LEGAL SERVICES AGREEMENT WITH
GOLDFARB &LIPMAN LLP
ThisAGREEMENT ismadeand entered intoon this21stday ofNovember,2023, by and between Goldfarb & Lipman LLP ("Attorneys"), and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the constitution and laws of the State of California ("City").
RECITALS
A. The City of Santa Ana and the City Attorney desires to employ Attorneys to assist the in house attorneys for the City ("City Attorney") in the provision of legal services to theCity.
B. Attorneys represent that they are licensed to practice law in the State of California, have special experience and knowledge in the field of municipal advisory and litigation, specifically litigation regarding housing, affordable housing, land use, fair housing, rent stabilization,realproperty,and real estatedevelopment.
NOW THEREFORE, in consideration of the mutual and respectivepromises, and subject to the terms and conditions hereinafter set forth, theparties agree·as follows:
l. RETENTION OF ATTORNEYS On an as-needed basis, and at the sole discretion of the City, Cityhereby agrees to and does retain Attorneys, for the compensation hereinafter specified, to assist the City Attorney with municipal advisory and litigation, specifically litigation regarding housing, affordable housing, land use, fair housing, rent stabilization, real property and real estate development. Attorneysaccept saidretention and agreetoperform,inatimelyand efficientmanner, all such services as mayberequestedby the CityAttorney. Attorneys shallconfirm their acceptance of work requestedby City inwritingby e-mail or letter.
2. COMPENSATION FOR SERVICESRENDERED
a. Cityagrees tocompensateAttorneys,andAttorneysagreetoaccept from City,as and for payment infullfor allservices for the foregoing services,Partnerswillbebilled atthehourlyrate of $350.00 - $365.00 for Partner, $345.00 - $365.00 for Senior Counsel, $210.00 - $345.00 for Associate, $195.00 for Senior Law Clerk, $180.00 for Law Clerk, $210.00 for Litigation Project Coordinator,and$180.00forProjectCoordinator.Timewillbebilledin 1/10thofanhourincrements. b. The total sum to be expended under this Agreement for attorney's fees and out of pocketexpenses,shallnot exceed fivehundred thousand dollars($500,000), including any extension period.
c. City agrees to reimburse Attorneys for out-of-pocket expenses, including but not limited to, mileage, copying costs, service of process, and mail services authorized by the City Attorney in connection with the performance of duties under this Agreement. In-house printing, copying,and reproduction charges willbe reimbursed at therateof 20 centsperpage. The City will not reimburse Attorneys for Lexis, Westlaw or other paid legal research subscription services for ordinary legal research. However, the City will reimburse Attorneys for extraordinary legal
research costs related to a complex legal matter or assignment, if pre-approved in writing by the CityAttorney. TheCitywill not reimburseAttorneysfor ordinarydocumentmanagementsystems used for discoverypurposes unless such technology is deemed necessaryby theCityAttorney and if pre-approved in writing by City Attorney. Attorneys agree to directly pay for vendors, consultants, or experts, and then seek reimbursement from the City. Attorneys agree to seek authorization from City Attorney before retaining experts and consultants. Automobile travel will be reimbursed at the standard mileage rate in effect at the time of billing by the Internal Revenue Service.Anycostsin excess of $5,000 requireCity Attorneyapprovalprior to incurring the expense.
All expensesmust have supporting documentation submitted with theinvoice.
3. METHOD OF PAYMENT Attorneys shall submit a monthly statement specifying the servicesperformed,dates andnumber of hours,andan itemization of expenses related theretowith supporting documentation (i.e.receipts, invoices, copy of check, etc.). City acknowledges that the fees incurred for work performed by Attorneys on its behalf are due and owing within 30 days of the work being performed. At Attorneys' discretion, they may choose to defer payment.
Notwithstanding this, City agrees that it shall tender payment within 30 days of written demand by Attorneys for payment. Unless expressly stated thereon, monthly statements generated by Attorneys shall not constitute written demand, but shall simply be a written reflection of work performed and fees incurred.
4. CONTROL OF LEGAL MATTERS Attorneys agree that each and every matter or proceeding in which they undertake to assist the City Attorney, as aforesaid, shall be and remain under, and subject to the control and direction of said City Attorney at all stages, and that they shall atalltimeskeeptheCityAttorneyinformedofallmatterspertainingthereto. CitywillkeepAttorneys informed of all significant developments in matters relating to any representation undertaken by Attorneys. Attorneys further agree, if and when their retention hereunder is terminated by City, as hereinafter specified, they shall return to City Attorney any and all files then in their possession concerning each and every matt er or proceedingin which they represented the City pursuant to this Agreement.
5. REPORTINGREQUIREMENTS
a. Attorneys agree to keep the City Attorney, and any otherperson(s) designated by the CityAttorney,informed of significanteventsin theActions,including butnot limited to trial/hearing date, party deposition dates, filing of motions for summaryjudgment or other significantmotions, hearing date for motion for summary judgment or other significant motions, settlement conference date, andmediation date. b. For litigated matters,Attorneysalso agree to provide the following reports:
1) 45 day initial evaluation of case and budget;
2) Periodic status updates re important depositions, expert witness designation, expertwitness depositions,pertinent discovery issues; and 3) Pre-trialreport 90 daysbeforetrial.
2 c. For advisory matters, Attorneys shall provide periodic status updates not less than every 30 days and more often if, in the Attorney's professional experience it is necessary.
6. TERM The term of this Agreement shall commence on the date first written above and terminate on November 20, 2026, unless terminated earlier pursuant to Section 15 below. The term of this Agreement may be extended for up to one (1) year upon a writing executed by both parties, including the City Manager and the City Attorney.
7. INDEPENDENT CONTRACTORS It is mutually agreed by and between the parties that, intheperformance of theircovenantshereunder,Attorneys areand shallbe independent contractors, andnot officers or employees of City.
8. INSURANCE Attorneys shall procure and maintain for the duration of the contract insurance against claims forinjuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder and the results of that work by the Attorneys, its agents, representatives, employees or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
• Professional Liability applicable to the work being performed, with a limit no less than $1,000,000 per claim or occurrence and $2,000,000 aggregate per policy period of one year.
Ifthe Attorneysmaintain broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the Attorneys. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shallbe available to the City.
OtherInsurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
AdditionalInsuredStatus
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Attorneys including materials, parts, or equipment furnished in connectionwith such work or operations. General liability coverage can be provided in the form of an endorsement to theAttorneys' insurance (at least as broad as ISO Form CG 20 10 11 85 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if alater edition is used).
Primary Coverage
For any claims related to this contract, the Attorneys' insurance coverage shall be primary coverage at least as broad as ISO CG 20 O1 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, 3 officials, employees, or volunteers shall be excess of the Attorneys' msurance and shall not contribute with it.
Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
Waiverof Subrogation
Attorneys hereby grant to City a waiver of any right to subrogation which any insurer of said Attorneys may acquire against the City by virtue of thepayment of any loss under such insurance.
Attorneys agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer.
Self-InsuredRetentions
Self-insured retentions must be declared to and approved by the City. The City may require the Attorneystopurchase coveragewith alower retention or provideproof of ability to pay losses and related investigations,claim administration, and defense expenses within the retention.Thepolicy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either thenamed insured or City.
Acceptabilityof Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
Claims MadePolicies
If any of the required policiesprovide coverage on aclaims-made basis:
1.TheRetroactiveDatemustbeshown andmustbebeforethedateof thecontractor thebeginning of contract work.
2. Insurance must be maintained and evidence of insurance must be providedfor at leastfive (5) years after completion of the contract of work.
3. Ifcoverageis canceled or non-renewed, and not replaced with another claims-madepolicyform withaRetroactiveDateprior to thecontract effectivedate,theAttorneysmust purchase "extended reporting" coverage for a minimum offive (5) years after completion of contract work.
Verification of Coverage
Attorneys shall furnish the City with original Certificates of Insurance including all required amendatoryendorsements (or copies of the applicablepolicy languageeffecting coverage required by this clause) and acopy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documentsprior to theworkbeginningshallnotwaive theAttorneys' obligation toprovidethem.
TheCityreservestherighttorequirecomplete,certifiedcopies of all required insurancepolicies, including endorsements required by these specifications, at any time. 4 SpecialRisks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
9. INDEMNIFICATION Attorneys agree to and shall indemnify and hold harml ess the City, its officers, agents, employees, and representatives from liability for personal injury, damages, restitution, judicial or equitable relief to the extent caused by Attorneys' negligent or wrongful perfonnance or conduct related to this Agreement.
1O. CONFIDENTIALITY All information and documents shared with Attorneys as well as all work perfonned by Attorneys in connection with this Agreement should be treated as strictly confidential. Moreover, all communications between Attorneys and City shall be treated as protected by the attorney-client privilege and the attorney work product doctrine. Accordingly, information received by Attorneys from City should bekept ina secureplace, and no informa tion about this work may be disclosed to any third party without City's prior written approval.
Attorneys shall provide materials directly to the City Attorney, Sonia Carvalho, or selected members of her office, as directed by the City Attorney. All such information and any written product in connection with Attorneys' retention under this Agreement, shall be marked as P RIVILEGED AND CONFIDENTIAL I ATTORNEY-WORK PRODUCT" and shall be the property of the City Attorney's Office, and shall be returned/provided to the Office of the City Attorneywith all copies upon therequest of the CityAttorney. Confidential information disclosed to eitherpartyby anysubsidiary and/or agent of the otherpartyis covered by thisAgreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed inpublicly available sources; (b) is, through no fault of the Attorneys, disclosed in a publicly available source; (c) is in rightful possession of the Attorneys without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Attorneys without reference to information disclosed by the City.
11. CONFLICT OFINTEREST CLAUSE Attorneyscovenant that itpresentlyhasno interests and shallnot have interests, direct or indirect, that would conflict in any manner withperformance of services specified under this Agreement.
12. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered inperson or mailed by first class or certified mail, postage prepaid, or sent by facsimile or other telegraphic communication in the manner provided in this Section, to the following persons:
To City: City Clerk
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, California 92702-1988
Facsimile (714) 647-6956
5 Courtesy Copy:
To Attorneys:
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
Facsimile (714) 647-6515
Goldfarb &Lipman LLP
Attn: Karen M. Tiedemann, Partner
1300 Clay Street, Eleventh Floor
CityCenter Plaza
Oakland, CA 94612
A party may change its address by giving notice inwriting to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by facsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposesof calculating these time frames,weekends, federal, state,County or City holidays shall be excluded.
13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statementbetween theCity and Attorneys, and supersedes any and all other agreements, oral or written,between theparties. Inthe event of aconflictbetween the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Attorneys. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Attorneys or the City. Each party to this Agreement acknowledges that no representations, inducements,promises or agreements,orally or otherwise,havebeenmadebyany party, or anyone acting on behalf of any parties, which arenot embodied herein.
14. ASSIGNMENT Inasmuch as thisAgreementis intended tosecurethespecialized services of Attorneys, Attorneys may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject of this Agreement performed by City personnel or by other Attorneys retainedby City.
15. TERMINATION This Agreement may be terminated by City at any time. Insuch event, Attorneys shall be entitled to receive and the City shall pay Attorneys compensation for all services performedbyAttorneyspriortoreceiptofsuchnoticeoftermi nation. Asaconditionofsuchpayment, Attorneys shall deliver to the City all files and records generated under this Agreement as of such date.
6 Attorneys may terminate this agreement, subject to their obligation to provide written reasonable notice of at least thirty (30) days to arrange alternative representation. In such case, City agrees to securenewcounselasquicklyaspossibleandtocooperatefullyin thesubstitution of thenewcounsel as counsel of record inintheActions.
16. NON-DISCRIMINATION Attorneys shall not discriminate because of race, color,creed, religion,sex,maritalstatus,sexualorientation,genderidentity,gender expression,gender,medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training,utilization, promotion, termination or other employment related activities or any services providedunder this Agreement.Attorneys affirmthat it is an equalopportunity employer and shall comply with all applicable federal, state and local laws and regu lations.
17. JURISDICTION- VENUE This Agreement hasbeen executed and delivered in the State of California and the validity, interpretation, perfonnance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of Califomia. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of,in connection with or by reason of this Agreement.
18. MISCELLANEOUS PROVISIONS Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of thetermsof thisAgreement,andshallindemnifyCityfully, including reasonable costsand attorney's fees, for any injuries or damages to City inthe event that such authority or power isnot, infact,held by the signatory or is withdrawn.
19. COUNTERPARTS; SIGNATURES This Agreement may be executed in counterparts, secured via facsimile transmission or otherwise, each of which shall be deemed to be an original.
Photocopies of any executed counterpart shall have the same force and effect as an original. City further acknowledges that it has read and received a copy the full text Section 6148 of the California Business and Professions Code prior to signing this Agreement.
20. NO GUARANTEES City understands and acknowledges that there are certain risks and uncertainties in the pursuit of any matter for which Attorneys have been retained, that law is not a n exact science, that Attorneys have made no representations or guarantees of success regarding the conclusion of any particular matter, and that all expressions relative thereto are matters of Attorneys' opinion only. In other words, Attorneys make no representations or guarantees of success regarding any matter.
[signaturepage to follow]
7 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first abovewritten.
I
1 ATTEST:
Jennifer L.Hall
City Clerk
APPROVED ASTOFORM:
SONIAR.CARVALHO
C ityAttorney
o,da»a. Ak.AsiniLaura A.Rossini
Chief AssistantCityAttorney
8 CITY OF SANTAANA
StevenMendoza
Acting City Manager
GOLDFARB &LIPMAN, LLP
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