HomeMy WebLinkAbout1/24/2018 - STAFF REPORTS - 1.S. 40E?ALMSA4
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CITY COUNCIL STAFF REPORT
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DATE: January 24, 2018 CONSENT CALENDAR
SUBJECT: ENGAGEMENT OF LEGAL COUNSEL, LYNBERG &WATKINS, APC
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 expertise in police
matters to assist in transactional and litigation matters related to that area of practice.
RECOMMENDATION:
1) Approve Agreement No. , a Professional Services Agreement with
Lynberg &Watkins, APC, a California professional corporation, 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 has 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 Lynberg &Watkins. The firm has previously represented
the City of Palm Springs in litigation, and secured outstanding results while demonstrating
significant commitment to good communication with the City and sensitivity to the City's
requirements. The firm has represented numerous municipalities in a variety of matters,
focusing on defense against lawsuits arising from general torts, civil rights, police liability,
employment, and dangerous condition of public property. The CVs of attorneys S. Frank
Harrell and Attorney Jesse K. Cox are attached to this staff report as ATTACHMENT B.
Hourly rates for attorneys at Lynberg & Watkins are $185.00/hour for Partners,
$165.00/hour for Associates, and $110.00/hour for Paralegals.
ITEM NO. -1
City Council Staff Report
January 24, 2018-- Page 2
ENGAGEMENT OF SPECIAL LEGAL COUNSEL, LYNBERG &WATKINS
The City Attorney has reviewed the agreement proposed for execution, and discussed its
specific terms with Mr. Harrell. 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. S. Frank Harrell and Jesse Cox CVs
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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 LYNBERG & WATKINS, A PROFESSIONAL
CORPORATION, a California professional corporation (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 police 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 S. Frank Harrell will personally supervise and serve as Firm's liaison to the City
Attorney regarding all services hereunder. Services hereunder shall include but are not necessarily
limited to transactional or litigation services, arising from and related to police 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.
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3.2 City agrees to pay out-of-pocket costs and expenses associated with Firm's work
pursuant to Exhibit "A."
4. Statements/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.
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 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 Lynberg &Watkins
3200 E. Tahquitz Canyon Way 1100 Town & Country Road, Suite 1450
Palm Springs, CA 92263-2743 Orange, California 92868
Attn: City Attorney Attn: S. Frank Harrell, Shareholder
Phone: 760.323.8205 Phone: (949) 385-6431
B. 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 certifythat 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
LYNBERG &WATKINS
By:
Signature
Printed Name
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EXHIBIT"A"
LYNBERG &WATKINS,APC
Rates and Billing Practices
1. Rates: Effective January 1, 2018,the hourly rates for legal personnel on this matter areas follows:
Partners $ 185.00/ hour
Associate Attorneys $ 165.00/hour
Paralegals/Law Clerks $ 110.00/ 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
may be 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
S. FRANK HARRELL
EDUCATION:
Undergraduate: The University of North Carolina(B.A. 1982, Phi Beta Kappa)
Law: Duke University and the University of North Carolina(J.D. 1985)
BAR ADMISSIONS:
California, 1988
Virginia, 1986
The United States Supreme Court, 2006
United States Court of Appeal for the Fourth Circuit, 1986
United States Court of Appeal for the Ninth Circuit, 1988
United States District Court for the Northern District of California, 1990
United States District Court for the Eastern District of California, 1990
United States District Court for the Central District of California, 1988
United States District Court for the Southern District of California, 1990
United States District Court for the Eastern District of Virginia, 1988
United States District Court for the Western District of Virginia, 1988
PROFESSIONAL ASSOCIATIONS:
American Board of Trial Advocates
The Virginia Bar Association
The California Bar Association.
Association of Southern California Defense Counsel
The American Bar Association
EXPERIENCE:
Mr. Harrell has litigated over 25 cases to verdict in state and federal courts. All of Mr.
Harrell's trials have been in defense of governmental clients, regarding a wide variety of
allegations, including general torts, civil rights, police liability, employment and
dangerous condition of public property. He has also successfully litigated scores of case
dispositive motions which resulted in the dismissal of the case.
Mr. Harrell has worked on over 50 appeals in state and federal courts on behalf of public
entities. He has obtained many published opinions favorable to governmental interests.
For example,Mr. Harrell was the successful appellate advocate on behalf of the Orange
County Sheriff's Department in Susag v City of Lake Forest.et al., 94 Cal. App. 4th
1401 (2002). The Susag Court was the first California decision to restrict criminal
convicts from suing their arresting officers under tort law principles. Id. at 1412
("Permitting (a plaintiff] to pursue state tort claims notwithstanding [his] conviction . . .
would potentially allow him to profit by his own wrongdoing. The lawfulness of the
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S. FRANK HARRELL
officers' conduct was established in the criminal proceeding, and a contrary result in the
civil action would `shock the public conscience, engender disrespect for courts and
generally discredit the administration of justice.' ")
Mr. Harrell was also the successful appellate advocate in McCown v. City of Fontana
565 F.3d 1097 (9th Cir. 2009). In McCown,the Ninth Circuit limited plaintiff's counsels'
ability to recover attorneys' fees in high multiples of what they recover on behalf of their
client. Id. The trial court in McCown awarded plaintiff s counsel ten times more in fees
than they recovered in settlement for their client (which, in turn, was ten times less than
the damages plaintiff claimed in discovery responses.) Id. The Ninth Circuit reversed the
fee award, finding it unseemly for a plaintiff s counsel to profit from litigation when they
only obtained a negligible recovery for their client. See, McCown v. City of Fontana,565
F.3d 1097, 1103-1105 (9th Cir. Cal. 2009)("[A]ttorney's fees awarded under 42 U.S.C. §
1988 must be adjusted downward where the plaintiff has obtained limited success on his
pleaded claims,and the result does not confer a meaningful public benefit. . .. [Plaintiff s]
victory clearly fell far short of his goal;therefore, it is unreasonable to grant his attorneys
more than a comparable portion of the fees and costs they requested.")
OTHER EXPERIENCE:
North Carolina Congressman Walter B. Jones
Washington, D.C.
Staff Extern, 1979
C-Span Congressional Cable Network
Washington, D.C.
Staff Extern, 1979
Virginia Senator Wyatte B. Durette
Richmond,Virginia
Staff Assistant, 1985
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JESSE K COX
EDUCATION
University of Michigan (B.A. 2009)
Chapman University School of Law Q.D. 2012, Cxm Laude)
BAR ADMISSIONS
California,2012
Supreme Court for the State of California,2012
United States Court of Appeal for the Ninth Circuit,2012
United States District Court for the Central District of California, 2012
PROFESSIONAL ASSOCIATIONS
Association of Southern California Defense Counsel
GENERAL TORT EXPERIENCE
Mr. Cox first started at the firma as a Summer Associate in 2011.After graduating from Chapman University
School of Law in May 2012,where he was a Moot Court Honor Board member and Notes&Comments
Editor of the Chapman Law Review,Mr. Cox joined the firm as a Litigation Associate.Prior to beginning his
career with the firm,Mr. Cox was a judicial extern for justice Raymond J. Ikola of the California Court of
Appeal,Fourth District,Division Three.
Mr. Cox's practice encompasses all areas of civil and complex civil litigation relating to the defense of
California public entities,including general negligence,wrongful death,premises and personal injury
liability,civil rights,police liability,workplace investigations,and appellate litigation. Mr. Cox has
experience in all phases of civil litigation,including responding to complaints,preparing and responding to
written discovery, drafting and arguing discovery and dispositive motions in court, settlement negotiations,
taking and defending depositions, assisting in trial preparation,arguing motions and examining witnesses
in trial,and researching and preparing post-trial motions and appellate briefing.
By way of illustration,Mr. Cox has managed several complex premises liability wrongful death matters
including Ledesma.et. al. v. City of Palm Sprit ng_s,,et al.,Case No. INC1302238,consolidated with Walter.
et al.v. City of Palm Springs et al. Case No. INC1302398;and Huerto,et al.v. City of Palm Springs.et
aLL.PSC1602732,all of which involve multiple parties,voluminous discovery, unique issues related to
public entity immunities, and roadway design and engineering. Mr. Cox has also managed several complex
civil rights wrongful death matters including Driver v.City of Fontana,et al.,Case No. 5:15-cv-02093-
VAP-KK(excessive force/wrongful death case resultingg in a favorable settlement for Mr. Cox's clients),
and Nagy, et al.v. County of Orange,et aL, Case No. 30-2015-00827446-CU-PP-CJC,both of which
involved sensitive matters of public interest. Mr. Cox has also prepared and argued successful dispositive
briefing in S iilkecy v. County of Orange. Case No. 8:16-cv-1168-CJC (defense summary judgment granted
on Plaintiff's Americans with Disabilities claim for"discrimination"in the Orange County Jail); Huizar v.
City of Huntington Park,Case No. BC528391 (defense summary judgment granted on Plaintiff's claim for
dangerous condition of public property),and Saavedra v. City of Huntington Park Case No. BC 530644
(defense summary judgment granted on Plaintiff's claim for dangerous condition of public property). He
also assisted in the successful dispositive briefing in Wellman v. City of Fontana.Case No. CLADS
1005054(defense summary judgment granted on Plaintiff's claim for dangerous condition of public
property on the basis of"design immunity")and Benson v. Landry's Restaurants,, Inc. et al. Case No.
BC474979 (defense summary judgment granted in employment matter involving claims of extortion,
defamation,and Labor Code violations).
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Mr. Cox was part of the trial team that defensed a twenty million dollar wrongful death claim in
Landaverde v. City of Fontana, Case No. CIVDS1208532. Mr. Cox was second chair at trial in the
successful defense of two multi-million dollar civil rights cases against his law enforcement clients, Grant
Y. County of Orange,Case No. 30-2015-00786861, and Conan v. City of Fontana.Case No. 5:16-cv-
01261-KK. Separately,Mr.Cox has assisted in trial preparation in the matter of Sarmiento v.County of
OranM Case No. SACV06-0586,a civil rights case resolved in favor of Mr. Cox's clients at trial,and
Molina v.Value Plus Service.LLC.Case No.BC503076, a wage and hour matter.
Since 2012, Mr. Cox has been admitted to practice in the California Superior Court, California Court of
Appeal,and the California Supreme Court,as well as the United States Court of Appeal for the Ninth
Circuit and the United States District Court for the Central District of California.
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