LEGAL SERVICES AGREEMENT
This LEGAL SERVICES AGREEMENT is made and entered into this ___ day of June, 2023, by and between the CITY OF VISALIA (hereinafter referred to as the “City”), and HERR, PEDERSEN & BERGLUND (“HPB”).
RECITALS
WHEREAS, the City seeks legal counsel concerning issues of municipal litigation and personnel and employment law issues; and WHEREAS, Article VII, Section 4 of the City’s Charter states that the City Council shall have the power to direct and control the defense and prosecution of all suits and proceedings to which the City is a party or in which it is interested, and may employ counsel to assist the City Attorney therein.
WHEREAS, HPB has considerable experience representing public agencies, including the City, and is willing, qualified and duly licensed to provide legal services to City as City Attorney under this contract as an independent contractor, subject to the terms and conditions herein stated; and WHEREAS, the City has determined that HPB is qualified by training and experience to render such services, and HPB has agreed to provide such services; and WHEREAS, the public interest will be served by this Agreement; NOW, THEREFORE, the parties hereto do mutually agree as follows:
1. SCOPE OF SERVICES.
Litigation Services Defined. City hires HPB to provide Litigation as defined herein below to the City. The services provided shall include:
Representation of the City in matters involving actions filed in the state or federal court system, matters involving a quasi-judicial administrative proceeding, matters involving a claim filed with the City pursuant to the California Government Claims Act Personnel Administrative Hearings
PERB/Unfair Labor Practice Charges
Personnel mediation related grievances
Personnel and Employment Law Services. City hires HPB to provide Personnel and Employment Law Services as defined herein below to the City. The services provided shall include.
Bi-weekly meeting with HR Manager
Monthly meeting with City Manager or designee
Consultation on general personnel matters
Council, Employee and Committee Member Trainings
Policy Revisions
Consultation and advice on Leave of Absence, Reasonable Accommodation, Interactive Process, Disability counseling.
In providing Litigation Services and Personnel and Employment Law Services, HPB shall inform and coordinate services with the City Attorney, and shall provide quarterly status reports on all pending litigation items, addressed to the City Council, City Manager and City Attorney.
2. APPOINTMENT – CITY LITIGATOR.
Pursuant to Article VII, Section 4 of the City Charter, the City hereby appoints Leonard C. Herr to act as City Litigator responsible for defense and prosecution of suits and proceedings as assigned, and to assist the City Attorney therein. HPB may not, without the consent of the City Council, designate other attorneys in HPB to serve as City Litigator.
3. COMPENSATION AND METHOD OF PAYMENT.
City agrees to pay HPB ONE HUNDRED AND EIGHTY-SEVEN DOLLARS AND TWENTY-FIVE ($187.25) per hour for all attorney time and ONE HUNDRED AND TEN DOLLARS ($118) per hour for all paraprofessional time for the provision of all “Litigation Services” as defined above. For the purposes of this Agreement, paraprofessionals shall be defined solely as law clerks, paralegals and certified legal assistants.
City agrees to pay HPB SIX THOUSAND DOLLARS ($6,000.00) per month for the provision of all “Personnel and Employment Law Services” as defined above.
HPB will not charge the City of Visalia for any copy, facsimile, postage, local courier or telephone charges. HPB will charge for out of pocket expenses associated with litigation (filing, expert witness, court reporters and copying of documents in response to discovery requests), conference registration (registration fees for conferences related to continuing education will not be charged to the City), and travel expenses related to out of town business.
HPB will bill the City on a monthly basis with itemization and detail sufficient to meet City’s accounting needs. HPB and City will specify detail necessary for accounting purposes prior to the commencement of legal services pursuant to this agreement. HPB will provide one set of bills for payment per month, but may request payment of such bills through up to two separate payments. HPB will bill in one-tenth of an hour increments.
HPB shall not bill for the following services: (i) updating Council on case status, including preparing the quarterly status reports as described in the Litigation Services definition; (ii) having more than one attorney at any legal proceeding, unless agreed to by representative of City; (iii) communicating among HPB attorneys about a case; (iiii) Litigation Committee meetings.
City will pay all bills as required by this Agreement within THIRTY (30) days of receipt. If the City does not comply with these requirements, HPB may terminate this Agreement upon written notice to the City.
TERM.
Unless otherwise terminated as provided herein, this Agreement shall commence on July 1, 2023, and shall extend through June 30, 2025. City shall have the option of extending this Agreement for one additional term of one or two years, on the same terms and conditions provided herein, by providing 60 days’ notice in writing of City’s intent to exercise this option to extend.
PERFORMANCE REVIEW.
Annual Performance Review. On or about April 1, 2024, and annually thereafter in the event of extension of the term of this Agreement, the City Council shall audit and review the performance and legal fees of HPB and its members or associates in furnishing the services provided hereunder, and the compensation provisions hereof. The parties may agree to changes or amendments hereto, including, but not necessarily limited to, changes in compensation provisions, which changes or amendments shall be evidenced by written amendment or by minute order evidencing motion duly made and carried by the City Council. Nothing in this paragraph shall be deemed to prevent or inhibit more frequent review of performance, compensation, or other matters relating to this Agreement or otherwise inhibit the free and candid exchange of views between the parties hereto, to the end that the legal interests of City shall best be served and HPB shall fairly be compensated for legal services rendered.
Compensation and Scope Review. It is understood that the compensation provision of this Agreement as it relates to Personnel and Employment Law Services is based on the assumption that full performance of the indicated Scope of Services will require approximately 37 hours of combined attorney and para-professional staff work on an average monthly basis, and that attorney time will constitute approximately 90 percent of the total time, on average. In the event that significantly more or less work than anticipated is required to adequately perform the indicated Scope of Services, the parties agree to confer annually regarding increase or decrease in either the Scope of Services, the compensation provisions of this Agreement, or both.
7. NO PERSONAL LIABILITY.
No member, official or employee of the City shall be personally liable to HPB or any successor in interest in the event of any default or breach by the City or for any amount which may become due to HPB or successor or on any obligation under the terms of this Agreement.
8. ASSIGNMENT OF AGREEMENT.
HPB shall not assign or transfer any interest in, nor delegate any duties thereof in this Agreement. Any assignment or delegation without express written consent of the City shall be void.
9. RESPONSIBILITY OF HPB.
HPB shall take and assume all responsibility for the services rendered in connection with this Agreement. HPB shall render its services in accordance with the standard of care required of a competent practitioner engaged in a similar practice of law. Mr. Herr shall be responsible for ensuring that HPB provides the highest quality legal services.
HPB agrees to provide conscientious, competent and diligent services and at all times will seek to achieve solutions, which are just and reasonable for the City. However, because of the uncertainty of legal proceedings, the interpretation and changes in the law and many unknown factors, HPB cannot and does not warrant, predict or guarantee results or the final outcome of any case or matter.
10. INDEPENDENT CONTRACTOR.
HPB hereby declares that it is engaged in an independent business and agrees to perform said services as an independent contractor and not as the agent or employee of the City. HPB agrees to be solely responsible for its own matters relating to payment of employees, including compliance with Social Security, withholding and all other regulations governing such matters. HPB agrees to be solely responsible for its own acts and those of its subordinates and employees during the life of this Agreement.
11. INSURANCE.
(a) HPB shall have and maintain in full force and effect the insurance policies set forth in Attachment A, which is attached hereto and incorporated herein. All policies, certificates or binders shall be subject to approval by the City as to form and content. These requirements are subject to amendment or waiver if so approved in writing by the City Manager. HPB shall provide the City with a copy of said policies, certificates prior to commencing work under this Agreement. (b) Thirty (30) days prior written notice of cancellation shall be given to the City in the event of expiration, cancellation or reduction in coverage of any nature. Such notice shall be sent to:
City Manager
City of Visalia
220 N. Santa Fe
Visalia, California 93292
(c) Proof of Coverage: Copies of the required certificates of insurance, which shall be provided by HPB insurance company as evidence of the stipulated coverages. This Proof of Insurance shall then be mailed to:
City Manager
City of Visalia
220 N. Santa Fe
Visalia, California 93292
12. CONFLICTS OF INTEREST.
HPB declares it has no holdings or interests within the City, which preclude it from serving as City Attorney. Further, HPB declares that it has disclosed its list of clients to the City Manager. HPB has no business holdings or agreements with any official or other representatives of the City.
13. CONFIDENTIALITY.
To the extent permitted by law, all the reports, information, data or other materials prepared or assembled by HPB under this Agreement, including DHPB’s opinion and conclusions based upon such items, are confidential. HPB agrees that such reports, information, opinions or conclusions shall not be made available to or discussed with any individual or organization, including the news media, without the prior written approval of the City.
14. TERMINATION.
(a) This Agreement may be terminated, with or without cause, in writing by the City for its convenience, provided that no such termination may be affected unless HPB is given not less than thirty (30) days written notice (delivered by certified mail, return receipt requested) of the intent to terminate. (b) Any termination shall provide for payment to HPB for services rendered and expenses incurred prior to the termination. (c) Upon receipt of a termination notice HPB shall (1) promptly discontinue all services affected (unless the notice directs otherwise) and (2) deliver to the City all records, reports, and files of the City. (d) Upon termination, the City may take over the work and prosecute the same to completion by agreement with another party or otherwise.
The rights and remedies of the City and HPB provided in this clause are in addition to any other rights and remedies provided by law or under this Agreement.
FILE RETENTION AND DESTRUCTION.
HPB shall safely maintain and store all files, records and other materials acquired in the course of its representation of the City, for a period of seven (7) years. No files will be destroyed without the consent of the City. If the City and HPB believes it is necessary to retain files beyond seven (7) years then terms for the maintenance and storage of those files will be agreed to in a separate written agreement.
16. NONDISCRIMINATION.
In connection with the execution of this Agreement, HPB shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, ancestry, national origin, disability, age, genetic information, marital status, sexual orientation, gender identity and gender expression, medical condition, military or veteran status, or any other classification protected by law.
17. ENTIRE AGREEMENT.
This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof; and no other agreement, statement, or promise relating to the subject matter of this Agreement not contained herein shall be valid or binding.
18. INTERPRETATION OF AGREEMENT.
This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California.
19. SUCCESSORS AND ASSIGNS.
Subject to the provision of this Agreement regarding assignment, this Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the respective parties.
IN WITNESS WHEREOF, the City and HPB have executed this Agreement on the date first written above.
CITY OF VISALIA HERR PEDERSEN &
BERGLUND, Attorneys at Law, LLP
By: __________________________ By: _____________________________ Leslie B. Caviglia, City Manager Leonard C. Herr By:
Brian Poochigian, Mayor
ATTACHMENT A
INSURANCE
INSURANCE REQUIREMENTS:
HPB, at HPB’s sole cost and expense and for the full term of this Agreement or any renewal thereof shall obtain and maintain at least all of the following minimum insurance requirements prior to commencing any work or receiving payments therefor under this Agreement:
(a) A COMPREHENSIVE GENERAL LIABILITY policy with a minimum limit of not less than ONE MILLION DOLLARS ($1,000,000.00) combined single limit for personal injury, bodily injury, and property damage. (b) A WORKERS COMPENSATION AND EMPLOYERS LIABILITY policy written in accordance with the Labor Code of the State of California and Employers Liability limits of $1,000,000.00 per accident. The insurer shall agree to waive all rights of subrogation against the Agency, its officials, employees, and agents for losses arising from work performed by the contractor for the Agency. (c) A PROFESSIONAL LIABILITY ERRORS AND OMISSIONS policy in an amount not less than FIVE HUNDRED THOUSAND DOLLARS ($1,000,000.00) per claim, ONE MILLION DOLLARS ($2,000,000.00) aggregate. If this policy should contain a deductible clause, it shall not be greater than TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) per occurrence. (d) AUTOMOTIVE INSURANCE. The attorneys at HPB agree to keep in good standing valid California driver’s licenses at all times during the term of this Agreement. HPB shall also obtain, and keep in force during the term hereof, a policy of motor vehicle public liability insurance which shall afford not less than the following amounts of coverage: ONE HUNDRED THOUSAND DOLLARS ($100,000.00) each occurrence; property damage liability, TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) each occurrence. 1 Legal Services Agreement