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LEGAL SERVICES AGREEMENT
CITY OF CHULA VISTA
AND
COLANTUONO, HIGHSMITH & WHATLEY, PC
This Legal Services Agreement (“Agreement”) is entered into June 9, 2022(“Effective Date”), by and between the City of Chula Vista (“ City”) and Colantuono, Highsmith & Whatley, PC Attorney”).
RECITAL
Attorney representsit is qualified by virtue of experience, training, education, and expertise to accomplish the servicesto be provided under this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement. This Agreement shall cover services rendered from the first communication between the City and Attorney until one-year after the Effective Date. Notwithstanding the original term above, the City hasthe option to extend the term of this Agreement for up to five ( 5) one-year increments. The City Attorney shall be authorized to exercise the options to extend. If City exercisesan option to extend, eachextension shall be on the sameterms and conditions herein unless otherwise amendedin a written amendment between the parties.
2. Services to be Provided. The services to be performed by Attorney shall consist of the performance of any and all tasks and services reasonably required to advise, assist, and fully and competently representthe City in all legal matters presentedto Attorney and on any matters in litigation, wherein Attorney is consulted by, or appearson behalf of, the City. Attorney’s servicesshall include, but are not limited to, advising the City on local authority regarding gaming operations (collectively, the Required Services”).
3. Compensation - Attorney shall be compensatedfor 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 $10,000 without the expresswritten authorization of the City prior to work or servicesperformed.
Any amounts incurred beyond that amount that were not so approved in writing, are subject to non- payment. Attorney shall submit an initial estimatedbudget and a liability assessmentwithin thirty ( 30) days following the receipt of initial file and assignment.
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 changesto the individual attorneys performing any Required Services.
The City shall compensateAttorney for the Required Services satisfactorily performed and approved at the following hourly rates:
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Senior Counsel $ 385.00/hour
Associate Attorneys $ 350.00/hour
Paralegal $ 180.00/hour
Travel time shall be billed at the samehourly rate. Except for reimbursable expensesas defined below, such hourly compensation shall be the sole and total remuneration for services rendered pursuantto this Agreement.
3.2 Billing. Attorney agreesto provide City with a detailed invoice for the Required Services performed each month, within thirty ( 30) days of the end of the month in which the Required Services were performed. Invoicing shall begin on the first of the month following the Effective Date of the Agreement. All chargesmust be presentedin a line item format and in a manner such that each task is separatelyexplained in reasonabledetail, andwith a specific time allocation recorded, for eachtask. The invoice shall include the amount, billing rate, basis for calculation of all fees and costs, total fees and costs incurred, total amount paid and balanceremaining. All invoices submitted must include, on the first page of the invoice, the original estimated budget, and all subsequently revised budgets, beginning with the first invoice submitted and all invoices thereafter.
The City doesnot pay for the preparationof billings or for discussionsconcerning billing. The City will not accept and will not be responsible 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 task unless the City hasexpressly authorized in writing the useof two or more attorneys for the appearanceor task.
All billing for work performed under this Agreement shall be sentto the following:
City of Chula Vista Attorney’s Office
ATTN: Law Office Manager
276 Fourth Avenue
Chula Vista, CA 91910
[email protected]
619) 585-5731
3.3 Payment to Attorney. Upon receipt of a properly prepared invoice and confirmation that theRequiredServicesdetailed in the invoice havebeensatisfactorily performed by Attorney, City agrees to pay Attorney for the approved amounts within thirty ( 30) days.
3.4 Reimbursementsfor Expenses. Attorney shall keep accurate records of all costs, travel, and expenses. Theserecords shall be madeavailable to the City upon reasonablerequest.
The City will reimburse actual, reasonable, and necessaryout of pocket expensesincurred by Attorney in performing any services under this Agreement as follows:
a) Photocopying chargesat no more than $0.15 per page.
b) Parking Feesat the actual amount charged to Attorney.
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c) Travel/ Mileage at the current federal per mile rate. Any travel fees incurred outside of SanDiego County must be authorized and approved in advanceof the City.
d) Statutory Fees, Witness fees, Reportersfees, Stenographictranscription, jury fees and the cost of serving processactually incurred by Attorney. e) Attorney may seek reimbursement for any actual, reasonable and necessary expensesincurred 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 expensesare approved in writing and in advance by the City after the needfor suchservicesis determinedby the City to bereasonablybeyondthe control of Attorney.
To obtain reimbursement, Attorney shall submit a monthly summary of expenses, along with all supporting receipts, within thirty ( 30) days of the expensebeing incurred.
3.5 Expert Consultations and Witnesses. Expert consultations and witnesses, and any investigators, may be retained on terms acceptableto the City, authorized and approved in writing and in advance, for which the City shall reimburse the Attorney or pay investigators, consultants, or experts directly. In no event shall Attorney retain any service of any expert, investigator, or consultant without first receiving expressauthorization and approval from the City.
4. Insurance.
4.1 Professional Errors and Omissions Insurance. Attorney shall obtain and maintain in full force andeffect at all times ProfessionalErrors and Omissions Liability Insurance. Suchinsuranceshall provide coveragein an amount not lessthan two million dollars ($2,000,000.00) per occurrence and four million dollars ($4,000,000.00) aggregate. The City reservesthe 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 better. The insurance policy required under this paragraphshall be endorsedto statethat 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 coveragefor the higher limits maintained by the Attorney.
Said insurancepolicy shall provide coverageto the City for any damagesor lossessuffered by the City as a result of any error or omission, or neglect by Attorney which arise out of the services rendered under this Agreement. Such insurance may not be subject to a self-insured retention or deductible in an amount in excessof Twenty- Five thousand ($25,000.00) dollars without prior written authorization and approval by the City.
Attorney shall, within ten (10) daysafter entering into this Agreement, andbefore 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 least fifteen ( 15) days prior to expiration and submit to the DocuSign Envelope ID: DF355623- 7BEA- 4300- ACF4- BAC5C1BCEB5C Page4 of 8
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City at least ten ( 10) days prior to expiration. Any delay in submission of current Certificates of Insurancemay result in a delay of payment.
Attorney shall not commenceany work under this Agreement until Attorney hasobtained and submitted all City approved insurance.
All insurance required shall be carried only by responsible insurance companies licensed to do businessin California. All policies shall contain languageto the effect that: (1) the insurer waives any right of subrogation against the City and the City’s elected officials, officers, employees, agents, and representatives; and (2) insuranceshall be primary non-contributing and any other insurancecarried by the City shall be excessover 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 agreesto notify the City in the event that the limits shall fall below the coveragestated above or if the insurance policies noted here are allowed to lapseand substitute insuranceis, or is not, obtained.
5. Indemnification. Attorney agreesto protect, hold harmless, defend, and indemnify the City, its employees, elective or appointive boards, officers, agents, agendaand affiliates, from any and all loss, claims liabilities, expenses, or damagesof any nature whatsoever, including Attorneys’ fees, arising out of or in any way connectedwith the misconduct, negligent acts, errors or omissions in the performance of the Required Services under Agreement by Attorney, Attorney’s agents, officers, employees, sub- contractors, or independentcontractors of Attorney, except where the loss or liability arisesout of the sole negligence or willful misconduct of the City.
6. City Agent. The City Attorney, for the purposes of this Agreement, is the agent for the City.
Whenever authorization or approval is required, Attorney understandsthat the City Attorney has the authority to provide the authorization or approval.
7. Independent Contractor. Attorney, and anyone employed by Attorney, are not and shall not be, deemedemployeesof the City. Attorney is solely responsiblefor the payment of employment taxes, workers compensation taxes, and any other taxes for employees.
8. Conflict of Interest. Attorney representsthat 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 performed by Attorney underthis Agreement. Attorney further agreesthat no personhaving any such interest shall be employed by them. If Attorney or their employees acquire a direct or indirect personal interest, suchinterestshall beimmediately disclosedto theCity andthe interestedindividual shall abstain from any contracts or decisions under this Agreement.
In addition to the proscriptions regarding conflicts of interest imposed on Attorney by the Business and Professions Code and by California Rules of Professional Conduct, Attorney represents that no Attorney shall representclients before any board, commission, committee or agency of the City or representany client with interests adverseto the City. Furthermore, Attorney shall at all times avoid DocuSign Envelope ID: DF355623- 7BEA- 4300- ACF4- BAC5C1BCEB5C Page5 of 8
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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 changeof circumstances, that may provide for the potential 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 comply with all applicable laws, ordinances, codes, and regulations of all Federal, State, and local governments. In addition, Attorney agreesto abide by all ethical and moral standards as represented 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 bethe property of the City. Attorney shall provide the City with copiesof items upon reasonabledemand or upon termination of this Agreement.
12. Notices. Attorney must immediately advise City of any significant developments in the performanceof the Required Services. City requires that drafts of all pleadings or papersfiled with the court be provided to City in advanceof filing and with adequatetime 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 datesupon first notification to Attorney of such dates.
All notices shall be personally delivered or mailed, via first classmail, to the below listed address.
In addition, such addressesshall be used for delivery for service of process. Attorney agreesto notify the City within ten (10) days of the date of any change of addressand agreeto keep an updated address with the applicable Courts on any mattersthat Attorney is representingthe City. a. Address of Attorney is as follows:
Michael Colantuono
Colantuono, Highsmith & Whatley, P.C.
420 Sierra College Drive, Suite 140
GrassValley, CA 95945-7357
b. Address of City is as follows:
Glen Googins, City Attorney
City of Chula Vista Attorney’s Office
276 Fourth Avenue
Chula Vista, CA 91910
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 substituteout asAttorney of Recordon any mattersit may berepresentingthe City without first obtaining written consent from the City, or first obtaining an appropriate Court Order, allowing Attorney to withdraw as counsel of record.
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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. Attorneys covenant there shall be no discrimination based upon race, color, creed, religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement.
16. Time of Essence. Time is of the essencein the performance of this Agreement.
17. Authority to Execute. The personsexecuting this Agreement on behalf of the parties warrant that they are duly authorized to executethis Agreement asherein 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 engagedfor the City. Attorney agrees to cooperate, at no chargeto the City, for such cooperation or input asmay be required.
19. Entire Agreement. This Agreement representsthe parties’ final and mutual understanding.
This Agreement supersedesany previous agreements, oral or written.
20. Modification. This Agreement shall not be modified or replaced except by another signed, written Agreement, properly executedby 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 nonethelessshall remain in force.
23. Governing Law. This Agreement shall be interpreted and construed in accordancewith the laws of the State of California. Any action commenced regarding this Agreement shall be filed in the Central Branch of the SanDiego Superior Court.
24. Interpretation. This Agreement shall be interpreted asthough preparedby both parties.
25. Survival. All obligations arising prior to the termination of this Agreement andall provisions of this Agreement allocating responsibility or liability between the City and Attorney survive the termination of this Agreement.
26. Financial Interests. Attorney is deemedto be a “Consultant” for the purposesof the Political Reform Act conflict of interest and disclosure provisions and shall report economic interests to the City Clerk on the required Statementof Economic Interests in such reporting categoriesas are specified in Exhibit A, or if none are specified, then as determined by the City Attorney.
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IN WITNESS WHEREOF, theseparties have executed this Agreement on the day and year shown hereinabove.
CITY OF CHULA VISTA
By: ________________________________________________________ Glen R. Googins, City Attorney
ATTORNEY
By: ________________________________________________________ Michael G. Colantuono, President
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STATEMENT OF ECONOMIC INTERESTS
CITY OF CHULA VISTA
AND
COLANTUONO, HIGHSMITH, WHATLEY, PC
Attorney: Michael G. Colantuono
X ) Not Applicable. Not a Fair Political PracticesCommission (“FPPC”) Filer.
FPPC Filer.
If Attorneys in the performanceof its servicesunder this agreement: (1) conduct researchand arrives at conclusions with respect to its rendition of information, advice, recommendations or counsel independentof the control and direction of the City or of any City official, other than normal contract monitoring; and (2) possessesno authority with respect to any City decision beyond the rendition of information, advice, recommendationsor counsel, Attorneys should not be designatedasan FPPCFiler.
If Attorneys are designatedasFPPCfilers, specify below which disclosure categoriesapply:
1. All investments, sourcesof income and businesspositions;
2. Interestsin real property;
3. Investments, businesspositions, interests in real property, and sourcesof income subject to the regulatory, permit or licensing authority of the department;
4. Investmentsand businesspositions in businessentities and sourcesof income that engagein land development, construction or the acquisition or sale of real property;
5. Investments and businesspositions in businessentities and sourcesof income that, within the past two years, have contracted with the City of Chula Vista to provide services, supplies, materials, machinery or equipment;
6. Investments and businesspositions in businessentities and sourcesof income that within the past two years, have contracted with the designated employee’s department to provide services, supplies, materials, machinery or equipment;
7. List interestsin real property within 2 radial miles of Project Property, if any:
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