HomeMy WebLinkAboutA6990 - CLYDE & COMPANY US, LLPAMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
CLYDE & COMPANY
Agreement No. A6990)
THIS FIRST AMENDMENT to that certain "Professional Services Agreement' ("First
Amendment") is made and entered into to be effective on the aqi`' day of& e-r , 2018 by
and between the City of Palm Springs, a California charter city and municipal corporation
hereinafter referred to as the City), and CLYDE & COMPANY, US, LLP, a New York limited
liability partnership(hereinafter"Firm") collectively, the "Parties".
RECITALS
A. City and Firm previously entered into a letter agreement, and then into a
professional services agreement for legal representation arising from and related to compliance
and other regulatory matters associated with the South Coast Air Quality Management District
AQMD"), and directly related to operation of the City's Municipal Co-Generation Plant.
B.The first agreement whereby the Firm provided legal services to the City was a
letter agreement issued by the Firm on December 21, 2016 and executed by the City on June 9,
2017.
C. Subsequently, City and Firm entered into a professional services agreement
approved by the City Council and entered on June 21, 2017.
D.The letter agreement and professional services agreement (in the aggregate, the
Agreement") are identified in the public records of the City as Agreement No. A6990. Fees, costs
and expenses under the letter agreement were not to exceed twenty-five thousand dollars
25,000), and under the professional services agreement were not to exceed one hundred
thousand dollars ($100,000), inclusive of services rendered under the letter agreement.
E. City and Consultant desire to amend the Agreement to allow for the continued
services of Firm and expand the scope of services provided to the City by Firm in amount not-to-
exceed $50,000 for the period July 1, 2018 through June 30, 2019.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the Parties agree as follows:
AGREEMENT
1. The true and correct recitals above are incorporated by this reference herein as the basis
for this First Amendment.
2. Section 3.3 of the Agreement is hereby amended in its entirety to read as follows: Fees,
costs and expenses paid pursuant to this Agreement shall have an aggregate value of no
more than one hundred fifty thousand dollars($150,000),this amount reflecting an additional fifty
thousand dollars ($50,000) above and beyond the amount previously approved by the City
Manager and subsequently the City Council, first on June 9, 2017, and most recently on June 21,
2017,
Amendment No. 1 1
Agreement 6990
Clyde&Co. ORIGINAL. BID
ANDIORAGREEMENT
3.Full Force and Effect. This First Amendment is supplemental to the Agreement, and
is by reference made part of said Agreement. All of the terms, conditions, and provisions, thereof,
unless specifically modified herein, shall continue in full force and effect. In the event of any
conflict or inconsistency between the provisions of this First Amendment and any of the provisions
of the Agreement,the provisions of this First Amendment shall in all respects govern and control.
4.Corporate Authority. Each of the persons executing this First Amendment on behalf
of a Party hereto warrants that (i) such Party is duly organized and in good standing, (ii) he/she
is duly authorized to execute and deliver this Amendment on behalf of said Party, (N) by his/her
execution of this First Amendment, such Party is formally bound to the provisions of this First
Amendment, and (iv) the entering into this First Amendment does not violate any provision of any
other agreement to which said Party is bound.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
dates stated below.
ATTEST: CITY"
CITY OF PALM SPRINGS, CA.
By: By:J f_
hony Me' a, City erk David H. Ready, Citty ager
Date: Date:
APPROVED AS TO FORM: nediAPPROV®BY CITY COUNCIL
By:c V
Edward Kotkin, Cit Att rn y
Date: l 67 Z'r 1 l 2 ,
FIRM"
Clyde & Company US, LLP,
a New York limited liability partnership
Date: coo 'LeaeX 4, C2 D/-F By: 1/ ))A/G AZt :
N . WAI.X 7C
rinted Name/Title
Amendment No.1 2
Agreement No.6990
Clyde&Co.
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made and
entered into as of this '- •- day of June, 2017, by and between the CITY OF PALM SPRINGS,
a California charter city and municipal corporation ("City"), and the law firm of CLYDE & CO.
US, LLP, a New York limited liability partnership (hereinafter "Clyde& Co.").
RECITALS
A. The City Council, as the governing body of the City of Palm Springs, pursuant to
its authority under the City Charter, desires to contract with Clyde&Co. to provide legal services
for the City as may be requested or required by the City Attorney, including without limitation
technical and regulatory compliance and liabilities specific to rules and regulations administered
by the South Coast Air Quality Management District ("AQMD") regarding operation of a co-
generation plant in AQMD's jurisdiction, representation of City in any negotiations with AQMD
and administrative matters arising from the City's co-generation plant.
B. Clyde & Co. desires to perform and provide the foregoing legal services as
necessary for the support of the City.
C. City and Clyde& Co. wish to provide for the terms and conditions of retaining and
employing Clyde&Co. to provide legal services as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
AGREEMENT
I. Retention of Clyde& Co. The true and correct recitals above, incorporated by
this reference herein, represent the basis of the City's decision to retain and employ Clyde& Co.,
and City hereby does so. Clyde& Co. to provide legal services as may be requested or required in
support of the City Attorney or the City Council. Examples of the services to be provided
hereunder are described above in recital A.
2. Independent Contractor.
Clyde & Co. and any attorneys or other persons employed by Clyde & Co., shall at all
times be considered an independent contractor and not an employee of the City and not entitled to
any benefits of the City's employees. Except to the extent provided-herein, the City and its
employees shall not have any control over the conduct of Clyde& Co.
3. Fees.Costs, and Expenses.
3.1 City agrees to pay Clyde & Co. at the rates set forth in Exhibit "A," which is
attached hereto and is incorporated herein by reference. Clyde & Co. may adjust
the rates no more than once in a calendar year after providing City with at least
thirty(30)days prior written notice.
ORIGINAL BID
AND/OR AGREEMENT
3.2 City agrees to pay out-of-pocket costs and expenses associated with Clyde &Co.'s
work pursuant to Exhibit "A."
33 Legal fees payable to Clyde&Co.hereunder,inclusive of fees paid for professional
services provided prior to execution of this Agreement, shall not exceed an
aggregate amount of one hundred thousand dollars ($100,000.00).
4. Statements/Task-Billine. Clyde & Co. shall prepare and present to City
detailed monthly statements for professional and other services rendered to City for the month
preceding the statement, indicating each task performed by Clyde & Co. City shall pay the
statements within thirty (30) days of receipt of the same. Clyde & Co. shall update City, upon
request,regarding the status of Clyde & Co.'s billings.
5. Insurance and Indemnification.
5.1. Clyde& Co. shall carry Professional Liability/Errors and Omissions insurances in
an amount not less than$2 million per occurrence and$4 million in aggregate. the t
A-,/
Gi4y shall be named as a eei4ifieate helder and an additional insured on theC
liter olive 'Liability y. All insurance coverage shall be provided by anLMLVll1VLLQTIL
insurance company with a rating of A-, VII or greater in the latest edition of Best's
Insurance Guide and authorized to do business in the State of California. Such
policies shall 'not be canceled or materially changed absent 30 days' prior written
notice to the City. With respect to Professional Liability/Errors and Omissions
insurance, Clyde & Co. agrees to maintain such insurance for at least three years
after termination of this Agreement as long as such insurance is reasonably
available on the market.
5.2. Glyde & 64,
Getine.., J, Y4YlLLJ YIIY employees II QLT and against deffifln
i§ey{ in peffefming undeF this!l
6. Mediation. Except as provided herein, no civil action with respect to any
dispute,claim,or controversy arising out of or relating to this Agreement may be commenced until
the matter has been submitted to non-binding mediation. Any Party may commence mediation by
providing to the other Parties a written request for mediation,setting forth the subject of the dispute
and the relief requested.The Parties will cooperate with one another in selecting a mediator and in
scheduling the mediation proceedings. If the Parties are unable to agree upon a mediator, then
JAMS shall select one from its panel of neutrals serving the Riverside County area. The Parties
covenant that they will participate in the mediation in good faith, and that they will share equally
in its costs. All offers, promises, conduct and statements, whether oral or written, made in the
course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and
by the mediator, are confidential, privileged and inadmissible for any purpose, including
impeachment, in any litigation or other proceeding involving the Parties, provided that evidence
that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable
as a result of its use in the mediation. Any Party may seek equitable relief prior to the mediation
to preserve the status quo pending the completion of that process. Except for such an action to
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obtain equitable relief,no Party may commence a civil action with respect to the matters submitted
to mediation until after the completion of the initial mediation session,or forty-five(45)days after
the date of filing the written request for mediation, whichever occurs first. Mediation may continue
after the commencement of a civil action, if the Parties so desire.The provisions of this subsection
may be enforced by any Court of competent jurisdiction.
7. Term and Termination. Upon approval by the City Council, the term of this
Agreement shall be retroactive to December 20, 2016. The City Manager's prior authorization
under his signature authority pursuant to Palm Springs Municipal Code Section 7.03.020(7)
prompted the commencement of legal services to the City, and such services shall continue
hereunder until terminated by either party. Clyde & Co. shall serve under the terms of this
Agreement at the pleasure of City, and City hereby reserves the right to terminate this Agreement
upon ten (10) days written notice to Clyde & Co. for any reason or for no reason, and further
reserves the right to require Clyde&Co.to substitute attorney personnel. If Clyde&Co.'s services
are terminated, all unpaid charges shall be due and payable to Clyde & Co. for work actually
performed up to the time of termination and for any other work it completes at the direction of the
City. Clyde & Co. may terminate this Agreement with or without cause upon ninety (90) days
written notice to the City.
8. Notice. Any notices required by this Agreement shall be given by personal
service or by delivery of such notice by first-class mail, postage prepaid. Such notices shall be
addressed to each party at the address listed below. Either party may change the information in
such notice upon written notice as provided herein.
City: Clyde& Co.:
City of Palm Springs Clyde&Co. US LLP
3200 E.Tahquitz Canyon Way 301 E.ocean Boulevard, Suite 1550
Palm Springs,CA 92263-2743 Long Beach, CA 90802
Attn: City Attorney Attn: Frances Keeler, Senior Counsel
Phone: 760.323.8205 Phone: 562.317.3302
9. City Officers and Employees; Non-Discrimination.
9.1 No officer or employee of the City shall be personally liable to the Clyde&Co.,or
any successor-in-interest, in the event of any default or breach by the City or for any amount which
may become due to Clyde & Co. or to its successor, or for breach of any obligation of the terms
of this Agreement.
9.2 Clyde&Co.acknowledges that no officer or employee of the City has or shall have
any direct or indirect financial interest in this Agreement nor shall Clyde & Co. enter into any
agreement of any kind with any such officer or employee during the term of this Agreement and
for one year thereafter. Clyde & Co. warrants that Clyde & Co. has not paid or given, and will
not pay or give, any third party any money or other consideration in exchange for obtaining this
Agreement.
9.3 In connection with its performance under this Agreement, Clyde & Co. shall not
discriminate against any employee or applicant for employment because of race, religion, color,
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sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender
expression, physical or mental disability, or medical condition. Clyde & Co. shall ensure that
applicants are employed, and that employees are treated during their employment,without regard
to their race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation,
gender identity, gender expression, physical or mental disability, or medical condition. Such
actions shall include, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms
of compensation; and selection for training, including apprenticeship.
10. Conflicts of Interest. Clyde&Co. represents that it presently has no interest and
shall not acquire any interest, direct or indirect, in any legal representation which is in conflict
with the legal services to be provided the City under this Agreement. Clyde& Co.represents that
no City employee or official has a material financial interest in Clyde & Co. During the term of
this Agreement and/or as a result of being awarded this contract, Clyde & Co. shall not offer,
encourage or accept any financial interest in Clyde & Co.'s business from any City employee or
official.
11. Files. All legal files of Clyde& Co. pertaining to the City shall be and remain the
property of City. Clyde&Co. shall control the physical location of such legal files in a secure and
accessible location during the term of this Agreement and be entitled to retain copies of such files,
at Clyde&Co.'s expense, upon termination of this Agreement.
12. Modifications to the Agreement. Unless otherwise provided for in this
Agreement, modifications relating to the nature, extent or duration of Clyde &Co.'s professional
services to be rendered hereunder shall require the written approval of the parties. Any such
written approval shall be deemed to be a supplement to this Agreement and shall specify any
changes in the Scope of Services and the agreed-upon billing rate to be charged by Clyde& Co.
and paid by the City.
13. Assignment and Delegation. This Agreement contemplates the personal
professional services of Clyde & Co. and it shall not be assigned or delegated without the prior
written consent of the City. Clyde& Co. shall supervise delegated work, except where precluded
from doing so by virtue of a conflict of interest and where otherwise agreed to by the parties hereto.
14. Legal Construction.
14.1 This Agreement is made and entered into in the State of California and shall,
in all respects, be interpreted, enforced and governed under the laws of the State of
California.
14.2 This Agreement shall be construed without regard to the identity of the
persons who drafted its various provisions. Each and every provision of this Agreement
shall be construed as though each of the parties participated equally in the drafting of same,
and any rule of construction that a document is to be construed against the drafting party
shall not be applicable to this Agreement.
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14.3 The article and section,captions and headings herein have been inserted for
convenience only, and shall not be considered or referred to in resolving questions of
interpretation or construction.
14.4 Whenever in this Agreement the context may so require, the masculine
gender shall be deemed to refer to and include the feminine and neuter, and the singular
shall refer to and include the plural.
15. Entire Agreement,This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof, and contains all covenants
and agreements between the parties with respect to such matter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
indicated in the preamble to this Agreement and represent that they are authorized to bind their
respective parties.
ATTEST: CITY OF PALM SPRIN
By6 y:
Kath6cak.H David H. Ready,
Interim qity Cl rk City Manager
APPROV TO FORM: APPROVED BY CITY COUNCIL
By:
Edward Z. Kotkin
City Attorney
CLYD &CO. US LLP
B Y.PPAO
Signature
Joseph A. Walsh II/Managing Partner Long Beach
Printed Name/Title
f
v
5
EXHIBIT "A"
CLYDE & CO. US LLP
Rates and Billing Practices
Hogirly Rates for Lefal Personnel
Clyde & Co. will represent City by using attorneys and other professional staff who are suited to
handle issues as they arise. Frances Keeler will provide primary representation of City at a rate of five-
hundred ($500) dollars per hour. Senior associates, if needed will be billed at three hundred and fifty
350) dollars per hour and junior associates at two-hundred and fifty ($250) dollars per hour. Clyde &
Co.will afford City a ten percent(10%)discount for its services,provided City timely pays Clyde&Co.'s
monthly invoices.Clyde&Co,reserves the right to implement rates changes from time to time as may be
appropriate and depending on the skills and experience levels of its professional staff. Clyde & Co. will
provide City with notice of such changes and seek City's approval before new rates are implemented.
Billing Increment
Attorneys shall bill in increments of one tenth (1/10"')of an hour(six (6) minutes).
Travel time will be charged at hourly rates above.
Attorneys shall not bill for secretarial time, including time spent for document preparation,
faxing,mailing, arranging for messengers,or calendaring.
Costs and Expenses
Clyde & Co. charges for professional services will be based upon the hourly rates for its lawyers and
professional staff in effect at the time the services are rendered. Clyde & Co. costs and expenses also
include charges for its direct expenses (such as required travel, long distance charges and postage)and for
its non-professional services(such as messenger delivery,computerized research facilities,and document
duplication) in connection with its representation of the City. Extraordinary or significant direct expenses
for arbitrator/umpire fees, transcripts, experts, or consultants) will be billed to City directly by the
provider of those services. Clyde & Co. will obtain the City's approval before incurring extraordinary or
significant direct expenses.
EXHIBIT"A"
Professional Services Agreement,Clyde&Co_
City Council Minutes June 21,2017 Page 5
1.H. AGREEMENT WITH CLYDE & CO US LLP NOT TO EXCEED
100,000.00 FOR SPECIALIZED LEGAL SERVICES:
ACTION:
1) Approve an agreement with Clyde & Co. US, LLP, for specialized
legal services and representation associated with the South Coast Air
Quality Management District in a total amount not to exceed $100,000.00,
in a form substantially similar to that published with this staff report,
subject to minor modification, within the reasonable discretion of the City
Attorney. A6990.
2) Authorize the City Manager to execute all necessary documents.
Approved as part of the Consent Calendar.
I.I. RATIFY AND APPOINT THE NOMINATION OF THE CITY OF LA
QUINTA TO THE PALM SPRINGS INTERNATIONAL AIRPORT
COMMISSION FOR THE TERM ENDING JUNE 30, 2020:
ACTION: Appoint Kathleen Hughes, as the City of La Quintal
representative, to the Palm Springs International Airport Commission for
the term ending June 30, 2020.
Approved as part of the Consent Calendar.
I.J. 2017 LEASE REVENUE REFUNDING BONDS STATUS UPDATE:
ACTION: Receive and file the status update on the sale of the 2017
Lease Revenue Refunding Bonds from Harrell & Company Advisors, LLC.
Approved as part of the Consent Calendar.
I.K. AMENDMENT NO. 3 IN THE AMOUNT OF $1,8869808.78 TO
AGREEMENT NO. A6860 WITH MARIPOSA LANDSCAPES, INC. FOR
LANDSCAPE AND GROUNDS MAINTENANCE SERVICES:
ACTION:
1) Approve Amendment No. 3 to Agreement No. A6860 for a one-year
extension with Mariposa Landscapes, Inc. in the amount of $1,886,808.78
for Fiscal Year 2017-18; to incorporate additional needed services, reduce
services no longer required and allow for the contractually obligated CPI to
be added for amended Bid Schedules A through G for a total contract
amount of $3,721,659.54 for Landscape and Grounds Maintenance
Services including issuance of the corresponding Purchase Orders.
2) Authorize the City Manager to approve and execute Contract
Change Orders up to an additional cumulative amount of $100,000 for
additional or emergency landscape, grounds maintenance or tree trimming
services via the issuance of a Blanket Purchase Order.
3) Authorize the City Manager to execute all necessary documents.
Approved as part of the Consent Calendar.
1.L. AWARD BID AND APPROVE PURCHASE OF COMMERCIAL AIR
CONDITIONING COMPRESSORS FROM ALLIED REFRIGERATION,
INC. IN THE AMOUNT OF $48,556.88:
AoN
The Insurances
Date: 31 October 2017
CLYDE&CO LLP
Dear Sirs,
Aon UK Ltd are insurance brokers acting on behalf of Clyde & Cc LLP who has agreed that we may provide this
letter.We confirm that to the best of our knowledge the contract of insurance described below("the Insurance") is
in force at the date of this letter.
Name of Insured:Clyde&Co LLP and others(including Clyde&Co US LLP)as more fully described in the
policy
Type of insurance: Professional Indemnity Insurance
Period of Insurance: From: 1 November 2017 00:00 at the Principal Address of the Insured
To: 31 October 2018 23:59 at the Principal Address of the Insured
Limit of Indemnity: £300,000,000 any one claim plus Defence Costs but GBP300,000,000 in the annual
aggregate inclusive of Defence Costs plus two direct reinstatements for Claims made
against the Insured in a court within the jurisdiction of the United States of America, its
territories or possessions and Canada as more fully described in the Contract.
Geographical Scope: Worldwide
Subject to the terms, conditions, exclusions and limitations of the Policy.
The issue of this letter does not make the person or organisation to whom/which it is issued an additional insured,
nor does it modify the Insurance in any way.
This letter is furnished as a matter of information only and is not to be understood as providing advice to you or
anyone else on any decision which is under consideration. The reader of this letter is responsible for any
assumptions they make as to the coverage afforded by the Insurance, which may be subject to important
conditions and/or exclusions.
Aon UK Ltd accept no obligation to inform you or any other person should the Insurance be cancelled, assigned
or changed in such manner as to affect the accuracy of this document.
Yours sincerely,
Rosanna Truffa
Director and Vice President- For and on behalf of Aon UK Limited
Aon Risk Solutions j Specialty j Professional Services
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Reri:aereu:n Fng'and&;,Vales No.210725 I VAT RegiatrMion No 480 540' 43
Awr UK UrmR fA i,authorised and fcgIllaie Y Oy:he F.ra u o ducl A,ilhcrily
IF
Clyde&Co US LLP
4675 MacA,hts Court
Suite 506
Newport Beach.Cal'.fornia 92880
Tele0 one (949)345-5700
F2 C51:T.'Ia: (949j 34C 5 I )
AVr%.dyd-co.us
Joseph A.rAlalsh ll
joe.welshCgclydeco.us
December 21, 2016
David H. Ready
City Manager
City of Palm Springs
3200 E. TahgLlitz Canyon Way
Palm Springs, CA 92262
Re: Engagement Letter for the City of Palm Springs
Dear Mr. Ready:
This letter will confirm the engagement of Clyde & Co US LLP (the "Firm") by the City of
Palm Springs to represent it regarding compliance issues with the permit issued by the South
Coast Air Quality Management District ("District") for the City of Palm Springs' cogeneration
system at the Municipal Central Plant. This engagement letter addresses (1) identification of our
client; (2) our services and fees; (3) conclusion of our representation; (4) conflicts of interests;
and (5) arbitration of disputes.
1. Clients
The client in this engagement will be the City of Palm Springs, and is made exclusively
through the City Manager's Office. The Firm's duty of loyalty will be only to its named client
hereinafter"Client"). The Firm will not represent any elected officials, managers, officers,
directors, or employees of its named client, and those other entities or individuals will be
deemed to have separate interests from the named client with respect to this matter and any
future matter. The Firm understands that it is to take direction on this matter from the Assistant
City Manager/Engineer or City Manager of the City of Palm Springs.
2. Client's Duties
Client agrees to be truthful with the Firm, to cooperate, to keep the Firm informed of any
information or developments which may come to Client's attention, to abide by this Agreement,
to pay the Firm's bills on time, and to keep the Firm advised of Client's address, telephone
number and whereabouts. Client will assist the Firm in providing necessary information and
documents and will appear when necessary at legal proceedings.
Clyde&Co US LLP is a Delaware limit=_d liability partnership with offices in Atlanta,Pdlami.New Jersey,N_u York,Nawport Baach and San Francisco.
Clyde&Cc US LLP is a-mated with Clyde&Co LLP,a limited liability partnership registered in England and'Nales.
2852310
December 21, 2016
Page 2
3. Services and Fees
Our services for this engagement will consist of advice and representation of Client with
respect to its cogeneration system at the tlunici,oal Central Plant and in particular: 1) assessing
the compliance status and any potential liability for non-compliance; 2) negotiating any
penalties; and 3) representing Client before any necessary administrative hearings including
variance petitions.
At this time the Firm is not accepting engagement for representation in the litigation of
this matter, and will not do so unless specifically requested by Client and agreed to in writing.
However, if requested to do so, the Firm would be amenable to providing advice on issues
relating to Client's contract with its contractor for the design and building of the cogeneration
plant and may also seek advice and representation in seeking a recovery against entities that
may be liable to Client.
We will represent you by using attorneys and other professional staff who are suited to
handle issues as they arise. Frances Keeler will provide primary representation of Client at a
rate of five-hundred ($500) dollars per hour. Senior associates, if needed will be billed at three-
hundred and fifty ($350) dollars per hour and junior associates at two-hundred and fifty ($250)
dollars per hour. The Firm will afford Client a 10% discount for its services, provided Client
timely pays the Firm's monthly invoices. We reserve the right to implement rates changes from
tirne to time as may be appropriate and depending on the skills and experience levels of our
professional staff. We will provide you with notice of such changes and seek your approval
before new rates are implemented.
Our bills for our professional services will be based upon the hourly rates for our lawyers
and professional staff in effect at the time the services are rendered. Our bills also include
charges for our out-of-pocket expenses (such as required travel, long distance charges and
postage) and for our non-professional services (such as messenger delivery, computerized
research facilities, and document duplication) in connection with our representation of
you. Extraordinary or significant out-of-pocket expenses (for arbitratorlumpire fees, transcripts,
experts, or consultants) will be billed to you directly by the provider of those services. It is our
practice to obtain the client's approval before incurring extraordinary or significant out-of-pocket
expenses.
You will receive monthly invoices from us for these services and for expenses posted
during the month. We request and expect our clients to timely pay all invoices within thirty (30)
days of receipt. If you have any questions or comments concerning our services or charges
during the course of our representation, please bring them to our attention so that any issues
can be quickly resolved.
4. Conclusion of Representation
You may withdraw from this representation on written notice. You will remain
responsible for all fees and expenses incurred through the date of withdrawal.
2852310
Decernber21, 2016
Page 3
We reserve the right to withdraw from the representation at any time consistent with the
rules of professional responsibility. Othew ise, the representation will terminate upon our
sending our final invoice for services in this matter.
5. Conflicts of Interests
The Firm is affiliated with Clyde & Cc LLP and other Clyde & Co entities practicing in
different parts of the world, but only the Firm will represent you in this matter.
You are engaging us because the Firm and other Clyde & Co entities have developed
knowledge and experience through representing many clients operating in their key sectors. As
a consequence of this, the Firm and other Clyde & Co entities may sometimes be called upon to
represent other parties v.lho may have business dealings with you or may have interests
adverse to you, We are accepting this engagement with Client's understanding and express
consent that our representation of Client will not preclude us from accepting an engagement
from a new or existing client, including litigation or other matters that may involve the Client,
including matters that may be directly adverse to Client. However, we will not accept an
engagement that is directly adverse to the Client if either: (1) it would be substantially related to
the subject matter of our representation of the Client', or (2) would impair the confidentiality of
proprietary, sensitive, or otherwise confidential communications made to us by the Client which
could be used to your disadvantage. In other words, we may represent other clients in
negotiations, business transactions, litigation, alternative dispute resolution, administrative
Gproceedings, discovery disputes, or other legal matters even if those matters are adverse to
Client.
Furthermore, and in any event, with respect to potential conflict of interests involving
other Clyde & Co entities in jurisdictions outside of the United States, the Client agrees that
where the Firm acts, or is asked to act, for you, and another Clyde & Co entity acts, or is asked
to act, against you in a jurisdiction other than the United States, all questions relating to such
concurrent representations shall be determined according to the conflict rules applicable in that
other jurisdiction. Please note, however, that even under the conflict rules applicable to a
jurisdiction outside of the United States, no Clyde & Cc entity, including this Firm, will represent
another client adversely to you on any matters that are factually or legally related to work
performed for you by another Clyde & Co entity or as to which a Clyde & Cc entity holds
confidential information of yours that might relate to the adverse representation. Please also
note as well that no Clyde & Cc lawyer who may work on a matter outside of the United States
that is adverse to you will have access to confidential information held for you by this Firm.
We have set out these issues in detail so that you can have the opportunity to ask us
any questions or express any concerns that you may have about this approach before you
decide whether or not to agree to it. Of course, you are also free to discuss this approach with
independent counsel of your choice before you decide.
2852310
December 21, 2016
Page 4
6, Arbitration
A. Arbitration of Disputes
Any dispute between the parties regarding the construction, application or performance
Of any services under this Agreement, and any claim arising out of or relating to this Agreement
or its breach, including, without limitation, claims for breach of contract, professional negligence,
breach of fiduciary duty, misrepresentation, fraud and disputes regarding attorney fees and/or
costs charged under this Agreement (except as provided in paragraph B below) shall be
submitted to binding arbitration upon the written request of one party after the service of that
request on the other party. The parties shall appoint one person to hear and determine the
dispute. Such dispute shall be referred to arbitration according to the Commercial Rules of the
American Arbitration Association. If the parties cannot agree, then the Superior Court of
Orange County shall choose an impartial arbitrator whose decision shall be final and conclusive
on all parties. Attorney and Client shall each have the right of discovery in connection with any
arbitration proceeding in accordance with Code of Civil Procedure Section 1283.05. The cost of
the arbitration, excluding legal fees and costs, shall be borne by the losing party or in such
proportion as the arbitrator shall decide. The parties shall bear their own legal fees and costs
for all claims, contract claims, or tort claims. The sole and exclusive venue for the arbitration
shall be Orange County, California.
By initialing below, Client and the Firm confirm that they have read and
understand subparagraph A above, and voluntarily agree to binding arbitration. In doing so,
Client and the Firm voluntarily give up important constitutional rights to trial by judge or jury, as
well as rights to appeal. Client has the right to have an independent lawyer of Client's choice
review these arbitration provisions, and this entire agreement, prior to initialing this provision or
signing this Agreement.
Client Initial Here)Attorney on behalf of Firm)
B. Mandatory Fee Arbitration
Notwithstanding subparagraph A above, in any dispute over attorney's fees, costs or
both subject to the jurisdiction of the State of California over attorney's fees, charges, costs or
expenses, Client has the right to elect arbitration pursuant to the fee arbitration procedures as
set forth in California Business and Professions Code Sections 6200-6206. Arbitration pursuant
to the Mandatory Fee Arbitration Act is non-binding unless the parties agree in writing, after the
dispute has arisen, to be bound by the arbitration award. The Mandatory Fee Arbitration
procedures permit a court trial after arbitration or a subsequent binding contractual arbitration if
the parties have agreed to binding arbitration and either party rejects the award and requests a
trial de novo within 30 days after the award is mailed to the parties. If, after receiving a notice of
client's right to arbitrate, Client does not elect to proceed under the State Bar fee arbitration
2852310
December21, 2016
Page 5
procedures; and file a request for fee arbitration within K days, any dispute over lees, charges,
costs or expenses, will be resolved by binding arbitration as provided in the previous paragraph.
If either party rejects a non-binding fee arbitration award by timely submission of a
request for trial de novo, Attorney and Client agree that in lieu of a trial de novo in court, the trial
after arbitration shall be binding arbitration pursuant to the provisions of paragraph A, above.
Please signify your agreement to these terms of engagement by signing this letter on the
line indicated below and returning it to the above address. However, please note that your
instructing us or continuing to instruct us on this matter will constitute your full acceptance of the
terms set out above.
This agreement is governed by the laws of the State of California and shall not be
modified or amended except in a writing signed by both Client and the Firm.
We are very pleased to have this opportunity to serve you. If you have any questions
regarding this letter, please feel free to call.
Verytruly yours,
1
Jdseph A. Walsh II
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2852310