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Resolution No. 100281 2 3 4 5 6 7 8 9 19li 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 10,028"IN,E\� A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN ENGAGEMENT AGREEMENT BY AND BETWEEN THE CITY OF VERNON AND FERGUSON, PRAET.& SHERMAN WHEREAS, the City of Vernon desires to retain the legal services of a firm to assist in a lawsuit filed by Barbara J. Batchan and Semund Meyers against the County of .Los Angeles and the City of Vernon Police Department, USDC No. CV09-3570 JWJ and a lawsuit filed by Parrish Batchan against the County of Los Angeles, the City of Vernon and various other defendants, USDC No. CV09-4152 RGK (JWJx), collectively, the "Lawsuits," alleging the use of excessive force causing severe injury; and WHEREAS, the City staff have determined that Ferguson, Praet & Sherman ("Ferguson") possesses the knowledge and expertise to furnish the legal services required by the City to provide a defense in the Lawsuits; and WHEREAS, Ferguson will provide legal services to the City respecting the Lawsuits at the hourly rate of $185 for Associates and $205 for Partners plus reimbursement of reasonable costs associated 1with the Lawsuits; and WHEREAS, the�City Council of the City of Vernon has determined that, pursuant to the provisions of subsection (a) of Section 2.27 of the Vernon City Code, it is in the public interest and necessity to enter into an agreement with Ferguson setting forth the terms and conditions for the performance of the legal services. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Agreement with Ferguson, in substantially the same form as the copy which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor or Mayor Pro-Tem to execute the Agreement for, and on behalf of, the City of Vernon and the City Clerk, or Deputy City Clerk, is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or her designee, to send a fully executed Agreement to Ferguson. SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 20th day of July, 2009. IATTEST: 4Z�- ANUELA GIRON, Ci y Clerk Name: Hilario Gonzales Title: Mayor / Mayor Pro-Tem - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, MANUELA GIRON, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 10,028, was duly adopted by the City Council of the City of Vernon at regular meeting of the City Council duly held on Monday, July 20, 2009, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. (SEAL) d MANUELA GIRON, City Clerk - 3 - EXHIBIT A TERMS AND CONDITIONS 1. Scope of Services. Special Courisel shall perform all legal services necessary and appropriate to the Matter for which Special Counsel has been engaged, namely: PARRISH BATCHAN v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No. CV09-4152PA (MANx) and BARBARA J. BATCHAN, et al. v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No.09-3570 JWJ (the "Services" or the. "Matter"). The City has engaged Special Counsel, the law firm of Ferguson, Praet & Sherman, because Special Counsel is uniquely qualified in the area of law required. 2. A. Because the City has engaged Special Counsel due to its expertise and reputation, Special Counsel and the City Attorney or designee will agree on a staffing profile that identifies the partners, associates, and paralegals who are authorized to work on the Matter, including their respective billing rates, which will be attached as an Addendum subsequent to execution of these Terms and Conditions. Individuals whose names are not included in the staffing profile may not work on the Matter without the prior approval of the City Attorney, or designee. The City reserves the right to refuse to pay for work performed by any individual whose name is not listed or who has not received such prior approval, or whose rate has not been approved. B. Special Counsel shall not hire or otherwise incur any obligation to pay other counsel, specialists, consultants, or experts for services in connection with the Matter without the prior written approval of the City Attorney or designee. 3. Fee. City shall pay to Special Counsel in due course of payments compensation at the hourly rates identified in the staffing profile and reimbursement of costs as further described herein and in the "Guidelines" also attached hereto. 4. Billing. A. Special Counsel shall keep a record of time spent on the matter in increments of one -tenth (:1) of an hour. B. Each task shall be distinctly and completely identified; the City will not pay invoices which contain block billing. The:billing entry must contain the name or initials of the individual performing the task, the nature of the task, the date it was performed, and the length of time it took. C. The City will not pay for the use of attorneys and paralegals to perform Services which are secretarial or administrative. D. The City reserves the right to audit all invoices. The City will not pay for costs incurred by Special Counsel in preparing an invoice, correcting it, or resubmitting it. 5. Costs. The City will reimburse Special Counsel for the reasonable costs incurred by Special Counsel as a result of its representation of the City in the Matter, in accordance with the Guidelines. Costs shall be actual, without the addition of . administrative or overhead charges, and must be documented. The City will not pay for costs that do not ,contain supporting documentation satisfactory to the City Attorney, or designee. 6. Insurance. As a condition precedent to the, effectiveness of this engagement, Special Counsel shall procure and maintain at its expense for the duration of the engagement from insurance companies admitted to write insurance in California or from authorized non -admitted insurance companies that have ratings of or equivalent to ANIII 2 by A.M. Best Company professional liability or errors and omissions liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim. 7. Conflict of Interest. Special Counsel, by signing below, certifies that, at the time Special Counsel signs and for the duration of the engagement, Special Counsel does not have and will not perform services for any other client which would create a conflict as between the interests of the City hereunder and the interests of such other client, subject to written waiver by the City. 8. Miscellaneous. A. These Terms and Conditions shall not be amended, nor any provision or breach hereof waived except in writing signed by the parties. B. The Purchase Order and these Terms and Conditions shall be governed by and construed pursuant to the laws of the State of California. Special Counsel shall comply with all laws, ordinances, rules, and regulations covering performance of Services. C. These Terms and Conditions, and the Guidelines and exhibits, if any, constitute the entire understanding between the parties and supersedes all other agreements, oral or written; with respect to the Services and the Matter. D. If there is any inconsistency or ambiguity between these Terms and Conditions, the Guidelines, or the Addendum, these Terms and Conditions shall control. E. If there is any legal proceeding between the parties to enforce or interpret the terms of the engagement, including these Terms and Conditions or the Guidelines, or to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney's fees and court costs (including appeals). 3 F. The acceptance of Services or payment of money by the City shall not operate as a waiver of any of these Terms and Conditions. The waiver of any breach shall not constitute a waiver of any other or subsequent breach. G. This engagement is intended by the parties to benefit themselves only and is not in any way intended or entered for the purpose of creating any benefit or right for any person or entity that is not a party hereto. Special Counsel acknowledges and agrees to these Terms and Conditions by signing below. Special Counsel shall return these Terms and Conditions to the City Attorney after signing them. The Purchase Order shall not be valid until the City Attorney has received these signed Terms and Conditions. SPECIAL COUNSEL Date: July , 2009 By Title: CITY OF VERNON Date: July : 2009 By Title: ATTEST: APPROVED AS TO FORM: MANUELA GIRON, City Clerk ,LAURENCE S. WIENER, City Attorney El GUIDELINES FOR BILLING In addition to the provisions stated in the Terms and Conditions, the following guidelines for billing apply: 1. The City expects each individual working on the Matter to have the necessary experience to perform the Services required to protect or pursue the City's interests in the Matter in a cost effective.manner. 2. The City expects Special Counsel to select the individual most suitable for the task required and the specific needs of the. Matter, and to use the maximum efficiencies available. Billings for services performed by the inappropriate level of personnel will be reduced by the City based on rate adjustments for the appropriate level of personnel. 3. The City Attorney or designee may request a written budget and timeline for the Matter. The budget shall include all projected fees and costs to be incurred by Special Counsel for the Matter, commencing on the date that Special Counsel receives the request. The budget and timeline shall include the specific tasks to be performed (including such things as discovery and motions for trial, preparation of documents for transactional services, and anticipated research and investigations). Special Counsel shall identify the projected total hours that will be billed and who will be performing those hours of service, plus fees and costs for each task. The budget and timeline shall be a good faith estimate and as complete as possible. Any deviation from the budget and any deviation over 10% on any task identified`in the budget must be discussed in advance with the City Attorney, or designee, and the billing related to that task is subject to adjustment so as to conform to the budget. 5 In addition, the City Attorney or designee may request a written budget and timeline similar to the one described above, but relating specifically to one or more tasks necessary to the Matter. If the billings of Special Counsel are approaching the "not to exceed" amount shown in the Purchase Order, then Special Counsel shall submit, in writing to the City Attorney or designee, the reasons why additional funds will be required to complete the Services. Special Counsel is cautioned that the City cannot pay invoices which reflect fees over the "not to exceed" amount in the Purchase Order. 4. The City will not pay for unnecessary review of texts, codes, rules of court, or other fundamental references. The City will pay the hourly rate for specific legal research which is unique to the Matter, assuming that Special Counsel has used maximum efficiencies and that Special Counsel has not already performed research in the same or similar areas of law. 5. The City acknowledges the benefit of communications between attorneys in the firm. The City does, however, expect that dntra-office conferences will only be as needed, and will be kept to a minimum. Intra-office conferences shall be for the purpose of discussing strategy and legal issues which directly further the Matter. The City will not pay for conferences which are supervisorial or instructional (including conferences regarding case management). Any invoice which lists an intraoffice conference that exceeds these guidelines must contain a full explanation and is subject to reduction by the City. The City will not pay for "team meetings" and the City will scrutinize all intra- office conferences for "value added" to the Matter by the intraoffice conference, for the number of individuals attending the intra-office conference, the length of the conference, the subject(s) discussed at the conference and who participated in it and will, in the City's sole discretion, determine if such value was added. 6. The City will reimburse for facsimiles sent by but not received by Special Counsel and photocopies made at a rate not to exceed $.12 per page; the number of pages of facsimiles and to whom they were sent, and the number of pages of photocopies made must appear on the invoice. Special Counsel shall limit the making of photocopies and the sending of facsimiles, The City will reimburse actual costs for computerized legal research if it is reasonable and necessary; however, these charges are subject to review by the City. 7, The City will not reimburse for overtime, word processing (document production), supplies, anything identified on an invoice as "miscellaneous", or any other unidentified charges. 7 ADDENDUM NAME POSITION / TITLE HOURLY RATE Peter J. Ferguson Partner $205.00 Bruce D. Praet Partner $205.00 Steven A. Sherman Partner $205.00 Diana L. Field Associate $185.00 Kelly R. Irwin Associate $185.00 Jon F. Hamilton Associate $185.00 MEMORANDUM FROM CITY ATTORNEY'S OFFICE INTER -DEPARTMENT MEMORANDUM DATE: July 27, 2009 TO: Manuela Giron, City Clerk FROM: Judy Lehr �� RE: Ferguson, Praet & Sherman Agreement - Resolution No. 10,028 Dear Nelly: Attached is one fully signed original Agreement from Ferguson, Praet & Sherman respecting legal services to be performed in the Parrish Batchan v. County of Los Angeles, et al., and the Barbara J. Batchan, et al. v. County of Los Angeles, et al. lawsuits. JH:j1 Enclosure TERMS AND CONDITIONS 1. Scope of Services. Special Counsel shall perform all legal services necessary and appropriate to the Matter for which Special Counsel has been engaged, namely: PARRISH BATCHAN v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No. CV09-4152PA (MANx) and BARBARA J. BATCHAN, et al. v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No.09-3570 JWJ (the "Services" or the. "Matter"). The City has engaged Special Counsel, the law firm of Ferguson, Praet & Sherman, because Special Counsel is uniquely qualified in the area of law required. 2. A. Because the City has engaged Special Counsel due to its expertise and reputation, Special Counsel and the City Attorney or designee will agree on a staffing profile that identifies the partners, associates, and paralegals who are authorized to work on the Matter, including their respective billing rates, which will be attached as an Addendum subsequent to execution of these Terms and Conditions. Individuals whose names are not included in the staffing profile may not work on the Matter without the prior approval of the City Attorney, or designee. The City reserves the right to refuse to pay for work performed by any individual whose name is not listed or who has not received such prior approval, or whose rate has not been approved. B. Special Counsel shall not hire or otherwise incur any obligation to pay other counsel, specialists, consultants, or experts for services in connection with the Matter without the prior written approval of the City Attorney or designee. 1 3. Fee. City shall pay to Special Counsel in due course of payments compensation at the hourly rates identified in the staffing profile and reimbursement of costs as further described herein and in the "Guidelines" also attached hereto. 4. Billing. A. Special Counsel shall keep a record of time spent on the matter in increments of one -tenth (1) of an hour. B. Each task shall be distinctly and completely identified; the City will not pay invoices which contain block billing. The,billing entry must contain the name or initials of the individual performing the task, the nature of the task, the date it was performed, and the length of time it took. C. The City will not pay for the use of attorneys and paralegals to perform Services which are secretarial or administrative. D. The City reserves the right to audit all invoices. The City will not pay for costs incurred by Special Counsel in preparing an invoice, correcting it, or resubmitting it. 5. Costs. The City will reimburse Special Counsel for the reasonable costs incurred by Special Counsel as a result of ,its representation of the City in the Matter, in accordance with the Guidelines. Costs shall be actual, without the addition of administrative or overhead charges, and must be documented. The City will not pay for costs that do not ,contain supporting documentation satisfactory to the City Attorney, or designee. 6. Insurance. As a condition precedent to the effectiveness of this engagement, Special Counsel shall procure and maintain at its expense for the duration of the engagement from insurance companies admitted to write insurance in California or from authorized non -admitted insurance companies that have ratings of or equivalent to A:VIII N by A.M. Best Company professional liability or errors and omissions liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim. 7. Conflict of Interest. Special Counsel, by signing below, certifies that, at the time Special Counsel signs and for the duration of the engagement, Special Counsel does not have and will not perform services for any other client which would create a conflict as between the interests of the City hereunder and the interests of such other client, subject to written waiver by the City. 8. Miscellaneous. A. These Terms and Conditions shall not be amended, nor any provision or breach hereof waived except in writing signed by the parties. B. The Purchase Order and these Terms and Conditions shall be governed by and construed pursuant to the laws of the State of California. Special Counsel shall comply with all laws, ordinances, rules, and regulations covering performance of Services. C. These Terms and Conditions, and the Guidelines and exhibits, if any, constitute the entire understanding between the parties and supersedes all other agreements, oral or written, with respect to the Services and the Matter. D. If there is any inconsistency or ambiguity between these Terms and Conditions, the Guidelines, or the Addendum, these Terms and Conditions shall control. E. If there is any legal proceeding between the parties to enforce or interpret the terms of the engagement, including these Terms and Conditions or the Guidelines, or to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney's fees and court costs (including appeals). 3 F. The acceptance of Services or payment of money by the City shall not operate as a waiver of any of these Terms and Conditions. The waiver of any breach shall not constitute a waiver of any other or subsequent breach. G. This engagement is intended by the parties to benefit themselves only and is not in any way intended or entered for the purpose of creating any benefit or right for any person or entity that is not a party hereto. Special Counsel acknowledges and agrees to these Terms and Conditions by signing below. Special Counsel shall return these Terms and Conditions to the City Attorney after signing them. The Purchase Order shall not be valid until the City Attorney has received these signed Terms and Conditions. Date: Jul 2009 Date: July, , 2009 SPECIAL COUNSEL Title: CITY OF VERNON By Hilario Gonzales Title: Mayor ZTEST: \ APP:! D AS TO FORM: UELA GIRON,_Cit ,Clerk LAURENCE S. WIENER, City ttorney 4 GUIDELINES FOR BILLING In addition to the provisions stated in the Terms and Conditions, the following guidelines for billing apply: 1. The City expects each individual working on the Matter to have the necessary experience to perform the Services required to protect or pursue the City's interests in the Matter in a cost effective.manner. 2. The City expects Special Counsel to select the individual most suitable for the task required and the specific needs of the. Matter, and to use the maximum efficiencies available. Billings for services performed by the inappropriate level of personnel will be reduced by the City based on rate adjustments for the appropriate level of personnel. 3. The City Attorney or designee may request a written budget and timeline for the Matter. The budget shall include all projected fees and costs to be incurred by Special Counsel for the Matter, commencing on the date that Special Counsel receives the request. The budget and timeline shall include the specific tasks to be performed (including such things as discovery and motions for trial, preparation of documents for transactional services, and anticipated research and investigations). Special Counsel shall identify the projected total hours that will be billed and who will be performing those hours of service, plus fees and costs for each task. The budget and timeline shall be a good faith estimate and as complete as possible. Any deviation from the budget and any deviation over 10% on any task identified in the budget must be discussed in advance with the City Attorney, or designee, and the billing related to that task is subject to adjustment so as to conform to the budget. 5 In addition, the City Attorney or designee may request a written budget and timeline similar to the one described above, but relating specifically to one or more tasks necessary to the Matter. If the billings of Special Counsel are approaching the "not to exceed" amount shown in the Purchase Order, then Special Counsel shall submit, in writing to the City Attorney or designee, the reasons why additional funds will be required to complete the Services. Special Counsel is cautioned that the City cannot pay invoices which reflect fees over the "not to exceed" amount in the Purchase Order. 4. The City will not pay for unnecessary review of texts, codes, rules of court, or other fundamental references. The City will pay the hourly rate for specific legal research which is unique to the Matter, assuming that Special Counsel has used maximum efficiencies and that Special Counsel has not already performed research in the same or similar areas of law. 5. The City acknowledges the benefit of communications between attorneys in the firm. The City does, however, expect that4ntra-office conferences will only be held as needed, and will be kept to a minimum. Intra-office conferences shall be for the purpose of discussing strategy and legal issues which directly further the Matter. The City will not pay for conferences which are supervisorial or instructional (including conferences regarding case management). Any invoice which lists an intraoffice conference that exceeds these guidelines must contain a full explanation and is subject to reduction by the City. The City will not pay for "team meetings" and the City will scrutinize all intra- office conferences for "value added" to the Matter by the intraoffice conference, for the number of individuals attending the intra-office conference, the length of the conference, R the subject(s) discussed at the conference and who participated in it and will, in the City's sole discretion, determine if such value was added. 6. The City will reimburse for facsimiles sent by but not received by Special Counsel and photocopies made at a rate not to exceed $.12 per page; the number of pages of facsimiles and to whom they were sent, and the number of pages of photocopies made must appear on the invoice. Special Counsel shall limit the making of photocopies and the sending of facsimiles, The City will reimburse actual costs for computerized legal research if it is reasonable and necessary; however, these charges are subject to review by the City. 7. The City will not reimburse for overtime, word processing (document production), supplies, anything identified on an invoice as "miscellaneous", or any other unidentified charges. 7 ADDENDUM NAME POSITION / TITLE HOURLY RATE Peter J. Ferguson Partner $205.00 Bruce D. Praet Partner $205.00 Steven A. Sherman Partner $205.00 Diana L. Field Associate $185.00 Kelly R. Irwin Associate $185.00 Jon F. Hamilton Associate $185.00 -N .► OFFICE OF THE CITY ATTORNEY Jeff A. Harrison, City Attorney 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 Fax (323) 826-1438 July 20, 2009 Via Federal Express Peter J. Ferguson, Esq. Bruce Praet, Esq. Ferguson, Praet & Sherman 1631 E. 18th Street Santa Ana, CA 92705-7101 Re: Batchan v. County of Los Angeles, et al. Gentlemen: Enclosed please find two duplicate original engagement agreements and a binder containing various police department documents (see index attached) regarding the above -referenced matter. Please execute the two original agreements, retain one original for your file and return a fully executed agreement back to me for our file. If you have any questions, please do•not hesitate to call me. Sincere f Harrison JH:j1 Enclosures cc: Manuela Giron, City Clerk (Resolution No. 10,028) (with copy of agreement only) E�Cclusively Industrial TERMS AND CONDITIONS 1. Scope of Services. Special Courisel shall perform all legal services necessary and appropriate to the Matter for which Special Counsel has been engaged, namely: PARRISH BATCHAN v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No. CV09-4152PA (MANx) and BARBARA J. BATCHAN, et al. v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No.09-3570 JWJ (the "Services" or the "Matter"). The City has engaged Special Counsel, the law firm of Ferguson, Praet & Sherman, because Special Counsel is uniquely qualified in the area of law required. 2. A. Because the City has engaged Special Counsel due to its expertise and reputation, Special Counsel and the City Attorney or designee will agree on a staffing profile that identifies the partners, associates, and paralegals who are authorized to work on the Matter, including their respective billing rates, which will be attached as an Addendum subsequent to execution.of these Terms and Conditions. Individuals whose names are not included in the staffing profile may not work on the Matter without the prior approval of the City Attorney, or designee. The City reserves the right to refuse to pay for work performed by any individual whose name is not listed or who has not received such prior approval, or whose rate has not been approved. B. Special Counsel shall not hire or otherwise incur any obligation to pay other counsel, specialists, consultants, or experts for services in connection with the Matter without the prior written approval of the City Attorney or designee. 1 3. Fee. City shall pay to Special Counsel in due course of payments compensation at the hourly rates identified in the staffing profile and reimbursement of costs as further described herein and in the "Guidelines" also attached hereto. 4. Billing. A. Special Counsel shall keep a record of time spent on the matter in increments of one -tenth (:1) of an hour. B. Each task shall be distinctly and completely identified; the City will not pay invoices which contain block billing. Therbilling entry must contain the name or initials of the individual performing the task, the nature of the task, the date it was performed, and the length of time it took. C. The City will not pay for the use of attorneys and paralegals to perform Services which are secretarial or administrative. D. The City reserves the right to audit all invoices. The City will not pay for costs incurred by Special Counsel in preparing an invoice, correcting it, or resubmitting it. 5. Costs. The City will reimburse Special Counsel for the reasonable costs incurred by Special Counsel as a result of 4ts representation of the City in the Matter, in accordance with the Guidelines. Costs shall be actual, without the addition of - - _ -_ administrative or overhead charges, and must be documented. The City will not pay for costs that do not ,contain supporting documentation satisfactory to the City Attorney, or designee. 6. Insurance. As a condition precedent to the effectiveness of this engagement, Special Counsel shall procure and maintain at its expense for the duration of the engagement from insurance companies admitted to write insurance in California or from authorized non -admitted insurance companies that have ratings of or equivalent to ANIII 2 by A.M. Best Company professional liability or errors and omissions liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim. 7. Conflict of Interest. Special Counsel, by signing below, certifies that, at the time Special Counsel signs and for the duration of the engagement, Special Counsel does not have and will not perform services for any other client which would create a conflict as between the interests of the City hereunder and the interests of such other client, subject to written waiver by the City. Miscellaneous. A. These Terms and Conditions shall not be amended, nor any provision or breach hereof waived except in writing signed by the parties. B. The Purchase Order and these Terms and Conditions shall be governed by and construed pursuant to the, laws of the State of California. Special Counsel shall comply with all laws, ordinances, rules, and regulations covering performance of Services. C. These Terms and Conditions, and the Guidelines and exhibits, if any, constitute the entire understanding between the parties and supersedes all other agreements, oral or written, with respect to the Services and the Matter. D. If there is any inconsistency or ambiguity between these Terms and Conditions, the Guidelines, or the Addendum, these Terms and Conditions shall control. E. If there is any legal proceeding between the parties to enforce or interpret the terms of the engagement, including these Terms and Conditions or the Guidelines, or to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney's fees and court costs (including appeals). 3 F. The acceptance of Services or payment of money by the City shall not operate as a waiver of any of these Terms and Conditions. The waiver of any breach shall not constitute a waiver of any other or subsequent breach. G. This engagement is intended by the parties to benefit themselves only and is not in any way intended or entered for the purpose of creating any benefit or right for any person or entity that is not a party hereto. Special Counsel acknowledges and agrees to these Terms and Conditions by signing below. Special Counsel shall return these Terms and Conditions to the City Attorney after signing them. The Purchase Order shall not be valid until the City Attorney has received these signed Terms and Conditions. Date: July , 2009 90 Date: Jules, 2009 SPECIAL COUNSEL Title: CITY OF VERNON By Hilario Gonzales Title: Mayor A TEST: APPR AS FORM: L , i MANUELA GIRON,U4 Clerk LAIKENCEP S. WIENER, City Attorney M GUIDELINES FOR BILLING In addition to the provisions stated in the Terms and Conditions, the following guidelines for billing apply: 1. The City expects each individual working on the Matter to have the necessary experience to perform the Services required to protect or pursue the City's interests in the Matter in a cost effective -manner. 2. The City expects Special Counsel to select the individual most suitable for the task required and the specific needs of the. Matter, and to use the maximum efficiencies available. Billings for services performed by the inappropriate level of personnel will be reduced by the City based on rate adjustments for the appropriate level of personnel. 3. The City Attorney or designee may request a written budget and timeline for the Matter. The budget shall include all projected fees and costs to be incurred by Special Counsel for the Matter, commencing on the date that Special Counsel receives the request. The budget and timeline shall include the specific tasks to be performed (including such things as discovery and motions for trial, preparation of documents for transactional services, and anticipated research and investigations). Special Counsel shall identify the projected total hours that will be billed and who will be performing those hours of service, plus fees and costs for each task. The budget and timeline shall be a good faith estimate and as complete as possible. Any deviation from the budget and any deviation over 10% on any task identified' in the budget must be discussed in advance with the City Attorney, or designee, and the billing related to that task is subject to adjustment so as to conform to the budget. 5 In addition, the City Attorney or designee may request a written budget and timeline similar to the one described above, but relating specifically to one or more tasks necessary to the Matter. If the billings of Special Counsel are approaching the "not to exceed" amount shown in the Purchase Order, then Special Counsel shall submit, in writing to the City Attorney or designee, the reasons why additional funds will be required to complete the Services. Special Counsel is cautioned that the City cannot pay invoices which reflect fees over the "not to exceed" amount in the Purchase Order. 4. The City will not pay for unnecessary review of texts, codes, rules of court, or other fundamental references. The City will pay the hourly rate for specific legal research which is unique to the Matter, assuming that Special Counsel has used maximum efficiencies and that Special Counsel has not already performed research in the same or similar areas of law. 5. The City acknowledges the benefit of communications between attorneys in the firma The City does, however, expect that tintra-office conferences will only be held as needed, and will be kept to a minimum. Intra-office conferences shall be for the purpose of discussing strategy and legal issues which directly further the Matter. The City will not pay for conferences which are supervisorial or instructional (including conferences regarding case management). Any invoice which lists an intraoffice conference that exceeds these guidelines must contain a full explanation and is subject to reduction by the City. The City will not pay for "team meetings" and the City will scrutinize all intra- office conferences for "value added" to the Matter by the intraoffice conference, for the number of individuals attending the intra-office conference, the length of the conference, R the subject(s) discussed at the conference and who participated in it and will, in the City's sole discretion, determine if such value was added. 6. The City will reimburse for facsimiles sent by but not received by Special Counsel and photocopies made at a rate not to exceed $.12 per page; the number of pages of facsimiles and to whom they were sent, and the number of pages of photocopies made must appear on the invoice. Special Counsel shall limit the making of photocopies and the sending of facsimiles, The City will reimburse actual costs for computerized legal research if it is reasonable and necessary; however, these charges are subject to review by the City. 7. The City will not reimburse for overtime, word processing (document production), supplies, anything identified on an invoice as "miscellaneous", or any other unidentified charges. 7 NAME Peter J. Ferguson Bruce D. Praet Steven A. Sherman Diana L. Field Kelly R. Irwin Jon F. Hamilton ADDENDUM POSITION / TITLE HOURLY RATE Partner $205.00 Partner $205.00 Partner $205.00 Associate $185.00 Associate $185.00 Associate $185.00 ,6 [(59 JUL 1 5 2009 4 ITY CLERK'S OFFICE STAFF REPORT APPROVFI JUL 20 '09 CITY COUNCIL CITY ATTORNEY'S OFFICE DATE: July 13, 2009 `�0-;..1.R1811T10N TO: Honorable Mayor and City Council "- FROM: Jeff A. Harriso RE: Ferguson, Praet & Sherman Retainer Agreement - Parrish Batchan v. County of Los Angeles, et al; Barbara J. Batchan v. County of Los Angeles, et al; Issue: C Barbara J. Batchan and Semund Meyers have filed a lawsuit in the United States District Court, Central District, Case No. CV09-3570 JWJ, against the County of Los Angeles and the City of Vernon Police Department alleging the use of excessive force causing severe injury. Parrish Batchan has filed a lawsuit in the United States District Court, Central District, Case No. CV09-4152 RGK (JWJx), against the County of Los Angeles, the Sheriff's Department, Sheriff Leroy Baca, the City of Vernon, the City of Vernon Police Department and Steve Towles, the Chief of Police, alleging the use of excessive force causing severe injury, which was served on the City on June 29, 2009. Recommendations: Due to the nature of the two complaints and the acknowledged expertise of Ferguson, Praet & Sherman in handling these specific types of matters, I recommend that the City adopt a resolution approving a retainer agreement with Ferguson, Praet & Sherman to represent the City in USDC Case Nos. CV09-3570 JWJ and CV09-4152 RGK (JWJx). Fiscal Impact: Hourly rate of $185 for Associates and $205 for Partners plus reimbursement of reasonable costs associated with the two lawsuits. JUL 1 5 2009 CITY CLERK'S OFFICE CITY ATTORNEY'S OFFICE INTER -DEPARTMENT MEMORANDUM DATE: July 13, 2009 ly;�_, TO: Donal O'Callaghan, City Administrator FROM: Jeff A. Harriso RE: Retainer Agreement - Ferguson, Praet & Sherman Pursuant to our several previous conversations with respect to this litigation, enclosed please find for your review and approval a Staff Report relating to the adoption of a resolution approving a retainer agreement with Ferguson, Praet & Sherman regarding the Batchan v. County of Los Angeles, et al. lawsuits. JH j 1 Enclosure FRR-CIFEIUVED JUL 1 4 2009 TERMS AND CONDITIONS 1. Scope of Services. Special Couiisel shall perform all legal services necessary and appropriate to the Matter for which Special Counsel has been engaged, namely: PARRISH BATCHAN v. COUNTY OF LOS ANGELES, CITY OF VERNON, et al. Case No. CV09-4152PA (MANx) and BARBARA J. BATCHAN, et al. v. COUNTY OF LOS ANGELES, CITY'OF VERNON, et al. Case No.09-3570 JWJ (the "Services" or the "Matter"). The City has engaged Special Counsel, the law firm of Ferguson, Praet & Sherman, because Special Counsel is uniquely qualified in the area of law required. 2. A. Because the City has engaged Special Counsel due to its expertise and reputation, Special Counsel and the City Attorney or designee will agree on a staffing profile that identifies the partners, associates, and paralegals who are authorized to work on the Matter, including their respective billing rates, which will be attached as an Addendum subsequent to execution of these Terms and Conditions. Individuals whose names are not included in the staffing profile may not work on the Matter without the prior approval of the City Attorney, or designee. The City reserves the right to refuse to pay for work performed by any individual whose name is not listed or who has not received such prior approval, or whose rate has not been approved. B. Special Counsel shall not hire or otherwise incur any obligation to pay other counsel, specialists, consultants, or experts for services in connection with the Matter without the prior written approval of the City Attorney or designee. 1 3. Fee. City shall pay to Special Counsel in due course of payments compensation at the hourly rates identified in the staffing profile and reimbursement of costs as further described herein and in the "Guidelines" also attached hereto. 4. Billing. A. Special Counsel shall keep a record of time spent on the matter in increments of one -tenth (1) of an hour. B. Each task shall be distinctly and completely identified; the City will not pay invoices which contain block billing. The;billing entry must contain the name or initials of the individual performing the task, the nature of the task, the date it was performed, and the length of time it took. C. The City will not pay for the use of attorneys and paralegals to perform Services which are secretarial or administrative. D. The City reserves the right to audit all invoices. The City will not pay for costs incurred by Special Counsel in preparing an invoice, correcting it, or resubmitting it. 5. Costs. The City will reimburse Special Counsel for the reasonable costs incurred by Special Counsel as a result of its representation of the City in the Matter, in accordance with the Guidelines. Costs shall be actual, without the addition of administrative or overhead charges, and must be documented. The City will not pay for costs that do not ,contain supporting documentation satisfactory to the City Attorney, or designee. 6. Insurance. As a condition precedent to the effectiveness of this engagement, Special Counsel shall procure and maintain at its expense for the duration of the engagement from insurance companies admitted to write insurance in California or from authorized non -admitted insurance companies that have ratings of or equivalent to ANIII PA by A.M. Best Company professional liability or errors and omissions liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim. 7. Conflict of Interest. Special Counsel, by signing below, certifies that, at the time Special Counsel signs and for the duration of the engagement, Special Counsel does not have and will not perform services for any other client which would create a conflict as between the interests of the City hereunder and the interests of such other client, subject to written waiver by the City. 8. Miscellaneous. A. These Terms and Conditions shall not be amended, nor any provision or breach hereof waived except in writing signed by the parties. B. The Purchase Order and these Terms and Conditions shall be governed by and construed pursuant to then laws of the State of California. Special Counsel shall comply with all laws, ordinances, rules, and regulations covering performance of Services. C. These Terms and Conditions, and the Guidelines and exhibits, if any, constitute the entire understanding between the parties and supersedes all other agreements, oral or written, with respect to the Services and the Matter. D. If there is any inconsistency or ambiguity between these Terms and Conditions, the Guidelines, or the Addendum, these Terms and Conditions shall control B. If there is any legal proceeding between the parties to enforce or interpret the terms of the engagement, including these Terms and Conditions or the Guidelines, or to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney's fees and court costs (including appeals). 3 F. The acceptance of Services or payment of money by the City shall not operate as a waiver of any of these Terms and Conditions. The waiver of any breach shall not constitute a waiver of any other or subsequent breach. G. This engagement is intended by the parties to benefit themselves only and is not in any way intended or entered for the purpose of creating any benefit or right for any person or entity that is not a party hereto. Special Counsel acknowledges and agrees to these Terms and Conditions by signing below. Special Counsel shall return these Terms and Conditions to the City Attorney after signing them. The Purchase Order shall not be valid until the City Attorney has received these signed Terms and Conditions. SPECIAL COUNSEL Date: July , 2009 By — Title: CITY OF VERNON Date: July , 2009 By Title: C! GUIDELINES FOR BILLING In addition to the provisions stated in the Terms and Conditions, the following guidelines for billing apply: 1. The City expects each individual working on the Matter to have the necessary experience to perform the Services required to protect or pursue the City's interests in the Matter in a cost effective manner. 2. The City expects Special Counsel to select the individual most suitable for, the task required and the specific needs of the Matter, and to use the maximum efficiencies available. Billings for services performed by the inappropriate level of personnel will be reduced by the City based on rate adjustments for the appropriate level of personnel. 3. The City Attorney or designee may request a written budget and timeline for the Matter. The budget shall include all projected fees and costs to be incurred by Special Counsel for the Matter, commencing on the date that Special Counsel receives the request. The budget and timeline shall include the specific tasks to be performed (including such things as discovery and motions for trial, preparation of documents for transactional services, and anticipated research and investigations). Special Counsel shall identify the projected total hours that will be billed and who will be performing those hours of service, plus fees and costs for each task. The budget and timeline shall be a good faith estimate and as complete as possible. Any deviation from the budget and any deviation over 10% on any task identified in the budget must be discussed in advance with the City Attorney, or designee, and the billing related to that task is subject to adjustment so as to conform to the budget. 5 In addition, the City Attorney or designee may request a written budget and timeline similar to the one described above, but relating specifically to one or more tasks necessary to the Matter. If the billings of Special Counsel are approaching the "not to exceed" amount shown in the Purchase Order, then Special Counsel shall submit, in writing to the City Attorney or designee, the reasons why additional funds will be required to complete the Services. Special Counsel is cautioned that the City cannot pay invoices which reflect fees over the "not to exceed" amount in the Purchase Order. 4. The City will not pay for unnecessary review of texts, codes, rules of court, or other fundamental references. The City will pay the hourly rate for specific legal research which is unique to the Matter, assuming that Special Counsel has used maximum efficiencies and that Special Counsel has not already performed research in the same or similar areas of law. 5. The City acknowledges the benefit of communications between attorneys in the firm. The City does, however, expect that=intra-office conferences will only be held as needed, and will be kept to a minimum. Intra-office conferences shall be for the purpose of discussing strategy and legal issues which directly further the Matter. The City will not pay for conferences which are supervisorial or instructional (including conferences regarding case management). Any invoice which lists an intraoffice conference that exceeds these guidelines must contain a full explanation and is subject to reduction by the City. The City will not pay for "team meetings" and the City will scrutinize all intra- office conferences for "value added" to the Matter by the intraoffice conference, for the number of individuals attending the intra-office conference, the length of the conference, the subject(s) discussed at the conference and who participated in it and will, in the City's sole discretion, determine if such value was added. 6. The City will reimburse for facsimiles sent by but not received by Special Counsel and photocopies made at a rate not to exceed $.12 per page; the number of pages of facsimiles and to whom they were sent, and the number of pages of photocopies made must appear on the invoice. Special Counsel shall limit the making of photocopies and the sending of facsimiles, The City will reimburse actual costs for computerized legal research if it is reasonable and necessary; however, these charges are subject to review by the City. 7. The City will not reimburse for overtime, word processing (document production), supplies, anything identified on an invoice as "miscellaneous", or any other unidentified charges. %7 ADDENDUM NAME POSITION / TITLE HOURLY RATE Peter J. Ferguson Partner $205.00 Bruce D. Praet Partner $205.00 Steven A. Sherman Partner $205.00 Diana L. Field Associate $185.00 Kelly R. Irwin Associate $185.00 Jon F. Hamilton Associate $185.00