ATTACHMENT A
Legal Services Agreement
for the City Attorney
1 LEGAL SERVICES AGREEMENT
THIS LEGAL SERVICES AGREEMENT (“Agreement”) is entered into this day of , 2025, by and between the City of Victorville (the “City”) and Green de Bortnowsky, LLP (t he “Firm”). The City a nd the Firm are sometimes referred to hereunder individually as “Party” or collectively as the “Parties.”
RECITALS
The following recitals are a substantive part of this Agreement:
1. The Firm has been providing City Attorney legal services pursuant to the current Legal Services Agreement date d August 4, 2022 (the “Legal Services Agreement”).
2. Prior to the date of the existing Legal Services Agreement the Firm provided general counsel services to the Victorville Redevelopment Agency as of February of 1995 and general counsel servi ces to the Southern California Logistics Airport Authority (“SCLAA”) commencing in 1997. The Firm still serves as general counsel to SCLAA and also serves as ge neral counsel to th e Victorville Water District, and the Successor Agency to the Victorville Redevelopment Agency
3. Prior to its contractual relationship with the City, the Firm served as general counsel to the Victor Valley Economic Development Authority (“VVEDA”) starting in 1990. The Firm still represents VVEDA.
4. As a result of the foregoing relati onships, the Firm has developed an extensive working knowledge of the issues and challenges facing the City and the SCLAA and has been instru mental in ensuring the su ccessful development and evolution of the City into a well-manage d and fiscally responsible municipality now serving around 140,000 residents and the successful reuse and development of the Southern California Logistics Airport.
2 5. Based on its long-term relationship w ith the City, the Firm represents that based on its experience, training, education and expertise it is uniquely qualified to provide necessary legal services to the City as contemplated by this Agreement.
AGREEMENT
THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Term of Agreement.
Subject to the early termination provi sions set forth in this Agreement below, the term of this Agreement shall be for three (3) years, commencing on the date set forth in the initia l paragraph of this Agreem ent, which shall thereafter automatically renew annually for one year terms on the same terms and conditions (with the exception of a different fee struct ure as set forth here in or as may be approved by the City Council) unless the City Council gives written notice to the Firm thirty (30) days prior to the expiration of the then current term of its desire to terminate this Agreement, or of its desire to negotiate a change in the terms and conditions.
The City desires to fix the fee structure set forth herein for the initial three (3) year period. In consideration thereof, the City agrees that for the initial three (3) year term, this Agreement may be cancelle d by the City as provided in Section 13 below.
2. Services to be Provided.
2.1 General Services. The Firm designates A ndre de Bortnowsky to serve as City Attorney for the City and general counsel for the City’s affiliated entities under this Agreement (unless othe rwise directed by the City) and provide the City the General Services as described herein.
General legal counsel services shall include, but not limited to:
(1) Attending regular and special meetings of the City Council, and to the extent requested, meetings of the Planning Commission;
3 (2) Consulting with Council Members and City Staff as needed regarding legal matters that affect the City including new legislation and court decisions;
(3) Performing research and interpreti ng laws, court decisions and other legal authorities in order to prepare legal opinions and advising the City Council and City Manager on legal matters pertaining to operations of the City;
(4) Preparing documents pertaining to property acquisition, property disposal, public improvements, public ri ghts of way and ease ments and matters relating to public utilities, and performing research related to same; (5) Coordinating the work of outside legal counsel as needed and as directed by the City Council and the City Manager;
(6) Providing general legal advice to the City regarding such matters as the Ralph M. Brown Act, the Public Records Ac t, the Political Reform Act, the Permit Streamline Act, and the California Environmental Quality Act;
(7) Participating with City staff and re presentatives in negotiations with other governmental agencies, developers, project proponents, permit applicants and other such parties;
(8) Preparing and reviewing resoluti ons, ordinances, contracts and agreements, forms, notices, declarations, certificates, deeds, leases, and other documents required by the City; and,
(9) Participating in negotiating of ag reements involving employees or independent contractors and ot her such personnel of the C ity at the request of the City Manager.
Such services shall not include the i ssuance of formal written opinion letters where the Firm reasonably determines that it is incurring potential liability. In such cases, the Firm may be paid a negotiated fee reflective not only of the time expended but of the Firm’s expected liability.
2.2 Litigation Services. Litigation Services shall only include services as directed by the City Council, and may include mediations, arbitrations, 4 code enforcement proceedings, court actions, appeals and related matters.
The actions for which the Firm will provide litigation services include, but are not limited to, the following:
(1) Prosecution of municipal code violations;
(2) Collection of performance bonds on construction contracts; (3) Recovery of damages;
(4) Eminent domain matters;
(5) Appellate litigation;
(6) Mandate actions;
(7) Preliminary settlement discussions and final settlement negotiations with the City and/or opposing parties; and,
(8) Administrative proceedings before a re gulatory agency of the Victorville region, County of San Bernardino, the State of California or the United States Government.
3. Legal Costs.
3.1 General Legal Counsel Service Rates. All time expended by the Firm on general legal counsel services rendered by the Firm on behalf of the City will be billed at the hourly rate of Two Hundred Ninety Five Dollars ($295.00) for Senior Attorneys, Two Hundred and Fifty Dollars ($250.00) for Junior Attorneys, Two Hundred Dollars ($200) for parale gals, and One Hundred Seventy Five Dollars ($175.00) for law clerks. Said rate s shall remain in effect for the initial term of this Agreement. Thereafter the rates set forth herein shall increase annually on each anniversary date of any extensi on by any amount equal to either five dollars ($5.00) per hour or by a percentage equal to the percen tage change in the All Urban Consumers Price Index (“CPI”) for the Riverside – San Bernardino – Ontario metropolitan area, whichever yields the greater amount. 5 3.2 Litigation Services Rates. All time expended by the Firm in connection with its duties as litigation counsel will be billed to the City at the same hourly as provided in Section 3.1 above. The Firm will not bill at a different rate for Litigation Services.
Senior attorneys consist of partners in the Firm and other attorneys employed by the Firm who have significant experience or specialized training which merit the designation as a Senior Attorney. As pe rsonnel changes over time or as existing attorneys gain greater experience, the attorneys receiving this designation may vary.
3.3 Costs and Expenses. Long –distance telephone calls, necessary travel costs, out-of-pocket expenses, such as filing fees, deposition costs, jury and expert witness fees, Federal Express, postage and messenger services shall be billed to the City at actual costs incurred by the Firm. Photocopy expenses and faxes shall be billed at the Firm’s regular municipal rate, which currently is as follows:
(1) Photocopies $.25 per page
(2) Faxes $1.00 a page for outgoing and incoming
Automobile mileage will be charged at the then current rate allowed by the Internal Revenue Service.
3.4 Expert Consultations and Witnesses. Contract attorneys, expert consultants and witnesses, and any investigators, may be retained on terms acceptable to the City, authorized and approved in advance, for which the City shall reimburse the Firm or pay investigators, consultants or experts directly. In no event shall the Firm retain the service of any contract attorneys, experts, investigators or consultants without first receiving express authorization and approval from the City.
3.5 Billing. The Firm shall submit monthl y billing statements to the City in accordance with the practices of the Parties during the period preceding this Agreement including any costs and expens es for which the Firm is entitled to reimbursement pursuant to this Agreement. The City agrees to pay the amount due within 30 days following receipt of the respective statement.
All billing for work performed under this Agreement shall be sent to the following:
6 City of Victorville
Attn: Keith C. Metzler, City Manager
14343 Civic Drive
Victorville, California 92393
In the event of a question or disput e regarding a billing matter, and in recognition of hourly rate concessions, it is agreed that the invoice will be paid in a timely manner, with the exception of the questioned item or items. The parties to this Agreement will work in good faith to resolve the outstanding issues and either payment will be made accordingly, the billing will be withdrawn, or reimbursement will occur, as appropriate.
4. Insurance.
4.1 Professional Errors and Omissions Insurance. The Firm shall obtain and maintain in full force and effect at all tim es Professional Errors and Omissions Liability Insurance. Such insurance shall provide coverage in an amount not less than two million dollars ($2,000,000) per occurrence.
The Firm shall also obtain and maintain in full force and effect at all times Automotive and General Liability Insurance in an amount not less than one million dollars ($1,000,000) per occurrence. Th e insurance policies required under this paragraph shall be e ndorsed to state that coverage sh all not be suspended, voided, cancelled, reduced in coverage, or in limits, except after thirty (30) days prior written notice, by certified mail return receipt requested, given to the City.
Said insurance policies shall provide coverage to the City and its affiliated entities for any damages or losses suffered by the City and/or its affiliated entities as a result of any erro r or omission, or neglect by the Firm which arise out of the services rendered under this Agreement.
The Firm shall, within ten (10) days after entering into this Agreement, deposit with the City a certificate of insu rance certifying that all insurance required herein is, and will be, in full force and effect from the time the Agreement is entered into until completion or termination of this Agreement. Th e Certificates of Insurance must be renewed at least fifteen (15) days prior to expiration.
7 All insurance required shall be carri ed only by responsible insurance companies authorized to do business in California and shall name as additional insured the City and its affiliated entities, their officials, officers, employees, agents and representatives. All policies shall cont ain language to the effect that: (1) the insurer waives any right of subrogation agai nst the City and the City’s officials, officers, employees, agents, and representatives; (2) insurance shall be primary non- contributing and any other in surance carried by the City shall be excess over such insurance; and, (3) such insurance shal l not be cancelled or materially changed except after thirty (30) days’ notice by the insurer to the City by certified mail. The Firm shall furnish the City with copies of all applicable policies promptly upon receipt.
Nothing in this section shall be cons trued to make the Firm other than an independent contractor/consultant for all purposes.
The Firm agrees to notify the City in the event that the limits fall below the coverage stated above or if the insurance policies noted here are allowed to lapse and substitute insurance is, or is not, obtained.
4.2 Workers Compensation Insurance. The Firm shall obtain and maintain workers compensation insurance in accordance with Section 3700 of the California Labor Code in in an amount not less than one million dollars ($1,000,000) per occurrence.
5. Indemnification.
The Firm agrees to protect, hold harmless, defend, and indemnify the City, its employees, elective or appoint ive boards, officers, agents , agenda and affiliates, from any and all loss, claims, liabilities, expenses, or damages of any nature whatsoever, including attorneys fees, arisi ng out of or in any way connected with the performance of, or services rendered by, the Firm, the Firm’s agents, officers, employees, sub-contractors or independent contractors of the Firm, except where the loss or liability is due to the negligence or willful misconduct of the City.
6. City Agent.
The City Council is the City’s agen t for purposes of this Agreement.
Whenever authorization or approval is requi red, the Firm understands that the City 8 Council has the authority to provide the authorization or approval, except where the City Council has expressly delegated authority to the City Manager.
7. Independent Contractor.
The Firm, and anyone employed by the Firm, is not, and shall not be deemed, employees of the City. The Firm is so lely responsible for the payment of employment taxes, workers compensation taxes, and any ot her taxes for its employees.
8. Conflict of Interest.
The Firm represents that it presently ha s no material financ ial interest other than that which may be held by the general public and shall not acquire any interest, direct or indirect, in any contract or decision made on behalf of the City which may be affected by the services to be perform ed by the Firm under this Agreement. The Firm further agrees that no person having any such interest shall be employed by it.
If the Firm, or their employees, acquires a di rect or indirect personal interest, such interest shall be immediately disclosed to the City and the interested individual shall abstain from any contracts or decisions under this Agreement.
In addition to the proscriptions regarding conflicts of interest imposed on the Firm by the California Business and Profe ssions Code and California Rules of Professional Conduct, the Firm represents that no attorney of the Firm shall represent clients before any board, commission, committee or agency of the City or represent any client with interests a dverse to the City, unless a bona fide conflict of interest waiver is executed by both the City and ot her applicable parties. Furthermore, the Firm shall at all times avoid conflicts of interest or the appearance of a conflict of interest in performance of this Agreemen t. The Firm shall immediately notify the City Manager of any circumstances, or ch ange of circumstances, that may provide for the potential for a conflict of interest, or actual conflict of interest.
9. Non-Liability of Officials/Employees of the City.
No official or employee of the City shall be personally liable for any default or liability under this Agreement.
9 10. Compliance with Law.
The Firm shall comply with all app licable laws, ordinances, codes and regulations of the Federal, State and local governments. In addition, the Firm agrees to abide by all ethical and moral sta ndards as represented by the Rules of Professional Conduct as applied to members of the California State Bar.
11. Work Product.
All documents, or other information developed or received, by the Firm, with the exception of attorney work notes, sha ll be the property of the City. The Firm shall provide the City with copies of items upon reasonable demand or upon termination of this Agreement.
12. Notices.
All notices shall be personally delivered or mailed, via first class mail, to the below listed address. In addition, such addresses shall be used for delivery for service of process. The Firm agrees to notify the City within ten (10) days of the date of any change of address and agree to keep an updated address with the applicable Courts on any matters that the Firm is representing the City.
a. Address of the Firm is as follows:
Andre de Bortnowsky, Partner
Green de Bortnowsky, LLP
30077 Agoura Court, Suite 210
Agoura Hills, CA 91301
Telephone: (818) 704-0195
Facsimile: (818) 704-4729
Electronic Mail: [email protected]
b. Address of the City is as follows:
Keith C. Metzler, City Manager
City of Victorville
14343 Civic Drive
Victorville, CA 92392
10 13. Termination of Agreement.
Subject to Section 1 above, and to the extent not otherwise extended for a one- year term as contemplated th ereby, the City shall have the right to terminate this Agreement at any time in accordance with the Ralph M. Brown Act, provided, however, that if the termination is for an ything other than cause, the termination will require the four fifths vote of the Council. The Firm sha ll have the right to terminate this Agreement with thirty (30) days prior notice to the City. The Firm, however, shall not substitute out as the Firm of record on any matters in which it may be representing the City without firs t obtaining written consent from the City, or first obtaining an appropriate court or der, allowing the Firm to withdraw as counsel of record. The Firm will be entitle d to receive payment for any services rendered or costs expended under the terms of this Agreement.
14. Limitations Upon Assignment/Subcontracting.
The Firm agrees that no portion of its performance or services rendered under this Agreement shall be assigned by the Firm or subcontracted to any other firm or individual without prior written author ization and approval of the City. No assignment by the City of any services outlined herein is permitted.
15. Non-Discrimination.
The Firm represents that it is an equal opportunity empl oyer and shall not discriminate against any person because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation.
16. Time of Essence.
Time is of the essence in the performance of this Agreement.
17. Execution.
The persons executing this Agreement on behalf of the parties warrant that they are duly authorized to execute this Agreement as herein stated, and that, on the 11 part of the City, this Agreement has been approved by a majority vote of the City Council. This Agreement may be executed in counterparts.
18. Entire Agreement.
This Agreement represents the Parties’ final and mutual understanding. This Agreement supersedes any previous agreements, oral or written.
19. Modification.
This Agreement shall not be modified or replaced except by another signed, written Agreement, properly executed by the Parties.
20. Waiver.
The waiver of any breach or any provision of this Agreement does not waive any other breach of that term, or any other term, in this Agreement.
21. Partial Invalidity.
If any part of this Agreement is found for any reason to be unenforceable, all other parts nonetheless shall remain in force.
22. Governing Law.
This Agreement shall be interpreted and construed in acc ordance with the laws of the State of California. Any act ion commenced regarding this Agreement shall be filed in the San Bernardino County Superior Court.
23. Interpretation.
This Agreement shall be interpreted as though prepared by both Parties.
24. Survival.
12 All obligations arising prior to the te rmination of this Agreement and all provisions of this Agreemen t allocating responsibility or liability between the City and the Firm shall survive the termination of this Agreement.
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13 IN WITNESS WHEREOF, these parties have executed this Agreement on the day and year shown hereinabove.
Date: CITY OF VICTORVILLE
By:
Elizabeth Becerra, Mayor
Date: ATTEST:
By:
Jennifer Thompson, City Clerk
Date: GREEN de BORTNOWSKY, LLP
By:
Andre de Bortnowsky, Partner