HomeMy WebLinkAbout1/24/2018 - STAFF REPORTS - 1.U. IN
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CITY COUNCIL STAFF REPORT
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DATE: January 24, 2018 CONSENT CALENDAR
SUBJECT: ENGAGEMENT OF LEGAL COUNSEL, JOHN M. FUJII,
SILVER & WRIGHT LLP
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
The City Attorney proposes to engage the services of an attorney with code enforcement
expertise to assist transactional and litigation matters related to that area of practice,
including the pursuit and institution of receiverships.
RECOMMENDATION:
1) Approve Agreement No. , a Professional Services Agreement with
Silver & Wright LLP, a California limited liability partnership, in a form
substantially similar to that published with this staff report, subject to minor
modification, within the reasonable discretion of the City Attorney
(ATTACHMENT A);
2) Authorize the City Manager to execute all necessary documents
STAFF ANALYSIS:
In May 2017, the City of Palm Springs established the Office of the City Attorney as an
in-house department to lead and coordinate in the direction and provision of all legal
services to the City.
The City Attorney has determined that it would be in the City's interest to establish a
special counsel relationship with John M. Fujii, a lawyer with an impressive background
and litigation skills that the City Attorney has personally observed. The contract requested
allows the City Attorney to engage Mr. Fujii's services on a variety of transactional and
litigation matters, with a likely focus on nuisance abatement, code enforcement, and cost
recovery. Mr. Fujii's CV is attached to this staff report as ATTACHMENT B. Hourly rates
for attorneys at Silver & Wright's firm are $215.00/hour for all attorney staff time, and
$135.00/hour for paralegal services.
ITEM NO.— IAL-
City Council Staff Report
January 24, 2018 -- Page 2
ENGAGEMENT OF SPECIAL LEGAL COUNSEL, JOHN FUJII
The City Attorney has reviewed the agreement proposed for execution, and discussed its
specific terms with Mr. Fujii. Absent Council direction to the contrary, the City Attorney
anticipates that the agreement will be signed as presented here, but requests authority
for minor modifications.
ALTERNATIVES:
Reject the proposed professional services agreements.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
The proposed agreement is not a "project" for purposes of the California Environmental
Quality Act (CEQA), as that term is defined by CEQA guidelines (Guidelines) section
15378. Engagement of lawyers is an organizational or administrative activity by the City
of Palm Springs in furtherance of its police power, and will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
FISCAL IMPACT:
Sufficient funding is budgeted and available in contractual legal services, Account No.
001-1200-43220.
Edward Z. Kotkin, David H. Ready, Esq., P
City Attorney City Manager
Attachments:
A. Professional Services Agreement
B. John M. Fujii. CV
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ATTACHMENT A
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PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (the "Agreement") is made and entered into
as of this day of January, 2018, by and between the CITY OF PALM SPRINGS, a California
charter city and municipal law corporation ("City"), and JOHN M. FUJII of SILVER & WRIGHT LLP, a
California 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 transactional or litigation services arising
from and related to code enforcement.
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 John M. Fujii will personally perform all work billable as attorney services
hereunder unless otherwise approved in writing in advance by the City Attorney. Services
hereunder shall include but are not necessarily limited to transactional or litigation services arising
from and related to code enforcement.
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.
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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."
4. State ments/Task-Billing. Firm 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 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.
S. 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 and hold harmless, the City, its City Council,
officers, agents and employees from and against and claim, demands, damages,
injury or judgment 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.
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City: Firm:
City of Palm Springs Silver &Wright LLP
3200 E. Tahquitz Canyon Way 3 Corporate Park, Suite 100
Palm Springs, CA 92263-2743 Irvine, California 92606-5159
Attn: City Attorney Attn: John M. Fujii, Partner
Phone: 760.323.8205 Phone: (949) 385-6431
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, Firm 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'). Firm 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, Firm shall certify that its actions and omissions hereunder
shall not incorporate any discrimination arising from or related to any prohibited basis in any Firm
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 Firm 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,
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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.
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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 SPRINGS
By: By:
Anthony Mejia, David H. Ready,
City Clerk City Manager
APPROVED AS TO FORM:
By:
Edward Z. Kotkin
City Attorney
SILVER &WRIGHT LLP
By:
Signature
Printed Name
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EXHIBIT"A"
SILVER&WRIGHT, LLP
Rates and Billing Practices
1. Rates: Effective January 1, 2018,the hourly rates for legal personnel on this matter areas follows:
Attorney Staff $215.00/ Hour
Paralegals and Law Clerks $135.00/ Hour
Billing Practices:Time is charged in minimum units of one-tenth (. 1) of an hour.
The time charged will 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 cost.
In-office photocopying: $0.10/page
Mileage: Per IRS Mileage Rates, currently$0.545/mile
(b) Out of town travel. Client agrees to pay transportation, meals, lodging and all other costs of
any necessary out-of-town travel by Firm's personnel.
(c) Experts, Consultants and Investigators. To aid in the preparation or presentation of City's
matter, it may become necessary to hire expert witnesses, consultants or investigators. City agrees to
pay such fees and charges. Firm will select any expert witnesses, consultants or investigators to be hired,
and City will be informed of and have the opportunity to consent to persons chosen and their charges.
(d) Other Fees. City understands that if any matter proceeds to court action or arbitration, City
maybe required to pay fees and/or costs to other parties in the action. Any such payment will be entirely
the responsibility of City.
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ATTACHMENT B
to
John M. Fujii
Silver& Wright LLP
3 Corporate Park, Suite 100
Irvine, CA 92606
email:JFujiiCd.SilverWrightLaw.com
(949) 207-6804
Employment Silver&Wright LLP. Irvine,CA(2016 to present)
Partner. Represent various public entities and other clients in state and federal courts in all types
of litigation matters, involving receiverships, nuisance abatement, civil rights, including police
defense,tort defense, and land use.
Huntington Beach City Attorney's Office. Huntington Beach,CA (1998 to 2016)
Senior Deputy City Attorney. Represented the City of Huntington Beach in state and federal courts
and before administrative agencies in all types of civil litigation matters, including civil rights,
police defense,employment, land use,environmental, and tort defense. Worked on all types of
municipal law transactional issues, including drafting contracts, ordinances, resolutions, and legal
opinions.
Chapman University Dale E. Fowler School of Law. Orange, CA(2002 to 2005)
Adjunct Professor. Taught legal writing course to first-year law students.
Jeffer,Mangels,Butler& Mitchell. Los Angeles, CA (1995 to 1998)
Associate. Practiced civil litigation in state and federal courts, with emphasis in environmental and
land use matters and complex business disputes. Advised clients on environmental and land use
matters.
Brobeck,Phleger& Harrison. San Francisco, CA (1994 to 1995; Summer 1993)
Associate. Practiced civil litigation in state and federal courts,with emphasis in toxic torts and
environmental matters. Advised clients on environmental matters.
Jury Trial Successfully tried and obtained numerous defense jury verdicts in state and federal courts, in
Experience civil rights,employment, and dangerous condition of public property lawsuits.
Successfully prosecuted a code enforcement case to a guilty jury verdict.
Litigation Litigated and successfully obtained receiverships of nuisance properties and cost recovery for
Experience the cities.
Successfully defended cities against federal civil rights lawsuits filed by owners of
nuisance properties subject to city receivership actions.
Obtained defense judgments through motions for summary judgment in over
10 state and federal court cases.
Successfully tried several writ actions in court trials, including claims under the California
Environmental Quality Act(CEQA).
Prosecuted code enforcement actions for municipal code violations.
Represented public entities before such administrative agencies as the State Board of Equalization
and the California Regional Water Quality Control Board.
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John M.Fujii
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Appellate Wrote briefs and successfully argued numerous cases before the California Courts of Appeal in
Experience civil rights,employment, and land use lawsuits.
Wrote the brief on a case before the Ninth Circuit,where a jury verdict that the city had obtained in
an excessive force lawsuit was affirmed.
Presentations "How to Draft an Effective Declaration and Other Useful Writing Techniques," MCLE Seminar,
Woodruff, Spradlin& Smart,Costa Mesa,CA, 5/IS/2009
"Declaration Writing, What the Bench Is Looking for,"Alliance of Legal Document Assistant
Professionals,Orange County Superior Court, Lamoreaux Justice Center,Orange, CA, 2/6/2008
Panelist for a presentation on"Careers in the Public Sector"during the National Asian Pacific
American Bar Association, 3rd Annual California Regional Conference, 2006
Publications Real Estate/Environmental Liability News, "No Further Action: Relaxed Cleanup Standards and
New Limits on Judicial Rights Require Integration of Regulatory Compliance and Offensive Cost
Recovery Claims,"by David Waite and John Fujii,4/18/1997
Los Angeles Daily Journal, California Business Law Supplement, "Gas Light—Environmental
Law: Both Regulators and the Judiciary Have Been on Separate but Parallel Paths to Reduce the
Costs of Cleaning Up Petroleum-Based Contamination,"by David Waite and John Fujii,
3/24/1997
Los Angeles Daily Journal and San Francisco Daily Journal,Corporate Power Supplement,
"Lending Some Cheer: Both State and Federal Law Now Limit Imposition of Environmental
Liability on Lenders and Fiduciaries," by David Waite and John Fujii,2/7/1997
Bar Assns. Orange County Asian American Bar Association
Member of the Board of Directors (2014 to present)
Co-chair of the Pipeline Committee(2016 to present)
Co-chair of the Social Committee (2015 to 2016)
Co-chair of the Professional Development Committee (2014 to 2015)
Orange County Bar Association
Member of the Community Outreach Committee(2015 to present)
Member of the Human Trafficking Task Force (2017 to present)
Provided an MCLE seminar entitled"Let Your Writing Win for You"to the Orange County Bar
Association's Young Lawyers Division, Radisson Hotel,Newport Beach, CA, 5/10/2006
Education University of California at Berkeley,Boalt Hall School of Law,J.D., 1994
Co-chair of the U.S.-Japan Legal Studies Institute
Executive Editor and Articles Editor of the High Technology Law Journal
Admissions Committee Member for the Asian American Law Student Association
University of California at Davis, B.S. in Animal Physiology, 1989
Graduated with High Honors
U.C. Davis Physiology Department Academic Award
Interests Fly fishing, golfing,reading,writing poetry,and traveling.
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