CITY OF LAGUNA NIGUEL
CITY COUNCIL AGENDA ITEM
1989
To: Honorable Mayor and Council Members
FROM: Tamara S. Letourneau, City Manager
DATE: October 18, 2022
SUBJECT: Award of Contract for City Attorney Legal Services
RECOMMENDATION
With direction provided by the City Council, the recommendation is the following:
1. Approve and execute the Legal Services Agreement with Aleshire & Wynder, LLP.
BACKGROUND
The City Attorney is the City's chief legal officer and is responsible to the City Council for the proper administration and coordination of all City legal affairs. The City of Laguna Niguel has contracted City Attorney services since incorporation. Utilizing contracted professional legal services provides the City with access to a multitude of areas of expertise to best serve the City.
ANALYSIS
At the direction of the City Council, an Request for Proposals (RFP) was sent out for a permanent City Attorney. The RFP contained the proposal process, scope of services, proposal requirements, and the evaluation process.
In-line with the parameters set forth in the City's RFP for City Attorney Services, eight firms submitted complete and qualified proposals.
During the Special City Council meeting on September 26, 2022, the City Council interviewed several firms, during Closed Session, that submitted proposals to provide City Attorney Services to the City. The evaluation of proposals and interview process resulted in the firm Aleshire & Wynder, LLP (A&W) being selected to serve as City Attorney by the City Council.
Attachment "A" is the proposed agreement with A&W. Several important elements included in the agreement are:
• Evaluations
The City Council will evaluate the firm's services at six months and one year after the effective date of this agreement. Thereafter, evaluations by the City Council of their legal services will be conducted on an annual basis. • Travel as agreed not to charge the City any travel time or travel costs for meetings in the City.
FISCAL REVIEW
The Fiscal Year 2022-2023 budget includes sufficient funds to pay for the City's legal services. The hourly rates charged by Aleshire & Wynder, LLP are detailed in the attached agreement in Exhibit "B". Adjustments to the fees will only be considered annually and are based upon the annual evaluation.
CONCLUSION
With direction provided by the City Council, the recommendation is the following:
1. Approve and execute the Legal Services Agreement with Aleshire & Wynder, LLP.
Samara Retorean Outin, Matin,
Tamara S. Letourneau Justin J. Martin
City Manager Deputy City Manager
Attachment:
A. Legal Services Agreement Between the City of Laguna Niguel and Aleshire & Wynder, LLP.
ATTACHMENT A
Legal Services Agreement Between
the City of Laguna Niguel and Aleshire & Wynder, LLP
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
FOR THE CITY OF LAGUNA NIGUEL
This AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES FOR THE CITY OF LAGUNA NIGUEL ("Agreement") is effective as of , 2022 by and between the law firm of ALESHIRE & WYNDER, LLP, a California limited liability partnership (Ad W"), and the CITY OF LAGUNA NIGUEL, a municipal corporation ("City") City and A& W may be referred to individually as "party" or collectively as "parties."
RECITALS
City is a general law city, formed and existing pursuant to the provisions of the California Government Code.
B. City is authorized to enter into consultant agreements under the provisions of California Government Code section 53060.
C. City desires or is in need of City Attorney Legal Services.
D. A&W has special knowledge and experience and is properly licensed to perform and accomplish the City Attorney Legal Services and will perform all City Attorney Legal Services in compliance with all applicable federal, state, and local laws, rules, regulations, and ordinances.
E. City now desires to retain A&W to perform and accomplish the City Attorney Legal Services, and A& W is willing to be so retained pursuant to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the parties and contained herein and other consideration, the value and adequacy of which are hereby acknowledged, the parties agree as follows:
1. APPOINTMENT
The City Council of City hereby appoints Chris F. Neumeyer as the City Attorney, and hires A&W as its City Attorney, to render such legal services as are customarily rendered by such officials and as further specified herein, including attending meetings of the City Council, Planning Commission, and other boards and bodies of City, and its affiliated agencies, as directed by the City.
Notwithstanding the foregoing appointment, the designated City Attorney may be established from time to time or modified by resolution of the City Council. A&W represents that it employs, or will employ at its own expense, all personnel required for the satisfactory performance of any and all tasks and services set forth herein. A&W shall not replace the designated City Attorney without the City Council's prior approval, except from time to time as necessary due to illness or vacation scheduling. City Attorney may appoint various assistants as City Attorney deems appropriate, without the need for amendment hereof. The parties agree A&W will immediately remove any A&W employee upon the City's request in City's sole discretion and for any or no reason, and A&W will promptly replace that individual as necessary. 1 SCOPE OF WORK, DUTIES AND EVALUATIONS
A. A&W shall perform any and all work necessary for the provision of City Attorney services to City, including, but not limited to, the following:
(i) Attendance at City Council and Planning Commission meetings, unless excused by the City Manager or his/her designee, and other board and commission meetings on request of the City Manager or his/her designee; and
(ii) Upon the specific request by the City Council, City Manager, or his/her designee, provide legal advice, written legal opinions, and consultation on matters affecting the City to the City Council, City Manager, boards, commissions, committees, officers, and employees of City in accordance with such policies and procedures as may be established by City from time to time; and
(iii) Be available for telephone and teleconference consultation with City staff as needed on legal matters which are within their area of operation; and (iv) Upon the specific request by the City Council, City Manager, or his/her designee, prepare or review necessary legal documents such as: ordinances and resolutions; agreements of any nature; real property instruments of any nature including purchase agreements and escrows, leases, covenants, deeds, easements and licenses; bond size, amount, and offering terms and conditions; public works construction documents including bid specifications, contracts, bonds, insurance, liens and related documents; memoranda of understanding; franchise agreements; and similar documents; and
(v) Upon the specific request by the City Council, City Manager, or his/her designee, represent and advise City on pending and potential litigation; notwithstanding the foregoing, it is expressly understood that A&W shall not be responsible for any pending litigation matters) handled by attorneys previously or otherwise employed by the City until all files have been transferred to A&W and A&W has specifically appeared in the matters) as attorneys of record on behalf of City; and
(vi) Monitor pending and current legislation and case law as appropriate; and (vii) All services set forth in Section III-3 ("Description of Services") as set forth in the City's 2022 Request for Proposal City Attorney Services, which services are attached hereto as Exhibit A and fully incorporated herein by this reference.
B. A&W, as a full-service law firm, is prepared to provide representation to City in all of its legal affairs, including, but not limited to, municipal law, land use, environmental, toxics, mining, water, tort defense, personnel, labor representation, code enforcement, criminal prosecution, successor agency, housing, telecommunications, finance, franchising, contracts, enterprise and other matters, except where conflicts exist or where the City Manager or City Council may otherwise direct. The City Attorney may represent City in the foregoing legal matters if specifically requested to do so by the City Manager or his/her designee or by the City Council.
The City Attorney will keep City informed as to the progress and status of all pending matters in accordance with such procedures as the City may establish from time to time.
The City Attorney is expected to manage, control and oversee the delivery of legal services in a competent, professional, and cost-effective manner. Legal services shall be properly supervised 2 and all personnel shall be qualified to handle the work assigned. If outside special counsel is retained, such special counsel shall be supervised by the City Attorney if specifically requested by the City Council, City Manager or his/her designee.
D. All legal services shall be coordinated under the direction of the City Manager.
Notwithstanding any other provision contained herein, any legal services can only be authorized by the City Council or City Manager. Nothing in this Agreement shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign legal matters of City from or to A&W.
E. Evaluations by City Council of legal services provided by A&W will be conducted both approximately six months, as well as approximately one year, after the effective date of this Agreement. Thereafter, evaluations by City Council of legal services provided by A&W will be conducted on an annual basis and as desired by City.
CITY DUTIES
City agrees to provide such reasonable information, assistance, cooperation, and access to books, records, and other information, as is necessary for A&W to effectively render its professional services under this Agreement. To the extent City desires services to be rendered on site, City, at City's expense, will make available sufficient office space, furniture, telephones, and secretarial support, as approved by the City Manager, as may be necessary therefor. City further agrees to abide by this Agreement, and to timely pay A&W's undisputed bills for fees, costs, and expenses.
4. COMPENSATION
A&W's fees will be charged on an hourly basis for all time actually expended. The compensation schedules are set forth in Exhibits "B" and "C" attached hereto and incorporated herein by this reference. Rates are computed based upon the hours of service and the complexity of the work. A higher rate is charged for special services, including a broad range of categories (litigation, personnel, labor, successor agency, housing, toxics, solid waste, enterprise, etc.) and work reimbursed by third parties, which would otherwise be likely to be contracted out as special services at higher rates. Public finance matters are charged as set forth below in Section 5 and in the exhibits.
BOND OR FINANCIAL SERVICES
Bond or Financial Services shall mean those situations where A&W acts as Bond Counsel for City with regard to the issuance of securities by City. A&W shall be compensated for Bond or Financial Services at the rates shown on Exhibit "B".
COSTS AND OTHER CHARGES
A&W may incur various costs and expenses in rendering the legal services required by this Agreement which, if customary and necessary for the performance of legal services hereunder, shall be reimbursable by City. These costs and expenses are described in more detail in Exhibit "C". City agrees to reimburse A&W for these costs and expenses in addition to the hourly fees for legal services. Reimbursable costs shall not include any overhead or 3 administrative charge by A&W or A&W's cost of equipment or supplies except as provided herein.
If A&W determines that retention of an outside investigator, consultant, or expert is necessary to render the legal services required (particularly if a matter goes into litigation) 4& W shall request approval from the City to retain the outside investigator, consultant or expert The City shall not be liable for any fees or costs associated with the outside investigator, consultant or expert until the City consents in writing to the retention.
The cost and expenses referred to herein include certain travel expenses, transportation, meals, and lodging, when incurred on behalf of the City.
STATEMENTS AND PAYMENT
A&W shall render to the City Manager, a statement for fees, costs, and expenses incurred on a monthly basis. Such statements) shall indicate the basis of the fees, including the hours worked, the hourly rate(s), and a brief description of the work performed. Separate billing categories can be established to track costs associated with City funding categories or to track project costs, or such other basis as the City may direct. Reimbursable costs shall be separately itemized.
Payments shall be made by City within thirty (30) days of receipt of the statement, except for those specific items on an invoice which are contested or questioned and are returned by City with a written explanation of the question or contest, within thirty (30) days of receipt of the invoice.
8. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT
The experience, knowledge, capability and reputation of A&W, its partners, associates, and employees, was a substantial inducement for City to enter into this Agreement. Therefore, A&W shall not contract with any other person or entity to perform, in whole or in part, the legal services required under this Agreement without the prior written approval of City. In addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed. hypothecated, or encumbered voluntarily, or by operation of law, whether for the benefit of creditors, or otherwise, without the prior written approval of City. Adding attorneys to A&W, changes in the partnership, name changes and similar changes shall not be deemed a transfer or assignment requiring approval of City or amendment hereof.
INDEPENDENT CONTRACTOR
A&W shall perform all legal services required under this Agreement 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 required under this Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which Ad W, its agents or employees, render the legal services required under this Agreement, except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of A&W employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service, except as otherwise set forth in this Agreement.
A&W shall be responsible for all salaries, payments, insurance and benefits for all of its officers, agents, representatives and employees in performing services pursuant to this 4 Agreement. It is expressly understood and agreed that A&W and its employees, agents, and representatives shall in no event be entitled to any City benefits to which City employees are entitled, including, but not limited to, overtime, retirement benefits, insurance, vacation, worker's compensation, sick or injury leave, or other benefits.
10. INSURANCE
A&W shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any extension thereof, the following policies of insurance. A&W shall provide City, not later than the effective date of this Agreement, certificates of insurance and an underwriter's endorsement for each coverage mentioned below. A& W shall also provide City with new certificates of insurance if any changes in coverage or carriers is made, within 30 days of any such change:
(a) Comprehensive General Liability Insurance. Insurance written on a per occurrence basis to protect A&W and the City against liability or claims of liability which may arise out of this order in the amount of two million ($2,000,000) per occurrence and subject to an annual aggregate of four million ($4,000,000). There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured vs. insured claims or contractual liability. All defense costs shall be outside the limits of the policy. (b) Workers' Compensation Insurance. For all of A&W's employees who will provide services under this Agreement and to the extent required by applicable State or federal law, A&W shall keep in full force and affect a Workers' Compensation policy. That policy shall provide a minimum of one million ($1,000,000) of employers' liability coverage, and A&W shall provide an endorsement that the insurer waives the right of subrogation against the City and its respective elected officials, City Council, council members, officers, employees, agents and representatives. In the event a claim under the provisions of the California Workers' Compensation Act is filed against the City by a bona fide employee of A&W participating under this Agreement, A& W agrees to defend and indemnify the City from such claim. (c) Automobile Insurance. A&W shall also procure and shall maintain during the term of this Agreement vehicle liability insurance in an amount not less than $1,000,000 for injuries, including accidental death, to any one person, and subject to the same minimum for each person, in an amount not less than $1,000,000 for each accident, and property damage insurance in an amount of not less than $1,000,000. Said policy shall include coverage for owner, non-owner, leased and hired cars.
(d) Professional Liability and Errors and Omissions Insurance. For all of A&W's employees who will provide services under this Agreement, A&W shall keep in full force and effect Professional Liability coverage for professional liability with a limit of two Million ($2,000,000) per claim and five Million ($5,000,000) annual aggregate. A&W shall ensure both that: (1) the policy effective date is on or before the date of commencement of the services under the Agreement; and (2) the policy will be maintained in force for a period of time defined above, there will be no changes or endorsements to the policy that increase the City's exposure to loss.
Except for the policy of professional liability insurance, all of the above policies of insurance shall be primary insurance and shall name City, its City Council, council members, officers, employers and agents as additionally insured. For all policies, the insurer shall waive all 5 rights of subrogation and contribution it may have against the City, its City Council, council members, officers, employees and agents and their respective insurers. Except for the policy of professional liability insurance, all of said policies of insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days prior written notice by registered mail to the City. In the event any of said policies of insurance are cancelled, the attorney shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City. Failure to do so is cause for termination. A&W is solely responsible for the payment of or costs associated with any premiums, deductibles or self- insurance retentions. A&W's insurance coverage shall not limit A&W's potential liabilities for obligations arising under or related to this Agreement. A&W will ensure insurance is placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
11. INDEMNIFICATION
To the fullest extent permitted by law, A& W agrees to indemnify City, its City Council, council members, officers, employees and agents and their successors and assigns ("indemnified parties") against, and will hold and save each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of or in connection with the work, operations, activities, or omissions of A&W, its officers, agents, representatives, employees, sub-consultants, contractors, invitees, or anyone for whom A&W is liable, provided for herein or arising from the acts or omissions of A&W or arising from A&W's performance of or failure to perform any term, provision, covenant or condition of this Agreement, except to the extent such claims or liabilities arise from the sole negligence or willful misconduct of City, its officers, or employees. This indemnity is in addition to any other rights or remedies which City may have under the law or this Agreement. In the event of any claim or demand made against any indemnified parties, City may, at its sole discretion, reserve, retain or apply any monies due to A&W under this Agreement for the purpose of resolving such claims; provided however, that City may release such funds if A&W provides City with reasonable assurances of protection of the City's interest. The City shall, in its sole discretion determine whether such assurances are reasonable. A&W agrees that its duty to defend the indemnified parties arises upon an allegation of liability based upon the acts, omissions, or performance of services under this Agreement by A&W, its officers, agents, representatives, employees, sub-consultants, contractors, invitees, or anyone for whom A&W is liable and that an diudication of A& W's liability is not a condition precedent to A&W's duty to defend. Th rovisions of this section will survive the termination or expiration of this Agreemen
12. NOTICES
Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified, or by delivery of same into the custody of the United States Postal Service, or its lawful successor, or its equivalent, postage prepaid and addressed as follows:
CITY: CITY OF LAGUNA NIGUEL
Tamara S. Letourneau, City Manager
Laguna Niguel City Hall
City Manager's Office
6 30111 Crown Valley Parkway
Laguna Niguel, CA 92677
A& W: ALESHIRE & WYNDER, LLP
Chris F. Neumeyer, City Attorney
18881 Von Karman Avenue, Suite 1700
Irvine, California 92612
Service of a notice by personal service shall be deemed to have been given as of the date of such personal service. Notice given by deposit with the United States Postal Service, or its equivalent, shall be deemed to have been given two (2) consecutive business days following the deposit of the same in the custody of said Postal Service or its equivalent. Either party heretc may, from time to time, by written notice to the other, designate a different address or person which shall be substituted for that specified above.
13. NON-DISCRIMINATION
In connection with the execution of this Agreement, A&W agrees that it will not engage in unlawful discrimination in employment and shall comply with all applicable laws and regulations of City and/or all other relevant government agencies, including, but not limited to, the California Department of Fair Employment and Housing and the Federal Equal Employment Opportunity Commission. Also, A&W certifies and agrees that all persons employed by A&W, its affiliates, subsidiaries and related entities, if any, will be treated equally by A&W, without unlawful discrimination based upon creed, sex, race, national origin, or any other classification prohibited by state or federal law. If City finds that any of the provisions of this Section have been violated, such violation shall constitute a material breach of this Agreement, upon which City may determine to cancel, terminate, or suspend this Agreement. While City reserves the right to determine independently that the anti-discrimination provisions of the Agreement have been violated, in addition, a determination by the California Fair Employment Practices Commission or California Department of Fair Employment and Housing, or successor agency, or the Federal Equal Employment Opportunity Commission, or successor agency, that A&W has violated state or federal anti-discrimination laws relative to this Agreement shall constitute a finding by City that A&W has violated the anti-discrimination provisions of this Agreement.
14. TERM, DISCHARGE AND WITHDRAWAL
This Agreement shall be effective on the latest date signed by either party. City may discharge A&W at any time. A&W shall have no right to hearing or notice, and A&W may be discharged with or without cause or notice. A&W may withdraw from City's representation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least sixty (60) days' notice to City.
In the event of such discharge or withdrawal, City will pay A&W undisputed professional fees and costs, in accordance with this Agreement, for all work done (and costs incurred) through the date of cessation of legal representation. City agrees to execute, upon request, a stipulation in such form as to permit A&W to withdraw as City's attorneys of record in any legal action then pending. A&W shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel.
7 15. CONFLICTS
A&W has no present or contemplated employment which is adverse to the City. A&W agrees that it shall not represent clients in either litigation or non-litigation matters against the City. However, A& W may have past and present clients or may have future clients, which, from time to time, may have interests adverse to City, and Ad W reserves the right to represent such clients in matters not connected with its representation of the City. A& W shall promptly disclose to the City Council and City Manager any such actual or potential conflict immediately wherever the same shall arise or come to the attention of A&W.
If a potential conflict of interest arises in A&W's representation of two clients, if such conflict is only speculative or minor, A&W shall seek waivers from each client with regards to such representation. However, if real conflicts exist, A&W would withdraw from representing either client in the matter, and assist them in obtaining outside special counsel.
16. INTERPRETATION OF AGREEMENT AND FORUM
This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party hereto by reason of the authorship of this Agreement, headings used, or any other rule of construction which might otherwise apply.
17. AUDIT AND INSPECTION OF RECORDS
At any time during A&W's normal business hours and as often as City may deem necessary, and upon reasonable notice, A&W shall make available to City, or any of its duly authorized representatives, for examination, audit, excerpt, copying or transcribing, all data, records, investigation reports and all other materials respecting matters covered by this Agreement. A&W will permit City to audit and to make audits of all invoices, materials, payrolls, records of personnel and other data related to all matters covered by this Agreement.
All material referenced in this Section, including all pertinent cost accounting, financial records, and proprietary data, must be kept and maintained by A&W for a period of at least four (4) years, or for the period required by law, whichever is greater, after completion of A&W's performance hereunder, unless City's written permission is given to dispose of same prior to that time.
18. CONFIDENTIALITY AND USE OF INFORMATION
A&W shall hold in trust for the City, and shall not disclose to any person, any confidential information. Confidential information is information which is related to the City's research, development, trade secrets and business affairs, but does not include information which is generally known or easily ascertainable by nonparties through available public documentation.
B. A&W shall advise City of any and all materials used, or recommended for use, by A&W to achieve the project goals that are subject to any copyright restrictions or requirements.
In the event A&W shall fail to so advise City and, as a result of the use of any programs or materials developed by A&W under this Agreement, City should be found in violation of any copyright restrictions or requirements, A&W agrees to indemnify and hold harmless City against any action or claim brought by the copyright holder.
8 Ownership of Records. All records created by A&W for the City under this Agreement shall become the property of the City and shall be subject to state law and City policies governing privacy and access to files. The City shall have access to and the right to examine all books, documents, papers and records of A&W involving transactions and work related to this Agreement. A&W shall retain all copies of records for a period of five (5) years from the date of final payment.
19. NON-WAIVER
The failure of City or A& W to seek redress for violation of, or to insist upon, the strict performance of any term or condition of this Agreement shall not be deemed a waiver by that party of such term or condition, or prevent a subsequent similar act from again constituting a violation of such term or condition. Payment to A&W of compensation under this Agreement shall not be deemed to waive City's rights or A&W's rights contained in this Agreement.
20. SEVERABILITY
If any term, condition or provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, invalid, or void, the remaining provisions will nevertheless continue in full force and effect and shall not be affected, impaired or invalidated in any way.
21. DISPUTES
City and A&W are agreeing to have any and all disputes (except where City may request arbitration of a fee dispute by the State Bar) that arise out of, or relate to this Agreement, including but not limited to claims of negligence or malpractice arising out of or relating to the legal services provided by A&W to City, decided only by binding arbitration in accordance with the provisions of the Code of Civil Procedure section 1280 et seq., and not by court action, except as provided by California law for judicial review of arbitration proceedings. Judgment upon the award rendered by the arbitrators) may be entered in any court havingjurisdiction thereof. A&W and City shall each have the right of discovery in connection with any arbitration proceeding in accordance with, and to the full extent allowed by, the California Rules of Civil Procedure section 1283.05. City, however, may request arbitration of a fee dispute by the State Bar as provided by Business and Professions Code Section 6200, et seq.
22. REMEDIES
The rights and remedies of the City provided in this Agreement are not intended to be exclusive and are in addition to any other rights and remedies permitted by law.
23. BINDING AGREEMENT
This Agreement is intended to be binding on the parties and their respective successors and assigns.
9 24. COUNTERPARTS
This Agreement may be executed in counterparts, all of which taken together will be considered one original document.
25. INTEGRATED AGREEMENT; AMENDMENT
This Agreement, including all exhibits, contains all of the agreement of the parties and
26. CORPORATE AUTHORITY
The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement on behalf of said parties and that in so executing this Agreement the parties are formally bound to the provisions of this Agreement. (Signatures on Following Page]
10 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of execution by the City.
Dated: _ 2022 "CITY"
City of Laguna Niguel,
a California municipal corporation
By:
Elaine Gennawey, Mayor
ATTEST:
Marissa Asistin, City Clerk
Dated: , 2022 "A&W"
Aleshire & Wynder, LLP, a California limited
liability partnership
By: _
Chris F. Neumeyer, Partner
11 EXHIBIT "A"
SCOPE OF SERVICES
1. Attend all closed, regular and special City Council meetings, all meetings of the Planning Commission, and attend other meetings when there is a request to do so.
2. Provide general legal services, routine legal assistance, advice and consultation to the City Council and City staff relating to the Meyers-Milias-Brown Act, general municipal and public law issues, potential tort liability and risk management.
3. Except where conflict of interest rules require otherwise, supervise and coordinate the activities of all other counsel retained by the City or working behalf of the City.
4. Provide legal advice, telephone, email, and personal consultations with members of the City Council and City staff.
5. Review and/or prepare legal opinions, staff reports, ordinances, resolutions, agreements, contracts, forms, notices, certificates, deeds, leases, and other documents required by the City.
6. Perform legal work pertaining to land use issues, including, but not limited to, property transactions (e.g., acquisitions, disposals), public improvements, easements, dedications and right-of-way vacations.
7. Monitor pending and current state and federal legislation and court decisions, as appropriate, and provide written updates on those that have the potential to affect the City. Provide suggested action or changes in operations or procedures to assure compliance.
8. Consult with the City Council and City staff as needed, render legal advice and opinions (both oral and written), and perform such other or additional general legal services as may be requested by the City, acting by and through the City Council or the City Manager.
9. Enforce City codes, zoning regulations and building standards through administrative and judicial actions.
10. Provide training and guidance with regard to the requirements of the Meyers-Milias- Brown Act, Open Meeting Law (Brown Act - Government Code 54550 et seq., Conflict of Interest (AB1234)), CEQA, the Public Elections Code, the Public Records Act and other legal requirements imposed by statute and common law.
11. Advise the Council on municipal government legal matters, including the Meyers-Milias- Brown Act and parliamentary procedures for running meetings.
Exhibit A
1 12. Perform all duties of the office of City Attorney as provided in the Laguna Niguel Municipal Code.
13. Promptly return all calls and e-mails from the City Council and City staff.
Litigation Services
1. Represent the City in civil litigation brought on behalf of or against the City, as directed by the City Council.
2. Provide litigation services to the City in any and all matters assigned by the City.
3. Prosecute misdemeanor and infraction violations of the City Municipal Code.
Other Specialized Legal Services as Requested
1. Advice regarding taxes, assessments, fees, Proposition 218, and other financial advice.
2. Environmental Legal Services other than routine review of negative declarations, environmental impact reports and other project-level environmental documentation.
3. Real Estate services, other than routine review of escrow documents, title reports and contracts of sale.
4. Advice regarding insurance coverage matters, such as advice and representation regarding coverage disputes.
S: Advice regarding water law and regulations.
6. Other specialized services as requested by the City, including advising, and if necessary, initiating and defending litigation pertaining to the Public Records Act, Meyers-Milias- Brown Act, election law, general liability, risk management, environmental law, including CEQA and NPDES, contracts and franchises, real estate, land use, human resources/labor relations, construction defects and code compliance.
Exhibit A
2 EXHIBIT "B"
FEE ARRANGEMENT
A. General
A&W charges on an hourly basis for all time actually spent on behalf of a client. A&W bills in increments of 6 minutes (.1 of an hour). When costs are split among clients, the total amount of time spent on the project is divided evenly by the number of clients contributing, and
CLASSIFICATION HOURLY RATES
General $245 Associate
$265 Partner
$250 Associate
Special Services/Litigation $295 Partner
Risk Management / Code Enforcement $255
$300 Associate
Reimbursable for Developers $350 Partner
Reimbursable by Residents who are not $270 Associate
developers $300 Partner
$400 Attorneys
Public Finance
$200 Paralegals/Law Clerks
Paralegals and Law Clerks $160
Document Clerks $100
General Legal Services
General Legal Services include:
(a) Attending all City Council, Planning and other Commission meetings. Providing City Council and other bodies with guidance relative to Roberts Rules of Order, open meetings, Brown Act, and other related procedural matters. (b) Providing conflict of interest assistance to elected and appointed officials and staff, and assisting officials and staff in seeking advice from the Fair Political Practices Commission.
(c) Attending departmental meetings, staff meetings or committee meetings as deemed necessary and appropriate or as requested by the City Manager or City Council
(d) Providing legal advice, counsel, services, consultation and opinions to City Council, City Manager and City staff on routine municipal assignments.
Exhibit B
1 (e) Performing general research and interpreting routine laws, court decisions and other legal matters in order to prepare legal opinions and to advise the City Council, and management staff on legal matters pertaining to City operations. (f) Reviewing and/or preparing general staff reports, ordinances, resolutions, and other documents required by the City.
(g) Ensuring that current and future City ordinances, policies, procedures and ractices comply with state and tederal law. Intorming City Council and staff o outine recommended changes to City ordinances and practices, as neede (h) Providing assistance to the City regarding election laws and assisting in review of election forms, filings, and coordination with county, state and federal election officials.
2. Special Services Defined and Rates; Third Party Reimbursable "Special" legal services include, but are not limited to, successor agency matters, real estate, rent control, housing, labor and employment, enterprise funds, franchise negotiations, major contract negotiations, municipal finance matters other than bonds and similar financial services, environmental and toxics, water, energy, franchises, utilities and telecommunications, solid waste, mobile home matters, police and fire specialized matters (i.e., those requiring knowledge of laws particular to police or fire departments, not everyday matters that happen to be for the police or fire departments), litigation services (although code enforcement and risk management are billed at their own rate), and similar matters requiring special expertise.
For legal services performed on matters where the City is reimbursed by a third party, such as development agreements, A&W will charge at higher rates as described on the table above. Though A&W's rates are higher for special services than for general services, they are less than those generally charged by specialty firms, such as those specializing in development, employment, water and so forth.
B. Rate Adjustments
Rate adjustments will be determined by the City Council after the first year evaluation (12 months after the effective date of this Agreement), and after each annual evaluation thereafter.
Monthly Statements
A&W will provide the City a monthly statement for fees, costs, and expenses incurred as described above. Payments shall be made by City within thirty (30) days of receipt of the statement, except for those specific items on an invoice which are contested or questioned and are returned by City with a written explanation of the question or contest, within thirty (30) days of receipt of the invoice.
D. Reimbursable Expenses
In addition to the hourly rates, A&W would be reimbursed for out-of-pocket expenses, without any markup, such as photocopies ($0.25 per page) and other reproducing costs, facsimile charges, messengers and couriers, court reporters, mileage costs to court and administrative proceedings, travel expenses outside of the City, and other costs and expenses incurred on the Exhibit B
2 City's behalf. Notwithstanding the foregoing, we do not charge for word processing, routine computer-assisted legal research, calls or travel time to or from City Hall.
Travel costs including mileage (current IRS rate), parking, airfare, lodging, meals, and incidentals are charged in connection with administrative or judicial proceedings and when traveling on behalf of the City other than to City Hall. Travel time may also be charged; lowever, for any travel to and from City Hall, both travel time as well as travel costs will not br harged. In addition, the City will be responsible for paying the fees of consultants and othe outside experts who are retained after consultation with the City and receipt of the City's prior written approval.
E. New Fee Structure Consideration
Following a successful six month evaluation, both parties agree to reevaluate the rate structure to consider implementation of a monthly retainer.
Exhibit B
3 EXHIBIT "C"
STATEMENT OF BILLING PRACTICES
A&W's fees are charged on an hourly basis for all time actually expended and are generally billed monthly with payment due within thirty (30) days after the date of the bill. expenses are separately billed to the City and include fees fixed by law or assessed by public agencies, litigation costs including deposition, reporter fees, and transcript fees, long distance telephone calls, messenger and other delivery fees, postage, photocopying (charge of twenty-five cents ($.25) per page) and other reproduction costs, staff overtime when necessitated anc authorized by the client, and computer-assisted research fees when authorized by the client, all based on the actual and reasonable cost (mileage, reproduction and other costs are periodically adjusted in accordance with A&W's actual costs).
Travel costs including mileage (current IRS rate), parking, airfare, lodging, meals, and incidentals are charged in connection with administrative or judicial proceedings and when traveling on behalf of the City other than to City Hall. Travel time may also be charged, unless otherwise agreed to in advance. In addition, the City will be responsible for paying the fees of consultants and other outside experts who are retained after consultation with the City and receipt of the City's prior written approval.
The monthly billing statements for fees and costs shall indicate the basis of the fees, including a detailed and auditable breakdown of the hours worked, the billable rates charged and description of the work performed. All time is billed in increments of a tenth of an hour. All undisputed bills are expected to be paid within thirty (30) days of the date of the billing statement.
Exhibit C