CITY OF FULLERTON
PROFESSIONAL SERVICES AGREEMENT
WITH
ATKINSON, ANDELSON, LOYA, RUUD & ROMO
THIS AGREEMENT is made and entered into this 1ST day of July, 2025 ("Effective Date") by and between the CITY OF FULLERTON, a California municipal corporation ("City"), anc ATKINSON, ANDELSON, LOYA, RUUD & ROMO, a professional corporation ("Consultant").
WITNESSETH:
City proposes to utilize the services of Consultant as an independent contractor to provide limited lear persise urize see toes or and enor it mean a or described herein.
B. Consultant represents that it has that degree of specialized expertise contemplated within California Government Code section 37103, and holds all necessary licenses to practice and perform the services herein contemplated.
City and Consultant desire to contract for the specific services described herein, and desire to set forth their rights, duties and liabilities in connection with the services to be performed.
No official or employee of City has a financial interest, within the provisions of Sections 1090-1092 of the California Government Code, in the subject matter of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:
1.0. SERVICES PROVIDED BY CONSULTANT
Scope of Services. Consultant shall provide the professional services described in the Services and Fee Schedule attached hereto as Exhibit "A" and incorporated herein by this reference.
1.2. Professional Practices. All professional services to be provided by Consultant pursuant to this Agreement shall be provided by personnel experienced in their respective fields and in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional consultants in similar fieids and circumstances in accordance with sound professional practices. Consultant also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Consultant's performance of this Agreement.
1.3. Performance to Satisfaction of City. Consultant agrees to perform all the work to the reasonable satistaction of the City, in accordance with the applicable professional standard of care and City specifications and within the hereinafter specified. Evaluations of the work will be done by the City Manager or his designee. If the quality of work is not satisfactory, City in its discretion has the right to:
(a) Meet with Consultant to review the quality of the work and resolve the matters of concern;
55067682.1/004188.00047
(b) Require Consultant to repeat the work at no additional fee until it is satisfactory; and/or
(C) Terminate the Agreement as hereinafter set forth.
1.4. Warranty. Consultant warrants that it shall perform the services required by this Agreement in compliance with all applicable and non conflicting Federal and California employment laws, including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this Agreement. Consultant shall indemnify and hold harmless City from and against all ciaims, demands, payments, suits, actions, proceedings, and judgments of every nature and description including attorneys' fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above-mentioned laws, which may be incurred by reason of Consultant's performance under this Agreement.
1.5. Non-discrimination. In performing this Agreement, Consultant shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code.
1.6. Non-Exclusive Agreement. Consultant acknowledges that City may enter into agreements with other consultants for services similar to the services that are subject to this Agreement or may have its own employees perform services similar to those services contemplated by this Agreement.
1.7. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Consultant may engage a subcontractors) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Consultant's sole cost and expense.
1.8. Confidentiality. Empioyees of Consultant in the course of their duties may have access to financial, accounting, statistical, and personnel data of private individuals and employees of City. Consultant covenants that all data, documents, discussion, or other information developed or received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by City. City shall grant such authorization if disclosure is required by law. All City data shall be returned to City upon the termination of this Agreement. Consultant's covenant under this Section shall survive the termination of this Agreement.
2.0. COMPENSATION AND BILLING
Compensation. Consultant shall be paid in accordance with the fee schedule set forth in Exhibit A.
2.2. Additional Services. Consultant shall not receive compensation for any services provided outside the scope of services specified in Exhibit A unless the City or the Project Manager for this Project, prior to Consultant performing the additional services, approves such
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable.
2.3. Method of Billing. Consuitant may submit invoices to the City for approval on a progress basis, but no more often than two times a month. Said invoice shall be based on the total of all Consultant's services which have been completed to City's sole satisfaction. City shall pay Consultant's invoice within fourty-five (45) days from the date City receives said invoice. Each invoice shall describe in detail, the services performed, the date of performance, and the associated time for completion. Any additional services approved and performed pursuant to this Agreement shall be designated as "Additional Services" and shall identify the number of the authorized change order, where applicable, on all invoices.
2.4. Records and Audits. Records of Consultant's services relating to this Agreement shall be maintained in accordance with generally recognized accounting principles and shall be made available to City or its Project Manager for inspection and/or audit at mutually convenient times from the Effective Date of this Agreement until three (3) years after the termination date.
2.5. W-9. Consultant must provide City with a current W-9 form prior to the commencement of work under this Agreement. It is the Consultant's responsibility to provide to the City any revised or updated W-9 form during the term of this Agreement.
3.0. TIME OF PERFORMANCE
3.1. Commencement and Completion of Work. The professional services to be performed pursuant to this Agreement shall commence within five (5) days from the Effective Date of this Agreement. Failure to commence work in a timely manner and/or diligently pursue work to completion may be grounds for termination of this Agreement.
3.2. Excusabie Delays. Neither party shail be responsibie for deiays or lack of performance resulting from acts beyond the reasonable control of the party or parties. Such acts shail include, but not be limited to, acts of God, fire, strikes, material shortages, compliance with laws or regulations, riots, acts of war, or any other conditions beyond the reasonable control of a party.
4.0. TERM AND TERMINATION
4.1. Term. This Agreement shall commence on the Effective Date and continue for a period of two (2) years with the City having the option to extend under the same terms and conditions for a maximum of three (3) one (1) year options.
4.2. Notice of Termination. The City reserves and has the right and privilege of canceling, suspending or abandoning the execution of all or any part of the work contemplated by this Agreement, with or without cause, at any time, by providing written notice to Consultant.
The termination of this Agreement shall be deemed effective upon receipt of the notice of termination. In the event of such termination, Consultant shall immediately stop rendering services under this Agreement unless directed otherwise by the City.
4.3. Compensation. In the event of termination, City shall pay Consultant for reasonable costs incurred and professional services satisfactorily performed up to and including the date of City's written notice of termination. Compensation for work in progress shall be prorated based on the percentage of work compieted as of the effective date of termination in
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/0C4188.00047
accordance with the fees set forth herein. In ascertaining the professional services actually rendered hereunder up to the effective date of termination of this Agreement, consideration shall be given to both compieted work and work in progress, to complete and incomplete drawings, and to other documents pertaining to the services contemplated herein whether delivered to the City or in the possession of the Consultant.
4.4. Documents. In the event of termination of this Agreement, all documents prepared by Consultant in its performance of this Agreement including, but not limited to, finished or unfinished design, development and construction documents, data studies, drawings, maps and reports, shali be delivered to the City within ten (10) days of delivery of termination notice to Consultant, at no cost to City. Any use of uncompleted documents without specific written authorization from Consultant shall be at City's sole risk and without liability or legal expense to Consultant.
5.0. INSURANCE
5.1. Insurance Required. Consultant shail procure and maintain throughout the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by Consultant, its agents, representatives, employees or subcontractors. Consultant shall provide current evidence of the required insurance in a form acceptable to City and shall provide replacement evidence for any required insurance which expires prior to the completion, expiration:
or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way, the Indemnification and Hold Harmless clause contained herein in Section 6.8 or the extent to which Consultant may be held responsible for payments of damages to persons or property.
5.2. Minimum Scope and Limits of insurance.
A. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form #CG 00 01, with a limit of not less than $2,000,000 each occurrence. Consultant may satisfy the required $2,000,000 per occurrence limit through a combination of primary commercial general liability insurance and commercial umbreila or excess liability insurance. If such insurance contains a generai aggregate limit, it shall apply separately to the Agreement or shall be twice the required occurrence limit.
B. Business Automobile Liability Insurance. Consultant shall maintain business automobile liability insurance coverage in a form at least as broad as ISO Form # CA 00 01, with a limit of not less than $1,000,000 each accident. Such insurance shall include coverage for owned (if any), hired and non-owned automobiles.
C. Workers' Compensation and Employers' Liability Insurance. Consultant shall maintain workers' compensation insurance as required by the State of California and employers' liability insurance with limits of not less than $1,000,000 each accident.
D. Professional Liability Insurance. Consultant shall maintain professional liability insurance appropriate to Consultant's profession with a limit of not less than $2,000,000.
Architects' and engineers' coverage shall be endorsed to include contractual liability. If policy is
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.0C047
written as a "claims made" policy, the retro date of the policy shall be prior to the start of the contract work.
5.3. Deductibles and Self-insured Retentions. Any deductible or self-insured retention must be declared to and approved by City, except for Professional Liability insurance for which Consultant will provide City with a financial stability letter from Consultant's insurance broker confirming that Consultant's policy terms, conditions, and deductible/self-insured retention leveis are reasonable and appropriate under its current Professional Liability insurance policy, which City agrees not disclose to any third party.
5.4. Other Insurance Provisions. The required insurance policies shall contain or be endorsed to contain the following provisions:
A. Commercial General Liability. City, its elected or appointed officials, officers, employees and volunteers are to be covered as additional insureds with respect to liability arising out of work or operations performed by or on behalf of Consultant, including materials, parts or equipment furnished in connection with such work or operations. Such coverage as an additional insured shall not be limited to the period of time during which Consultant is conducting ongoing operations for City but rather, shall continue after the completion of such operations. The coverage shall contain no special limitations on the scope of its protection afforded to City, its officers, employees and volunteers.
B. Commercial General Liability. This insurance shall be primary insurance as respects City, its officers, employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made. Any insurance or self-insurance maintained by City, its officers, employees and volunteers shall be excess of this insurance and shall not contribute with it.
C. Professional Liability. If the Professional Liability policy is written on a "claims made" form, the Retroactive Date must be shown and must be before the date of the contract or beginning of contract work. The insurance must be maintained and evidence of insurance must be provided for at least (5) years after completion of the contract work. If the coverage is canceled or non-renewed and not replaced with another ciaims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting coverage" for a minimum of five (5) years after completion of work.
D. Workers' Compensation and Employers' Liability Insurance. Insurer shall waive their right of subrogation against City, its officers, employees and volunteers for work done on behalf of City.
E. All Coverages. Each insurance policy required by this clause shall not be canceled, except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to City.
If Consultant maintains higher limits or has broader coverage than the minimums shown above, City requires and shall be entitled to all coverage, and to the higher limits maintained by Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
F. Subcontractors. Consultant shall require and verify that all subcontractors
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.:/004188.0C047
maintain insurance meeting all the requirements stated herein and Consultant shall ensure that City is an additional insured on insurance required from subconsultants.
G. Special Risks or Circumstances. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
5.5 Acceptability of Insurers. All required insurance shall be placed with insurers acceptable to City with current BEST'S ratings of no less than A, Class VIl. Workers' compensation insurance may be placed with the California State Compensation Insurance Fund.
All insurers shall be licensed by or hold admitted status in the State of California. At the sole discretion of City, insurance provided by non-admitted or surplus carriers with a minimum BEST'S rating of no less than A- Class X may be accepted if Consultant evidences the requisite need to the sole satisfaction of City.
5.6 Verification of Coverage. Consultant shall furnish City with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses, policy numbers, coverage, limits, deductibles and self-insured retentions (except for Professional Liability Insurance as set forth in Paragraph 5.3, above). Additionally, Consultant shall furnish copies of all policy endorsements required herein. All certificates and endorsements must be received and approved by City before work commences. City reserves the right to require at any time complete, certified copies of any or all required insurance policies and endorsements.
6.0. GENERAL PROVISIONS
6.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing, and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement.
6.2. Representatives. The City Manager or his designee shal! be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Consultant shall designate a representative for purposes of this Agreement who shall be authorized to issue all consents, approvals, directives and agreements on behalf of Consultant called for by this Agreement, except as otherwise expressly provided in this Agreement.
6.3. Project Managers. City shail designate a Project Manager to work directly with Consultant in the performance of this Agreement.
Consultant shall designate a Project Manager who shall represent it and be its agent in all consultations with City during the term of this Agreement. Consultant or its Project Manager shall attend and assist in all coordination meetings called by City.
6.4. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is seni through regular United States mail.
IF TO CONSULTANT: IF TO CITY:
Atkinson, Andelson, Loya, Ruud & Romo City of Fullerton 12800 Center Court Drive, Suite 300 303 W. Commonwealth Ave.
Cerritos, CA 90703 Fullerton, CA 92832
Attn: Gabriel A. Sandoval Attn: Director of Human Resources
6.5. Attorneys' Fees. in the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof.
Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws.
Assignment. Consultant shail not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Consultant's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shail constitute a breach of this Agreement and cause for termination of this Agreement.
Regardless of City's consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform all other obligations to be performed by Consultant hereunder for the term of this Agreement
6.8. Indemnification and Hold Harmless. To the fullest extent of the law, Consultant agrees to defend, indemnify, hold free and harmless the City, its elected officials, officers, agents, and employees, at Consultant's sole expense, from and against claims, actions, suits or other legal proceedings brought against the City, its elected officials, officers, agents, and employees arising out of the negligent performance of the Consultant, its employees, and/or authorized subcontractors, of the professional services undertaken pursuant to this Agreement. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Consultant, its employees, and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or misconduct of Consultant, its employees, and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the City, its elected officials, officers, agents, and employees based upon the work performed by Consultant, its employees, authorized subcontractors under this Agreement, whether or not Consultant, its employees, and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Notwithstanding the foregoing, the Consultant shall not be liable for the defense or indemnification of the City for claims, actions, complaints, or suits arising out of the sole negligence or willful misconduct of the City. This provision shall supersede and replace ali other
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
indemnity provisions contained either in the City's specifications or Consultant's Proposal, which shall be of no force and effect.
Independent Contractor. Consultant is and shall be acting at all times as an independent contractor and not as an employee of City. Consultant shall have no power to incur any debt, obligation, or liability on behalf of City or otherwise act on behalf of City as an agent.
Neither City nor any of its agents shall have control over the conduct of Consultant or any of Consultant's employees, except as set forth in this Agreement. Consultant shall not, at any time, or in any manner, represent that it or any of its or employees are in any manner agents or employees of City. Consultant shall secure, at its sole expense, and be responsible for any and all payment of Income Tax, Social Security, State Disability Insurance Compensation, services to be performed hereunder. Consultant shall indemnify and hold City harmless from any independent contractor relationship created by this Agreement. Consultant further agrees to indemnify and hold City harmless from any failure of Consultant to comply with the applicable worker's compensation laws. City shall have the right to offset against the amount of any fees due to Consultant under this Agreement any amount due to City from Consultant as a result of Consultant's failure to promptly pay to City any reimbursement or indemnification arising under this paragraph.
6.10. PERS Eligibility Indemnification, in the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and/or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City.
Notwithstanding any other agency, state or federal policy, rule, regulation, law or ordinance to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and/or employee contributions for PERS benefits.
6.11. Cooperation. in the event any claim or action is brought against City relating to Consultant's performance or services rendered under this Agreement, Consultant shall render any reasonable assistance and cooperation which City might require.
6.12. Ownership of Documents. All findings, reports, CAD drawings, documents, information and data, including, but not limited to, computer tapes or discs, files and tapes furnished or prepared by Consultant or any of its subcontractors in the course of performance of this Agreement, shall be and remain the sole property of City. Consultant agrees that any such documents or information shall not be made available to any individual or organization without the prior consent of City. Any use of such documents for other projects not contemplated by this Agreement, and any use of incomplete documents, shall be at the sole risk of City and without liability or legal exposure to Consultant. City shall indemnify and hold harmless Consultant from
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
all claims, damages, losses, and expenses, including attorneys' fees, arising out of or resulting from City's use of such documents for other projects not contemplated by this Agreement or use of incomplete documents furnished by Consuitant. Consultant shali deliver to City any findings, reports, documents, information, data, in any form, including but not limited to, computer tapes, discs, files, audio tapes or any other Project reiated items as requested by City or its authorized representative, at no additional cost to the City.
6.13. Public Records Act Disclosure. Consultant has been advised and is aware that this Agreement and all reports, documents, information and data, including, but not limited to, computer tapes, discs or files furnished or prepared by Consultant, or any of its subcontractors, pursuant to this Agreement and provided to City may be subject to public disclosure as required by the California Public Records Act (California Governmeni Code Section 6250 et seq.).
Exceptions to public disclosure may be those documents or information that qualify as trade secrets, as that term is defined in the California Government Code Section 6254.7, and of which Consultant informs City of such trade secret. The City will endeavor to maintain as confidential all information obtained by it that is designated as a trade secret. The City shall not, in any way, be liable or responsible for the disclosure of any trade secret including, without limitation, those records so marked if disclosure is deemed to be required by law or by order of the Court.
6.14. Conflict of. Interest. Consultant and its officers, employees, associates and subconsultants, if any, will comply with all conflict of interest statutes of the State of California applicable to Consultant's services under this agreement, including, but not limited to, the Political Reform Act (Government Code Sections 81000, et seq.) and Government Code Section 1090.
During the term of this Agreement, Consultant and its officers, empioyees, associates and subconsultants shall not, without the prior written approval of the City Representative, perform work for another person or entity for whom Consultant is not currently performing work that would require Consultant or one of its officers, employees, associates or subconsultants to abstain from a decision under this Agreement pursuant to a conflict of interest statute.
6.15. Responsibility for Errors. Consultant shall be responsible for its work under this Agreement. Consultant, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Consultant occurs, without prejudice to any other remedy to which City may be entitled to at law or equity, Consultant shall, at no cost to City, provide all necessary design drawings, estimates and other Consultant professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. In addition, Consultant shall reimburse City for any and all costs, expenses and/or damages, if any, that the City has incurred due to the aforementioned error or omission.
6.16. Prohibited Employment. Consultant will not employ any regular employee of City while this Agreement is in effect.
6.17. Order of Precedence. In the event of an inconsistency in this Agreement and any of the attached Exhibits, the terms set forth in this Agreement shal! prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
6.18. Costs. Each party shall bear its own costs and fees incurred in the preparation
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
6.19. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Consultant and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
6.20. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
6.21. Construction. The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
6.22. Amendments. Only a writing executed by the parties hereto or their respective successors and assigns may amend this Agreement.
6.23. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shail in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
6.24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
6.25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement.
6.26. Corporale Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written.
CITY OF FULLERTON
Date:
Eddie Manfro
Interim City Manager
CONSULTANT
1/5/2025
wu. Date: _
Say Trinnaman
Partner
On File
Social Security or Taxpayer ID Number
APPROVED AS TO FORM:
Richard D. Jones, City Attorney
ATKINSON, ANDELSON, LOYA, RUDD & ROMO
55067682.1/004188.00047
1 EXHIBIT A
SERVICES AND FEE SCHEDULE FOR PROVISION OF LEGAL SERVICES
1. Scope of Agreement
The City of Fullerton ('City") retains Atkinson, Andelson, Loya, Ruud & Romo (Attorney) to provide limited legal services with respect to labor and employment matters for City or City's employees and related issues as requested by City. City designates Jay Trinnaman as City's Counsel to provide iegal services under this Agreement, and he shall have the discretion to utilize the services of other partners, associates, or staff of Attorney upon City approval in connection with services to be undertaken pursuant to this Agreement. In no event, however, shall Attorney subcontract with any other firm, entity, or person to perform any of Attorney's services required hereunder without City's express written consent, nor shall Attorney assign or transfer any interest in this Agreement to any such firm, entity, or person without City's prior written consent.
Attorney recognizes that the City of Fullerton has a contract with its City Attorney and other attorneys, who for the convenience of the City, provide counsel and services to City as requested Attorney shall perform all services required hereunder as an independent contractor of City, and shall remain at all times as to City a wholly-independent contractor with only such obligations as are consistent with that role. • Attorney acknowledges and agrees that this agreement does not represent an exclusive agreement with City to provide legal services and that City does currently and shall continue to utilize the services of other firms to provide similar services. Those matters for which Attorney is retained by City to provide legal representation shall be subject to individual mutual agreement by Attorney and City.
2. Duties of Attorney and City
Attorney shal! provide those legal services required to represent City in the matters described in Paragraph 1 of this Agreement, including but not limited to preparation of answers to complaints, motions, demurrers, and other court documents, preparation of draft responses to discovery requests, review of City documents, legal research, attendance at court conferences and hearings, depositions, City conferences or City Council meetings as needed, and meetings with third parties when requested by City, as well as other activities necessary to the litigation process. Attorney shall take reasonable steps to keep City informed of significant developments and to respond to City's inquiries.
City shall cooperate with Attorney, keep Attorney informed of all developments, documents, or facts that may affect the provision of Attorney's services described in Paragraph 1 of this Agreement, perform all obligations City has agreed to perform pursuant to this Agreement and pay in a timely manner all of Attorney's statements for services performed and costs incurred Compensation
A. City will compensate Attorney for the performance of negotiation or legal services at the rates specified in Attachment A, ranging from $345 to $405 per hour for Partners (depending on years of experience); $265 to $325 per hour for Associates (depending on years of experience); Paralegals $220 per hour. Attorney will charge for services performed in increments of one-tenth of an hour. Attorney shall not be obligated to advance costs on behalf of City; however, for the purposes of convenience and in order to expedite matters, Attorney reserves the right to advance costs on behalf of City with City's prior approval in the event a particular cost item exceeds $200.00 in amount, and without the prior approval of City in the event a particular cost item totals $200.00 or less. 55067682.:/004188.C0047
2 Typical cost items include, by way of example and not limitation, document preparation and word processing, fax/telecopy charges (at $1.00 per page), copying charges (at $0.20 per page), appearance fees, messenger fees, bonds, witness fees, deposition and court reporter fees, transcript costs, expert witness fees, investigative fees, etc.
B. Attorney shall not bill City for meal or lodging expenses for travel to or within Orange County or Los Angeles County. Other travel expenses shall be excluded unless pre- approved by City. Attorney may bill City for travel time from its Cerritos office location to Fullerton City Hall or if required, to travel within Los Angeles County. All other travel time shall not be billed, unless expressly approved by the City.
C. City agrees to fully cooperate with Attorney in connection with Attorney's representation of City, including but not limited to attending mandatory court hearings and other appearances and providing necessary information and documentation to enable Attorney to adequately represent City.
D. Attorney shall abide by any and all City policies concerning authorized communications with the media or to the public on behalf of the City and its employees. acknowledges and agrees that any form of communication with the media or to the public regarding legal matters handled on behalf of the City or its employees that are not specifically covered by a City policy is unauthorized unless specifically approved by City Council.
4. Possible Third Party Conflicts
The Firm has a number of attorneys. The Firm may currently or in the future represent one or more other Cities in matters involving City. The Firm undertakes this engagement on the condition that the Firm may represent another City in a matter in which the Firm does not represent City, even if the interests of the other City are adverse to those of City (including appearance on behalf of another City adverse to City in litigation or arbitration), provided the other matter is not substantially related to the Firm's representation of City and in the course of representing City attorneys of the Firm have not obtained confidential information of City material to the representation of the other City ("Permitted Adverse Representation"). City's consent to this arrangement is required because of its possible adverse effects on performance of the Firm's duties as attorneys to remain loyal and available to those other Citys and to render legal services with vigor and competence. Also, if an attorney does not continue an engagement or must withdraw therefrom, the City may incur delay, prejudice or additional cost such as acquainting new counsel for the matter. City agrees not to seek to disqualify the Firm from representing such other City in any Permitted Adverse Representation.
5. Arbitration: Waiver of Jury Trial
The parties agree that all disputes which arise between the City and the Law Firm, whether financial or otherwise regarding the attorney-City relationship, and including but not limited to a claimed breach of this Agreement, the professional services rendered by Law Firm, or any other disagreement of any nature, type, or description, regardless of the facts or the legal theories which may be involved, including attorney malpractice, breach of fiduciary duty, misrepresentation, or conflict of interest, such dispute shall be resolved by binding arbitration in Orange County, California. Each side shall bear their own costs and attorneys' fees. The parties agree to waive their right to a jury trial and to an appeal. Fee disputes shall be governed by Business & Professions Code sections 6200-6206.
55067682.1/004188.00047
3 6. Protection of City Confidences - High Tech Communication Devices The Law Firm is aware of its important obligation to preserve the secrets and confidences of the City which it holds in precious trust for them. To that end it is important that City and the Law Firm agree from the outset what kinds of communications technology the Law Firm should employ in the course of representing City. For example, the exchange of documents and other information using email or other types of electronic communications involves some risk that information will be retrieved by third parties with no right to see it. Even the use of facsimile machines can cause problems if documents are sent to numbers where the documents sit in open view.
Therefore, City should only provide the Law Firm with cellular numbers, facsimile numbers and email addresses which are acceptable to City for receiving confidential communications from the Law Firm. City agrees that the Law Firm may use any of the cellular numbers, facsimile numbers and email addresses other than those which you specify in writing that the Law Firm should not use.
Disclaimer of Guarantee
Attorney has made no representations, promises, warranties or guarantees to City, express or implied, regarding the outcome of any City's matter, and nothing in this Agreement shail be construed as such a representation, promise, warranty, or guarantee. 55067682.1/004188.00047