from any contracts or decisions under this Agreement.
In addition to the proscriptions regarding confli cts of interest imposed on Attorney by the Business and Professions Code and by Californi a Rules of Professional Conduct, Attorney represents that no Attorney shall represent clients before any boar d, commission, committee or agency of the City or represent any client with interests adverse to the City. Furthermore, Attorney shall at all times avoid conflicts of interest or the appearance of a conflict of interest in performance of this Agreement. Attorney shall immediately notify the City Attorney of any circumstances, or change of circumstances, that ma y provide for the potentia l for a conflict of interest, or actual conflict of interest.
9. Non-Liability of Officials/Employees of the City. No official or employee of the City shall be personally liable for any default or liability under this Agreement.
10. Compliance with Law. Attorney shall comp ly with all applicable laws, ordinances, codes, and regulations of all Federal, State, and local governments. In addition, Attorney agrees to
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 5 abide by all ethical and moral standards as repr esented by the Rules of Professional Conduct as applied to the California State Bar.
11. Work Product. All documents, or other information developed or received, by Attorney shall be the property of the Cit y. Attorney shall provide the C ity with copies of items upon reasonable demand or upon termination of this Agreement.
12. Notices. Attorney must immediately advise City of any significant developments in the performance of the Required Services. City requires that drafts of all pleadings or papers filed with the court be provided to City in advance of filing and with adequate time for review and comment by City. Attorney must immediately advise City of all trial related dates, any dates for alternative dispute resolution, and any motion or court hearing dates upon first notification to Attorney of such dates.
All notices shall be personally delivered or mailed, via first class mail, to the below listed address. In addition, such addresses shall be used for delivery for service of process. Attorney agrees to notify the City within ten (10) days of the date of any change of address and agree to keep an updated address with the applicable Courts on any matters that Attorney is representing the City.
a. Address of Attorney is as follows:
Jill D.S. Maland
Lounsbery, Ferguson, Altona & Peak, LLP
960 Canterbury Place, Suite 300
Escondido, CA 92025
[email protected]
b. Address of City is as follows:
Megan McClurg, Assistant City Attorney
City of Chula Vista Attorney’s Office
276 Fourth Avenue
Chula Vista, CA 91910
[email protected]
13. Default/Termination of Agreement. City and Attorney shall have the right to terminate this Agreement without cause by giving fifteen (15) days written notice. However, Attorney shall not substitute out as Attorney of Record on any matters it may be representing the City without first obtaining written consent from the City, or first obtaining an appr opriate Court Order, allowing Attorney to withdraw as counsel of record.
14. Limitations Upon Assignment/Subcontracting. Attorney agrees that no portion of their performance of Required Services rendered under this Agreement shall be assigned by Attorney or subcontracted to any other party without prior written authorization and approval of the City.
15. Non-Discrimination. Attorney s covenant there shall be no discrimination based upon race, color, creed, religion, sex, ma rital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement.
16. Time of Essence. Time is of the essence in the performance of this Agreement.
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 6
17. Authority to Execute. The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement as herein stated.
18. City Audit. The City is required to complete an annual audit. The Auditors may contact and require some input from Attorney concerning matters Attorney is engaged for the City.
Attorney agrees to coop erate, at no charge to the City, for such coopera tion or input as may be required.
19. Entire Agreement. This Agreement repr esents the parties’ final and mutual understanding. This Agreement supersedes any previous agreements, oral or written.
20. Modification. This Agreement shall not be modified or replaced except by another signed, written Agreement, properly executed by the parties.
21. Waiver. The waiver of any breach or any provision of this Agreement does not waive any other breach of that term, or any other term, in this Agreement.
22. Partial Invalidity. If any part of this Agreement is found for any reason to be unenforceable, all other parts nonetheless shall remain in force.
23. Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of California. Any action commenced regarding this Agreement shall be filed in the Central Branch of the San Diego Superior Court.
24. Interpretation. This Agreement shall be interpreted as though prepared by both parties.
25. Survival. All obligations ar ising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibili ty or liability between the City and Attorney survive the termination of this Agreement.
26. Financial Interests. Attorney is deemed to be a “Consultant” for the purposes of the Political Reform Act conflict of interest and disclosure provisions a nd shall report economic interests to the City Clerk on the required Stat ement of Economic Interests in such reporting categories as are specified in Exhibit B, or if none are specified, then as determined by the City Manager.
IN WITNESS WHEREOF, these parties have executed this Agreement on the day and year shown hereinabove.
CITY OF CHULA VISTA
By: ______________________________________________________
Glen R. Googins, City Attorney
A T T O R N E Y
By:______________________________________________________
Lounsbery Ferguson Altona & Peak, LLC
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 7 EXHIBIT A1
Anticipated Scope of Required Services
Subject to the limitations identified in this Exhibit A1, Attorney will be responsible to perform or manage, in coordination with existing City Attorn ey’s office staff, and/or outside counsel under contract with the City, all City Attorney duties as identified in and in accordance with the City Charter, the Chula Vista Municipal Code, any City-wide or department policies, including but not limited to the following:
1) Act as the City of Chula Vista’s Acting City Attorney. 2) Perform, or supervise the performance of, all legal affairs on behalf of the City. 3) Represent and advise City Council and all City Officers in all matters of law pertaining to their offices and advise all boards and commissions, and other agencies of the City on legal matters referred to the City Attorney, and render legal opinions wh en requested by City Council, City Manager, City Clerk or a ny board or commission with decision making authority.
4) Represent, defend, and appear fo r the City and any City Offi cer or employee, or former City Officer or employee as required by law or City policy in any and all legal actions and proceedings.
5) Attend and advise at all regular and special meetings of the City Council. 6) Attend and advise at board and commission meeting as necessary. 7) Attend and represent City at administrative hearings as necessary. 8) Oversee the preparation of all contracts ma de by and all bonds given to the City, and approve the form of same in writing.
9) Oversee the preparation of any and all proposed ordinances or resolutions for the City, and approve the form of same in writing.
10) Review and approve all other necessary legal documents in the City’s performance of its municipal functions such as: real property instruments of varying nature including purchase agreements and escrows, leases, covenants, deeds, easements, and licenses; bond size, amount, and offering terms and conditions; public works construction documents including bid specifications, contracts, bonds, insurance, liens and related documents; memorandums of understanding; franchise agreements; bargaining agreements and bargaining agreement language, employment agreements, independen t contract agreements, investigation reports, as required, public r ecords act responses, request s for proposals and similar procurement and solicitation documents, and other legal documents. 11) Prosecute, in the Acting City Attorney’s pr ofessional discretion, all offenses against the ordinances of the City and State (as authorized/required by law). 12) Exercise discretion as to when to commence or maintain legal proceedings whenever a civil cause of action exists in favor of the City, subject to Council approval or ratification. 13) Consistent with all applicable ethical rule s and guidance, commenc e or maintain legal proceedings as directed by the City Council.
14) Surrender to the Acting City Attorney’s successor all books, papers, files etc. 15) Oversee or provide input regarding court a ppearances handled by the City Attorney’s Office or outside counsel.
16) Provide supervisory support to the attorneys and staff of the City Attorney’s Office consistent with the City Charter and personnel rules.
17) Retain and work with existing outside legal coun sel on specific litigation or transactional advice matters, subject to the limitations identified herein.
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 8 18) Work collaboratively with the City Attorney’s Office staff and the Acting City Attorney’s successor to properly transition performance of job duties to the City Attorney. 19) May designate a primary attorney at the firm to serve in the role of Acting City Attorney subject to the limitations identified herein.
20) May appoint Assistant or Deputy City Attorneys for the term of the Acting City Attorney, subject to the limitations identified herein.
21) May employ special legal counsel and appraisers, engineers, and professionals for handling of litigation, subject to the limitations identified herein.
Limitation on Services
Attorney will perform certain services in a limited capacity as provided below:
1) Designation of a primary attorney at the firm to serve in the role of Acting City Attorney must be approved in advance by the City Manager.
2) Any employment-related decisions with rega rd to City employees, such as hiring, discipline, termination, or salary step increases/decreases, must be approved in advance by the City Manager.
3) Entering into, amending, or terminating current City contracts with vendors may occur only after prior consultation with the identified City Attorney Office representative and advance approval by the City Manager.
4) Entering into, amending, or terminating curr ent City contracts with outside counsel may occur only after prior consultation with the identified City Attorney Office representative and advance approval by the City Manager.
5) Delegation of tasks within the City Attorney ’s Office may occur only after consultation with the identified City Attorney Office representative.
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 9 EXHIBIT A2
Billing Standards
Attorney shall follow all of the below billing standards:
1) All cases shall be billed monthly pursuant to section 3 of this Agreement, and shall comport with State and ABA billing standards.
2) The fee portion of each invoice sha ll include the attorney’s name (or initials, if full name is noted elsewhere on invoice), amount, date work was performed, the amount of time expended, rate per hour, and a br ief description of the services rendered as a basis for fee calculation, or other method of determining the fees. All tasks set forth in Attorney’s billing documentation shall be specific and detailed. Examples of unacceptable billing entries include but are not limited to: overly generalized listings of task descriptions (e.g., “review contract” or “prepare for negotiations”); double staff or attorney time on any task, unless expressly authorized by the Ci ty Manager; block billing; time billed for additional newly assigned attorney(s) to learn case file; assigne d work by law clerks; administrative costs; word processing charges; secretarial or cleri cal charges; time spent on researching and/or drafting work that Attorney has done and billed another client for in the past. 3) Hourly billings under this Agre ement shall not be provided in more than six (6) minute increments and shall represent the devotion of a full six minutes before an increment is billed.
4) The cost and expense portion of the invoice shall clearly identify the nature and amount and any other cost(s) billed to City and must be separately itemized with prior written approval of the City Manager. Any experts or contractors hired by Attorney on behalf of City whose charges are billed through the A ttorney must also provide such billing itemization and such billing shall be attached to the billing provided to City by Attorney.
Professional fees and expenses invoiced to City shall be due and payable within thirty (30) days after receipt of Attorney’s statement.
5) In support of payment for such bill, Attorney shall furnish payroll records, bills, invoices, receipts or other evidence of reimbursable expenses incurred as reasonably requested by the City Manager. City reserves the right to require additional subs tantiation of any item of claimed expense.
6) If representing City in active litigation, Attorney shall prepare a brief summary of activity on each case on a quarterly basis.
7) Third party charges are billable at actual cost.
8) Postage charges are billable at actual cost.
9) Expert witness fees are not automatically au thorized. Attorney shall obtain approval for each expert witness from the City Manager.
10) Billing that can be reimbursed through payment out of City identified enterprise funds or developer/applicant accounts shall be prepar ed in accordance with the requirements identified for such reimbursements.
LSA Lournbery Ferguson Altona & Peak LLC Acting City Attorney 2.22.2023 10
EXHIBIT B
STATEMENT OF ECONOMIC INTERESTS
CITY OF CHULA VISTA
AND
LOUNSBERY, FERGUSON, ALTONA & PEAK LLP
Attorney: Lounsbery, Ferguson, Altona & Peak, LLP
( X ) Not Applicable. Not a Fair Political Practices Commission (“FPPC”) Filer.
( ) FPPC Filer.
If Attorneys in the performance of its services under this agreement: (1) conduct research and arrives at conclusions with respect to its rendition of information, advice, recommendations or counsel independent of the control and direction of the City or of any City official, other than normal contract monitoring; and (2) possesses no authority with respect to any City decision beyond the rendition of information, advice, recommendations or counsel, Attorneys should not be designated as an FPPC Filer.
If Attorneys are designated as FPPC filers, specify below which disclosure categories apply:
( ) 1. All investments, sources of income, and business positions; ( ) 2. Interests in real property located in the City of Chula Vista; ( ) 3. Investments, business positions, interests in real property, and sources of income subject to the regulatory, permit or licensing authority of a City department; ( ) 4. Investments, business positions in business entities, and sources of income that engage in land development, construction, or the acquisition or sale of real property within the jurisdiction of the City of Chula Vista;
( ) 5. Investments and business positions in business entities that, within the past two years, have provided leased facilities, services, supplies, materials, machinery or equipment to the City of Chula Vista; or income from sources that provide leased facilities, goods, equipment, vehicles, machinery or services (including training or consultant services) of the type utilized by the City;
( ) 6. Investments and business positions in business entities that, within the past two years, have provided leased facilities, services, supplies, materials, machinery or equipment to a City department; or income from sources that provide leased facilities, goods, equipment, vehicles, machinery or services (including training or consultant services) of the type utilized by a City department;
( ) 7. Investments, business positions in business entities, and sources of income that, within the past two years, have received grants or other monies from or through the City of Chula Vista.