Aleshire & Wynder LLP - FY2016-018-02 AMENDMENT NO. 2 TO
CONTRACT SERVICES AGREEMENT
FOR CITY ATTORNEY SERVICES
This AMENDMENT NO 2 to the CONTRACT SERVICES AGREEMENT
(herein the "Amendment No 2"), executed on the 21st day of February, 2023, by and between
the CITY OF RANCHO PALOS VERDES, a general law city and municipal corporation (herein
the "CITY"), and ALESHIRE & WYNDER, LLP, a California limited liability partnership
(hereinafter referred to as "ATTORNEY")
RECITALS
A CITY has previously retained the legal services of ATTORNEY pursuant
to the terms and conditions of that certain CONTRACT SERVICES AGREEMENT (the
"Agreement") dated on or about September 2, 2015
B Effective November 2, 2022, CITY and ATTORNEY entered into that
certain AMENDMENT NO 1 to the CONTRACT SERVICES AGREEMENT
C The parties hereto now desire to further amend the Agreement, as
amended, as follows
COVENANTS:
In consideration of the foregoing Recitals and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, CITY and
ATTORNEY agree as follows
Section 1. Exhibit "A," entitled "Fee Arrangement," of the Agreement, as
amended, is hereby amended, as follows
All parenthetic phrases in paragraphs nos 2 through 5 are deleted, and
Paragraph no (9) is amended to read as follows
- -- • .. • - . . . . • CITY shall grant
ATTORNEY a Cost Of Living Adjustment (COLA) increase on all rates
commencing July 1, 2024 2023, to be effective July 1 of each succeeding
each fiscal year thereafter based upon the percentage increase in the
Consumer Price Index (CPI-U) in the Los Angeles-Riverside-Orange
County geographic area for the preceding twelve (12) month period
measured March to March or three (3) percent which ever amount is
less"
Section 2. Except as set forth herein, all other terms, conditions, and
provisions of the Agreement, as amended, shall remain in full force and effect
IN WITNESS WHEREOF, the parties have executed and entered into this
Amendment No 2 as of the date stated below for execution by the Mayor
CITY OF RANCHO PALOS VERDES,
a municipal corporation
Dated By %,
Barbara Ferr. , Mayor
ATTEST
119
q"."-ilt-h4t3y Cler c
ALESHIRE& WYNDER, LLP
Dated 2l By v `" 1/da/A—
W
/d
William W nder
for ALESHIRE & WYNDER, LLP
[END OF SIGNATURES]
AMENDMENT NO. 1 TO
CONTRACT SERVICES AGREEMENT
FOR CITY ATTORNEY SERVICES
This AMENDMENT NO 1 to the CONTRACT SERVICES AGREEMENT
(herein the "Amendment No 1"), executed on the 2"d day of November, 2021, by and between
the CITY OF RANCHO PALOS VERDES, a general law city and municipal corporation (herein
the "CITY"), and ALESHIRE & WYNDER, LLP, a California limited liability partnership
(hereinafter referred to as "ATTORNEY")
RECITALS
A CITY has previously retained the legal services of ATTORNEY pursuant
to the terms and conditions of that certain CONTRACT SERVICES AGREEMENT (the
"Agreement") dated on or about September 2, 2015
B Effective July 1, 2018, the attorney fee structure was adjusted under the
terms of the Agreement, the same to remain in effect unless or until amended
C ATTORNEY has not received an adjustment in fees since 2018 even
though cumulative CPI adjustments over the cumulative period has been some 8% Furthermore,
during the last twelve (12) months, ATTORNEY took a voluntary rate deduction to financially
assist CITY during the uncertain economic times resulting from the COVID-19 states of federal,
state, county and local emergencies
D The parties hereto now desire to adjust ATTORNEY's billing rates the
same to be retroactively effective from and after November 1, 2021
COVENANTS.
In consideration of the foregoing Recitals and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, CITY and
ATTORNEY agree as follows
Section 1. Exhibit "A," entitled "Fee Arrangement," of the Agreement is
hereby amended, in its entirety, to read as is set forth in Amended Exhibit "A," attached hereto
and incorporated herein by this reference
Section 2. Except as set forth herein, all other terms, conditions, and
provisions of the Agreement shall remain in full force and effect
IN WITNESS WHEREOF, the parties have executed and entered into this
Amendment No 1 as of the date stated below for execution by the Mayor
[SIGNATURE ON THE FOLLOWING PAGE]
01203 0001/728385 7 - 1 -
CITY OF RANCHO PALOS VERDES,
a municipal corporation
Dated /I /a/ao�i By ' - Alt.,Enc Alegria, May
ATTEST
ity Clerk
ALESHIRE& WYNDER, LLP
Dated 11121 MAI By . ZOdtrin
William W Wyn
for ALESHIRE & WYNDER, LLP
[END OF SIGNATURES]
01203 0001/728385 7 - 2 -
AMENDED EXHIBIT "A"
FEE ARRANGEMENT
(1) Effective November 1, 2021, the City will begin the retainer service model in which the
City will pay Aleshire & Wynder a monthly fee of$55,000 This monthly fee is to cover
the first 250 hours per month at $220/hour (adjusted annually commencing July 1, 2024
and each fiscal year thereafter by the March CPI-U) of"general" legal services (defined
as all legal services other than "special" legal services and including special projects,
labor negotiations, insurance coverage matters, risk management matters, and code
enforcement matters)
(2) Effective November 1, 2021, the rate for "general" legal services exceeding 250 hours
per month shall be increased to $200/hour (adjusted annually commencing July 1, 2024
and each fiscal year thereafter by the CPI-U)
(3) Effective November 1, 2021, the rate for "special" legal services shall be increased to
$230/hour Special legal services shall be defined as general litigation matters, personnel
disciplinary actions or litigation, and mandatory personnel or contract arbitration matters
(adjusted annually commencing July 1, 2024 and each fiscal year thereafter by the March
CPI-U)
(4) Effective November 1, 2021, where there is an opportunity to obtain cost recovery from a
private party such as a developer the recoverable rate shall be $290/hour (adjusted
annually commencing July 1, 2024 and each fiscal year thereafter by the March CPI-U)
(5) Effective November 1, 2021, the rate for legal assistants/paralegals, irrespective of
matter, shall be $115/hour, and for document clerks shall be $75/hour (adjusted annually
commencing July 1, 2024 and each fiscal year thereafter by the March CPI-U)
(6) Effective November 1, 2021, for public finance transactions the fee structure shall be as
follows (i) For land based issues (i e CFD, Assessment or Improvement Districts) one
and one-half percent (1 5%) of the first $1 million executed and delivered, three-quarters
of one percent (0 75%) of the next $4 million executed and delivered, one-third of one
percent (0 33%) of the next $10 million, one-eighth of one percent (0 125%) of the next
$10 million, and one-tenth of one percent (0 01$) of any amount over $25 million,
subject to a minimum fee of Forty Thousand Dollars ($40,000 00), or (ii) For all other
financings, the above schedule applies with a 25% discount In the event that multiple
series of bonds or notes are issued, the foregoing fee schedule would be applied to each
issue Fees shall be contingent unless otherwise directed by the client If contingent,
payment of the fees is entirely contingent upon the successful execution and delivery of
the bonds or notes to be payable on or after delivery except for out-of-pocket expenses
In addition to the foregoing, a fee of $6,000 00 may be charged if a tax opinion is
required At the discretion of the City, City may choose a non-contingent structure in lieu
of the above schedule at the rate of$400 00 per hour on a blended rate for all attorney
time incurred
(7) In addition to the foregoing, ATTORNEY would be reimbursed for out-of-pocket
expenses including telecopier, messenger, courier, and other communication costs,
reproduction expense, computer research services, court reporters, mileage cost to court
and administrative proceedings, travel expenses outside of Los Angeles County, and
other costs and expenses incurred on your behalf Notwithstanding the foregoing,
ATTORNEY will not charge for word processing, routine computer-assisted legal
research, local calls or mileage to City Hall or City offices
(8) The other normal terms and conditions of ATTORNEY's billing are set forth in the
Statement of Billing Practices attached as Exhibit"B"to the Agreement
(9) In the event CITY's City Council elects to extend the term of this Amended Fee
Arrangement as provided hereinafter, CITY shall grant ATTORNEY a Cost Of Living
Adjustment (COLA) increase on all rates commencing July 1, 2024, to be effective July 1
of each succeeding each fiscal year thereafter based upon the percentage increase in the
Consumer Price Index (CPI-U) in the Los Angeles-Riverside-Orange County geographic
area for the preceding twelve (12) month period measured March to March
(10) The foregoing Amended Fee Arrangement will remain in effect until June 30, 2024
Thereafter, CITY's City Council shall have the right, in its sole discretion, to extend the
this Amended Fee Arrangement, on the same terms and conditions set forth hereinabove,
for up to two (2) additional one (1) year extended Amended Fee Arrangement periods
CONTRACT SERVICES AGREEMENT FOR
CITY ATTORNEY SERVICES
CITY OF RANCHO PALOS VERDES
This CONTRACT SERVICES G f EEMENT FOR CITY ATTORNEY SERVICES
(the "Agreement") is effective as of the' ' day of -', ''2015, by and between the law firm of
ALESHIRE & WYNDER, LLP, a California limite. liability partnership ("A&W"), and the
CITY OF RANCHO PALOS VERDES ("RPV" OR "City"), a general law city. The term "City"
shall also include the RPV Successor Agency, the RPV Community Housing Authority, the RPV
Public Financing Authority, and all other City boards and commissions.
1. APPOINTMENT
City Council hereby appoints David J. Aleshire as the City Attorney, and hires A&W as
its City Attorney, to render such legal services as are customarily rendered by such officials and
as further specified herein, including attending meetings of the City Council, Planning
Commission, RPV Successor Agency ("Successor Agency"), RPV Housing Authority ("Housing
Authority"), RPV Public Financing Authority ("Public Financing Authority"), all other City
boards and commissions and their affiliated agencies, as directed by the City.
Notwithstanding the foregoing appointment, the designated City Attorney, Agency
Counsel, and any Assistant or Deputy City Attorney, may be established from time to time or
modified by resolution of the City Council. A&W represents that it employs, or will employ at
its own expense, all personnel required for the satisfactory performance of any and all tasks and
services set forth herein. A&W shall not replace the designated City Attorney (or any successors
to such person) without the City Council's prior approval, except from time to time necessary
due to illness or vacation scheduling. Approval of any such temporary substitute, or of any
Assistant City Attorney shall be obtained from the City Manager, and resources will be provided
to the City Manager and City Council if requested. City Attorney may appoint various deputies
as City Attorney deems appropriate, without the need for amendment hereof.
2. SCOPE OF WORK AND DUTIES
A. A&W shall perform any and all work necessary for the provision of City Attorney
services to City, as set forth in the Municipal Code, including, but not limited to, the following:
(i) Attendance at City Council, Planning Commission, or Successor Agency,
Housing Authority, Public Financing Authority, or other affiliated entities, unless excused by the
City Manager or his/her designee, and other board and commission meetings on request of the
City Manager or his/her designee; and
(ii) Provide legal advice, written legal opinions, and consultation on all
matters affecting the City to the City Council, City Manager, boards, commissions, committees,
officers, and employees of City and as requested by the City Council, the City Manager, or
his/her designee, in accordance with such policies and procedures as may be established by City
from time to time; and
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(iii) Be available for telephone consultation with City staff, as needed on legal
matters which are within their area of operation; and
(iv) Prepare or review necessary legal documents such as: ordinances, and
resolutions; all agreements of any nature; all real property instruments of any nature including
purchase agreements and escrows, leases, covenants, deeds, easements and licenses; bond size,
amount, and offering terms and conditions; public works construction documents including bid
specifications, contracts, bonds, insurance, liens and related documents; memorandum of
understanding; franchise agreements; and all similar documents; and
(v) Represent and advise City on pending and potential litigation;
notwithstanding the foregoing, it is expressly understood that A&W shall not be responsible for
any pending litigation matter(s) handled by attorneys previously or otherwise employed by the
City until all files have been transferred to A&W and A&W has specifically appeared in the
matter(s) as attorneys of record on behalf of City; and
(vi) Hold office hours at City Hall at a time agreed to with City Manager; and
(vii) Attend management staff and agenda review meetings at a time agreed to
with City Manager; and
(viii) Monitor pending and current legislation and case law as appropriate; and
(ix) Supervise outside legal services, if any.
B. A&W, as a full-service law firm, is prepared to, and will, provide representation
to City in all of its legal affairs, including, but not limited to, municipal law, land use,
environmental, toxics, mining, water, tort defense, personnel, labor representation, code
enforcement, criminal prosecution, redevelopment, housing, cable television, finance,
franchising, contracts, enterprise and other matters, except where conflicts exist or where the
City Council may otherwise direct. The City Attorney shall represent City in all of the foregoing
legal matters, and in initiating and defending all litigation unless otherwise directed by the City
Council.
C. The City Attorney will keep City informed as to the progress and status of all
pending matters in accordance with such procedures as the City may establish from time to time.
The City Attorney is expected to manage, control and oversee the delivery of legal services in a
competent, professional, and cost-effective manner. All legal services shall be properly
supervised and all personnel shall be qualified to handle the work assigned. If outside special
counsel is retained, unless otherwise directed by the City Council, such special counsel shall be
supervised by the City Attorney.
D. All legal services shall be coordinated under the direction of the City Manager.
Notwithstanding any other provision contained herein, any legal services can only be authorized
by the City Council or City Manager. Nothing in this Agreement shall be construed in any
manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign
or reassign legal matter of City from or to A&W.
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3. CITY DUTIES
City agrees to provide such information, assistance, cooperation, and access to books,
records, and other information, as is necessary for A&W to effectively render its professional
services under this Agreement. To the extent City desires services to be rendered on site, City, at
City's expense, will make available sufficient office space, furniture, telephones, computers,
facsimile machines, and secretarial support, as approved by the City Manager, as may be
necessary therefor. City further agrees to abide by this Agreement, and to timely pay A&W's
bills for fees, costs, and expenses. In addition, City understands that the fee structure herein
represents a blending of rates, with certain services offered at discounted rates, on the
assumption that, due to the volume of work, other services will be rendered at higher rates.
Therefore, insofar as possible and unless A&W lacks the experience, capability or resources, it is
the intent of the parties hereto that all matters of City requiring the rendition of legal services
shall be performed by A&W. However, nothing in this Section, or any other part of this
Agreement, shall be construed in any manner as limiting the ultimate and absolute discretion of
the City Council, at any time, to assign or reassign legal matters of City from or to A&W.
4. PERSONNEL
In addition to David J. Aleshire acting as City Attorney, A&W will provide the following
additional attorneys to render the predominate legal services hereunder:
David J. Aleshire:
Sunny Soltani:
Anthony Taylor:
Elena Gerli:
Christina Burrows:
Margaret Rose:
Colin Tanner:
Glen Tucker:
Agency Counsel
Deputy City Attorney
Chief Litigation Deputy City Attorney
Assistant City Attorney
Deputy City Attorney
Deputy City Attorney
Deputy City Attorney/Personnel
Deputy City Attorney/Police and Defense
Assignments may be modified as provided in Section 1 above and except as so provided,
A&W will exercise its discretion to utilize whichever attorney(s) (and staff) it determines to be
best suited to its rendition of legal services under this Agreement, consistent with the competent
and efficient rendering of legal services, and with a view toward rendering such services in an
economically efficient manner.
5. COMPENSATION
A&W's fees will be charged on an hourly basis for all time actually expended. The
compensation schedules are set forth in Exhibits "A" and "B" attached hereto and incorporated
herein by this reference.
In general, the arrangement is that there is a base amount of hours which are significantly
discounted and referred to as the general retainer hours. This includes general services, attending
public meetings, preparing ordinances and resolutions, giving general advice to City departments
and similar services. A higher rate is charged after the retainer hours are exceeded. Special
services, including a broad range of categories (litigation, personnel, labor, redevelopment,
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housing, toxics, refuse, cable, enterprise, etc.), which would otherwise be likely to be contracted
out as special services at higher rates, are billed at a higher blended rate. Public finance matters
are charged on a contingent basis based upon the size of the matter. The specific terms are set
forth below in Section 6 and in the exhibits.
The City might wish to consider a set retainer for general services. We will track the
expenses for six (6) months, or such period as a standard has emerged, and negotiate a retainer at
that time if desired by City.
With regards to conversations with Council Members, these are considered a part of
general services. Conversations shall be related to City business and City Attorney shall report
to City Manager concerning any excessive use of services.
The foregoing arrangement would remain in effect for at least Fiscal Year 2015-2016 and
the following Fiscal Year. However, the hourly rates of the attorneys at A&W are reviewed
annually and, when appropriate, adjusted to reflect increases in expertise as well as other
appropriate factors. Such increases are made on an annual basis, effective as of the beginning of
each calendar year. While the hourly rates for services rendered by individual A&W attorneys
may be adjusted as set forth herein, the "rates" established in this Agreement shall not be
adjusted except as provided here, and only upon the approval of the City Council.
6. BOND OR FINANCIAL SERVICES
Bond or Financial Services shall mean those situations where A&W acts as Bond
Counsel for City with regard to the issuance of securities by City; after review and accord of the
proposed issue by independent review Counsel if selected by City, A&W shall be compensated
for Bond or Financial Services on a flat fee non -contingent basis of Four Hundred Dollars
($400.00) per hour or on a contingent finance option as shown on Exhibit "A". The choice of
options shall be solely at the discretion of the City Council.
7. COSTS AND OTHER CHARGES
A&W may incur various costs and expenses in rendering the legal services required by
this Agreement which, if customary and necessary for the performance of legal services
hereunder, shall be reimbursable by City. These costs and expenses are described in more detail
in Exhibit "B", attached hereto, and incorporated herein by reference. City agrees to reimburse
A&W for these costs and expenses in addition to the hourly fees for legal services.
Reimbursable costs shall not include any overhead or administrative charge by A&W or A&W's
cost of equipment or supplies except as provided herein.
A&W may determine it necessary or appropriate to use one or more outside investigators,
consultants, or experts in rendering the legal services required (particularly if a matter goes into
litigation). City will be responsible for paying such fees and charges. A&W will not, however,
retain the services of any outside investigators, consultants, or experts without the prior written
agreement of City. A&W will select any investigators, consultants, or experts to be hired only
after consultation with and approval by the City.
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The cost and expenses referred to herein include certain travel expenses; transportation,
meals, and lodging; when incurred on behalf of the client. Except in connection with litigation
(travel costs to court and for discovery are chargeable), these will only be charged when outside
the counties of Los Angeles, Orange, and Riverside, and only with the prior agreement of City.
Periodically, when on-site, A&W personnel may be required to make local and long-
distance telephone calls, or make photocopies, or incur other expenses on behalf of the City.
A&W will not be charged for such expenses and, in exchange, will not charge the City for calls
made from our office or other locations to the City.
A&W shall scrupulously examine all bills submitted for services tendered under this
Agreement to assure that appropriate billing judgment is employed in billing City for service
hereunder. A&W shall not bill for hours other than those hours expressly devoted to the tasks
approved in advance by the City. A&W agrees it will not bill for time which is not specifically
devoted to said task(s). A&W shall not use legal professionals for secretarial work and under no
circumstances shall A&W have lawyers billing for making copies, scheduling appointments or
taking care of matters or work which would otherwise be work performed by a secretary. The
billing format utilized to provide bills shall be set forth in a detailed format which readily permits
the full scrutiny by any City retained auditors.
8. STATEMENTS AND PAYMENT
A&W shall render to City a statement for fees, costs, and expenses incurred on a monthly
basis. Such statement(s) shall indicate the basis of the fees, including the hours worked, the
hourly rate(s), and a specific description of the work performed. Separate billing categories can
be established to track costs associated with City funding categories or to track project costs, or
such other basis as the City may direct. Reimbursable costs shall be separately itemized.
In consideration for A&W's performance of legal services on behalf of City under the
terms of this Agreement, and upon review and approval of A&W's bill by the City, A&W shall
be compensated at the preapproved hourly rates and for authorized expenses as set forth in
Exhibit B. Payments shall be made by City within thirty (30) days of receipt of the statement,
except for those specific items on an invoice which are contested or questioned and are returned
by City with a written explanation of the question or contest, within thirty (30) days of receipt of
the invoice. Payments made more than ninety (90) days after the due date shall draw interest at
ten (10) percent. Invoices shall be submitted to the City at the address shown in Section 13.
9. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT
The experience, knowledge, capability and reputation of A&W, its partners, associates,
and employees, was a substantial inducement for City to enter into this Agreement. Therefore,
A&W shall not contract with any other person or entity to perform, in whole or in part, the legal
services required under this Agreement without the written approval of City. In addition, neither
this Agreement, nor any interest herein, may be transferred, assigned, conveyed, hypothecated,
or encumbered voluntarily, or by operation of law, whether for the benefit of creditors, or
otherwise, without the prior written approval of City. Adding attorneys to A&W, changes in the
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partnership, name changes and similar changes shall not be deemed a transfer or assignment
requiring approval of City or amendment hereof.
10. INDEPENDENT CONTRACTOR
A&W shall perform all legal services required under this Agreement as an independent
contractor of City, and shall remain, at all times as to City, a wholly independent contractor with
only such obligations as are required under this Agreement. Neither A&W nor any employees or
agents of A&W shall be considered an employee of City for any purpose. Neither City, nor any
of its employees, shall have any control over the manner, mode, or means by which A&W, its
agents or employees, render the legal services required under this Agreement, except as
otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of
A&W employees, servants, representatives, or agents, or in fixing their number, compensation,
or hours of service.
11. INSURANCE
A&W shall procure and maintain, at its sole cost and expense, in a form and content
satisfactory to City, during the entire term of this Agreement, including any extension thereof,
the following policies of insurance:
(a) Comprehensive General Liability Insurance. A policy of comprehensive general
liability insurance written on a per occurrence basis in an amount not less than a combined single
limit of One Million Dollars ($1,000,000.00), and One Million Dollars ($1,000,000.00) products
and completed operations.
(b) Workers' Compensation Insurance. A policy of workers' compensation insurance
in such amount as will fully comply with the laws of the State of California and which shall
indemnify, insure and provide legal defense for both A&W and City against any loss, claim or
damage arising from any injuries or occupational diseases occurring to any worker employed by
or any persons retained by the Contractor in the course of carrying out the work or services
contemplated in this Agreement, with limits of at least One Million Dollars ($1,000,000.00) for
bodily injury by disease, One Million Dollars ($1,000,000.00) each accident/bodily injury and
One Million Dollars ($1,000,000.00) each employee bodily injury by disease.
(c) Automobile Insurance. A policy of comprehensive automobile liability insurance
written on a per occurrence basis in an amount not less than a combined single limit liability of
One Million Dollars ($1,000,000.00). Said policy shall include coverage for owner, non -owner,
leased and hired cars.
(d) Errors and Omissions Insurance. A policy of professional liability issuance
written on a claims made basis in an amount not less than Three Million Dollars ($3,000,000.00).
Except for the policy of professional liability insurance, all of the above policies of
insurance shall be primary insurance and shall name City, its officers, employees and agents as
additionally insured. Except for the policy of professional liability insurance, the insurer shall
waive all rights of subrogation and contribution it may have against the City, its officers,
employees and agents and their respective insurers. Except for the policy of professional
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liability insurance, all of said policies of insurance shall provide that said insurance may not be
amended or canceled without providing thirty (30) days prior written notice by registered mail to
the City. In the event any of said policies of insurance are cancelled, A&W shall, prior to the
cancellation date, submit new evidence of insurance in conformance with this Section to the
City. Failure to do so is cause for termination.
12. INDEMNIFICATION
A. A&W agrees to indemnify City, its officers, employees and agents against, and
will hold and save each of them harmless from, any and all actions, suits, claims, damages to
persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein
"claims or liabilities") that may be asserted or claimed by any person, firm or entity arising out of
or in connection with the work, operations or activities of A&W, its agents, employees,
subcontractors, or invitees, provided for herein or arising from the acts or omissions of A&W
hereunder, or arising from A&W's performance of or failure to perform any term, provision,
covenant or condition of this Agreement, except to the extent such claims or liabilities arises
from the negligence or willful misconduct of City, its officers, agents or employees.
B. City acknowledges that A&W is being appointed as City Attorney pursuant to the
authority of Government Code Section 36505, and has the authority of that office. Accordingly,
the City is responsible pursuant to Government Code Section 825 for providing a defense for the
City Attorney for actions within the scope of its engagement hereunder. Therefore, City agrees
to undertake its statutory duty under section 825 and indemnify A&W, its officers, employees
and agents against and will hold and save each of them harmless from, any and all actions, suits,
claims, damages to persons or property, losses, costs penalties, obligations, errors, omissions or
liabilities (herein "claims or liabilities") that may be asserted or claims by any person, firm or
entity arising out of or in connection with the work, operations or activities of A&W within the
course and scope of its employment hereunder, but nothing herein shall require City to
indemnify A&W for liability arising from A&W's own negligence, tortious acts, willful
misconduct or legal malpractice. Nothing in this agreement shall be construed to provide A&W
with greater indemnification than required by Government Code section 825 or to prohibit the
City from providing a defense with a reservation of rights as permitted by section 825. In
connection herewith:
(i) City will promptly provide a defense and pay any judgment rendered
against the City, its officers, agents or employees for any such claims or liabilities arising out of
or in connection with such work, operations or activities of City hereunder except as specified
above;
(ii) In the event A&W, its officers, agents or employees is made a party to any
action or proceeding filed or prosecuted against City for such damages or other claims solely
arising out of or in connection with the work operation or activities of City hereunder, City
agrees to pay to A&W, its officers, agents or employees any and all costs and expenses incurred
by attorney, its officers, agents or employees in such action or proceeding, including but not
limited to, legal costs and attorneys' fees to the extent required by Government Code section 825.
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13. NOTICES
Notices required pursuant to this Agreement shall be given by personal service upon the
party to be notified, or by delivery of same into the custody of the United States Postal Service,
or its lawful successor; postage prepaid and addressed as follows:
CITY:
City of Rancho Palos Verdes
30940 Hawthorne Blvd
Rancho Palos Verdes, CA 90275
Attention: City Manager
ATTORNEY: Aleshire & Wynder, LLP
18881 Von Karman Avenue, Suite 1700
Irvine, California 92612
(949) 223-1170 (office)
(949) 223-1180 (fax)
Attention: David J. Aleshire
Service of a notice by personal service shall be deemed to have been given as of the date
of such personal service. Notice given by deposit with the United States Postal Service shall be
deemed to have been given two (2) consecutive business days following the deposit of the same
in the custody of said Postal Service. Either party hereto may, from time to time, by written
notice to the other, designate a different address or person which shall be substituted for that
specified above.
14. NON-DISCRIMINATION
In connection with the execution of this Agreement, A&W shall not discriminate against
any employee or applicant for employment because of race, religion, marital status, color, sex,
handicap, sexual orientation, or national origin. A&W shall take affirmative action to ensure that
applicants are employed, and that employees are treated fairly during their employment, without
regard to their race, religion, color, sex, marital status, handicap, sexual orientation, or national
origin. Such actions shall include, but not be limited to the following: employment, promotion,
demotion, transfer, duties assignment; recruitment or recruitment advertising; layoff of
termination; rates of payor other forms of compensation; and selection for training, including
apprenticeship. In the State of California, this requirement is an ethical obligation of attorneys in
the management of their firms. [Rules of Professional Conduct Section 2-400(c)]
15. TERM, DISCHARGE AND WITHDRAWAL
This Agreement shall continue in effect, subject to modification of fees as provided in
Section 5, until terminated by either party hereto. City may discharge A&W at any time. The
City Attorney shall have no right to hearing or notice, and may be discharged with or without
notice. A&W may withdraw from City's representation at any time, to the extent permitted by
law, and the Rules of Professional Conduct, upon at least sixty (60) days' notice to City.
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In the event of such discharge or withdrawal, City will pay A&W professional fees and
costs, in accordance with this Agreement, for all work done (and costs incurred) through the date
of cessation of legal representation. City agrees to execute, upon request, a stipulation in such
form as to permit A&W to withdraw as City's attorneys of record in any legal action then
pending. A&W shall deliver all documents and records of City to City, or to counsel designated
by City, and assist to the fullest extent possible in the orderly transition of all pending matters to
City's new counsel.
16. CONFLICTS
A&W represents that it has advised the City in writing prior to the date of signing of this
Agreement of any known relationships with a third party, the City Council or City employees
which would: (i) present a conflict of interest with the rendering of professional services under
this Agreement; (ii) prevent A&W from performing the terms of this Agreement; and (iii)
present a significant opportunity for the disclosure of confidential information.
A&W has no present or contemplated employment which is adverse to the City. A&W
agrees that it shall not represent clients in matters either litigation or non -litigation against the
City. However, A&W may have past and present clients or may have future clients, which, from
time to time, may have interests adverse to City, and A&W reserves the right to represent such
clients in matters not connected with its representation of the City, upon securing a waiver from
both the City and the present or future client.
If a potential conflict of interest arises in A&W's representation of two clients, if such
conflict is only speculative or minor, A&W shall seek waivers from each client with regards to
such representation. However, if real conflicts exist, A&W shall withdraw from representing
either client in the matter, and assist them in obtaining outside special counsel.
17. INTERPRETATION OF AGREEMENT AND FORUM
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. In the event of any dispute
hereunder, forum shall be the Superior Court, Los Angeles County.
18. INTEGRATED AGREEMENT; LEGAL REVIEW; AMENDMENT
This Agreement contains all of the agreement of the parties and cannot be amended or
modified except by written agreement. City has been advised by A&W of its right to have
independent legal review of this Agreement and has not sought or relied upon advice from A&W
concerning this Agreement. No prior oral or written understanding shall be of any force or effect
with respect to those matters covered in this Agreement. This Agreement may be amended at
any time by the mutual consent of the parties by an instrument in writing.
19. LICENSE REQUIREMENTS
A&W shall demonstrate that the attorneys) who provide legal services to City under this
Agreement are licensed to practice law in the State of California and, if not, indicate to the
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satisfaction of the City Council or the City Manager why such license is not required to perform
the services required.
20. CONFIDENTIALITY AND DISCLOSURE
The data, information and reports acquired or prepared by A&W in connection with
matters upon which the City has retained A&W shall not be shown or distributed to any other
public or private person or entity except as authorized by the City Council or the City Manager
and in no event prior to having been first disclosed to the City Council or the City Manager. All
information, documents, records, reports, data or other materials furnished by City to A&W or
other such information, documents, records, data or other materials to which A&W has access
during its performance pursuant to this Agreement are deemed confidential and shall remain the
property of City. A&W shall not make oral or written disclosure of such documents or materials,
other than as necessary for its performance under this Agreement, without the prior written
approval of the City Manager.
21. RECORDS AND DOCUMENTATION
A&W shall maintain complete and accurate records of the services provided to City and
expenses incurred on behalf of City. A&W agrees to assist City in meeting City's reporting
requirements to other agencies with respect to A&W's work under this Agreement.
22. ASSIGNMENTS AND SUCCESSORS IN INTEREST
City and A&W bind themselves, their partners, successors, assigns, executors and
administrators to the terms of this Agreement. Except as otherwise set forth in this Agreement,
no interest in this Agreement or any of the work provided for in this Agreement shall be assigned
or transferred, either voluntarily or by operation of law, without the prior written approval of the
City Manager or the City Council.
23. NO WAIVER
No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by
the party making the waiver.
24. CORPORATE AUTHORITY
The persons executing this Agreement on behalf of the parties hereto warrant that they
are duly authorized to execute this Agreement on behalf of said parties and that in so executing
this Agreement the parties hereto are formally bound to the provisions of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the City.
Dated:
ATTEST:
9 0V
, 2015
City Clerk
Dated:
, 2015
"ALESHIRE & WYNDER, LLP"
By:
David J. shire, Esq.
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"CITY"
CITY OF RANCHO PALOS VERDES,
a municipal corporation
B
•
ayor
EXHIBIT "A"
FEE ARRANGEMENT
(1) The payment for up to one hundred (100) hours of general legal service (Monthly Hour Limit) shall
be a maximum of Sixteen Thousand Five Hundred Dollars ($16,500) per month (billed at One Hundred
Sixty -Five Dollars ($165) per hour). This high discount is due to the need to ramp up services in the first
year. After 2 years, the discounted rate shall apply to only 80 hours of legal services. The $165 rate shall
increase to $175 per hour after two years of services (July 1, 2018).
(2) General legal services over the Monthly Hour Limit will be billed at the rate of One Hundred
Seventy Five Dollars ($175) per hour for the first year and increasing to $185 the second year and $195
per hour thereafter (July 1, 2017, through July 1, 2018).
(3) Special legal services shall include litigation matters, public finance, disciplinary actions or
hearings, labor negotiations, redevelopment, housing, cable television, water, toxics, refuse, franchising,
enterprise activities and any major contract negotiation involving more than 10 hours (with City Manager
approval). Except for insurance defense, code enforcement, and public finance, all such matters shall be
billed at the rate of Two Hundred Five ($205) per hour and increasing to $215 after one year of services.
(4) Insurance defense/risk management, and code enforcement litigation will be billed at a reduced rate
of One Hundred Eighty Five Dollars ($185) per hour.
(5) Where there is an opportunity to obtain cost recovery through a private party such as a developer,
the hourly rate will be Two Hundred Seventy Fifty Dollars ($275) per hour or $320 for major
transactions.
(6) If City chooses to use Firm for public finance, the fee structure shall be as follows: (i) For land
based issues (i.e. CFD, Assessment or Improvement Districts) one and one-half (1 1/2) percent of the first
$1 million executed and delivered; three-quarters percent of the next $4 million executed and delivered;
one-third percent of the next $10 million; one-eighth percent of the next $10 million; and one-tenth
percent of any amount over $25 million; subject to a minimum fee of Forty Thousand Dollars ($40,000);
or (ii) For all other financings the above schedule applies with a 25% discount. In the event that multiple
series of bonds or notes are issued, the foregoing fee schedule would be applied to each issue. Fees shall
be contingent unless otherwise directed by the client. If contingent, payment of the fees is entirely
contingent upon the successful execution and delivery of the bonds or notes to be payable on or after
delivery except for out-of-pocket expenses. In addition to the foregoing, a fee of $6,000 may be charged
if a tax opinion is required. At the discretion of the City, City may choose a non -contingent structure in
lieu of the above schedule at the rate of $400 per hour on a blended rate for all attorney time incurred.
(7) In addition to the foregoing, the Firm would be reimbursed for out-of-pocket expenses as described
in the attached Exhibit B.
(8) The blended rate for legal assistants (Paralegal), irrespective of matter, shall be One Hundred Five
Dollars ($105) per hour.
(9) The blended rate for document clerks, document litigation specialist and city clerk/election
consultant services shall be Fifty Dollars ($50).
This arrangement shall remain in effect until July 1, 2018 and thereafter until amended.
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EXHIBIT "B"
STATEMENT OF BILLING PRACTICES
The Firm's fees are charged on an hourly basis for all time actually expended and are
generally billed monthly with payment due within thirty (30) days after the date of the bill.
However, where contract rates are established, they prevail over design rates. The current hourly
design rate for the attorneys and staff working on this matter will be set forth in the billing
statement. Annually, you will be provided with the prevailing hourly design rates for the
attorneys who will spend the predominate amount of time on this matter. It should be
understood that hourly rates are reviewed, and when appropriate, adjusted to reflect increases in
seniority and experience as well as inflationary factors. These increases are generally made on
an annual basis effective at the beginning of each calendar year.
The Firm will incur various costs and expenses in performing legal services. These costs
and expenses are separately billed to the client and include fees fixed by law or assessed by
public agencies, litigation costs including deposition, reporter fees, and transcript fees, long
distance telephone calls, messenger and other delivery fees, postage, photocopying (charge of
twenty cents ($.20) per page) and other reproduction costs, staff overtime when necessitated and
authorized by the client, and computer-assisted research fees when authorized by the client, all
based on the actual and reasonable cost (mileage, reproduction and other costs are periodically
adjusted in accordance with the Firm's actual costs).
Travel costs including mileage (current IRS rate), parking, airfare, lodging, meals, and
incidentals are charged in connection with administrative or judicial proceedings, or when
traveling outside of Los Angeles, Orange, and Riverside counties. Travel time may also be
charged in connection with such proceedings. In addition, the client will be responsible for
paying the fees of consultants and other outside experts who are retained after consultation with
the client.
The Firm will not charge for mileage or travel time between our office and City facilities,
nor for local telephone calls or calls made to the City. In exchange, Firm shall not be charged for
calls made or received at the City, whether local or long-distance, or for copying charges since
copying onsite will reduce the charge to the client.
The monthly billing statements for fees and costs shall indicate the basis of the fees,
including a detailed and auditable breakdown of the hours worked, the billable rates charged and
description of the work performed. All bills are expected to be paid within thirty (30) days of the
date of the billing statement. In the event any statement remains unpaid for more than thirty (30)
days after the date of the statement, interest thereon at the rate of ten percent (10%) per annum
shall be due and payable thereafter on the unpaid balance.
Registration fees for attorneys attending conferences and seminars are paid by the Firm
and are never charged to the City (unless expressly requested by the City).
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