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LEGAL SERVICES AGREEMENT BETWEEN
THE CITY OF SUNNYVALE AND
ATKINSON, ANDELSON, LOYA, RUUD & ROMO
(Michael Laurent v. City of Sunnyvale, Santa Clara County Superior Court Case No 19CV355846)
THIS AGREEMENT, dated July ___, 2023, is by and between the CITY OF SUNNYVALE, a California chartered municipal corporation (“City”), and ATKINSON, ANDELSON, LOYA, RUUD & ROMO, a California limited liability partnership engaged in the practice of law in California, hereinafter referred to as “Outside Counsel.” WHEREAS, the City acting through its City Attorney pursuant to Section 908 of the Sunnyvale City Charter desires to retain the services of Outside Counsel to assist the City Attorney with advice and representation in the matter of Michael Laurent v. City of Sunnyvale, Santa Clara County Superior Court Case No 19CV355846; and WHEREAS, in reliance upon Outside Counsel’s representations regarding its qualifications, the City finds that Outside Counsel has demonstrated the requisite qualifications, experience, training and expertise to perform the requested services.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS SET FORTH HEREIN, THE PARTIES AGREE AS FOLLOWS:
1.0. SCOPE OF SERVICES. Outside Counsel will assist the City Attorney with advice and representation in the defense of the City in the case of Michael Laurent v. City of Sunnyvale, Santa Clara County Superior Court Case No 19CV355846 , in accordance with the terms and conditions contained in this Agreement.
1.1 Outside Counsel Representative. Jenica D. Maldonado, Partner, shall be responsible for the performance of services hereunder, shall personally handle all matters except as expressly authorized by the City Attorney, and shall supervise any services performed by other members or employees of Outside Counsel. Throughout the course of this Agreement and while performing services hereunder, Outside Counsel shall perform such services as an independent contractor. Outside Counsel is not an officer, agent or employee of the City.
1.2 City’s Authorized Representative. For the performance of services under this Agreement, Outside Counsel shall take direction from the City Attorney John Nagel and Anais Martinez Aquino, Assistant City Attorney, unless otherwise designated in writing by the City Attorney.
2.0. TIME OF PERFORMANCE. The term of this Agreement shall be for a period of three years, commencing June 23, 2023, and ending June 24, 2026.
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3.0 COMPENSATION, REIMBURSEMENT AND METHOD OF PAYMENTS.
3.1 Compensation. Fees for all legal services provided hereunder shall be charged in accordance with Exhibit “A” which is attached and incorporated by reference. The total amount of fees and expenses under this Agreement shall not exceed $150,000. Outside Counsel shall notify the City prior to incurring billable costs in excess of 95% of the not-to-exceed amount.
3.2 Reimbursement . In addition to billing for services based on the hourly rates set forth above, Outside Counsel is authorized to bill the City for reimbursement of its actual costs directly related to the services; provided that the total billing (for hourly services and reimbursable costs) shall not exceed the amount identified in Section 3.1, and provided that Outside Counsel either: (a) obtains the approval of the City Attorney prior to incurring the costs, or (b) the costs fall into one of the following categories:
(1) Travel expenses within the Bay Area.
(2) Court costs, such as filing fees.
(3) Service of process.
(4) Court reporter fees.
(5) Expert witnesses, consultants, or investigators.
(6) Copying costs, at $0.10 per page.
(7) Actual costs of mailing
Any other expense must be approved by City Attorney in writing and in advance in an approved budget. No compensation shall be allowed for expenses not itemized in an approved budget, including without limitation, word processing, normal or overflow secretarial time or overtime, computer-assisted research, or general or administrative overhead or premiums added to the direct cost of research support or other services.
3.3 City Attorney Approval Required. The City Attorney must approve in advance any single reimbursement item in excess of $500, including, but not limited to, investigators, copying and experts.
3.4 Expense Control. Outside Counsel shall use all available means, consistent with sound professional practices and the exercise of reasonable judgment, to limit and minimize expenses incurred during the performance of this Agreement. Unless specifically authorized by the City Attorney, Outside Counsel shall not bill the City for:
(1) More than one attorney attending a meeting or other proceeding. (2) Internal administrative costs such as secretarial services, word processing, local telephone service, computer assisted research, or general overhead. (3) Travel expenses outside the Bay Area.
(4) An annual audit letter (if requested by the City or its auditor).
3.5 Method of Billing. Outside Counsel shall provide monthly bills in the form specified herein. Outside Counsel shall endeavor to provide monthly invoices no later than 30 days after the end of each billing cycle (i.e., all services identified on the invoice were performed Attachment 1
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no more than 60 days prior to the date the City received the invoice). The City shall have no obligation to pay Outside Counsel for services to the extent performed more than 90 days prior to the date the City receives the invoice for the services. Each bill shall have a cover page summary indicating category totals. Unless otherwise agreed, the following information must be provided in monthly bills in detail:
A. A detailed description of work, in time increments of .1 hours (one tenth of an hour) for and by each and every individual billing services.
B. Identification of the lawyer who is in charge of the matter.
C. Reasonably detailed disbursement breakdowns.
D. Each billing item will be separately stated on a separate line identifying the attorney, the time spent and the exact nature of the service rendered.
E. When charges are made for conferences, the specific reason for each conference will be stated. Conferences between attorneys shall be justified in detail.
F. When charges are made for research time, the specific issue being researched and the need for the research will be identified. The City has retained Outside Counsel for its expertise, and therefore expects not to be billed for introductory or background research.
G. The City expects the attorney assigned to the project to handle all significant matters. The City Attorney must approve in advance the assignment of other attorneys to the project. The City may request that the assigned work be instead handled by the primary attorney. Only those attorneys approved by the City may bill on the project.
3.6 Timing of Payment. The City shall pay Outside Counsel for services rendered and costs incurred hereunder, at the rates and in the amounts provided hereunder, on a periodic basis in accordance with the periodic statements, as approved by the City Attorney.
4.0 ENGAGEMENT OF OTHER COUNSEL, SPECIALISTS OR EXPERTS. Outside Counsel will not engage or otherwise incur an obligation to pay other counsel, specialists or experts for services in connection with this Agreement without the prior approval of the City Attorney.
5.0 TERMINATION OF AGREEMENT AND LEGAL SERVICES. The City shall have the right, at any time in its best judgment, with or without reason, to terminate this Agreement, and to obtain new Outside Counsel, or take such other steps as City deems proper. In the event that this Agreement is so terminated, City shall pay to Outside Counsel the rates, fees and charges accrued for satisfactory work to the time of termination. City shall be entitled to electronic and written copies of files maintained concerning this representation and to the return of all documents submitted to Outside Counsel.
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6.0 INTEREST OF MEMBERS OF LOCAL PUBLIC AGENCY. No member of the governing body of the City, and no other officer, employee or agent of the City who exercises any discretion, function or responsibility in connection with the carrying out of any project to which this Agreement pertains, shall have any personal interest, direct or indirect, in this Agreement.
7.0 INTEREST OF COUNSEL. Outside Counsel agrees to secure the informed written consent of the City Attorney before accepting any representation adverse to the City (actual or apparent) during the term of this Agreement, and to forego such representation if the City Attorney, in his sole discretion, objects for any reason.
8.0 GENERAL PROCEDURES. Copies of pleadings, motions, orders, decisions, research memoranda, reports on significant developments and quarterly status reports shall be submitted to keep the City Attorney advised of any major developments in the lawsuit. In addition, draft of major pleadings or motions shall be submitted to the City Attorney for review at least three (3) days prior to the filing deadline. Regular mail should normally be sufficient. Transmissions by e- mail are preferred to faxes. E-mail address is [email protected].
9.0 CONFLICT OF INTEREST PROHIBITED. Outside Counsel (including its employees, members, officers and agents) shall not maintain or acquire any direct or indirect interest that conflicts with the performance of this Agreement. Outside Counsel shall comply with all requirements of the Political Reform Act (California Government Code sections 81000, et seq.) and other laws relating to conflicts of interest, including: (a) Outside Counsel shall not make or participate in a decision made by the City if it is reasonably foreseeable that the decision may have a material effect on Outside Counsel’s economic interest, and (b) if required by law, Outside Counsel shall file financial disclosure forms with the City Clerk. If Outside Counsel maintains or acquires a conflicting interest, any contract with the City (including this Agreement) involving Outside Counsel’s conflicting interest may be terminated by the City. Outside Counsel certifies that no member, officer or employee of Outside Counsel is an officer or employee of the City of Sunnyvale except to the extent permitted by law.
10.0 MAINTENANCE AND INSPECTION OF RECORDS.
10.1 Audits. The City and any other federal, state or local governmental agency, and any of their authorized auditors or representatives, including the City Auditor, shall have access to, and the right to audit and reproduce any of Outside Counsel’s records to the extent the City or such other governmental agency deems necessary to ensure that City is paying only the amounts to which Outside Counsel is properly entitled or for other purposes relating to the Agreement.
10.2 Records. Outside Counsel shall maintain and preserve all such records for at least three (3) years after termination of the Agreement or until an audit has been completed and accepted in writing by City. Upon written notice by the City, the Outside Counsel shall promptly make all such records available to auditors or other representatives of the City or other governmental agencies.
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11.0 CERTIFICATIONS AND LICENSES. Outside Counsel, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses including, but not limited to, a City Business License pursuant to Chapter 5.04 of the Sunnyvale Municipal Code, that may be required in connection with the performance of services under this agreement.
12.0 INSURANCE. Outside Counsel shall, at its own expense, procure and maintain policies of insurance of the types and in the amounts set forth below, for the duration of the Agreement, including any extensions thereto. The policies shall state that they afford primary coverage.
Failure to maintain required insurance at all times shall constitute a default and material breach.
In such event, Outside Counsel shall immediately notify City and cease all performance under this Agreement until further directed by the City.
12.1 Minimum Scope and Limits of Insurance. Outside Counsel shall maintain limits no less than:
A. General Liability. General Liability with minimum limits of at least $2,000,000 per occurrence and $4,000,000 aggregate combined single limits written on an Insurance Services Office (ISO) Comprehensive General Liability “occurrence” form or its equivalent for coverage on an occurrence basis.
Premises/Operations and Personal Injury coverage is required. The policy shall contain, or be endorsed to contain, the following provisions:
1. The City of Sunnyvale, its officials, employees, agents and volunteers are to be covered as additional insureds with respects to liability arising out of activities performed by or on behalf of Outside Counsel; products and completed operations of Outside Counsel; premises owned, occupied or used by the Outside Counsel; or automobiles owned, leased, hired or borrowed by Outside Counsel. The coverage shall contain no special limitations on the scope of protection afforded to the City of Sunnyvale, its officers, employees, agents or volunteers.
2. For any claims related to this project, Outside Counsel’s insurance shall be primary. Any insurance or self-insurance maintained by the City of Sunnyvale, its officers, officials, employees, agents and volunteers shall be excess of Outside Counsel’s insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City of Sunnyvale, its officers, officials, employees, agents or volunteers.
4. Outside Counsel’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
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5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City of Sunnyvale.
B. Professional Liability. Professional errors and omissions coverage in a sum of at least $2,000,000. If a claims-made policy is required, a “tail” of at least three years shall be purchased if non-renewed within three (3) years of completion of performance under this Agreement. Applicable aggregates must be identified and claims history provided to determine amounts remaining under the aggregate.
C. Workers’ Compensation. Outside Counsel shall comply with the applicable sections of the California Labor Code concerning workers’ compensation for injuries on the job.
D. Automobile Liability. $1,000,000 per accident for bodily injury and property damage. ISO Form CA 0001 or equivalent is required.
E. Cyber Coverage Liability. Cyber Coverage Liability insurance in the minimum amount of at least $1,000,000 per occurrence.
12.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared and approved by the City of Sunnyvale. Outside Counsel shall guarantee payment of any losses and related investigations, claim administration and defense expenses within the deductible or self-insured retention.
12.3 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of not less than A:VII, unless otherwise acceptable to the City of Sunnyvale.
12.4 Verification of Coverage. Outside Counsel shall furnish the City of Sunnyvale with original a Certificate of Insurance effecting the coverage required. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City of Sunnyvale prior to commencement of work.
13.0 INDEMNIFICATION . Outside Counsel shall indemnify, hold harmless, and defend the City (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attorney’s fees), up to the limits of Outside Counsel’s applicable insurance coverage, that result or arise from Outside Counsel’s negligent acts, omissions or willful misconduct, or failure to perform, under this Agreement.
14.0 DEFAULT . If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding Attachment 1
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party shall give written notice of the default (with reasonable specificity) to the defaulting party, and demand the default to be cured within ten days of the notice. If: (a) the defaulting party fails to cure the default within ten days of the notice, or, (b) if more than ten days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party.
15.0 NOTICES . All notices required or contemplated by this Agreement shall be in writing and shall be delivered or mailed to the respective party as set forth in this section.
Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party’s Authorized Representative, or (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party.
To: Office of the City Attorney
City of Sunnyvale
456 West Olive Avenue
Sunnyvale, CA 94088
[email protected]
To: Jenica D. Maldonado
Atkinson, Andelson, Loya, Ruud & Romo
5075 Hopyard Plaza, #210
Pleasanton, CA 94588
[email protected]
16.0 HEADINGS . The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement.
17.0 SEVERABILITY . If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
18.0 GOVERNING LAW, JURISDICTION, AND VENUE . The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Santa Clara.
19.0 ASSIGNMENT AND DELEGATION . This Agreement, and any portion thereof, shall not be assigned or transferred, nor shall any of the Outside Counsel’s duties be delegated, without the written consent of the City. Any attempt to assign or delegate this Agreement without the written consent of the City shall be void and of no force or effect. A consent by the City to one assignment shall not be deemed to be a consent to any subsequent assignment.
20.0 MODIFICATIONS . This Agreement may not be modified orally or in any manner other Attachment 1
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than by an agreement in writing signed by both parties.
21.0 WAIVERS . Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
22.0 ENTIRE AGREEMENT . This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.
23.0 EACH PARTY’S ROLE IN DRAFTING THE AGREEMENT . Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code Section 1654 in order to interpret any uncertainty in the meaning of the Agreement.
24.0 SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Outside Counsel and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, City and Outside Counsel have executed this Agreement.
CITY OF SUNNYVALE, A
CALIFORNIA CHARTERED
MUNICIPAL CORPORATION
By:_______________________________
John A. Nagel
City Attorney
Dated:____________________
ATKINSON, ANDELSON, LOYA, RUUD &
ROMO, A CALIFORNIA LIMITED
LIABLITY PARTNERSHIP
By: __________________________________
Jenica D. Maldonado
Partner
Dated:____________________
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EXHIBIT A
FEE SCHEDULE
HOURLY RATES
Partners $375-$395
Of Counsel $375
Paralegals $175
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