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CITY OF POMONA
PROFESSIONAL SERVICES AGREEMENT
1. PARTIES AND DATE.
This Agreement is made and entered into this _____ day of ________, 2024, by and between the City of Pomona, a municipal corporation organized under the laws of the State of California with its principal place of business at 505 S. Garey, Pomona, California 91766, County of Los Angeles, State of California ("City") and SL Environmental Law Group PC (“SL”) ("Firm"). City and Firm are sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Firm.
Firm desires to perform and assume responsibility for the provision of certain professional services required by the City on the terms and conditions set forth in this Agreement. The Purpose of this Agreement is to (i) enter into an attorney -client relationship between the City and the Firm for the purpose of investigating and assessing potential claims arising out of the presence of 1,2,3- trichloropropane (“TCP”) contaminants in water supply wells and/or surface water sources affecting the City’s water systems; and (ii) to provide for the terms and conditions for the representation of the CITY in any civil action that may be filed in the Superior Court or United States District Court (“Legal Action”). Collectively referred to as the “Legal Services”.
2.1.1 This Agreement is required by California Business and Professions Code section 6147 and is intended to fulfill the requirements of that section.
3. TERMS
3.1 General Scope of Services. Firm promises and agrees to furnish to the City all labor, materials, services, and incidental and customary work necessary to fully and adequately supply the Legal Services necessary (" Legal Services"). The Legal Services are more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. All Legal Services shall be subject to, and performed in accordance with, this Agreement, the exhibits attached hereto and incorporated her ein by reference, and all applicable local, state and federal laws, rules and regulations.
3.2 Compensation.
3.2.1 Compensation. Firm shall receive compensation as set forth in “Exhibit B Attorney Fees”.
3.2.2 Extra Work. At any time during the term of this Agreement, City may request that Firm perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the Project, but Attachment 1
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which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. Firm shall not perform, nor be compensated for, Extra Work without written authorization from the City.
3.3 Responsibilities of Firm.
3.3.1 Selection of Experts. The Firm and the City shall meet and confer regarding selection and retention of experts in the Legal Action. The City shall not unreasonably withhold approval of selection and retention of such experts.
3.3.2 Settlement. The Firm shall not settle any Legal Action without the approval of the City . The City shall have the absolute right to accept or reject any settlement. The Firm shall notify the City promptly of the terms of any settlement offer received by the Firm.
3.3.3 Independent Contractor; Control and Payment of Subordinates. The Services shall be performed by Firm or under its supervision. Firm will determine the means, methods and details of performing the Services subject to the requirements of this Agreement. City retains Firm on an independent contractor basis and not as an employee.
Any personnel performing the Services on behalf of Firm shall not be employees of City and shall at all times be under Firm’s exclusive direction and control. Neither City, or any of its officials, officers, directors, employees or agents shall have control over the conduct of Firm or any of Firm’s officers, employees or agents, except as set forth in this Agreement. Firm shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of Services under this Agreement and as required by law. Firm shall be responsible for all reports and obligations respecting such additional personnel, including, but not limited to: social security taxes, income tax withholding, unemployment insurance, disability insurance, and workers' compensation insurance.
3.3.4 Schedule of Services. Firm shall perform the Services in a prompt and timely manner and in accordance with the Scope of Services set forth in Exhibit "A".
Firm represents that it has the professional and technical personnel required to perform the Services expeditiously. Upon request of City, Firm shall provide a more detailed schedule of anticipated performance to meet the Scope of Services.
3.3.5 Conformance to Applicable Requirements . All work prepare d by Firm shall be subject to the approval of City.
3.3.6 Substitution of Key Personnel . Firm has represented to City that certain key personnel will perform and coordinate the Services under this Agreement.
Should one or more of such personnel become unavaila ble, Firm may substitute other personnel of at least equal competence upon written approval of City . In the event that City and Firm cannot agree as to the substitution of key personnel, City shall be entitled to terminate this Agreement for cause. The key personnel for performance of this Agreement are as follows: Kenneth A. Sansone, SL Environmental Law Group. -3- PROFESSIONAL SERVICES
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3.3.7 City's Representative. The City hereby designates Chris Diggs, Water Resources D irector, or his/her designee, to act as its representative in all matters pertaining to the administration and performance of this Agreement (" City's Representative"). City's Representative shall have the power to act on behalf of the City for review and approval of all products submitted by Firm but not the authority to enlarge the Scope of Services or change the total compensation due to Firm under this Agreement.
The City Manager shall be authorized to act on City 's behalf and to execute all necessary documents which enlarge the Scope of Services or change the Firm 's total compensation subject to the provisions contained in this Agreement. Firm shall not accept direction or orders from any person other than the City Manager, City's Representative or hi s/her designee.
3.3.8 Firm' Representative. Firm hereby designates Kenneth A. Sansone, SL Environmental Law Group, or hi s designee, to act as its representative for the performance of this Agreement (" Firm’ss Representative"). Firm’s Representative shall have full authority to represent and act on behalf of the Firm for all purposes under this Agreement. The Firm’s Representative shall supervise and direct the Services, using his/her best skill and attention, and shall be responsible for all means, methods, techniques, sequences, and procedures and for the satisfactory coordination of all portions of the Services under this Agreement.
3.3.9 Coordination of Services . Firm agrees to work closely with City staff in the performance of Services and shall be available to City’s staff, counsel, and other staff at all reasonable times.
3.3.10 Standard of Care; Performance of Employees . Firm shall perform all Services under this Agreement in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Firm represents and maintains that it is skilled in the professional calling necessary to perform the Services. Firm warrants that all employees shall have sufficient skill and experience to perform the Services assigned to them. Firm represents that it and its employees have all licenses, permits, qualifications and approvals of whatever nature that are legally required to perform the Services, and that such licenses and approvals shall be maintained throughout the term of this Agreement. Firm shall perform, at its own cost and expense and without reimbursement from the City , any services necessary to correct errors or omissions which are caused by the Firm’s failure to comply with the standard of care provided for herein. Any employee of the Firm who is determined by the City to be uncooperative, incompetent, a threat to the adequate or timely completion of the Project, a threat to the safety o f persons or property, or any employee who fails or refuses to perform the Services in a manner acceptable to the City , shall be promptly removed from the Project by the Firm and shall not be re-employed to perform any of the Services or to work on the Project.
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3.3.11 Laws and Regulations; Employee/Labor Certification.
3.3.11.1 Compliance with Laws . Firm shall keep its elf fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the Project or the Services, including all Cal/OSHA requirements, and shall give all notices required by law. Firm shall be liable for all violations of such laws and regulations in connection with the Services and this Agreement. All violations of such laws and regulations shall be grounds for the City to terminate the Agreement for cause.
3.3.11.2 Employment Eligibility; Firm. Firm certifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time and shall require all subcontractors and sub-subcontractors to comply with the same. Firm certifies that it has not committed a violation of any such law within the five (5) years immediately preceding the date of execution of this Agreement, and shall not violate any such law at any time during the term of the Agreement.
3.3.11.3 Equal Opportunity Employment. Firm represents that it is an equal opportunity employer and do es not discriminate against any employee or applicant for employ ment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Firm shall also co mply with all relevant provisions of City 's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
3.3.11.4 Safety. Firm shall execute and maintain its work so as to avoid injury or damage to any person or property. In carrying out its Services, the Firm shall at all times be in compliance with all applicable local, state and federal laws, rules and regulations, and shall exercise all necessary precautions for the safety of employees appropriate to the nature of the work and the conditions under which the work is to be performed.
3.3.12 Insurance.
3.3.12.1 Time for Compliance . Firm shall not commence work under this Agreement until it has provided evidence satisfactory to the City that it has secured all insuran ce required under this section. Failure to provide and maintain all required insurance shall be grounds for the City to terminate this Agreement for cause.
3.3.12.2 Types of Insurance Required . As a condition precedent to the effect iveness of this Agreement for work to be performed hereunder, and without limiting the indemnity provisions of the Agreement, the Firm, in partial performance of its obligations under such Agreement, shall procure and maintain in full force and effect during the term of the Agreement the following policies of insurance. If the existing -5- PROFESSIONAL SERVICES
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policies do not meet the insurance requirements set forth herein, Firm agrees to amend, supplement or endorse the policies to do so.
(A) Commercial General Liability: Commercial General
Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, or the exact equivalent, with limits of not less than $1,000,000 per occurrence and no less than $2,000,000 in the general aggregate. Defense costs shall be paid in addition to the limits. The policy shall contain no endorsements or provisions (1) limiting coverage for contractual liability; (2) excluding coverage for claims or suits by one insured against another (cross-liability); (3) products/completed operations liability; or (4) containing any other exclusion(s) contrary to the terms or purposes of this Agreement.
(B) Automobile Liability Insurance: Automobile
Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 00 01 covering "Any Auto" (Symbol 1), or the exact equivalent, covering bodily injury and property damage for all activities with limits of not less than $1,000,000 combined limit for each occurrence.
(C) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease. (D) Professional L iability (Errors & Omissions):
Professional Liability insurance or Errors & Omissions insurance appropriate to Firm ’s profession with limits of not less than $1,000,000. Covered professional services shall specifically include all work to be performed under the Agreement and delete any exclusions that may potentially affect the work to be performed (for example, any exclusions relating to lead, asbestos, pollution, testing, underground storage tanks, laboratory analysis, soil work, etc.). If coverage is written on a claims -made basis, the retroactive date shall precede the effective date of the initial Agreement and continuous coverage will be maintained or an extended reporting period will be exercised for a period of at least five (5) years from termination or expiration of this Agreement.
3.3.12.3 Insurance Endorsements . Required insurance policies shall contain the following provisions, or Firm shall provide endorsements on forms approved by the City to add the following provisions to the insurance policies:
(A) Commercial General Liability : (1) Additional
Insured: The City , its officials, officers, employees, agents, and volunteers shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Firm; or (4) contain any other exclusions contrary to the terms or purposes of this Agreement. For all policies of Commercial General Liability insurance, Firm shall provide endorsements in the form of ISO CG 20 10 10 01 and 20 37 10 01 (or endorsements providing the exact same coverage) to effectuate this requirement. (2) Cancellation:
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Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(B) Automobile Liability. (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non-payment of premium.
(C) Professional Liability (Errors & Omissions):
(1) Cancellation: Required insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non- payment of premium. (2) Contractual Liability Exclusion Deleted: This insurance shall include contractual liability applicable to this Agreement. The policy must “pay on behalf of” the insured and include a provision establishing the insurer’s duty to defend.
(D) Workers' Compensation: (1) Cancellation: Required
insurance policies shall not be canceled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the City except ten (10) days shall be allowed for non- payment of premium. (2) Waiver of Subr ogation: A waiver of subrogation stating that the insurer waives all rights of subrogation against the City , its officials, officers, employees, agents, and volunteers.
3.3.12.4 Primary and Non-Contributing Insurance. All policies of Commercial General Liability and Automobile Liability insurance shall be primary and any other insurance, deductible, or self -insurance maintained by the City , its officials, officers, employees, agents, or volunteers shall not contribute with this primary insurance.
Policies shall contain or be endorsed to contain such provisions.
3.3.12.5 Waiver of Subrogation. All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to waiver of subrogation in favor of the City , its officials, officers, employees, agents, and volunteers or shall specifically allow Firm or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Firm hereby waives its own right of recovery against City.
3.3.12.6 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention must be approved in writing by the City and shall protect the City, its officials, officers, employees, agents, and volunteers in the same manner and to the same extent as t hey would have been protected had the policy or policies not contained a deductible or self-insured retention.
3.3.12.7 Evidence of Insurance . Firms, concurrently with the execution of the Agreement, and as a condition precedent to the effectiveness thereof, shall deliver either certified copies of the required policies, or original certificates on forms approved by the City , together with all endorsements affecting each policy. Required -7- PROFESSIONAL SERVICES
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insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced and not replaced immedi ately so as to avoid a lapse in the required coverage, Firm shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
3.3.12.8 Acceptability of Insurers. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to transact business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
3.3.12.9 Enforcement of Agreement Provisions (non estoppel) .
Firm acknowledges and agrees that actual or alleged failure on the part of the City to inform Firm of non-compliance with any requirement imposes no additional obligation on the City nor does it waive any rights hereunder.
3.3.12.10 Requirements Not Limiting . Requirement of specifi c coverage or minimum limits contained in this Section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance.
3.3.12.11 Additional Insurance Provisions
(A) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Firm, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Firm pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(B) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications 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 Firm or City will withhold amounts sufficient to pay premium from Firm payments. In the alternative, City may cancel this Agreement. (C) The City may require the Firm to provide complete
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(D) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
(E) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Firm from liability in excess of such coverage, nor shall it limit the Firm’ indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. (F) Firm shall report to the City , in addition to Firm ’s insurer, any and all insurance claims submitted by Firm in connection with the Services under this Agreement.
3.4 Discharge of Firm
3.4.1 Right to Discharge. The City may discharge the Firm at any time, with or without cause, by written notice effective when received by the Firm. The City shall have the right to terminate this Agreement with cause upon the Firm ’ breach of this Agreement or its failure to strictly adhere to the California Rules of Professional Conduct.
Unless specifically agreed by the Firm and the City, the Firm shall provide no further services and advance no further Costs on the City’s behalf after receipt of the notice. If the Firm is the City’s attorney of record in any proceeding, the City shall execute and return a substitution-of-attorney form immediately upon receipt from the Firm.
3.4.2 Reimbursement of Costs; Fees. In the event the Firm is discharged without cause before the conclusion of a Legal Action, the City shall (i) reimburse the Firm for any and all Costs advanced by the Firm for such Legal Action not later than thirty (30) days from receipt of a reasonably detailed final cost accou nting from the Firm , and (ii) upon the conclusion of the Legal Action, pay the Firm Reasonable Attorneys’ Fees for services performed up to the point of the discharge. Nothing herein shall be construed to limit the City’s rights and remedies in the event of a discharge of the Firm for cause.
3.5 Withdrawal of Firm
3.5.1 Right to Withdraw. The Firm may withdraw from representation of the City (i) with the City’s consent, (ii) upon court approval, or (iii) if no Legal Action is filed, for good cause upon reasonabl e notice to the City. Good cause includes the City’s breach of this Agreement, the City’s unreasonable refusal to cooperate with the Firm or to follow the Firm’s advice on a material matter, or any other fact or circumstance that would render the Firm continuing representation unlawful or unethical. Notwithstanding the -9- PROFESSIONAL SERVICES
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Firm’s withdrawal for good cause, the City shall remain obligated to pay the Firm and any associate counsel, out of the Net Recovery, a Reasonable Fee for all services provided and to reimburse the Firm for all reasonable Costs advanced before the withdrawal.
3.5.2 Withdrawal Without Cause. The Firm may terminate this Agreement at any time, without cause, by giving the City not less than sixty (60) days prior written notice of termination, sa id notice to specify the effective date of the termination.
Where the Firm terminate this Agreement without cause, the Firm shall not be entitled to the recovery of any amount, regardless of the status of any pending Legal Action, and regardless of whether any amounts have been or are subsequently received by the City.
3.5.3 Any withdrawal by the Firm, with or without cause, shall be subject to California Rules of Professional Conduct, Rule 3- 700 which specifies that an attorney “shall not withdraw from emplo yment until [he/she] has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client [and] allowing time for employment of new counsel...”.
3.6 Indemnification.
3.6.1 To the fullest extent permitted by law, Firm shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability , loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Firm , its officials, officers, employees, subcontractors, Firm or agents in connection with the performance of the Firm’s Services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses except such loss or damage caused by the sole negligence or willful misconduct of the City. Firm’s obligation to indemnify shall survive expiration or termination of this Agreement and shall not be restricted to insurance proceeds, if any, received by Firm , the City, its officials, officers, employees, agents, or volunteers.
3.6.2 If Firm’s obligation to defend, indemnify, and/or hold harmless arises out of Firm’s performance as a “design professional” (as that term is defined under Civil Code section 2782.8), then, and only to the extent required by Civil Code section 2782.8, which is fully incorporated herein, Firm ’s indemnification obligation shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Firm, and, upon Firm’s obtaining a final adjudication by a court of competent jurisdiction, Firm’s liability for such claim, including the cost to defend, shall not exceed the Firm’s proportionate percentage of fault. -10- PROFESSIONAL SERVICES
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3.7 Representation of Adverse Interests
3.7.1 Disclosure.
3.7.1.1 Duty to Disclose; No Conflicts Identified. If the Firm has a relationship with another party with interests adverse to the City , or with someone who would be substantially affected by any action taken under this Agreement, the Rules of Professional Conduct require the Firm to disclose that to the City so the City can evaluate whether that relationship causes the City to have any concerns regarding any of the Firm’s loyalty, objectivity, or ability to protect the City’s confidential information.
3.7.1.2 Representation of Other Clients; Waiver of Potential Conflicts. The City understands that currently, and from time to time, the Firm represents sother municipalities, governmental agencies, governmental subdivisions, or investor - owned public water utilities in other actions or similar litigation, and that such work is the focus of the Firm ’ practice. Further, the City understands that the Firm represents other clients in actions similar to what would be brought under this Agreement and against the same potential defendants. The City understands that a recovery obtained on behalf of another client in a similar suit against the same defendants could, in theory, reduce the total pool of funds available from these same defendants to pay damages in a Legal Action brought under this Agreement. The City understands that the Firm would not take on this engagement if the City required the Firm to forgo representations like those described above. The City has conferred with its own separate and independent counsel about this matter, and has determined that it is in its own best interests to waive any and all potential or actual conflicts of interest that may occur as the result of the Firm ’s current and continuing representation of cities and other water supplier in similar litigations, because such waiver enables the City to obtain the benefits of the Firm’ experience and expertise.
3.7.1.3 The City consents that the Firm may continue to handle such work, and may take on similar new clients and matters without disclosing each such new matter to the City or seeking the consent of the City while representing it.
3.7.1.4 The Firm shall not, of course, take on such other work if it requires the Firm to be directly adverse to the City while the Firm are still representing the City under this Agreement.
3.8 General Provisions.
3.8.1 Accounting Records. Firm shall maintain complete and accurate records with respect to all costs and expenses incurred under this Agreement. All such records shall be clearly identifiable. Firm shall allow a representative of City during normal business hours to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement. Firm shall allow inspection of all work, data, documents, proceedings, and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. -11- PROFESSIONAL SERVICES
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3.8.2 Independent Contractors and Subcontracting.
3.8.2.1 Use of Subcontractors . Firm is aware of statutory and case law regarding classification of workers as independent contractors, including California Labor Code Secti on 2750.3 and Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018). To ensure that Firm is in compliance with the California Labor Code, Firm shall only utilize its employees to provide the Services. Firm may not provide the services through any independent contractor, subcontractor or sub - subcontractor (“Subcontractor(s)”) unless approved by the City as set forth in Section
3.7.2.2 below. Firm represents and warrants that all personnel who perform the Services on Firm’s behalf are Firm’s employees, and that Firm complies with all applicable laws, rules and regulations governing its employees, including, but not limited to, the California Labor Code, Unemployment Insurance Code and all applicable Industrial Welfare Commission Wage Orders.
3.8.2.2 Prior Approval Required. Firm shall not use any Subcontractor to provide the Services, or any portion of the work required by this Agreement, without prior written approval of City. In the event that City authorizes Firm to use a Subcontractor, Firm shall enter into a written agreement with the Subcontractor, which must include all provisions of the Agreement, including a restriction on the Subcontractor’s use of further independent contractors, subcontractors or sub- subcontractors without the City’s prior written consent.
3.8.3 Delivery of Notices . All notices permitted or required under this Agreement shall be given to the respective parties at the following address, or at such other address as the respective parties may provide in writing for this purpose:
Firm: SL Environmental Law Group, P.C.
175 Chestnut Street
San Francisco, CA 94133
ATTN: Alexander Leff
City: City of Pomona
505 S. Garey Ave.
Pomona, CA 91766
ATTN: Chris Diggs
Such notice shall be deemed made when personally delivered or when mailed, forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
3.8.4 Ownership of Materials and Confidentiality.
3.8.4.1 Documents & Data; Licensing of Intellectual Property .
This Agreement creates a non -exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or -12- PROFESSIONAL SERVICES
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works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by Firm under this Agreement ("Documents & Data"). All Documents & Data shall be and remain the property of City , and shall not be used in whole or in substantial part by Firm on other projects without the City’s express written permission. Within thirty (30) days following the completion, suspension, abandonment or termination of this Agreement, Firm shall provide to C ity reproducible copies of all Documents & Data, in a form and amount required by City. City reserves the right to select the method of document reproduction and to establish where the reproduction will be accomplished. The reproduction expense shall be borne by City at the actual cost of duplication. In the event of a dispute regarding the amount of compensation to which the Firm is entitled under the termination provisions of this Agreement, Firm shall provide all Documents & Data to City upon payment of the undisputed amount. Firm shall have no right to retain or fail to provide to City any such documents pending resolution of the dispute. In addition, Firm shall retain copies of all Documents & Data on file for a minimum of fifteen (15) years following completion of the Project, and shall make copies available to City upon the payment of actual reasonable duplication costs. Before destroying the Documents & Data following this retention period, Firm shall make a reasonable effort to notify City and provide City with the opportunity to obtain the documents.
3.8.4.2 Right to Use. City shall not be limited in any way in its use or reuse of the Documents and Data or any part of them at any time for purposes of this Project or another project, provided that any such use not within the purposes intended by this Agreement or on a project other than this Project without employing the services of Firm shall be at City’s sole risk. If City uses or reuses the Documents & Data on any project other than this Project, it shall remove the Firm ’s seal from the Documents & Data and indemnify and hold harmless Firm and its officers, directors, agents and employees from claims arising out of the negligent use or re -use of the Documents & Data on such other project. Firm shall be responsible and liable for its Documents & Data, pursuant to the terms of this Agreement, only with respect to the condition of the Documents & Data at the time they are provided to the City upon completion, suspension, abandonment or termination. Firm shall not be responsible or liable for any revisions to the Documents & Data made by any party other than Firm, a party for whom the Firm is legally responsible or liable, or anyone approved by the Firm.
3.8.4.3 Indemnification. Firm shall defend, indemnify and hold the City, its directors, officials, officers, employees, volunteers and agents free and harmless, pursuant to the indemnification provisions of this Agreement, for any alleged infringement of any patent, copyright, trade s ecret, trade name, trademark, or any other proprietary right of any person or entity in consequence of the use on the Project by City of the Documents & Data, including any method, process, product, or concept specified or depicted.
3.8.4.4 Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, -13- PROFESSIONAL SERVICES
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written information, and other Documents & Data either created by or provided to Firm in connection with the performance of this Agreement shall be held confidential by Firm .
Such materials shall not, without the prior written consent of City, be used by Firm for any purposes other than the performance of the Services. Nor shall such materials be disclosed to any person or entity not connected with the performance of the Services or the Project.
Nothing furnished to Firm which is otherwise known to Firm or is generally known, or has become known, to the related industry shall be deemed confidential. Firm shall not use City's name or insig nia, photographs of the Project, or any publi city pertaining to the Services or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
3.8.4.5 Confidential Information . The City shall refrain from releasing Firm’s proprietary information ("Proprietary Information") unless the City's legal counsel determines that the release of the Proprietary Information is required by the California Public Records Act or other applicab le state or federal law, or order of a court of competent jurisdiction, in which case the City shall notify Firm of its intention to release Proprietary Information. Firm shall have five (5) working days after receipt of the release notice to give City written notice of Firm ' objection to the City's release of Proprietary Information. Firm shall indemnify, defend and hold harmless the City , and its officers, directors, employees, and agents from and against all liability, loss, cost or expense (including attorney’s fees) arising out of a legal action brought to compel the release of Proprietary Information. City shall not release the Proprietary Information after receipt of an objection notice unless either: (1) Firm fails to fully indemnify, defend (with City 's choice of legal counsel), and hold City harmless from any legal action brought to compel such release; and/or (2) a final and non- appealable order by a court of competent jurisdiction requires that City release such information.
3.8.5 Cooperation; Further Acts . The Parties shall fully cooperate with one another, and shall take any additional acts or sign any additional documents as may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.8.6 Entire Agreement. This Agreement contains the entire a greement of the P arties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements.
3.8.7 Attorneys’ Fees. If either party commences an action against the other party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys’ fees and all costs of such action.
3.8.8 Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in Los Angeles County. In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra work, disputed work, claims and/or changed conditions, Firm must comply with the claim procedures set forth in Government Code sections 900 et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based -14- PROFESSIONAL SERVICES
AGREEMENT
upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra work, disputed work, claims , and/or changed conditions have been followed by Firm. If no such Government Code claim is submitted, or if any prerequisite contractual requirements are not otherwise satisfied as specified herein, Firm shall be barred from bringing and maintaining a valid lawsuit against the City.
3.8.9 Time of Essence. Time is of the essence for each and every provision of this Agreement.
3.8.10 City's Right to Employ Other Firms. City reserves right to employ other Firms in connection with this Project.
3.8.11 Successors and Assigns. This Agreement shall be binding on the successors and assigns of the parties.
3.8.12 Assignment or Transfer . Firm shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Firm shall not subcontract any portion of the Services required by t his Agreement, except as expressly stated herein, without prior written approval of City .
Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement.
3.8.13 Construction; References; Captions . Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or peri od for performance shall be deemed calendar days and not work days. All references to Firm include all personnel, employees, agents, of Firm, except as otherwise specified in this Agreement. All references to City include its elected officials, officers, employees, agents, and volunteers except as otherwise specified in this Agreement. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement.
3.8.14 Amendment; Modification . No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by both Parties.
3.8.15 Waiver. No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
3.8.16 No Third- Party Beneficiaries. There are no intended third party beneficiaries of any right or obligation assumed by the Parties. -15- PROFESSIONAL SERVICES
AGREEMENT
3.8.17 Invalidity; Severability. If any portion of this Agreement is declared invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
3.8.18 Prohibited Interests. Firm maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Firm, to solicit or secure this Agreement. Firm warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Firm, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Firm further agrees to file, or shall cause its employees to file, a Statement of Economic Interest with the City’s Filing Officer as required under state law in the performance of the Services.
For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City , shall have any d irect interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.8.19 Authority to Enter Agreement. Firm has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party.
3.8.20 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original.
3.8.21 Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination.
[SIGNATURES ON NEXT PAGE]
-16- PROFESSIONAL SERVICES
AGREEMENT
SIGNATURE PAGE TO PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF POMONA AND
FIRM
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.
CITY OF POMONA SL ENVIRONMENTAL LAW GROUP PC
By:
Its:
Printed Name:
By:
Its:
Printed Name:
Approved By:
Anita Gutierrez
City Manager
Approved as to Form:
_____________________________________
Best Best & Krieger LLP
City Attorney
Attested By:
City Clerk
EXHIBIT "A"
SCOPE OF SERVICES
I. INVESTIGATION AND ASSESSMENT OF POTENTIAL CLAIMS
A. Pre-Litigation Scope of Services.
1. Contaminants. The CITY has detected the presence of certain TCP compounds (the “Contaminants” or “Contamination”) during testing of groundwater wells. The engineering, construction, operation and maintenance of systems to treat contamination in affected wells will likely result in significant financial costs to the CITY.
2. Investigation. The CITY has retained the Firm to assist it in investigating the presence of the Contaminants throughout its systems and potential sources of the Contamination, evaluating the potential to recover the costs associated with the Contamination, providing legal advice associated with potential causes of action that could be asserted against responsible parties, and representing the CITY in any Legal Action against parties potentially responsible for the Contamination.
B. Pre-Litigation Costs and Fees.
1. The CITY. All pre-litigation costs associated with water sampling, laboratory testing and engineering expenses incurred in the ordinary course of operations shall be paid directly by the CITY.
2. The Firm. All costs and fees incurred by the Firm during any pre- litigation investigation shall be paid directly by the Firm.
3. Recovery of Pre-Litigation Costs and Fees. Nothing contained herein should be interpreted to preclude seeking recovery of such fees and costs incurred by any Party as part of any Legal Action that may be filed pursuant to this Agreement. In addition, if the Firm file any Legal Action, the Firm may use the time incurred for any investigation contemplated herein to support the reasonableness of this Agreement.
II. LITIGATION SERVICES
A. Litigation Services To Be Provided.
1. Inclusions. It is the intent of the Parties that the Firm shall represent the CITY in a one or more civil actions for damages in the United States District Court as well as in any proceeding by writ or appeal related to that action. The legal services to be provided by the Firm consist of representation of the CITY with respect to:
a. The contamination of drinking water supplies by the
Contaminants or other contaminants identified during the investigation stage described in Section II of this Agreement, as approved by the CITY and the Firm.
b. Claims and/or actions for damages sustained by the CITY as a result of, among other things, actual or threatened conduct relating to contamination of groundwater, the loss of use of groundwater, the impairment of water rights, the replacement of drinking water supplies, and any past, present, and future costs incurred to construct and maintain systems that can remove the Contaminants from drinking water, groundwater and/or soil, and any related appeals in such actions.
2. Retention; Filing of Legal Action. The filing of any Legal Actionpursuant to this Agreement shall be at the discretion of the Parties. Nothing in this Agreement shall be construed as obligating the CITY to retain the Firm in connection with any Legal Action or obligating the Firm to file a Legal Action or any appeal on behalf of the CITY.
B. Legal Services Specifically Excluded.
1. Exclusions. Legal services that are not to be provided by the Firm under this Agreement specifically include, but are not limited to, the following:
a. Proceedings before any administrative or governmental agency, department or board, including, but not limited to the California Attorney General, the California Public Utilities Commission, California Department of Water Resources, California Department of Toxic Substances Control, any Regional Water Quality Control Board and/or the California State Water Resources Control Board.
However, at the City’s request, the Firm (via relevant designees) shall endeavor to appear at such administrative proceedings to assist legal counsel for the CITY in resolving administrative matters with the potential to affect, adversely or beneficially, the City’s prospects of recovery in the Legal Action. Such assistance will be provided by the Firm without the CITY being assessed any additional attorneys’ fees in connection with such appearance.
b. Defending any legal action(s) against the CITY
commenced by any person, with the exception of any cross-complaints, counterclaims, or other third-party claims filed in or arising from the Legal Action initiated pursuant to this Agreement.
c. Defending any claim against the CITY for unreasonable use of water and/or waste of water.
d. Defending any action concerning water rights.
2. Additional Legal Services. If the CITY wishes to retain the Firm to provide any legal services for additional compensation not provided under this Agreement, a separate written agreement between the Firm, the CITY shall be required.
EXHIBIT "B"
ATTORNEY FEES
I. ATTORNEYS’ FEES
A. Contingent Fee.
1. The amount the Firm shall receive as fee for the legal services provided under this Agreement shall consist of a contingent fee (“Contingent Fee”), which shall be calculated as follow:
a. Thirty-two and one half percent (32.5%) of the Net
Recovery if obtained before the commencement of the deposition of any retained expert following formal exchange of expert witness designations under the Code of Civil Procedure and/or the Federal Rules of Civil Procedure; or b. Thirty-five percent (35%) of the Net Recovery if obtained after the commencement of the deposition of any expert, retained by any party, following such formal exchange of expert witness designations. Firm shall provide the City with reasonable notice of the date on which formal exchange shall be required in the case.
B. Definitions Relevant to Attorneys’ Fees.
1. “Gross Recovery” means the total value received by the CITY of all Cash Recoveries plus Non-Cash Recoveries, whether awarded by Settlement or Final Judgment.
2. “Net Recovery” means the total value received by the CITY after the payment of attorney fees and costs.
3. “Costs” include, but are not limited to, court filing fees, deposition costs, expert fees and expenses, investigation costs, reasonable travel and hotel expenses, messenger service fees, photocopying expenses, and process server fees. Items that are not to be considered Costs, and that must be paid by the CITY without being either advanced or contributed to by the Firm, include the City’s expenses incurred in providing information to the Firm or defendants or as part of investigation(s).
4. “Final Judgment” means any final, non-appealable court order or judgment terminating any Legal Action filed pursuant to this Agreement and finally determining the rights of any parties to the Legal Action where no issue is left for future consideration or appeal.
5. “Settlement” refers to any voluntary agreement executed by the CITY and any third party to this Agreement, whether resulting from a settlement conference, mediation, or court stipulation, terminating any Legal Action filed pursuant to this Agreement and finally determining the rights of parties to the Legal Action where no issue is left for future consideration or appeal.
6. “Cash Recovery” means, without limitation, the total monetary amount received by the CITY in a Settlement or Final Judgment arising from an -5-
actual or threatened Legal Action by the Firm pursuant to this Agreement, including interest of any kind received by the CITY. “Cash Recovery” does not include any Sanctions (as defined below) or civil penalties that may be awarded under the Unfair Competition Law Business and Professions Code section 17200 et seq (“UCL”), or the False Advertising Law (“FAL”).
7. “Non-Cash Recovery” means, without limitation, the fair market value of any property delivered to the CITY, any services rendered for the City’s benefit, and any other non-cash benefit, including but not limited to the construction, operation, and maintenance of one or more water treatment facilities; delivery of replacement water; modification, alteration, construction or operation of well(s) and/or any part of a public or private water system; or any other types of injunctive and/or equitable relief conferred on the CITY, in a Settlement or Final Judgment of an actual or threatened Legal Action by the Firm pursuant to this Agreement.
8. “Present Value” means the interest rate of the one-year treasury bill as reported by the United States Federal Reserve in the weekly Federal Reserve Statistical Release closest in time to the date of the recovery for which the present value is being calculated.
9. “Sanctions” means a monetary award or the settlement of a monetary award arising from the discovery abuse or other misconduct of a defendant or a defendant’s attorneys in the Litigation, such a frivolous motions, objections or defenses, or other discovery abuses.
10. “Reasonable Fees” or “Reasonable Attorney’s Fee” are defined in Section III(D)(1)(i). In the event that a court determines that this fee definition is unenforceable, reasonable fees will mean such fees as is reasonably determined by taking into account the amount of time spent on the Legal Action by the Firm and associate counsel retained by the Firm, the value of that time, the complexity of the Legal Action, the benefit conferred on the CITY, and the financial risk to the Firm and associate counsel by their agreeing to represent the CITY in the Legal Action and to invest time and advance Costs without compensation or reimbursement in the event that there is no Gross Recovery or a Recovery that does not fully compensate or reimburse the Firm and associate counsel for their time and advanced Costs.
C. Calculation of Non-Cash Recovery.
1. For any Non-Cash Recovery resulting in the receipt of property, the provision of services, or the receipt of other non-monetary benefits by the City, such property, services, or other non-monetary benefits shall be deemed for purposes of this Agreement to have been received by the City upon the execution of a Settlement or Final Judgment. The value of the services shall be discounted to Present Value.
2. If any Non-Cash Recovery is awarded in a Final Judgment, or before accepting any settlement offer that involves a Non-Cash Recovery, the City shall provide the Firm with its estimate of the value of the Non-Cash Recovery. The Firm shall promptly respond in writing, indicating whether the Firm accept said estimate. If the Firm object to the City’s estimate, the Parties shall proceed as set forth in Section III.G -6
(“Disagreements Concerning Value of Recoveries”). Nothing herein shall impede or restrict the City’s right to include a Non-Cash Recovery in any Settlement, nor the Firm’ right to receive a Non-Cash Recovery.
D. Distribution Of Proceeds. The receipt of any Gross Recovery or portion thereof on behalf of the CITY shall be received into the Firm IOLTA accounts. Once cleared, payment(s) of the Contingent Fee owed to the Firm in accordance with Agreement shall be made no later than seven (7) days after receipt by the CITY of any Gross Recovery.
In the event that there is a Final Judgment of all claims against all defendants and payment has been received by the CITY, except there remains in dispute and Final Judgment has not been obtained on a claim for court-awarded costs or attorneys’ fees against the defendants, the CITY will make payment of the Contingent Fee to the Firm based on the Gross Recovery then paid by the defendants and received by the CITY. In this scenario, the Firm will continue the litigation on behalf of the CITY on the remaining issues of court-awarded costs or attorneys’ fees, and the CITY shall not be obligated to make any additional payment to the Firm based on any award of costs or fees ultimately made. Any court-awarded costs or attorneys’ fees, including any costs or fees arising out of any court-imposed sanctions, received by the Firm as part of the Legal Action shall not be treated as part of the Gross Recovery, but shall, in the case of costs, be credited against corresponding costs incurred by the Firm on the City’s behalf, or, in the case of fees, credited against the Contingent Fee.
E. Reasonable Fee If Contingent Fee Unenforceable.
1. Reasonable Fee. In the event of a Final Judgment finding that the Contingent Fee portion of this Agreement is unenforceable for any reason or that the Firm cannot represent the CITY on a Contingent Fee basis, the CITY shall, after a good faith meet and confer process, pay the Firm a reasonable fee for the services rendered.
2. Fee Determination. The Parties shall use best efforts to negotiate a reasonable fee. If the Parties fail to do so, said fee shall be determined by arbitration proceedings before a mutually agreeable arbitration service, but absent such agreement, before the Judicial Arbitration and Mediation Services (JAMS), with any costs of such proceedings born by the CITY and the Firm.
F. Disagreements Concerning Value of Recoveries.
1. Procedure. In the event the Parties disagree with respect to the value of any Contingent Fee, Net Recovery, C ash or Non -Cash Recovery, Costs (collectively, “Disputed Recoveries”) or settlement offer, and the Parties cannot resolve the disagreement through good faith negotiations, the Parties shall proceed as follows:
a. Each party shall select an appraiser qualified to conduct an appraisal of the value of the Disputed Recoveries or settlement offer within five (5) days of any written notice to the other party advising of a bona fide dispute that cannot be resolved by negotiations.
b. Each party’s selected appraiser shall then confer and select a third qualified appraiser within five (5) days of said conference, and the third appraiser shall
-7-
determine the value of the Disputed Recoveries or settlement offer. c. The third party appraiser shall conduct an appraisal, and the valuation of any Disputed Recoveries or settlement offer shall be final and binding, subject to appeal by arbitration in the case of Disputed Recoveries as provided in Section VI.I (“Arbitration of Disputes”).
2. Expenses. The CITY and the Firm shall each bear the expense of their own selected appraiser, and the CITY and the Firm shall each pay one-half of the expenses of the third appraiser.
G. Negotiated Fee.
1. The CITY is informed that the Attorneys’ Fees provided for herein are not set by law but rather are negotiable between the Firm, the CITY and their respective counsel.
H. Division of Attorneys’ Fees.
1. Division of Fees; Disclosure. The Firm may divide the fees and/or costs to which it is entitled under this Agreement with another attorney or law firm retained as associate counsel. The terms of such additional division, if any, shall be disclosed to the CITY. The CITY is informed that, under the Rules of Professional Conduct of the State Bar of California, such a division may be made only with the City’s written consent after a full disclosure to the CITY in writing that a division of fees shall be made and of the terms of such division. The division of fees among the Firm will be provided by a separate document to the CITY.
I. Retention of Associate Counsel.
1. The Firm may retain associate counsel to assist with litigating a Legal Action pursuant to this Agreement. The attorney or law firm selected by the Firm shall be subject to the City’s approval.
J. Costs.
1. Costs Advanced by the Firm. Interest. The Firm shall advance all Costs incurred in connection with the Firm’ representation of the CITY under this Agreement. Interest at the rate of fourth and three-quarters percent (4.75%) per year shall accrue on all Costs advanced by SL Environmental, from the date of each advance to the date of reimbursement. Costs shall be advanced by the Firm and then paid by the CITY from any Gross Recovery, subject to the limitations and allocation of cost methodology described in Section E. The Firm shall notify the CITY of the total amount of Costs advanced upon request.
2. Apportionment of Costs. The CITY acknowledges and agrees that Costs may include expenses that benefit both the CITY and other clients of the Firm who are investigating or litigating claims similar to those brought on behalf of the CITY in the Legal Action, including but not limited to the expenses of taking discovery, conducting investigations, and hiring expert witnesses. The expenses that benefit both the CITY and
other clients will be allocated among cases pending at the time of settlement or judgment that have not yet received final judgment such that the CITY is responsible for only that the portion of such expenses reasonably attributable to the expenses of conducting the Legal Action on behalf of the CITY, and only that portion attributable to CITY shall be treated as Costs in the event of a Net Recovery.
3. Reimbursement; Risk of Loss. The Firm shall be reimbursed for any Costs that are the responsibility of the CITY before any distribution to the CITY. If there is no Cash Recovery or the Gross Recovery is insufficient to reimburse the Firm in full for the Costs advance, the Firm shall bear the loss for any Costs not reimbursed under this Agreement.
4. Defense of Attorneys’ Fees and Costs to Third Party.
Notwithstanding any provision of this Agreement to the contrary, the Firm shall defend the CITY in any motion seeking an award of Attorneys’ Fees or costs against the CITY in any Legal Action brought under this Agreement. Any costs incurred in such defense shall be treated as Costs for purposes of, and in the manner provided by, this Agreement.