Agenda Item B.6
CPMS CONSENT CALENDAR
Meeting Date: April 4, 2023
TO: Mayor and Councilmembers
FROM: Winnie Cai, Assistant City Attorney
SUBJECT: Agreement for Professional Services with Colantuono, Highsmith & Whatley, PC
RECOMMENDATION:
A. Authorize the City Manager to execute a Professional Legal Services Agreement between the City of Goleta and Colantuono, Highsmith & Whatley, PC for professional litigation services; and
B. Ratify payment in total of $107,283.88 made to Colantuono, Highsmith & Whatley, PC for legal services under its retainer agreement dated November 5, 2021.
BACKGROUND:
Over the past two years, the law firm of Colantuono, Highsmith & Whatley, PC (“Colantuono”) has served as special counsel and provided litigation services related to the City’s lawsuit against the Regents of the University of California . Holly Whatley has served as the lead on the litigation from Colantuono . While a written retainer agreement was entered into on November 5, 2020, the parties desire to enter into a formal professional services agreement that includes standard industry terms and have this agreement supersede the retainer agreement.
DISCUSSION:
The City’s lawsuit against the Regents and the University of California, Santa Barbara, is still ongoing. There is currently no trial date set for this matter and it is uncertain when it may be resolved. Accordingly, this item is for Council approval of a professional services agreement between the City and Colantuono for continued special counsel litigation services. The agreement does not include a maximum amount because the scope of litigation is unpredictable and special litigation counsel should no t be hindered by a maximum authority if an urgent need arises to represent the City in court proceedings. In addition, the agreement is set to terminate at the end of the lawsuit in superior court, 1 Meeting Date: April 4, 2023
either through judgment or dismissal of the lawsuit, which would include settlement of the case.
Lastly, staff requests Council to ratify the $107,283.88 that has already been paid on the retainer agreement. Future litigation costs will be incurred via the new professional services agreement.
FISCAL IMPACTS:
Funding for this professional legal services agreement will come from account 101 -10- 1400-51204.
ALTERNATIVES:
The City Council can elect not to enter into the agreement and direct staff to return with an agreement with a different law firm. Doing so will cause significant delay in the City’s existing litigation against the University of California.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. An Agreement for Professional Legal Services Between the City of Goleta and Colantuono, Highsmith, Whatley, PC.
2. Retainer Agreement dated November 5, 2021.
2 ATTACHMENT 1:
An Agreement for Professional Legal Services Between the City of Goleta and Colantuono, Highsmith, Whatley, PC
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AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE CITY OF GOLETA
AND
COLANTUONO, HIGHSMITH, WHATLEY, PC
This AGREEMENT FOR PROFESSIONAL SERVICES (herein referred to as “AGREEMENT”) is made and entered into this ______ day of ______ , 2023, by and between the CITY OF GOLETA, a municipal corporation (herein referred to as "CITY"), and COLANTUONO, HIGHSMITH, WHATLEY, PC (herein referred to as "CONSULTANT").
SECTION A. RECITALS
1. The CITY has a need for professional legal services; and
2. The CITY does not have the personnel able and/or available to perform. the services required under this AGREEM ENT, and therefore, the CITY desires to contract for professional services to accomplish this work; and
3. The City Council, on this 4th day of April 2023, approved this AGREEMENT and authorized the City Manager to execute the AGREEMENT.
SECTION B. TERMS
1. RETENTION AS CONSULTANT
CITY hereby retains CONSULTANT, and CONSULTANT hereby accepts such engagement, to perform the services described in Section 2.
CONSULTANT warrants it has the qualific ations, experience, and facilities to properly and timely perform said services.
2. DESCRIPTION OF SERVICES
CONSULTANT will provide professional legal and litigation services on various issues, including but not limited to litigation and other issues involving the University of California, Santa Barbara.
3. COMPENSATION AND PAYMENT
(a) Maximum and Rate . The total compensation payable to CONSULTANT by CITY for the servic es under this AGREEMENT shall be earned as the work progresses on the following basis:
Hourly at the hourly rates and with reimbursement to
CONSULTANT for those expenses set forth below:
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Attorney Category Hourly Rate
Shareholders $395 cap per agreement (Regular rate: $575) Senior Counsel $395 cap per agreement (Regular rate: $425) Senior Associate $395 cap (per agreement Regular rate: $410) Associate $315
Junior Associate $285
Certified Paralegal $190
Legal Assistant $170
These rates are adjusted at the beginning of each calendar year.
CONSULTANT shall, as a courtesy to the CITY, cap hourly rates at $395 per hour.
Authorized travel, long distance telephone calls, filing fees, photocopying, computerized legal research outside the scope of our Westlaw contract and the like shall be separately itemized on CONSULTANT’S statements as “disbursements.” These amounts will be billed in addition to CONSULTANT’S fees.
(b) Payment. CONSULTANT shall provide CITY with written verification of the actual compensation earned, which written verification shall be in a form satisfactory to CITY's Project Manager, as described in Section 5.
Invoices shall be made no more frequently than on a monthly basis, and describe the work performed (including a list of h ours worked by personnel classification).
All payments shall be made within 30 days after CITY’s approval of the invoice.
4. EXTRA SERVICES
CITY shall pay CONSULTANT for those CITY authorized extra services, not reasonably included within the services described in Section 2, as mutually agreed to writing in advance of t he incurrence of extra services by CONSULTANT. Unless CITY and CONSULTANT have agreed in writing before the performance of extra services, no liability and no right to claim compensation for such extra services or expenses shall exist. The applicable hourly rates for extra services shall be at the hourly rates set forth in Exhibit B if one is included as part of this agreement. Any compensat ion for extra services shall be part of the total compensation and shall not increase the not to exceed amount identified in Section 3.
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5. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by CONSULTANT shall be accomplished under the general direction of, and coordinate with, CITY's "Project Manager", as that staff person is designated by CITY from time to time, and who presently is Winnie Cai, Project Manager shall have the authority to act on behalf of the CITY in administering this AGREEMENT but shall not be authorized to extend the term of the AGREEMENT or increase the not to exceed amount.
6. TERM, PROGRESS AND COMPLETION
The term of this AGREEMENT is from the date first written above to the date on which the City’s lawsuit aga inst the Regents of the University of California ends, either through judgment or dismissal.
CONSULTANT shall not commence work on the services to be performed until (i) CONSULTANT furnishes proof of insurance as required by Section 10 below, and (ii) CITY gives written authorization to proceed with the work provided by CITY's Project Manager.
7. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports and other documentation (other than CONSULTANT's drafts, notes and internal memorandum), including duplication of same prepared by CONSULTANT in the performance of these services, are the property of CITY. CITY shall be entitled to immediate possession of the same upon completion of the work under this AGREEMENT, or at any earlier or later time when requested by CITY. CITY agrees to hold CONSULTANT harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans and specifications for purposes other than those described in this AGREEMENT, unless written authorization of CONSULTANT is first obtained.
8. PERSONAL SERVICES/NO ASSIGNMENT/SUBCONTRACTOR
This AGREEMENT is for profession al services which are personal to CITY. Holly Whatley is deemed to be specially experienced and is a key member of CONSULTANT's firm and shall be directly involved in the performance of this work. This key person shall communicate with, and periodically report to, CITY on the pr ogress of the work. Should any such individual be removed from assisting in this contracted work for any reason, CITY may terminate this AGREEMENT. This AGREEMENT may not be assigned or subcontracted without the City Manager’s prior written consent.
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9. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for CONSULTANT's Damages. CONSULTANT holds CITY, its elected officials, officers, agents, and employees, harmless from all of CONSULTANT's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to CONSULTANT, to CONSULTANT's employees, to CONSULTANT’s contractors or subcontractors, or to the owners of CONSULTANT's firm, which damages, losses, injuries or liability occur during the work required under this AGREEMENT, or occur while CONSULTANT is on CITY property, or which are connected, directly or indirectly, with CONSULTANT's performance of any activity or work required under this AGREEMENT.
(b) Defense and Indemnity of Third Party Claims/Liability.
CONSULTANT shall investigate, defend, and indemnify CITY, its elected officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and all liability including, but not limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subc ontractors, or the willful misconduct of CONSULTANT or any of CONSULTANT’s officers, agents, employees, representatives, subconsultants, or subcontractors, in performing the services described in, or normally associated with, this type of contracted work. The duty to defend shall include any suits or actions concerning any activity, product or work required under this AGREEMENT, and also include the payment of all court costs, attorney fees, expert witness costs, investigation costs, claims adjusting costs and any other costs required for and related thereto. (c) No Waiver. CITY does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by CITY, or the deposit with CITY, of any insurance certificates or policies described in Section 10.
10. INSURANCE
CONSULTANT shall, at CONSULTANT's sole cost and expense, provide insurance as described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating of A- or better, Class VI I or better, or as otherwise approved by CITY.
Insurance shall include the following (or broader) coverage:
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a) Insurance Services Office Commercial Liability coverage “occurrence” form CG 00 01 or its exact equivalent with an edition date prior to 2004 and with minimum limits of $1,000,000 per occurrence and $2,000,000 general aggregate.
b) Insurance Services Office form number CA 00 01 or equivalent covering Automobile Liability, including hired and non-owned automobile liability with a minimum limit of $1,000,000 per accident. If the Service Provider owns no vehicles, this requirement may be satisfied by a non-owned and hired auto endorsement to Service Provider’s commercial general liability policy.
c) Workers’ Compensation insurance complying with California worker’s compensation laws, including st atutory limits for workers’ compensation and an Employer’s Liability limit of $1,000,000 per accident or disease.
d) Professional liability insurance that covers the services to be performed in connection with this agreement, in the minimum amount of $1,000,000 per claim.
Liability insurance policies required to be provided by CONSULTANT hereunder shall contain or be endorsed to contain the following provisions:
a) Except for professional liability insurance, CITY, its employees, officials, agents and member agenc ies shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the work performed or related to the contract. Additional insured status under the general liability requirement shall be provided on Insurance Services Office Form CG 20 10, with an edition date prior to 2004, or its equivalent. Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37, or its equivalent.
b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer ’s liability. Coverage will not be limited to CITY’s vicarious liability.
c) Professional liability insurance policies inception date, continuity date, or retroactive date must be before the effective date of this agreement. CONSULTANT agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement.
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d) Except for professional liability insurance, liability coverage shall be primary and non-contributing with any insurance maintained by CITY.
e) Evidence of coverage (including the workers’ compensation and employer’s liability policies) shall provide that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after 30 days’ prior written notice has been given to CITY.
Such provision shall not include any li mitation of liability of the insurer for failure to provide such notice.
f) No liability insurance coverage provided to comply with this AGREEMENT shall prohibit CONSULTANT, or CONSULTANT ’s
employees, or agents, from waiving the right of recovery prior to a loss. CONSULTANT waives its right of recovery against CITY.
g) CONSULTANT agrees to deposit with CITY within fifteen days of Notice to Proceed of the Contract certificates of insurance and required endorsements.
h) There shall be no recourse against CITY for payment of premiums or other amounts with respect to the insurance required to be provided by CONSULTANT hereunder. Any failure, actual or alleged, on the part of CITY to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of CITY. CITY has no additional obligations by virtue of requiring the insurance set forth herein. In the event any policy of insurance required under this AGREEMENT does not comply with these requirements or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay premium from CONSULTANT payments.
i) CONSULTANT agrees to provide immediate notice to CITY of any claim or loss against CONSULTANT arising out of the work performed under this AGREEMENT. CITY assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve CITY.
11. RELATIONSHIP OF CONSULTANT TO CITY
The relationship of the CONSULTANT to CITY shall be that of an independent contractor and that in no event shall CONSULTANT be considered an officer, agent, servant or employee of CITY. CONSULTANT shall be solely responsible for any workers compensat ion insurance, withholding taxes,
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unemployment insurance, and any other employer obligations associated with the described work.
12. CORRECTIONS
In addition to the above indemnification obligations, CONSULTANT shall correct, at its expense, all errors in the work that may be disclosed during CITY's review of CONSULTANT's report or plan s. Should CONSULTANT fail to make such correction in a reasonably timely manner, such correction shall be made by CITY, and the cost thereof shall be charged to CONSULTANT or withheld from any funds due to CONSULTANT hereunder.
13. TERMINATION BY CITY
CITY, by notifying CONSULTANT in writing, may upon 10 calendar days notice, terminate without cause any portion or all of the services agreed to be performed under this AGREEMENT. If te rmination is for cause, no notice period need be given. In the event of termination, CONSULTANT shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by CITY to CONSULTANT within 30 days following s ubmission of a final statement by CONSULTANT unless termination is for cause. In such event, CONSULTANT shall be compensated only to the extent required by law.
14. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by CONSULTANT of the final payment made under this AGREEMENT shall operate as and be a release of CITY from all claims and liabilities for compensation to CONSULTA NT for anything done, furnished, or relating to CONSULTANT'S work or services. Acceptance of payment shall be any negotiation of CITY's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check.
However, approval or payment by CITY shall not constitute, nor be deemed, a release of the responsibility and liability of CONSULTANT, its employees, subcontractors, agents and CONSULTANTs for the accuracy and competency of the information provided and/or work per formed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by CITY for any defect or error in the work prepared by CONSULTANT, its employees, subcontractors, agents and consultants.
15. AUDIT OF RECORDS
At any time during normal business hours and as often as it may deem necessary, CONSULTANT shall make available to a representative of CITY for examination of all its records with re spect to all matters covered by this AGREEMENT and will permit CITY to audit, examine and/or reproduce such
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records. CONSULTANT will retain su ch financial records, time sheets, work progress reports, invoices, bills and proje ct records for at least two years after termination or final payment under this AGREEMENT.
16. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this AGREEMENT by the othe r party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written wa iver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified. All of the remedies permitted or available to a party under th is AGREEMENT, or at law or in equity, shall be cumulative and alternative, and inv ocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.
17. CONFLICT OF INTEREST
CONSULTANT is unaware of any CITY employee or official that has a financial interest in CONSULTANT'S business. During the term of this AGREEMENT and/or as a result of being awarded this AGREEMENT, CONSULTANT shall not offer, encourage or accept any financial interest in CONSULTANT'S business by any CITY employee or official.
18. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this AGREEMENT shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, in order to achieve the objectives and purposes of the parties.
Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.
19. MITIGATION OF DAMAGES
In all situations arising out of this AGREEMENT, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.
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20. GOVERNING LAW
This AGREEMENT, and the rights and obl igations of the parties, shall be governed and interpreted in accordance with the laws of the State of California.
Should litigation occur, venue shall be in Superior Court of Santa Barbara County.
21. NONDISCRIMINATION
CONSULTANT shall not discriminate on the basis of race, color, gender, gender identity/expression, pregnancy, se xual orientation, disability, marital status, or any other characteristic protected under applicable federal or state law.
22. TAXPAYER IDENTIFICATION NUMBER
CONSULTANT shall provide CITY with a complete Request for Taxpayer Identification Number and Certification, Form W-9 (Rev. October 2018), as issued by the Internal Revenue Service.
23. NON-APPROPRIATION OF FUNDS
Payments due and payable to CONSULTANT for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of CITY funds. In the event CITY has not appropriated sufficient funds for payment of CONSULTANT services beyond the current fiscal year, this AGREEMENT shall cover only those costs incurred up to the conclusion of the current fiscal year.
24. MODIFICATION OF AGREEMENT
The tasks described in this AGREEMENT and all other terms of this AGREEMENT may be modified only upon mutual written consent of CITY and CONSULTANT.
25. USE OF THE TERM “CITY”
Reference to “CITY” in this AGREEMENT includes City Manager or any authorized representative acting on behalf of CITY.
26. PERMITS AND LICENSES
CONSULTANT, at its sole expense, shall obtain and maintain during the term of this AGREEMENT, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this AGREEMENT.
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27. CAPTIONS
The captions or headings in this AGREEMENT are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the AGREEMENT.
28. AUTHORIZATION
Each party has expressly authorized the execution of this AGREEMENT on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subs idiaries, agents, employees, successors, assigns, principals, partners, joint ventur ers, insurance carriers and any others who may claim through it to this AGREEMENT.
29. ENTIRE AGREEMENT BETWEEN PARTIES
Except for CONSULTANT'S proposals and submitted representations for obtaining this AGREEMENT, this AGREEMENT supersedes any other agreements, including but not limited to that certain letter agreement entered into by CONSULTANT and the CITY dated November 5, 2021, either oral or in writing, between the parties hereto with respect to the rendering of services, and contains all of the covenants and agreements between the parties with respect to said services.
30. PARTIAL INVALIDITY
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void or unenfo rceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
31. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Attention: Robert Nisbet, City Manager
City of Goleta
130 Cremona Drive, Suite B
Goleta, CA 93117
TO CONSULTANT: Attention: Holly O. Whatley
Colantuono, Highsmith, Whatley, PC
790 E. Colorado Blvd., Ste. 850
Pasadena, CA 91101
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32. COUNTERPARTS AND ELECTRONIC/FACSIMILE SIGNATURES
This Agreement may be executed in several counterparts, which may be facsimile or electronic copies. Each counterpart is fully effective as an original, and together constitutes one and the same instrument.
In concurrence and witness whereof , this AGREEMENT has been executed by the parties effective on the date and year first above written.
CITY OF GOLETA COLANTUONO, HIGHSMITH,
WHATLEY, PC
_____________________________ _____________________________ Robert Nisbet, City Manager By: Title :
A T T E S T
_____________________________ _____________________________ Deborah Lopez, City Clerk By: Title:
APPROVED AS TO FORM:
MEGAN GARIBALDI, CITY ATTORNEY
_____________________________
Winnie Cai, Assistant City Attorney
14 ATTACHMENT 2:
Retainer Agreement dated November 5, 2021
15 HOLLY O. WHATLEY | (213) 542-5704 | [email protected] 790 E. COLORADO BOULEVARD, SUITE 850, PASADENA, CALIFORNIA 91101-2109 | (213) 542-5700 GRASS VALLEY | PASADENA | SACRAMENTO | SOLANA BEACH | SONOMA
269755.1
November 5, 2021
VIA ELECTRONIC MAIL
Michelle Greene,
City Manager
City of Goleta
130 Cremona Dr # B
Goleta, CA 93117
Re: Representation of City of Goleta in Litigation Against University of California, Santa Barbara
Dear Ms. Greene:
As asked, I write to propose the terms under which we agree to represent the City of Goleta (“City” or “you”) in litigation against the University of California, Santa Barbara regarding its Long Range Development Plan. This will be our sole projects for the City.
Colantuono, Highsmith & Whatley, PC and all of its professionals are very pleased to have the opportunity to represent you in this matter.
This letter sets forth the basis upon whic h our firm will provide legal services to you and bill you for services and costs. The firm maintains a conflict of interest index which lists all clients of our firm and matters in which we represent them. We will not represent any party with an interest that ma y be adverse to an indexed person without first determining if a professional conflict of interest would arise. We propose to index the following with respect to this matter:
Client-Affiliated Parties: City of Goleta
16 Michelle Greene, City Manager
November 5, 2021
269755.1
Adverse Parties: Regents of the University of California University of California, Santa Barbara
State of California
Please let me know if any of these names are incorrect or if there are other parties with an interest in this matter that we should list. Unless we hear from you to the contrary, we will assume that the above listing is accurate and complete.
We have reviewed our files and our conf licts index and have no other client relationships which would interfere with our ability to represent you in this matter.
As we have discussed, the nature of th e matter makes it impossible for us to precisely estimate the fees you may incur. You will receive monthly statements informing you of the fees and costs incurred during the prior month. We will, of course, do our best to represent you efficiently and without undue expense.
Please make payments payable to Colantuono, Highsmith & Whatley, PC directly to our Grass Valley office at:
Colantuono, Highsmith & Whatley, PC
420 Sierra College Drive, Suite 140
Grass Valley, CA 95945-5091
Our federal employer identification number is 75-3031545.
I will have primary responsibility for your representation, and the firm will use other attorneys and legal assistan ts in the best exercise of our professional judgment. If you have questions, concerns or criticisms at any time, please contact me at once.
Naturally, we expect you to keep us reasonably informed of all significant developments regarding this representation.
We review all statements before they are issued to ensure the amount charged is appropriate. The statement for fees is simply the product of the hours worked multiplied by the hourly rates for the attorneys and legal assistants who did the work.
Our hourly rates are based upon the ex perience, reputation and ability of the lawyer or legal assistant performing the services, and for 2021 range between $220 and $525 per hour for attorneys time, and between $125 and $170 for the time of paralegals 17 Michelle Greene, City Manager
November 5, 2021
269755.1
and legal assistants. As a courtesy to you, however, we agree to cap work for this matter at $395.00 per hour. Our rate structure in general and the rates of particular lawyers may be increased from time to time, and are usual l y a d j u s t e d a s o f t h e b e g i n n i n g o f e a c h calendar year.
It may be necessary to bill you for items such as, but not limited to, authorized travel, long distance telephone calls, filin g fees, photocopying, computerized legal research outside the scope of our Westla w contract and the like. These items are separately itemized on our statement as “d isbursements.” These amounts will be billed in addition to our fees.
We will send you monthly statements, and expect payment within 15 days of the billing date. If payment is not received within 30 days of the billing date, we reserve the right to charge interest on the unpaid balance at the rate of 1% per month and to terminate our representation.
We rarely have disputes with clients over our fees. Nevertheless, you should be aware that you are entitled to require that any fee dispute be resolved by binding arbitration pursuant to the arbitration rules for legal fee disputes of the County Bar Association in any county in which we mainta in an office. We agree that all disputes between us regarding the services rendered or fees charged not resolved via County Bar fee arbitration will be submitted to binding arbitration in Santa Barbara or Los Angeles County and be conducted by ADR Services, Inc. in accordance with its commercial arbitration rules. YOU SHOULD REVIEW THIS PARAGRAPH CAREFULLY AND,
IF YOU WISH, SEEK INDEPENDENT LEGAL COUNSEL RE GARDING IT, AS
YOU AND WE ARE AGREEING TO FO REGO SIGNIFICANT RIGHTS IN THE
EVENT OF A DISPUTE BETWEEN US, INCLUDING THE RIGHT TO A JURY TRIAL.
You have the right to terminate our representation at any time. We have the same right, subject to an obligation to give yo u reasonable notice to arrange alternative representation. In either circumstance, you agree to secure new counsel to represent you as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in any litigation in wh ich we represent you. Notwithstanding the termination of our representation, you will remain obligated to pay to us all fees and costs incurred previously.
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Nove
mber 5, 2021
269755.1
You agree that we may, in our discretion, maintain all or part of your client file in electronic format. The firm may store part or all of your documents using secure cloud storage services. If so, the firm will appl y all reasonable methods to maintain the confidentiality of your files, just as it does for your non-digital information. Your data will be password protected and encrypted us ing currently available technology. Clients requiring information from their files may obtain that information only by written request to us.
You also agree that following termination of our attorney-client relationship, we will not be required to maintain your client file for more than two years. If you ask us to deliver your file to you, you agree that delivery of an electronic version, together with any materials that cannot be saved electronic ally, satisfies our obligation to release all your client papers and property to you. Two years after termination of our relationship, and after reasonable notice, you agree that we will be free to destroy your client file, including all electronic records. We may also discharge our obligation to maintain your file before two years expire by mailing a copy to you at your address last known to us.
You agree that “reasonable notice” means our mailing a notice of our intent to destroy your client file to you at that address.
I apologize for the formality of this letter, but we are required by California law to provide this information to you in writing. We are also required to inform you that we currently maintain professional liability insurance coverage.
Please review the foregoing and, if it m eets with your approv al, execute it and return it to me. If you have any questions, pl ease feel free to call me at the direct-dial number above. Thank you for the opportunity to represent you! Very truly yours,
Holly O. Whatley
HOW:cmr
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