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HomeMy WebLinkAboutItem 10e - Special Legal Services DATE: October 6, 2020 TO: Honorable Mayor and City Council FROM: Stephen P. Deitsch, City Attorney By: Michael Bruckner, Deputy City Manager SUBJECT: AGREEMENT FOR SPECIAL LEGAL SERVICES WITH COLLINS COLLINS MUIR & STEWART, LLP Recommendation: Approve SUMMARY In 2017, the law firm of Collin Collins Muir & Stewart was interviewed and selected by the Legal Affairs Subcommittee, the City Manager, and the City Attorney to be on an approved panel of tort and other litigation defense outside counsel, to be available if needed from time to time. Their 2017 agreement has now been revised to include their proposed fee increase as negotiated with the City. Therefore, it is recommended that the City Council approve the Letter Agreement with Collins Collins Muir & Stewart, LLP. DISCUSSION The law firm of Collins Collins Muir & Stewart (“CCMS”) and the City of Arcadia entered into a Letter Agreement (“Agreement”) for legal services in 2017. This was part of a concerted effort by the Legal Affairs Subcommittee (“Subcommittee”) to retain a panel of firms with varying expertise to assist the City in special litigation matters. The 2017 Agreement has since been revised to reflect the new hourly rates offered by the firm in 2020. The table below provides a summary of the new rates: Service 2017 Rates 2020 Rates % Change Partner $200 $230 15% Associate $180 $210 17% Paralegal $100 $120 20% The City Attorney has reviewed the currents rates and believes that they are fair, reasonable, and competitive for similar firms with comparable expertise. Below is a table of all the current rates for other contracted firms with the City: Agreement with Collins Collins Muir & Stewart October 6, 2020 Page 2 of 2 Firm Partner Associate Paralegal Best Best & Krieger $258 - $269 n/a n/a Freeman Mathis & Gary $240 $220 $120 Atkinson Andelson Loya Rudd & Romo $300 - $350 $225 - $275 $165 - $185 Liebert Cassidy Whitmore $200 - $350 $195 - $230 $75 - $160 Carpenter Rothans Dumont $195 $195 n/a FISCAL IMPACT There is no impact to the General Fund by entering into this Agreement. ENVIRONMENTAL ANALYSIS The proposed actions do not constitute a project under the California Environmental Quality Act (“CEQA”), based on Section 15061(b)(3) of the CEQA Guidelines, as it can be seen with certainty that they will have no impact on the environment. Thus, these matters are exempt under CEQA. RECOMMENDATION It is recommended that the City Council determine that this project is exempt under the California Environmental Quality Act (“CEQA”); and approve the Letter Agreement for Special Legal Services with Collins Collins Muir & Stewart, LLP. Attachment: Letter Agreement with Collins Collins Muir & Stewart BRIAN K. STEWART Los Angeles County Office 1100 El Centro Street South Pasadena, CA 91030 T 626-243-1100 F 626-243-1111 bstewart@ccmslaw.com Los Angeles County Orange County San Diego County Northern California Inland Empire www.ccmslaw.com September 18, 2020 VIA ELECTRONIC MAIL stephen.deitsch@bbklaw.com City Attorney CITY OF ARCADIA 240 W. Huntington Drive Arcadia, CA 91007 Re: Representation of the City of Arcadia Dear Mr. Deitsch: The purpose of this letter is to set forth the terms under which we will revise our attorney-client relationship with the City of Arcadia following our conversations of September 8 and 9, 2020. This letter, once executed and returned by you will act as our Attorney-Client Agreement (“AGREEMENT”) and it is being entered into as required under California law between, the City of Arcadia (“CLIENT”) and Collins Collins Muir + Stewart LLP (“CCM+S”). It will replace the agreement from 2017 but, as we discussed, other than the rates and some cost items, the terms are generally the same. I have attached a copy of the old agreement per our call to my email so you can compare if you desire to do so. You did indicate that you needed to discuss this with the City Manager and it would be subject to approval by the City Council. The terms of engagement of CCM+S are as follows: 1. CONDITIONS. This AGREEMENT will not take effect and CCM+S will have no obligation to provide legal services until CLIENT returns the signed original of this AGREEMENT. 2. SCOPE AND DUTIES. CLIENT hires CCM+S to provide general legal services, advice, consultation, and representation on an as-needed basis relating to legal issues that might arise from time to time related to CLIENT’S business including, but not limited to, defending the CLIENT in DOMINIC LAZZARETTO September 18, 2020 Page 2 various tort claim litigation and personnel related matters on an as-needed basis, as well as other legal issues that might confront CLIENT in the future (collectively “REPRESENTATION”). 3. LEGAL SERVICES SPECIFICALLY EXCLUDED. The legal services that are not to be provided by CCM+S under this AGREEMENT specifically include, but are not limited to, the following: (a) representation of CLIENT or advice in relation to any litigated, arbitrated, or administrative proceeding, or matter not assigned to CCM+S (“Other Matters”); (b) representation of CLIENT or advice in relation to any insurance, tax, or financial matters in relation to this or Other Matters; (c) any advice in relation to statutes of limitations or repose for any Other Matters; (d) any matter that is not specifically and contemporaneously memorialized in writing and agreed to by the parties. CCM+S hereby advises CLIENT to consult its own accountant, broker, or tax attorney regarding insurance, tax, or financial matters or any Other Matters. If CLIENT wishes that CCM+S provide any legal services beyond the limited scope of this AGREEMENT, or specifically excluded above, a separate written agreement between CCM+S and CLIENT will be required. 4. CLIENTS’ DUTIES. CLIENT agrees to be forthright with CCM+S, to cooperate with CCM+S, to keep CCM+S informed of developments, to abide by this AGREEMENT, to pay CCM+S’ bills on time and to keep CCM+S advised of CLIENT’S contact information. 5. RETAINER. CCM+S does not require a retainer from CLIENT. 6. LEGAL FEES. CLIENT agrees to pay CCM+S $230 per hour for partners, $210 per hour for associate-level attorneys; and $120 per hour for paralegals and/or law clerks, and CCM+S agrees to bill CLIENT in increments of 1/10ths of an hour for work performed on the REPRESENTATION. All time expended is billed, including but not limited to: research, consultation, telephone discussions, conferences, analysis, drafting correspondence or court documents, reviewing correspondence or communications or materials provided by CLIENT or others related to the REPRESENTATION, travel time, and all time spent for any court, administrative hearings, arbitration hearings, mediations, or depositions. CCM+S reserves the right to review the rates being charged under this AGREEMENT no more frequently than once every other calendar year and to adjust them to reflect the fees customarily being charged by CCM+S upon mutual agreement with the CLIENT. 7. COSTS AND EXPENSES. In addition to paying legal fees, CLIENTS shall reimburse CCM+S for all costs and expenses incurred by CCM+S, including, but not limited to, process server fees, fees fixed by law or assessed by the California Secretary of State’s office, other State and Federal governmental agencies or courts, court reporters’ fees, messenger and other delivery charges, postage, in-office photocopying at $0.30 per page, $1.00 per page for color copies, out-of-office photocopying at the actual charge, facsimile charges at $0.50 per page, parking, mileage at rates allowed by the U.S. Internal Revenue Service on the date the mileage is traveled, secretarial and/or paralegal overtime, investigation expenses, consultants’ fees, expert witness fees and other similar items. CCM+S reserves the right to amend the costs charged pursuant to this section on a basis no more frequent than every six months to reflect the normal and customary charges CCM+S is charging for these items at that DOMINIC LAZZARETTO September 18, 2020 Page 3 time. Nothing herein shall require CCM+S to advance such costs. CLIENT authorizes CCM+S to incur all reasonable costs and to hire any investigators, consultants, or expert witnesses reasonably necessary, upon consultation with CLIENT. CCM+S agrees to contact CLIENT in advance of any expense exceeding $250.00, and CCM+S will not incur such expense without the CLIENT’S express authorization. At any time, should CLIENT’S account be more than thirty (30) days past due, no costs will be advanced by CCM+S and CCM+S reserves the right to immediately withdraw from the representation of CLIENT. 8. STATEMENTS. CCM+S shall send to CLIENT periodic statements for fees and costs incurred. CLIENT shall pay CCM+S’ statements within thirty (30) days of the mailing of each statement. All amounts delinquent for thirty (30) days or more shall bear a service charge, not an interest charge, at the rate of 1.5 percent per month and CLIENT expressly acknowledges this obligation and duty to promptly pay all statements. 9. DISCHARGE AND WITHDRAWAL. CLIENT may discharge CCM+S at any time. CCM+S may withdraw with CLIENT’S consent or for good cause. Good cause shall be deemed to specifically include, but is not limited to, CLIENT’S failure to pay statements, CLIENT’S breach of this AGREEMENT, CLIENT’S refusal to cooperate with CCM+S or to follow CCM+S’ advice on a material matter or any other fact or circumstance that would render CCM+S’ continuing representation unlawful, unethical, or difficult. 10. CONCLUSION OF SERVICES. When services of CCM+S conclude, all unpaid charges shall become immediately due and payable. After CCM+S’ services conclude, CCM+S will, in conformity with the rules governing the practice of law, and upon CLIENT’S request, deliver CLIENT’S file to CLIENT, along with any CLIENT funds or property in the possession of CCM+S. 11. DISCLAIMER OF GUARANTEE. Nothing in this AGREEMENT and nothing in CCM+S’ statements or communications to CLIENT will be construed as a promise or guarantee about the outcome of CLIENT’S matter or the interpretation of any contract provision. CCM+S makes no such promises or guarantees. 12. ARBITRATION/MEDIATION. In the event of a dispute between CCM+S and CLIENT concerning the fees charged or the services provided to the CLIENT, the parties hereto agree that any such dispute may be placed into binding arbitration pursuant to state law. The parties agree that an express condition precedent to instituting arbitration or other legal proceeding shall be attending a mediation before a mutually agreed-to mediator and the parties agree to make a reasonable and good faith attempt to resolve any dispute. The mediation shall take place within one month after written request unless such time is extended by mutual agreement of both parties. 13. ATTORNEYS’ FEES. Except as otherwise provided herein, if a dispute should arise between the parties, the prevailing party shall be reimbursed for all reasonable expenses, including attorneys’ fees (including pre and post judgment attorneys’ fees), costs, consultants/experts’ fees, time expended by the parties billed at their normal and customary rate, and all other reasonable expenses incurred in resolving such dispute. DOMINIC LAZZARETTO September 18, 2020 Page 4 14. EFFECTIVE DATE. This AGREEMENT will take effect when CLIENT has performed the conditions stated in Paragraph 1, but its effective date will be retroactive to the date CCM+S first provided services. The date at the beginning of this AGREEMENT is for reference only. If for any reason this AGREEMENT does not take effect, CLIENT will be obligated to pay CCM+S the reasonable value of any services CCM+S may have performed for CLIENT. 15. ERRORS AND OMISSIONS INSURANCE. CCM+S maintains errors and omissions insurance coverage applicable to the services that it renders. 16. MUTUAL NEGOTIATION. The terms and conditions of this agreement have been negotiated between CCM+S and CLIENT and are hereby expressly agreed to by CLIENT. 17. VENUE. This AGREEMENT is deemed entered into at South Pasadena, California. 18. METHOD AND MANNER OF COMMUNICATION. By executing this AGREEMENT, CLIENT acknowledges and authorizes CCM+S to communicate with CLIENT by means including, but not limited to, electronic mail (e-mail), file transfer protocol (FTP), links to documents, or other cloud-based internet services. CLIENT authorizes CCM+S to transmit and/or receive documents or other communications to and/or from CLIENT or others by such means. CCM+S will not undertake any steps to encrypt such documents or communications when delivered by electronic means. 19. WAIVER OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTION 6148: To the extent that the terms of this AGREEMENT may be deemed not to comply with the provisions of section 6148 of the California Business and Professions Code on legal fees and other charges, CLIENT hereby expressly agree to waive the requirements of that section. The full text of section 6148 can be found attached to this letter. 20. EXECUTION OF THIS AGREEMENT: By executing this AGREEMENT, CLIENT agrees that CLIENT has had sufficient time to review this AGREEMENT. Further, CLIENT has sought the advice of independent counsel, or agrees that CLIENT has had the opportunity to seek such advice. CLIENT understands and agrees that this AGREEMENT was entered into at arm’s length between (Continued on next page.) DOMINIC LAZZARETTO September 18, 2020 Page 5 parties of equal bargaining strength and CLIENT has freely determined, without any duress, to sign and agree to the terms of this AGREEMENT. Please sign, date, and return the AGREEMENT if you find it acceptable. Feel free to call if you have any questions. Very truly yours, COLLINS COLLINS MUIR + STEWART LLP BKS/erd I HAVE READ AND AGREE TO THE TERMS OF THIS RETAINER. DATED: _________________, 2020 CITY OF ARCADIA By: _________________________________ Dominic Lazzaretto City Manager APPROVED AS TO FORM: DATED: _________________, 2020 By: _________________________________ Stephen Deitsch, Esq. City Attorney DOMINIC LAZZARETTO September 18, 2020 Page 6 Attachment as referenced in paragraph 19 of retainer: Cal Bus & Prof Code § 6148 Fee for service contracts; Bills for services rendered (a) In any case not coming within Section 6147 in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing. At the time the contract is entered into, the attorney shall provide a duplicate copy of the contract signed by both the attorney and the client, or the client’s guardian or representative, to the client or to the client’s guardian or representative. The written contract shall contain all of the following: (1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case. (2) The general nature of the legal services to be provided to the client. (3) The respective responsibilities of the attorney and the client as to the performance of the contract. (b) All bills rendered by an attorney to a client shall clearly state the basis thereof. Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of the attorney’s fees and costs. Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses. Upon request by the client, the attorney shall provide a bill to the client no later than 10 days following the request unless the attorney has provided a bill to the client within 31 days prior to the request, in which case the attorney may provide a bill to the client no later than 31 days following the date the most recent bill was provided. The client is entitled to make similar requests at intervals of no less than 30 days following the initial request. In providing responses to client requests for billing information, the attorney may use billing data that is currently effective on the date of the request, or, if any fees or costs to that date cannot be accurately determined, they shall be described and estimated. (c) Failure to comply with any provision of this section renders the agreement voidable at the option of the client, and the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee. (d) This section shall not apply to any of the following: (1) Services rendered in an emergency to avoid foreseeable prejudice to the rights or interests of the client or where a writing is otherwise impractical. (2) An arrangement as to the fee implied by the fact that the attorney’s services are of the same general kind as previously rendered to and paid for by the client. (3) If the client knowingly states in writing, after full disclosure of this section, that a writing concerning fees is not required. (4) If the client is a corporation. (e) This section applies prospectively only to fee agreements following its operative date. (f) This section shall become operative on January 1, 2000.