Resolution No. 2010-187RESOLUTION NO. 2010-187
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND RATIFYING THE EXECUTION OF A
CONTRACT SERVICES AGREEMENT BETWEEN THE CITY OF
VERNON AND ALESHIRE & WYNDER, LLP FOR SPECIAL
COUNSEL SERVICES
WHEREAS,. the City of Vernon ("City") wishes to retain the
services of Aleshire & Wynder, LLP ("A&W") to provide legal services;
and
WHEREAS, by memorandum dated December 9, 2010, the .Interim
City Attorney has recommended A&W be retained to provide legal services
pertaining to safety personnel issues, liability and municipal matters;
and
WHEREAS, in order to meet imminent deadlines the Mayor of the
City of Vernon executed a Contract Services Agreement (the "Agreement")
with A&W, subject to ratification by the City Council; 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 the Agreement with A&W to provide legal
services.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF VERNON AS FOLLOWS:
SECTION 1: The City Council of the City of Vernon does
hereby find and determine that the recitals contained hereinabove
are true and correct.
SECTION 2: The City Council of the City of Vernon hereby
approves and ratifies the execution of the Agreement with Aleshire &
Wynder, LLP, a copy of which is attached hereto as Exhibit A.
SECTION 3: The City Council of the City of Vernon hereby
authorizes the City Administrator, or his designee, to take whatever
actions are deemed necessary or desirable for the purpose of
implementing and carrying out the purposes of this Resolution and the
transactions herein approved or authorized..
SECTION 4: The City Council of the City of Vernon hereby
directs the City Clerk, or the City Clerk's designee, to send a fully
executed Agreement to:
Aleshire & Wynder, LLP
Attention: Glen E. Tucker
1515 W. 190th Street, Suite 565
Gardena, CA 90248
SECTION 5: The City Clerk of the City of Vernon shall
certify to the passage, approval and adoption of this Resolution, and
the City Clerk of the City of Vernon shall cause this Resolution and
the City Clerk's certification to be entered in the File of Resolutions
of the Council of this City.
APPROVED AND ADOPTED this 20th day of December, 2010.
ATTjEST :
/ / .
il'lard G. /Ya/hac(uchU City Clerk
Name: Hilario Gonzales
Title: Mayor /�-a�--rho em
MME
STATE OF CALIFORNIA )
) ss
COUNTY OF LOS ANGELES )
I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution
No. 2010-187, was duly passed, approved and adopted by the City Council
of the City of Vernon at a regular meeting of the City Council duly
held on Monday, December 20, 2010, and thereafter was duly signed by
the Mayor or Mayor Pro-Tem of the City of Vernon.
Executed this >"I*'- day of December, 2010, at Vernon, California.
Willard G. a uc i City Clerk
(SEAL) .
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EXHIBIT A
CONTRACT SERVICES AGREEMENT FOR
SPECIAL COUNSEL SERVICES
CITY OF VERNON
This CONTRACT SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES
(the ."Agreement") is effective as of the 20tbday of December, 2010 by and between the law firm
of ALESHIRE & WYNDER, LLP, a California limited liability partnership ("A&W"), and the
CITY OF VERNON, a municipal corporation ("City").
WHEREAS, Vernon, is desirous of obtaining professional legal services and
representation for its police employees ("Defendants") in specific civil cases arising out of their
employment with the City; and
WHEREAS, Special Counsel represents itself to be capable, qualified and experienced in
providing such services and representations.
NOW THEREFORE, in consideration of these premises, the parties hereto agree as
follows:
1. APPOINTMENT
City Council hereby appoints Glen E. Tucker as' Special Counsel, and hires A&W
therefore to render the legal services as specified herein, including for defense of police and
other tort claims against City, and such other projects as assigned by the City Attorney.
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 Special Counsel (or any successors to such person)
without the City's prior approval.
2. SCOPE OF WORK AND DUTIES
A. A&W will provide representation to City in legal matters as specified above and
as assigned.
B. Legal services to be performed by Special Counsel under this Agreement .may
include, but are not limited to the rendering of legal advice and consultation; the drafting and
preparation of necessary legal documents to effectuate the best interests of Defendants, and all
appearances, required by the court in this matter.
C. Special Counsel 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 .Special Counsel 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.
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D. All legal services shall be coordinated under the direction of the City Manager
and City Attorney. Notwithstanding any other provision contained herein, any legal services can
only be authorized by the City Attorney. Any matter assigned shall be confirmed in writing.
Nothing in this Agreement shall be construed in any manner as limiting the ultimate and absolute
discretion of the City Attorney or City Council, at any time, to assign or reassign any legal
matter of City from or to A&W.
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.
4. PERSONNEL
In addition to Glen Tucker acting as Special Counsel, A&W will provide additional
attorneys who are qualified and have the expertise to render the predominate legal services
hereunder. Additional attorneys to be utilized hereunder include: Mily C. Huntley and Lucy A.
Manfre.
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.
Notwithstanding the foregoing, City shall have the right to designate or reject the
assignments of other specific attorneys associated with Special Counsel.
5. COMPENSATION
A&W's fees will be charged on an hourly basis for all time actually expended. The
compensation schedules are as follows:
Attorneys: $200.00 per hour
Paralegal: $95.00 per hour
Appellate Work: $300.0.0 per hour
The foregoing arrangement would remain in effect for at least Fiscal Year 2011 (July 1,
2011).
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6. 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 "A". 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
agreement of City. A&W will select any investigators, consultants, or experts to be hired only
after consultation with City.
The cost and expenses referred to herein include certain travel expenses; transportation,
meals, and lodging; when incurred on behalf of the client. Generally, except in connection with
litigation (travel costs to court and for discovery are chargeable), these will only be charged
when outside of the area (outside of Los Angeles or Orange County), and only with the prior
agreement of City.
Finally, 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
as well as other clients. 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.
7. STATEMENTS AND PAYMENT
A&W shall render to City a statement for fees, costs, and expenses incurred on a periodic
basis (generally monthly). Such statement(s) shall indicate the basis of the fees, including the
hours worked; the hourly rate(s), and a brief 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.
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 thirty (30) days after the due date shall draw interest at the
legal rate.
Special Counsel shall certify on each invoice that it is entitled to receive the amounts
requisitioned. Each invoice shall be in the form and number of copies required by City. Special
Counsel shall maintain proper records of the hours worked pursuant to this Agreement and such
records shall be open at any reasonable time for inspection by the City.
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8. 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
partnership, name changes and similar changes shall not be deemed a transfer or assignment
requiring approval of City or amendment hereof.
9. 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 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.
10. 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.
(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 ($4,000,000.00). 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).
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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, employers 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
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, the attorney 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.
11. INDEMNIFICATION
A. A&W agrees to indemnify City, its officers, employees and gents 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 arise s
from the negligence or willful misconduct of City, its officers, agents or employees.
B. City acknowledges that A&W is being appointed as Special Counsel to act on
behalf of the City Attorney's office in the matters specified. Accordingly, to the extent statutory
immunities or other defenses exist to any action .brought by any party other than City arising out
of the matters herein, -City will cooperate with Special Counsel in the assertion of such defenses.
12. 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 Vernon
4305 S. Santa Fe Avenue
Vernon,,CA 90058
Attn: City Clerk
Copy to: City of Vernon
4305 S. Santa Fe Avenue
Vernon, CA 90058
Attn: Willard Yamaguchi, Interim City Attorney
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SPECIAL COUNSEL:. Aleshire & Wynder, LLP
1515 W. 190th Street, Suite 565
Gardena, CA 90248
(310) 527-6660 (office)
Attention: Glen E. Tucker
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.
13. 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, creed, religion, marital status, color,
sex, disability, 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, creed, religion, marital status,..color, sex, disability,
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.
14. CONFIDENTIALITY
All reports, documents, findings and conclusions, and any and all similar documents
prepared or assembled by Special Counsel under this Agreement are confidential. Special
Counsel agrees that no documents prepared or assembled by it under this Agreement shall be
made available to anyone except the individual Defendants without prior written approval of the
individual Defendant, unless required by law. Special Counsel shall notify the City Attorney if
Special Counsel becomes aware that the individual Defendant intends to release any confidential
documents.
1.5. 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.
Special Counsel 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.
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
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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 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. ,
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 would withdraw from representing
either client in the matter, and assist them in obtaining outside special counsel.
17. ATTORNEY FEES AND COSTS
If any legal action is instituted to enforce any party's rights hereunder, each party shall
bear its own costs and attorneys' fees, regardless of who is the prevailing party. This paragraph
shall not apply to those costs and attorneys' fees directly arising from a third -party legal action
against a party hereto and payable under the indemnification and insurance provisions of this
Agreement.
18. LAW AND VENUE
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. The venue of any action or
claim brought by any party to this Agreement will be the Central County Court of Los Angeles.
In the event of litigation in the United States District Court, venue shall lie exclusively in the
Central District of California, in Los Angeles. Each party hereby waives any law or rule of the
court, which would allow them to request or demand a change of venue. If any action or claim
concerning this Agreement is brought by any third -party, the parties hereto agree to use their best
efforts to obtain a change of venue to the Central County Court of Los Angeles County.
19. LABOR LAWS
A&W shall strictly adhere to the applicable provisions of the Labor Code regarding the
employment of apprentices; minimum wages; travel and subsistence pay; retention and
inspection of payroll records; workers compensation; payment of wages. A&W shall forfeit to
the City the penalties prescribed in the Labor Code for violations.
20. INTERPRETATION; AMENDMENT
A. Waiver. Waiver by any party to this Agreement of any term, condition, or
covenant of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision, not a waiver of any subsequent breach or violation of
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any provision of this Agreement. Acceptance by City of any work or services by A&W shall not
constitute a waiver of any of the provisions of this Agreement.
B. Drafter. The parties waive any benefits from the principles of contra proferen
and interpreting ambiguities against drafters. No party shall be deemed to be the drafter of this
Agreement, or of any particular provisions or provisions, and no part of this Agreement shall be
construed against any party on the basis that the particular party is the drafter of any part of this
Agreement.
C. Integration. This Agreement including any exhibits attached hereto, in the
entire, complete, final and exclusive expression of the parties' intent with respect to the matters
addressed herein and supersedes all other Agreements or understandings, whether oral or written,
or entered into between Special Counsel and City prior to the execution of this Agreement. In
the event of any conflict between the terms, conditions and provisions of this Agreement and any
other such agreement, document or instrument, the terms, conditions and provisions of this
Agreement shall prevail.
D. Severability. In the event that any condition or covenant herein his held to be
invalid or void by any court of competent jurisdiction, the same shall be deemed severable from
the remainder of the Agreement and shall in no way affect any other covenant or condition
herein contained as long as the invalid provisions does not render the Agreement meaningless
with regard to a material term in which event the entire' Agreement shall be void. If such
condition, covenant, or other provision shall be deemed invalid due to its scope or breadth, such
provision shall be deemed valid to the extent of the scope or breadth permitted by law.
E. Amendment. No changes, amendments or modifications to this Agreement shall
be effective unless in writing and signed by authorized representatives of the parties hereto. No
statements, representations or other Agreements, whether oral or written, made by any party
which are not embodied herein shall be valid and binding unless in writing duly executed by the
parties or their authorized representatives.
21. 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.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the City.
Dated: December _�X, 2010 "CITY"
ATTEST:
Ci y Clerk
APPROVED AS TO FORM:
Dated: Decem
2010
City Attorney
CITY OF VERNON,
a municipal corporation
By:
Mayor
m
r.
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"EXHIBIT A"
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 or Orange County. 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.
It is understood that Firm will generally charge for mileage between our office and City
facilities, but not for local telephone calls or calls made to the City. Additionally, travel time
shall be only be charged for half of the actual time for such trips. 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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OFFICE OF THE CITY CLERK
4305 Santa Fe Avenue, Vernon, California 90058
Telephone (323) 583-8811
February 24, 2011
Aleshire & Wynder, LLP
Attn:. Glen E. Tucker
1515 W. 190`l' Street, Suite 565
Gardena, CA 90248
Re: Special Counsel Services Agreement
Dear Mr. Tucker:
The insurance requirements have been met. Transmitted herewith is a copy of the original fully
executed agreement, as referenced above, approved by City Council on December 20, 2010,
through Resolution No. 2010-187.
If you have any questions regarding this matter, please contact meat (323) 583-8811 ext. 175.
Very truly yours,
WILLARD G. YA G CH
City Clerk
WGY:dj
Enclosure
c: Resolution No. 2010-187
Agreement File No. 10-088
Exclusively Industrial
CONTRACT SERVICES AGREEMENT FOR
SPECIAL COUNSEL SERVICES
CITY OF VERNON
This CONTRACT SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES
(the "Agreement") is effective as of the 20thday of December, 2010 by and between the law firm
of ALESHIRE & WYNDER, LLP, a California limited liability partnership ("A&W"), and the
CITY OF VERNON a municipal corporation ("City").
WHEREAS, Vernon, is desirous of obtaining professional legal services and
representation for its police employees ("Defendants") in specific civil cases arising out of their
employment with the City; and
WHEREAS, Special Counsel represents itself to be capable; qualified and experienced in
providing such services and representations.
NOW THEREFORE, in consideration of these premises, the parties hereto agree as
follows:
1. APPOINTMENT
City Council hereby appoints Glen E. Tucker as Special Counsel, and hires A&W
therefore to render the legal services as specified herein, including for defense of police and
other tort claims against City, and such other projects as assigned by the City Attorney.
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 Special Counsel (or any successors to such person)
without the City's prior approval.
2. SCOPE OF WORK AND DUTIES'
A. A&W will provide representation to City in legal matters as specified above and
as assigned.
B. Legal services to be performed by Special Counsel under this Agreement may
include, but are not limited to the rendering of legal advice and consultation; the drafting and
preparation of necessary legal documents to effectuate the best interests of Defendants, and all
appearances, required by the court in this matter.
C. Special Counsel 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 Special Counsel 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.
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D. All legal services shall be coordinated under the direction of the City Manager
and City Attorney. Notwithstanding any other provision contained herein, any legal services can
only be authorized by the City Attorney. Any matter assigned shall be confirmed in writing.
Nothing in this Agreement shall be construed in any manner as limiting the ultimate and absolute
discretion of the City Attorney or City Council, at any time, to assign or reassign any legal
matter of City from or to A&W.
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.
4. PERSONNEL
In addition to Glen Tucker acting as Special Counsel, A&W will provide additional
attorneys who are qualified and have the expertise to render the predominate legal services
hereunder. Additional attorneys to be utilized hereunder include: Mily C. Huntley and Lucy A.
Manfre.
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.
Notwithstanding the foregoing, City shall have the right to designate or reject the
assignments of other specific attorneys associated with Special Counsel.
5. COMPENSATION
A&W's fees will be charged on an hourly basis for all time actually expended. The
compensation schedules are as follows:
Attorneys:
Paralegal:
Appellate Work:
$200.00 per hour
$95.00 per hour
$300.00per hour
The foregoing arrangement would remain in effect for at least Fiscal Year 2011 (July 1,
2011).
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6. 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 "A". 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
agreement of City. A&W will select any investigators, consultants, or experts to be hired only
after consultation with City.
The cost and expenses referred to herein include certain travel expenses; transportation,
meals, and lodging; when incurred on behalf of the client. Generally, except in connection with
litigation (travel costs to court and for discovery are chargeable), these will only be charged
when outside of the area (outside of Los Angeles or Orange County), and only with the prior
agreement of City.
Finally, 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
as well as other clients. 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.
7. STATEMENTS AND PAYMENT
A&W shall render to City a statement for fees, costs, and expenses incurred.on a periodic.
basis (generally monthly)`. Such statement(s) shall indicate the basis of the fees, including the
hours worked, the hourly rate(s), and a brief 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.
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 thirty (30) days after the due date shall draw interest at the
legal rate.
Special Counsel shall certify on each invoice that it is entitled to receive the amounts
requisitioned. Each invoice shall be in the form and number of copies required by City. Special
Counsel shall maintain proper records of the hours worked pursuant to this Agreement and such
records shall be open at any reasonable time for inspection by the City.
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8. 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
partnership, name changes and similar changes shall not be deemed a transfer or assignment
requiring approval of City or amendment hereof.
9. 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 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.
10. 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.
(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).
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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, employers 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
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, the attorney 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.
11. INDEMNIFICATION
A. A&W agrees to indemnify City, its officers, employees and gents 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 arise s
from the negligence or willful misconduct of City, its officers, agents or employees.
B. City acknowledges that A&W is being appointed as Special Counsel to act on
behalf of the City Attorney's office in the matters specified. Accordingly, to the extent statutory
immunities or other defenses exist to any action .brought by any party other than City arising out
of the matters <herein, City will cooperate with Special Counsel in the assertion of such defenses.
12. 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 Vernon
4305 S. Santa Fe Avenue'
Vernon, CA 90058
Attn: City Cleric
Copy to: City of Vernon
4305 S. Santa Fe Avenue
Vernon, CA 90058
Attn: Willard Yamaguchi, Interim City Attorney
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SPECIAL COUNSEL: Aleshire & Wynder, LLP
1515 W. 190th Street, Suite 565
Gardena, CA 90248
(310) 527-6660 (office)
Attention: Glen E. Tucker
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.
13. 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, creed, religion, marital status; color,
sex, disability, 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, creed, religion, marital status, color, sex, disability,
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.
14. CONFIDENTIALITY
All reports, documents, findings and conclusions, and any and all similar documents
prepared or assembled by Special Counsel under this Agreement are confidential. Special
Counsel agrees that no documents prepared or assembled by it under this Agreement shall be
made available to anyone except the individual Defendants without prior written approval of the
individual Defendant, unless required by law. Special Counsel shall notify the City Attorney if
Special Counsel becomes aware that the individual Defendant intends to release any confidential
documents.
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.
Special Counsel 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.
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
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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 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.
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 would withdraw from representing
either client in the matter, and assist them in obtaining outside special counsel.
17. ATTORNEY FEES AND COSTS
If any legal action is instituted to enforce any party's rights hereunder, each party shall.
bear its own costs and attorneys' fees, regardless of who is the prevailing party. This paragraph
shall not apply to those costs and attorneys' fees directly arising from a third -party legal action
against a party hereto and payable under the indemnification and insurance provisions of this
Agreement. `
18. LAW AND VENUE
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. The venue of any action or
claim brought by any party to this Agreement will be the Central County Court of Los Angeles.
In the event of litigation in the United States District Court, venue shall lie exclusively in the
Central District of California, in Los Angeles. Each party hereby waives any law or rule of the
court, which would allow them to request or demand a change of venue. If any action or claim
concerning this Agreement is brought by any third -party, the parties hereto agree to use their best
efforts to obtain a change of venue to the Central County Court of Los Angeles County.
19. LABOR LAWS
A&W shall strictly adhere to the applicable provisions of the Labor Code regarding the
employment of apprentices; minimum wages; travel and subsistence pay; retention and
inspection of payroll records; workers compensation; payment of wages. A&W shall forfeit to
the City the penalties prescribed in the Labor Code for violations.
20. INTERPRETATION; AMENDMENT
A. Waiver. Waiver by any party to this Agreement of any term, condition, or
covenant of this Agreement shall not constitute a waiver of any other term, condition, or
covenant. Waiver by any party of any breach of the provisions of this Agreement shall not
constitute a waiver of any other provision, not a waiver of any subsequent breach or violation of
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any provision of this Agreement. Acceptance by City of any work or services by A&W shall not
constitute a waiver of any of the provisions of this Agreement.
B. Drafter. The parties waive any benefits from the principles of contra proferen
and interpreting ambiguities against drafters. No party shall be deemed to be the drafter of this
Agreement, or of any particular provisions or provisions, and no part of this Agreement shall be
construed against any party on the basis that the particular party is the drafter of any part of this
Agreement.
C. Integration. This Agreement including any exhibits attached hereto; in the
entire, complete, final and exclusive expression of the parties' intent with respect to the matters
addressed herein and supersedes all other Agreements or understandings, whether oral or written,
or entered into between Special Counsel and City prior to the execution of this Agreement. In
the event of any conflict between the terms, conditions and provisions of this Agreement and any
other such agreement, document or instrument, the terms, conditions and provisions of this
Agreement shall prevail.
D. Severability. In the event that any condition or covenant herein his held to be
invalid or void by any court of competent jurisdiction, the same shall be deemed severable from
the remainder of the Agreement and shall in no way affect any other covenant or condition
herein contained as long as the invalid provisions does not render the Agreement meaningless
with regard to a material term in which event the entire Agreement shall be void. If such
condition, covenant, or other provision shall be deemed invalid due to its scope or breadth, such
provision shall be deemed valid to the extent of the scope or breadth permitted bylaw.
E. Amendment. No changes, amendments or modifications to this Agreement shall
be effective unless in writing and signed by authorized representatives of the parties hereto. No
statements, representations or other Agreements, whether oral or written, made by any party
which are not embodied herein shall be valid and binding unless in writing duly executed by the
parties or their authorized representatives.
21. 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.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by the City.
Dated: December _!�, 2010 "CITY"
CITY OF VERNON,
a municipal corporation
ATTEST:
R
Ci y Clerk
APPROVED AS TO FORM:
Dated: D
2010
City Attorney
By:
Mayor
"ALESHI YNDER, LLP"
By:
en E. T er, Esq.
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EXHIBTT A
"EXHIBIT A"
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 or Orange County. 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.
It is understood that Firm will generally charge for :mileage between our office and City
facilities, but not for local telephone calls or calls made to the City. Additionally, travel time
shall be only be charged for half of the actual time for such trips. 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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RECEIVED
DEC 0 9 2010
STAFF REPORT CITY CLERWS OFFICE
City Attorney
DATE: December 9, 2010
TO: Honorable Mayor and City Council
FROM: Willard G. Yamaguchi, Interim City Attorney
RE: Aleshire & Wynder, LLP
Legal Services
The law firm Richards, Watson & Gershon resigned effective November 1, 2010. One of the
litigated cases they were handling is the Batchan matter that involves excessive force. There are
imminent deadlines that need to be addressed and Glen Tucker of Aleshire & Wynder, LLP has
stated that he qualified to handle this type of case.
Recommendation
It is hereby recommended that the City engage the law firm Aleshire & Wynder, LLP for cases
involving safety personnel issues, liability and other municipal matters.
cc: Mark Whitworth
Page 1 of 1
Juarez, Debbie
From: Barcia, Ana
Sent: Thursday, February 24, 2011 9:13 AM
To: Yamaguchi, Willard
Cc: Juarez, Debbie
Subject: RE: Batchan v. County of Los Angeles, et al.
Willard,
RWG had 10 million in professional per their agreement. Aleshire & Wynder have provided acceptable
insurance coverage per their agreement.
Ana Barcia
City of Vernon
Risk Management Department
T: 323) 583-8811 ex 286
F: 323) 826-1439
abarcia&i.vernon. ca.us
From: Yamaguchi, Willard
Sent: Thursday, February 24, 2011 8:49 AM
To: Barcia, Ana
Cc: Juarez, Debbie
Subject: FW: Batchan v. County of Los Angeles, et al.
How much professional liability insurance did RWG carry?
From: Mily C. Huntley [mailto:mhuntley@awattorneys.com]
Sent: Thursday, February 17, 2011 9:40 AM
To: Yamaguchi, Willard
Subject: Batchan v. County of Los Angeles, et al.
Mr. Yamaguchi,
Attached please find the certificate of liability insurance. Please sign and fax to my attention the contract
for legal services as soon as practicable. Also, please provide me with a copy of the mutual aid
agreement between the sheriffs department and the city, if one exists. Thank you so much for your
attention to this matter.
Mily C. Huntley, Esq.
Aleshire & Wynder, LLP
1515 West 190th Street
South Tower, Suite 565
Gardena, CA 90248
Phone: (310)527.6660 ext. 6677
Fax: (310)532.7395
www.awattomeys.com
2/24/2011