Loading...
HomeMy WebLinkAboutA7104 - SHEPPARD, MULLIN,RICHTER & HAMPTON LLPPROFESSIONAL SERVICES AGREEMENT THIS PROFESSIOr^L SERVICES AGREEMENT (the "Agreement") is made and entered into as of this /5 day of sSfeSSy, 2018, by and between the CITY OF PALM SPRINGS, a California charter city and municipal law corporation ("City"), and SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, a limited liability partnership (hereinafter "Firm"). RECITALS A. The City of Palm Springs, pursuant to its authority under the City Charter and all applicable law, acting by and through the City Manager, desires to contract with Firm to provide legal services for the City, on an on-going basis, as may be requested or required by the City Attorney or City Council, including without limitation Native American and Tribal legal matters. B. Firm is qualified to, and desires to perform the foregoing professional services as necessary for the support of the City Attorney and the City Council. C. City and Firm wish to provide for the terms and conditions of retaining and employing Firm 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 1. Retention of Firm. Identification of Individual Legal Counsel City hereby retains and employs Firm to provide legal services as may be requested or required in support of the City Attorney or the City Council. However, City and Firm understand and agree that Richard M. Freeman, Esq. will perform or supervise all services hereunder, and serve as Firm's liaison to the City Attorney regarding all services. Services hereunder shall be comprised of specialized services of a transactional and litigation nature, primarily if not exclusively in relation to Native American and Tribal legal matters. 2. Independent Contractor. Firm and any attorneys or other persons employed by Firm, 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 Firm. 3. Fees. Costs, and Expenses. 3.1 City agrees to pay Firm at the rates set forth in Exhibit "A," which is attached hereto and is incorporated herein by reference. 3.2 City agrees to pay out-of-pocket costs and expenses associated with Firm's work pursuant to Exhibit "A." 9 *• 4. Statements/Task-Billing. Firm shall prepare and pfcesent to City detailed monthly statements for professional and other services rendered to City for the month preceding the statement indicating each task performed by Firm. City shall pay the statements within thirty (30) days of receipt of the same. Firm shall update City, upon request, regarding the status of Firm's billings. 5. Insurance and Indemnification. 5.1. Firm shall carry Professional Liability/Errors and Omissions insurances in an amount not less than one million dollars ($1,000,000.00) per occurrence and ($2,000,000.00) in aggregate. All insurance coverage shall be provided by an 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 thirty (30) days' prior written notice to the City. With respect to Professional Liability/Errors and Omissions insurance. Firm agrees to maintain such insurance for at least three (3) years after termination of this Agreement as long as such insurance is reasonably available on the market. ^ 5.2. Firm agrees to indemnify/defend anci'hold harmless, the City, its City Council, officers, agents and ei^oyees from and against and claim, demands, damages, injury or judgmenty^which arises out the negligent performance or willful misconduct of Firm in performing under this Agreement. 6. Term and Termination. The term of this Agreement shall continue until terminated by either party. Firm shall serve under the terms of this Agreement at the pleasure of City, and by a majority vote of the City Council, City hereby reserves the right to terminate this Agreement upon ten (10) days written notice to Firm for any reason or to require substitute attorney personnel. In the event that Firm's services are terminated, all unpaid charges shall be due and payable to Firm for work actually performed up to the time of termination and for any other work Firm completes at the direction of the City. Firm may terminate this Agreement with or without cause upon ninety (90) days written notice to the City. 7. 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: City of Palm Springs 3200 E. Tahquitz Canyon Way Palm Springs, CA 92263-2743 Attn: City Attorney Phone: 760.323.8205 Firm: Sheppard, Mullin, Richter & Hampton LLP 12275 El Camino Real, Suite 200 San Diego, California 92130 Attn: Richard M. Freeman Phone: (858) 720-8900 8. City Officers and Employees; Non-Discrimination. 8.1 No officer or employee of the City shall be personally liable to the Firm, 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 Firm or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Firm acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Firm enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Firm warrants that Firm 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. 8.3 In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter this Agreement, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not 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; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting. 9. Conflicts of Interest. Firm 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. Firm represents that no City employee or official has a material financial interest in Firm. During the term of this Agreement and/or as a result of being awarded this contract. Firm shall not offer, encourage or accept any financial interest in Firm's business from any City employee or official. 10. Files, All legal files of Firm pertaining to the City shall be and remain the property of City. Firm 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 Firm's expense, upon termination of this Agreement. City agree that the Firm may, in its discretion, maintain all or part of the City's client file in electronic format. The Firm may store part or all of City documents using secure cloud storage services. If so, the Firm will apply all reasonable methods to maintain the confidentiality of City files, just as it does for City's non-digital information. City data will be password protected and encrypted using currently available technology. The City may obtain information from its files by written request to the Firm. 11. Modifications to the Agreement. Unless otherwise provided for in this Agreement, modifications relating to the nature, extent or duration of Firm'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 Firm and paid by the City. 12. Assignment and Delegation. This Agreement contemplates the personal professional services of Firm and it shall not be assigned or delegated without the prior written consent of the City. Firm 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. 13. Legal Construction. 13.1 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. 13.2 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. 13.3 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. 13.4 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: mthony/ City Cler CITY OF PALM SPRINGS David H. Ready, City Manager APPROVEDA57TO FORM: By: Edward Z. Kotkin City Attorney SHEPPi^ IlLLIN, RICHtER & HAMPTON LLP Signature Printed Name EXHIBIT "A" SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Rates and Billing Practices 1. Rates; Effective February 1, 2018, the hourly rates for legal personnel on this matter are as follows: Richard M. Freeman, Hourly Rate $ 550.00/hour Associates, Blended Rate $ 435.00/ hour Billing Practices: Time is charged in minimum units of one-tenth (. 1) of an hour. As a courtesy, Mr. Freeman will only bill the City for one half (Vi) of the time he spends driving between the Firm's San Diego office and the Palm Springs area. Time charged v*/ill include the time spent on telephone calls relating to City's matter, including calls with City, witnesses, opposing counsel, court personnel, state filing agencies, vendors, and other necessary telephone calls. The legal personnel assigned to City's matter may confer among themselves about the matter, as required and appropriate. When they do confer, each person will charge for the time expended, as long as the work done is reasonably necessary and not duplicative. Likewise, if more than one of the legal personnel attends a meeting, court hearing, or other proceeding, each will charge for the time spent, as long as the attendance is required and appropriate. Firm will charge for waiting time in court and elsewhere and for travel time, both local and out of town. 2. Costs and Other Charges: (a) Firm may incur various costs and expenses in performing legal services under this Agreement. City agrees to pay for all costs, disbursements, and expenses in addition to the hourly fees. The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporters' fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees, and other similar items. Except for the items listed below, all costs and expenses will be charged at Firm's actual cost. Category Duplicating ESI Data Hosting Charges (Electronically Stored information) Lexis/Westlaw Legal research Postage Relativity Software License Charge $0.25 black/white and $0.75 color copies $8.00 per month per gigabyte of data stored Ten percent (10%) off of Vendor Standard Rates. Actual cost of mailing over $5.00 per day. $69 per month per external use license assigned KXHIBi r "A" SIIHPPARD MUl.I.IN Pase I of 2 SheppardMullin Richard M. Freeman 858.720.8909 direct rfreeman@sheppardmullin.com March 6. 2018 File Number: 0100-004252 VIA ELECTRONIC MAIL ONLY Edward Kotkin City of Palm Springs Office of City Attorney 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Re: Addendum to the Professional Services Agreement between the Citv Of Palm Springs and Sheppard. Mullin. Richter & Hampton LLP Dear Mr. Kotkin: The City of Palm Springs (the "City") has engaged Sheppard, Mullin, Richter & Hampton LLP ("SMRH" or the "Firm") to represent it in connection with advice regarding Native American and Tribal legal matters (the "Matter"). The City has provided the Firm with the Professional Services Agreement which sets forth the basic terms of engagement between the City and the Firm. This Addendum to the Professional Services Agreement sets forth additional terms of the engagement. 1. Consent to Representation of Parties Adverse to the Citv. By this engagement, SMRH has been retained to represent the City in the Matter. SMRH may be asked to also represent the City in the future in connection with other engagements. Any past, present and future engagement of SMRH by the City is referred to in this letter individually and collectively as the "City Engagement." As required by California law and Rules of Professional Conduct governing attorneys (the "Ethical Rules"), the Firm is making disclosures and seeking the consent of the City to SMRH acting both as counsel for the City and also acting as counsel for any persons other than the City (individually and collectively, "Private Parties"), now or in the future, in matters not substantially related to any City Engagement ("Unrelated Matters"). Our firm has many attorneys and multiple offices. Consequently, SMRH currently represents and in the future may represent numerous Private Parties who may have dealings with the City. The ability of SMRH to maintain and sustain its relationships with Private Parties who are clients is critical to SMRH. Therefore, the execution and delivery of this consent and waiver by the City is an essential condition to our acceptance of the City Engagement. SheppardMullin Disclosures. Unrelated Matters in which SMRH represents Private Parties (but not the City) may involve seeking discretionary or ministerial approvals by the City or affiliated agencies or authorities in connection with land use, building, construction or other matters; appearances before the City Board of Supervisors, the City Counsel, or regulatory or administrative agencies regarding political, legislative, administrative, enforcement and tax matters; representation of plaintiffs or defendants in civil actions; representation of defendants in civil or criminal enforcement actions; tax matters; and transactions between Private Parties and the City such as preparing and negotiating agreements, licenses, leases or other documents. SMRH may also represent Private Parties in litigation, arbitration, audits, examinations, inquiries, administrative appeals, and other adversarial proceedings in which the interests of the Private Parties are adverse to the interests of the City. Concurrently representing more than one client with interests adverse to each other, although in separate and unrelated matters, may have disadvantages to each client. Performance of the attorney's duties of loyalty, confidentiality and competence might be affected adversely or may be perceived to be affected adversely, if the attorney represents a client in one matter while at the same time representing another client in a different matter. The interests of the multiple clients may vary, and as a result the attorney may be subjected to divided loyalties or have difficulty "serving more than one master." Disadvantages include the following: i. Possible Effect on Lovaltv and Vigor. Representation of multiple clients may result in less vigorous assertion or protection of one client's separate interests than if the attorney were to represent only that particular client. ii. Confidentialitv. If we represent only the City in the course of a City Engagement, then the attorney-client privilege will continue to apply to confidences we learn in the course of such City Engagement. We will be bound not to disclose any confidential information acquired in the course of any City Engagement. In order to buttress the confidentiality, we will have to ensure that any attorney working on a Private Party matter adverse to the City does not work on the City Engagement, thereby limiting the attorneys who can work on the City Engagement.. iii. Risk of Reouirement to Withdraw. If an attorney cannot accept or continue an engagement or must withdraw there from, the client may incur delay such as acquainting new counsel with the matter or the business or legal affairs of the client. Because of conflicts of interest that might arise from representing Private Parties adverse to the City in connection with Unrelated Matters, SMRH might be required by the Ethical Rules to withdraw from further representation of the City (for example, a court may disqualify us as counsel to the City), in which case the City might incur delay in connection with obtaining new counsel. The City agrees to our withdrawal under such circumstances. iv. Appearance to Constituencies. The City may be in a position, now or in the future, where its ability to respond to administrative or public constituencies is hampered by our representation of Private Parties in other matters. In other words, the appearance to constituencies may be better if the City were represented by independent counsel who has no other client with an interest adverse to the City. V. Representation Adverse to the Citv. In representing Private Parties in connection with Unrelated Matters, we will be bound to vigorously represent the interests of the Private Party clients even if that is adverse to the interests of the City. SMRH would not be representing the interests of the City in any such Unrelated Matter. b. In the event that SMRH represents or agrees to represent any Private Party in relation to an interest pertaining to an Unrelated Matter, which interest might reasonably be deemed to create a conflict of interest, under the Ethical Rules, with respect to the interest of the City in the Unrelated Matter in question, SMRH shall provide written notice of the representation in question to the City within ten (10) days of the commencement thereof. 2. Our Document Retention. It is our policy and practice to destroy our files ten (10) years after the file is first closed unless the client requests a shorter or longer retention period in writing. Files are generally closed at the conclusion of a lawsuit or completion of a transaction. In addition, you agree that our work product including our internal emails, internal drafts, notes and mental impressions belong to us as lawyers and are not part of your client file. 3. Arbitration. Choice of Law and Forum. Arbitration has the potential to provide a more timely, more economic and more confidential resolution of any dispute between us. Any dispute between us concerning our fees or charges shall, if you so elect, be submitted to arbitration under the rules of the State Bar of California ("the Rules"), and shall be binding if (i) each of us so agrees after any such dispute arises, or (ii) such arbitration becomes binding under the Rules. Any dispute between us concerning our fees or charges not so submitted to binding arbitration under the Rules, or that remains unresolved after non-binding arbitration under the Rules and any other dispute between or among the City and us or any of our attorneys and agents, including but not limited to claims of malpractice, errors or omissions, the scope or applicability of this agreement to arbitrate or any other claim of any kind regardless of the facts or the legal theories, shall be finally settled by mandatory binding arbitration in Riverside County with each party to bear its own costs and attorneys' fees and disbursements. The Arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, except that notwithstanding anything to the contrary in the JAMS rules, full discovery shall be permitted as allowed by California Code of Civil Procedure section 1283.05. The arbitration shall commence when any party serves a demand for arbitration on the other party. Any arbitration hereunder, and all submissions, testimony, transcripts, evidence, etc., related to such arbitration, shall be kept confidential by all parties. Such arbitration shall be SheppardMullin conducted before a single arbitrator, except in matters involving a dispute greater than One Million Dollars ($1,000,000), which shall be conducted before a three-arbitrator panel. The Arbitrator(s) shall be appointed according to the JAMS rules. All arbitrators shall serve as neutral, independent and impartial arbitrators and must act in conformity with the rules of evidence and law. Judgment on a binding arbitration award may be entered in any court of competent jurisdiction. We mutually acknowledge that, by this agreement to arbitrate, each of us irrevocably waives our rights to court or jury trial. The City has the right to consult separate legal counsel at any time as to any matter, including whether to enter into this engagement letter and consent to the foregoing agreement to arbitrate. The City agrees that this agreement will be governed by the laws of California without regard to its conflict rules provided that nothing herein shall limit the full applicability of the Federal Arbitration Act. The foregoing arbitration provision shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Subject in all cases to the arbitration provision set forth herein, the City agrees that (i) with regard to the courts, exclusive jurisdiction and exclusive venue for any dispute between us shall lie solely with the California Superior Court for the county named above as the site for arbitration and the corresponding U.S. District Court and (ii) consents to service of process pursuant to the applicable California state statutes and federal rules. If the foregoing is an acceptable Addendum to our engagement as counsel, I would appreciate it if you would print out and sign a copy of this letter on behalf of the City, return the copy to me by e-mail, and mail an originally signed copy to us. If you have any questions or concerns, please call. You have the right to seek the advice of an independent counsel of your choice before signing this letter and to be given a reasonable opportunity to seek that advice. Once again, thank you for selecting us to represent the City. Sincerely, /s/ Richard M. Freeman Richard M. Freeman A Professional Corporation for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SMRH;485395977.1 Enclosure UKXTOli CONFIDENTIAL INSURANCE INFORMA TION DO NOT COPY OR DISSEMINATE WITHOUT THE WRITTEN PERMISSION OF SHEPPARD, MULLIN, RICHTER & HAMPTON LLP VERIFICATION OF INSURANCE ISSUED TO: To Whom This May Concem We, the undersigned Insurance Brokers, hereby verifj' that BRIT Global Specialt}' / Lloyd's of London Syndicates 2987, and Various Insurance Companies have issued the following described insurance each for their own part and not one for the other, and which is in force as of the date shown: NAME OF ASSURED: POLICY NO. GLOPRl 800610 as Primar)' Policy and Various Excess Policies PROFESSIONAL INDEMNITY INSURANCE Sheppard, MuUin, Richter & Hampton LLP and others as more fully described in the Policy. INSURER BRIT Global Specialty / Lloyd's of London Syndicates 2987 (primary lead) and Various Insurance Companies PERCENTAGE 100% PERIOD 12:01a.m. January 1, 2018 to 12:01a.m. January 1, 2019 Los Angeles, CA USA Time PROGRAM LIMITS: $250,000,000 each claim and $500,000,000 annual aggregate excess a retention of $2,000,000 each claim, up to $4,000,000 annual aggregate. Once the aggregate is met, there is a $100,000 self-insured retention each claim thereafter. TERRITORY:Worldwide Subject to the terms, conditions, exclusions and limitations of the Policy, which is non-cancelable except for non payment of premium. This document is furnished as a matter of information only. The issuance of this document does not make the person or organization to whom it is issued an Additional Assured, nor does it modify in any manner the contract or insurance between the Assured and the Underwriters. Any amendment, change or extension of such contract can only be effected by specific endorsement attached thereto. Issued at: Los Angeles, California Lockton Insurance Brokers, LLC /'/ :7 L . IV Date: December 22, 2017 John C. Wileman, CPCU, ARM, ARe Senior Vice President/Account Executive LOCCTON iNSURJiNCE BROKERS, LLC. Lia-ibr "OFIVd? 725 S. Fii;iu-roaSt.. 35'"' Fl/ Lo>.Ansele.<,C^9(K^\1 /(213)o89t35ai/ FAX: (213)(38931550 Sh©D03l*ClMIUlliil Sheppard Mullin Richter & Hampton LLP 12275 El Camino Real, Suite 200 San Diego. CA 92130-2006 858.720.8900 main 858.509.3691 main fax www.sheppardmullin.com Richard M. Freeman 858.720.8909 direct rfreeman@sheppardmullin.com File Number: 0100-004252 March 14. 2018 VIA ELECTRONIC MAIL ONLY Edward Kotkin City of Palm Springs Office of City Attorney 3200 E. Tahquitz Canyon Way Palm Springs, CA 92262 Re: Addendum to the Professional Services Agreement between the City Of Palm Springs and Sheppard. Mullin. Richter & Hampton LLP Dear Mr. Kotkin: The City of Palm Springs (the "City") has engaged Sheppard, Mullin, Richter & Hampton LLP ("SMRH" or the "Firm") to represent it in connection with advice regarding Native American and Tribal legal matters (the "Matter"). The City has provided the Firm with the Professional Services Agreement which sets forth the basic terms of engagement between the City and the Firm. This Addendum to the Professional Services Agreement sets forth additional terms of the engagement. 1. Consent to Representation of Parties Adverse to the City. By this engagement, SMRH has been retained to represent the City in the Matter. SMRH may be asked to also represent the City in the future in connection with other engagements. Any past, present and future engagement of SMRH by the City is referred to in this letter individually and collectively as the "City Engagement." As required by California law and Rules of Professional Conduct governing attorneys (the "Ethical Rules"), the Firm is making disclosures and seeking the consent of the City to SMRH acting both as counsel for the City and also acting as counsel for any persons other than the City (individually and collectively, "Private Parties"), now or in the future, in matters not substantially related to any City Engagement ("Unrelated Matters"). Our firm has many attorneys and multiple offices. Consequently, SMRH currently represents and in the future may represent numerous Private Parties who may have dealings with the City. The ability of SMRH to maintain and sustain its relationships with Private Parties who are clients is critical to SMRH. Therefore, the execution and delivery of this consent and waiver by the City is an essential condition to our acceptance of the City Engagement. Sheppard a. Disclosures. Unrelated Matters in which SMRH represents Private Parties (but not the City) may involve seeking discretionary or ministerial approvals by the City or affiliated agencies or authorities in connection with land use, building, construction or other matters; appearances before the City Board of Supervisors, the City Counsel, or regulatory or administrative agencies regarding political, legislative, administrative, enforcement and tax matters; representation of plaintiffs or defendants in civil actions; representation of defendants in civil or criminal enforcement actions; tax matters; and transactions between Private Parties and the City such as preparing and negotiating agreements, licenses, leases or other documents. SMRH may also represent Private Parties in litigation, arbitration, audits, examinations, inquiries, adrninistrative appeals, and other adversarial proceedings in which the interests of the Private Parties are adverse to the interests of the City. Concurrently representing more than one client with interests adverse to each other, although in separate and unrelated matters, may have disadvantages to each client. Performance of the attorney's duties of loyalty, confidentiality and competence might be affected adversely or may be perceived to be affected adversely, if the attorney represents a client in one matter while at the same time representing another client in a different matter. The interests of the multiple clients may vary, and as a result the attorney may be subjected to divided loyalties or have difficulty "serving more than one master." Disadvantages include the following: i. Possible Effect on Lovaltv and Vigor. Representation of multiple clients may result in less vigorous assertion or protection of one client's separate interests than if the attorney were to represent only that particular client. ii. Confidentialitv. If we represent only the City in the course of a City Engagement, then the attorney-client privilege will continue to apply to confidences we learn in the course of such City Engagement. We will be bound not to disclose any confidential information acquired in the course of any City Engagement, in order to buttress the confidentiality, we will have to ensure that any attorney working on a Private Party matter adverse to the City does not work on the City Engagement, thereby limiting the attorneys who can work on the City Engagement.. iii. Risk of Requirement to Withdraw. If an attorney cannot accept or continue an engagement or must withdraw there from, the client may incur delay such as acquainting new counsel with the matter or the business or legal affairs of the client. Because of conflicts of interest that might arise from representing Private Parties adverse to the City in connection with Unrelated Matters, SMRH might be required by the Ethical Rules to withdraw from further representation of the City (for example, a court may disqualify us as counsel to the City), in which case Sheppard the City might incur delay in connection with obtaining new counsel. The City agrees to our withdrawal under such circumstances. iv. Aooearance to Constituencies. The City may be in a position, now or in the future, where its ability to respond to administrative or public constituencies is hampered by our representation of Private Parties in other matters. In other words, the appearance to constituencies may be better if the City were represented by independent counsel who has no other client with an interest adverse to the City. V. Representation Adverse to the Citv. In representing Private Parties in connection with Unrelated Matters, we will be bound to vigorously represent the interests of the Private Party clients even if that is adverse to the interests of the City. SMRH would not be representing the interests of the City in any such Unrelated Matter. b. In the event that SMRH represents or agrees to represent any Private Party in relation to an interest pertaining to an Unrelated Matter, which interest might reasonably be deemed to create a conflict of interest, under the Ethical Rules, with respect to the interest of the City in the Unrelated Matter in question, SMRH shall provide written notice of the representation in question to the City within ten (10) days of the commencement thereof. 2. Our Document Retention. It is our policy and practice to destroy our files ten (10) years after the file is first closed unless the client requests a shorter or longer retention period in writing. Files are generally closed at the conclusion of a lawsuit or completion of a transaction. In addition, you agree that our work product including our internal emails, internal drafts, notes and mental impressions belong to us as lawyers and are not part of your client file. 3. Arbitration. Choice of Law and Forum. Arbitration has the potential to provide a more timely, more economic and more confidential resolution of any dispute between us. Any dispute between us concerning our fees or charges shall, if you so elect, be submitted to arbitration under the rules of the State Bar of California ("the Rules"), and shall be binding if (!) each of us so agrees after any such dispute arises, or (ii) such arbitration becomes binding under the Rules. Any dispute between us concerning our fees or charges not so submitted to binding arbitration under the Rules, or that remains unresolved after non-binding arbitration under the Rules and any other dispute between or among the City and us or any of our attorneys and agents, including but not limited to claims of malpractice, errors or omissions, the scope or applicability of this agreement to arbitrate or any other claim of any kind regardless of the facts or the legal theories, shall be finally settled by mandatory binding arbitration in Riverside County with each party to bear its own costs and attorneys' fees and disbursements. The Arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, except that notwithstanding anything to the contrary in the JAMS rules, full discovery shall be permitted as allowed by California Code of Civil Procedure section 1283.05. The arbitration shall commence when any party serves a demand for arbitration on the other party. Any arbitration hereunder, and all submissions, testimony, transcripts, evidence, etc., related to such arbitration, shall be kept confidential by all parties. Such arbitration shall be .. :.;!5Q nadi e'ti-v^.u, ?; );;^ir5i^o' a.i.siK^H }M ^/ivrA'nj:;. vMorv?^ •; iv'CJtOri Ds^^joub-ico '.■: SKi:-v ' ■ '• V,'; 'J/ C-^; V " '/ ' V ' i' : >•* . 'if* •i^w'^.t" .,,,. rt ft - Uiyf.- !^.*«r-.r- • . ; r.X': a: '''•'v ■>■ ^ •. v' 0 'VV5 ^ ■• <;■" '■■; '"'■ zi) -'^.r .■■■;:s.'v.-/"y b.- r-\. J y, ':i'. ■ b'wb i'"" '-' "■;>•■ vi 'bV- V/b'"^ b -z- ■■ ■. ' ' Sheppard conducted before a single arbitrator, except in matters involving a dispute greater than One Million Dollars ($1,000,000), which shall be conducted before a three-arbitrator panel. The Arbitrator(s) shall be appointed according to the JAMS rules. All arbitrators shall serve as neutral, independent and impartial arbitrators and must act in conformity with the rules of evidence and law. Judgment on a binding arbitration award may be entered in any court of competent jurisdiction. We mutually acknowledge that, by this agreement to arbitrate, each of us irrevocabiy waives our rights to court or jury trial. The City has the right to consult separate legal counsel at any time as to any matter, including whether to enter into this engagement letter and consent to the foregoing agreement to arbitrate. The City agrees that this agreement will be governed by the laws of California without regard to its conflict rules provided that nothing herein shall limit the full applicability of the Federal Arbitration Act. The foregoing arbitration provision shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Subject in all cases to the arbitration provision set forth herein, the City agrees that (i) with regard to the courts, exclusive jurisdiction and exclusive venue for any dispute between us shall lie solely with the California Superior Court for the county named above as the site for arbitration and the corresponding U.S. District Court and (ii) consents to service of process pursuant to the applicable California state statutes and federal rules. If the foregoing is an acceptable Addendum to our engagement as counsel, I would appreciate it if you would print out and sign a copy of this letter on behalf of the City, return the copy to me by e-mail, and mail an originally signed copy to us. If you have any questions or concerns, please call. You have the right to seek the advice of an independent counsel of your choice before signing this letter and to be given a reasonable opportunity to seek that advice. Once ag^, thank you for selecting us to represent the City. Sincere!/ Btichard M. Fryman' A Professional Corporation for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP SMRH:485705873.1 Enclosure Sh^ppard The undersigned has read and understood this Addendum and agrees that it correctly sets forth the additional terms upon which Sheppard, Mullin, Richter & Hampton LLP has been engaged by the undersigned in connection with the representation described herein and has waived any conflict of interest on the part of this Firm arising out of the representation described above. City of Palm Springs City Clerk APPROVED A^TO FORiyi;^ By: Its;■ur-i