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HomeMy WebLinkAbout05022 - WOODRUFF SPRADLIN & SMART CITY ATTORNEY AMENDMENT NO. 1 TO LEGAL SERVICES AGREEMENT BY AND BETWEEN City of Palm Springs and Woodruff Spradlin & Smart This Amendment No. 1 to the Professional Services Agreement ("Amendment') is made and entered into this 15t day of July, 2013, by and between the City of Palm Springs, California, a California Charter City ("City"), and Woodruff, Spradlin & Smart, a professional corporation ("Attorneys"), RECITALS A. The City Council of the City of Palm Springs and Woodruff, Spradlin & Smart entered into a Professional Services Agreement ("Agreement') dated January 12, 2005. B. The City and Attorneys are agreeable to modifying certain terms and conditions to the Agreement pursuant to the terms of this Amendment. AGREEMENT In consideration of the promises and covenants contained in this Amendment and other good and valuable consideration, the City and Attorneys agree: SECTION 1. The last paragraph of Section 1(b) of the Agreement is amended to read: City Attorney and Attorneys will exercise their discretion to utilize whichever attorney(s) (and staff) they determine to be best suited to the rendition of legal services under this Agreement, consistent with competent and efficient rendering of legal services, and with a view towards rendering such services in a reasonable and economically efficient manner. Whenever possible, Paralegals or non-attorney staff shall be utilized for routine and clerical matters. SECTION 2. Section 3 of the Agreement (entitled "LEGAL FEES AND BILLING PRACTICES") is amended to read: 3. LEGAL FEES AND BILLING PRACTICES A. For the services of Douglas C. Holland, City Attorney, the City agrees to pay a monthly retainer in the amount of $25,000 for on-site transactional and general services. City Attorney shall be required to be on-site three (3) days per week, such days to be determined by mutual consent of the City and Attorneys. Legal Services Amendment No. 1 Woodruff, Spradlin & Smart Page 1 of 3 ORIGINAL 81 AWOR AGREEWW For all other services of Douglas C. Holland, City Attorney, outside the scope of the monthly retainer, the City agrees to pay by the hour at the rate of $200.00 per hour for time spent on City matters. B. City agrees to pay by the hour at the rate of $200.00 per hour for all time spent on City's matters by the Attorneys for transactional and litigation services, $135.00 per hour for all time spent on City's matters by professional Paralegal staff, and $100.00 per hour for all time spend on City's matters by Legal Assistants. C. Attorney shall not bill and the City shall not be required to pay for Attorneys travel time to or from the City. D. Attorneys shall prepare and present detailed monthly statements for services rendered to City for the month preceding the statement, indicating each task performed by Attorneys, the name of the attorney performing each task, and the time involved in each task. City shall pay the statements upon presentation or within a reasonable time thereafter. E. The rates and charges in this Section shall be adjusted on July 15t of each succeeding year based on the Consumer Price Index for all Urban Consumers as published by the U.S. Bureau of Labor Statistics for the Los Angeles and Riverside areas. The annual adjustment shall not exceed four percent (4%) per year. SECTION 3. The first sentence of Section 6 of the Agreement is amended to read: Attorneys and City Attorney shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. SECTION 4. Exhibit A to the Agreement shall is amended as follows: A. Paragraph entitled "Hourly Rates for Attorney Services (Transactional and Litigation)" is deleted and replaced with the following: Hourly Rates for Attorney Services (Transactional and Litigation) are stated in Section 3 of this agreement. B. Paragraph entitled "Annual Adjustment" is deleted in its entirety. C. Mileage costs shall be restated as follows: Mileage IRS Standard Mileage Rate (out of Riverside or Orange County travel) Legal Services Amendment No. 1 Woodruff, Spradlin & Smart Page 2 of 3 SECTION 5. For the purpose of this Agreement, the term "City Attorney" also includes any Assistant Attorney approved by the Mayor or City Manager. SECTION 6. The City and Attorneys agree that the terms of the Agreement, shall remain unchanged and in full force and effect, except as specifically provided in this Amendment. In witness whereof, the City and Attorneys have executed and entered into this Amendment as of the date first written above. CITY OF PALM SPRINGS, WOODRUFF, SPRADLIN & SMART A California Charter City David H. Ready, Citphalisgerl Douglas C. Holland ATTEST: APPROVED BY CRY COUNCIL Offies Thompson, City Clerk Legal Services Amendment No. 1 Woodruff, Spradlin & Smart Page 3 of 3 Woodruff, Spradlin & Smart Professional Services (Attorney) AGREEMENT#5022 MO 7611, 1-12-05 PROFESSIONAL SERVICES AGREEMENT--- -- --- This Professional Services Agreement (the "Agreement") is entered into this 12h day of January, 2005, by and between the law firm of WOODRUFF, SPRADLIN & SMART, a professional corporation ("Attorneys") and the CITY OF PALM SPRINGS, a municipal corporation ("City"). The term "City" shall also include the PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY, the PALM SPRINGS HOUSING AUTHORITY, PALM SPRINGS FINANCING AUTHORITY, and all boards, commissions, and other bodies of City. 1. SCOPE OF WORK AND DUTIES OF FIRM a. Retention of Attorneys City hereby retains the Attorneys to provide all legal services incident to City Attorney representation for the City Council and the City of Palm Springs. In this regard, Douglas C. Holland is appointed as the City Attorney, effective on January 20, 2005. Attorneys may perform legal services as may be requested by the City Council or the City Manager at any time after the City Council approves this Agreement. The City Attorney shall designate Gregory Simonian as Assistant City Attorney and from time to time shall designate such additional members of Attorneys as Deputy or Assistant City Attorneys as may be reasonably necessary to assist in the performance of the services identified in this Agreement. The City Attorney shall submit a list of such designations to the City Clerk at least once each year. b. Scope of Duties City retains the Attorneys to provide legal services required in connection with City's operation as a charter City, a Redevelopment Agency, a Housing Authority, a Financing Authority, and all other boards, commissions, or bodies of the City. Attorneys, as a full-service law firm, are prepared to, and will, provide representation to City, in all of its legal affairs. The City Attorney shall represent City in initiating and defending all litigation unless otherwise directed by the City Council. Attorneys shall provide those legal services reasonably required to advise and represent City and shall take reasonable steps to keep City informed of the progress of the representation, as directed or requested by Council or the City Manager, and to respond to the inquiries of City regarding pending matters. It is understood that the legal services shall include, but are not limited to, the following: 1. The preparation and/or review of Staff reports, ordinances, resolutions, orders, agreements, forms, notices, declarations, certificates, and other documents; Or:'.ItrllNIAL hii 1 2. Attending meetings of the City Council, Redevelopment Agency, Housing Authority, Planning Commission, and other boards and bodies of City, and its affiliated agencies, as directed by City; 3. Rendering legal advice and opinions concerning legal matters that affect City; 4. Representing City in litigation involving City, which may include both prosecution and defense; 5. Serving as legal counsel to Palm Springs Redevelopment Agency, the Palm Springs Housing Authority, the Palm Springs Financing Authority, and other such bodies as may be created and represented by or for the Palm Springs City Council, and which meet regularly or periodically or on an as-needed basis; 6. Providing all other legal services required as City Attorney, including part-time office hours at City Hall, as directed by the City Council and/or City Manager; 7. Coordinate the work of outside legal counsel as needed and as directed by the City Council and/or City Manager; 8. Cooperate and assist the City to secure reimbursement of City costs and expenses, including any attorneys' fees and costs incurred by the City, including fees and costs incurred under the provisions of this Agreement. Attorneys shall not have any direct financial interest in such reimbursement except as provided in this Agreement and Attorneys shall not enter into any fee splitting or fee sharing agreement with any lawyer, law firm, or any other service provider, consultant, or contractor from any agreement with the City; and 9. The City Attorney and any member of Attorneys identified by the City Attorney as a Deputy or Assistant City Attorney who provides regular service to the City shall file all required disclosure and/or conflict of interest documents required under the Fair Political Practices Act of the State of California or any local disclosure of conflict of interest laws of the City. City Attorney and Attorneys will exercise their discretion to utilize whichever attorney(s) (and staff) they determine to be best suited to the rendition of legal services under this Agreement, consistent with the competent and efficient rendering of legal services, and with a view towards rendering such services in an economically efficient manner. Whenever possible, Paralegals shall be utilized for routine matters. 2 G. Supervision of Outside Law Attorneys With respect to pending matters handled by legal counsel previously or otherwise employed by City, Attorneys shall become responsible for and proceed to represent City in such matters once the same are identified by the City Council or City Manager and those files deemed appropriate shall be transferred to the Attorneys. It is further agreed that to the extent due to efficiency or other reasons the legal counsel previously employed by the City continue to complete work assignments or undertake additional work, such work shall be performed under the direction of the City Attorney. Attorneys, as a full-service law firm, are prepared to, and will, provide representation to City in all of its legal affairs, except where conflicts exist or where the City Council may otherwise direct. The City Attorney shall represent City in initiating and defending all litigation unless otherwise directed by the City Council. All of these duties shall be performed as directed by the City Council. The City Attorney will keep City Council and the City Manager informed as to the progress and status of all pending matters. The City Attorney is expected to manage, control, and oversee the delivery of legal services in a competent, professional, and cost-effective manner. Notwithstanding any other provision contained herein, any legal services can only be authorized by the City Council or City Manager. The City shall not be responsible for compensating the Attorneys for any work provided or service rendered unless such work or service was authorized by the City Council or City Manager. In the event the City Council establishes a committee to review attorney services and billing statements for legal services, the City Attorney shall cooperate with such committee subject to any ethical requirements imposed on the City Attorney or the Attorneys under the Rules of Professional Conduct of the State of California. 2. CITY DUTIES AND RIGHTS City agrees to be truthful with the Attorneys, to cooperate and keep the Attorneys informed of developments, to abide by this Agreement, and to pay Attorney's bills on time. City agrees to provide such information, assistance, cooperation, and access to books, records, and other information, as is necessary for Attorneys to effectively render its professional services under this Agreement. To the extent City desires services to be rendered on site, City, at City's expense, will make available sufficient office space, furniture, telephones, and such other support as may be approved by the City Manager. It is the intent of the parties to this Agreement that all matters of the City requiring the rendition of legal services be performed by Attorneys. However, 3 nothing in this Section, or any other part of this Agreement, shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at any time, to assign or reassign legal matters of City from or to Attorneys or to retain separate counsel for any reason, including the provision of legal services in conflict situations. The City Council reserves for itself and the City the right to secure reimbursement from any third party for costs incurred by the City, including attorney fees and costs as provided in this Agreement. 3. LEGAL FEES AND BILLING PRACTICES City agrees to pay by the hour at the rate of $170.00 per hour for all time spent on City's matters by the Attorneys and $90.00 for time spent on City's matters by the Attorneys' paralegals as further outlined in Exhibit "A" to this Agreement. These hourly rates may be subject to adjustment commencing on July 1, 2006 and annually on July 1 of each succeeding year, in an amount as the Council in its discretion may provide, and only after the Council performs a review of the performance of the City Attorney and the Attorneys under this Agreement. Attorneys shall not bill and the City shall not be required to pay for Attorneys travel time to or from the City. Attorneys shall prepare and present detailed monthly statements for services rendered to Client, for the month preceding the statement, indicating each task performed by Attorneys, the name of the attorney performing each task, and the time involved in each task. City shall pay the statements upon presentation or within a reasonable time thereafter. Attorneys shall update Client, upon request, regarding the status of Attorneys' billings. 4. COSTS AND OTHER CHARGES City agrees to pay the following out-of-pocket costs and expenses associated with Attorneys' work pursuant to this Agreement as provided in Exhibit "A": messenger deliveries; copying in excess of 25 pages per project; long-distance telephone calls (but not including telephone calls to the City); process servers' fees; facsimile communications; filing fees fixed by law or assessed by the courts and other agencies; computer assisted research; deposition and other court reporting fees; parking at courthouse; jury fees, witness fees; costs to obtain copies of documents in litigation, and other litigation-related costs and expenses as may be required to adequately represent Client, subject to prior approval of the City Manager, including transportation, mileage, meals, and lodging associated with depositions or court appearances outside of Riverside or Orange Counties. Attorneys may determine it necessary or appropriate to use one or more outside investigators, consultants, or experts in rendering the legal services 4 required (particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. Attorneys will not, however, retain the services of any outside investigators, consultants, or experts without prior consultation with and written agreement of City. The Attorneys shall not have any financial benefit or interest in any such agreements. 5. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT The experience, knowledge, capability and reputation of Attorneys, its partners, associates, and employees, was a substantial inducement for City to enter into this Agreement. Therefore, Attorneys shall not contract with any other person or entity to perform, in whole or in part, the legal services required under this Agreement without the written approval of City. In addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily, or by operation of law, whether for the benefit of creditors, or otherwise, without the prior written approval of City. The Attorneys shall not have any financial benefit or interest in any such agreements without the prior written approval of the City Council. 6. INDEPENDENT CONTRACTOR Attorneys shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. Neither City, nor any of its employees, shall have any control over the manner, mode, or means by which Attorneys, its agents, or employees, render the legal services required under this Agreement, except as otherwise set forth in this Agreement. City shall have no voice in the selection, discharge, supervision or control of Attorneys' employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service, except that City shall retain the right to review and contest billing statements and amounts billed the City for legal services performed. 7. INSURANCE Attorneys shall procure and maintain, at its sole costs and expense, comprehensive general liability and property damage insurance, including automobile and excess liability insurance, in the amount of Two Million Dollars ($2,000,000.00) and professional liability insurance in the amount of Three Million Dollars ($3,000,000.00) against all claims for injuries against persons or damages to property resulting from Attorneys' negligent acts or omissions rising out of or related to the Attorneys' performance under this Agreement. Attorneys shall also carry Workers' Compensation Insurance in accordance with applicable workers' compensation laws. The insurance required hereunder shall be kept in effect during the term of this Agreement, and shall not be subject to reduction in coverage below the limits established herein, nor cancellation, nor termination 5 without thirty (30) days' prior written notice by registered letter to City. A certificate evidencing the foregoing, and naming City as an additional insured, shall be delivered to and approved by City prior to the commencement of the services hereunder or as soon thereafter as practicable. The City reserves the right to reasonably require increases in the coverage amounts specified above. 8. COVENANT AGAINST DISCRIMINATION Attorneys covenant that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against, or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, or ancestry in the performance of this Agreement. Attorneys shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, sexual orientation, marital status, national origin, or ancestry. 9. TERM, DISCHARGE AND WITHDRAWAL This Agreement shall continue in effect, subject to modification of fees as provided in Section 3, until terminated by either party to this Agreement. City may discharge Attorneys at any time and without cause. The City Attorney shall not be deemed an employee of City, and shall have no right to hearing or notice, and may be discharged with or without notice. Attorneys may withdraw from City's representation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least thirty (30) days' notice to City. In the event of such discharge or withdrawal, City shall pay Attorneys professional fees and costs, in accordance with this Agreement, for all work done (and costs incurred) through the date of cessation of legal representation. City agrees to execute, upon request, a stipulation in such form as to permit Attorneys to withdraw as City's attorneys of record in any legal action then pending. Attorneys shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel. 10. CONFLICTS Attorneys do not have any present or contemplated employment which is adverse to the City. Attorneys agree that they shall not represent any client in matters either litigation or non-litigation against the City. However, Attorneys may have past and present clients or may have future clients, which, from time to time, may have interests adverse to City, and Attorneys reserve the right to represent such clients in matters not connected with its representation of the City. If a potential conflict of interest arises in Attorneys' representation of two clients, including the City, Attorneys shall obtain waivers from the City and the 6 other client in writing with full disclosure of the potential conflict. In the event Attorneys are unable for any reason to secure such waivers or an actual conflict exists, Attorneys will withdraw from representing the City, and assist the City in obtaining outside special counsel. 11. VENUE This Agreement is entered into in Riverside County, California and the obligations hereunder shall be performed in Riverside County, California. Venue for any action under this Agreement shall be Riverside County, California and Attorneys expressly waive any right to remove any action to a County other than Riverside County otherwise provided by California Code of Civil Code of Civil Procedure Section 394. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of execution by the City. Date: �� "City" CITY OF PALM SPRINGS, a municipal corporation Rorr Oder, ATTEST: ApPROVE© BY THE CrfV (MAMPL ''(ty Clerk Attorneys WOODRUFF,#SP ADLIN & SMART Doyglast. Holland, Esq. 7 EXHIBIT "A" WOODRUFF, SPRADL.IN & SMART Rates and Billing Practices Hourly Rates for Attornev Services (Transactional and Litigation) Attorneys $170.00 Paralegals $ 90.00 Annual Adjustment The hourly rates above may be subject to adjustment commencing on July 1, 2006 and annually on July 1 of each succeeding year, in an amount as the Council in its discretion may provide, and only after the Council performs a review of the performance of the City Attorney and the Attorneys under this Agreement. Billinq Increment and Practices We bill in increments of one-tenth of an hour (six minutes). We will not bill for secretarial time, including time spent for faxing, mailing, arranging for messengers, and calendaring. We will not bill for word processing charges. We will not bill for telephone calls to the City. We will not bill for time spent in familiarizing ourselves with issues, cases, and matters pending on the date of this Agreement. We will not bill for billing, discussion of bills, or for more than one attorney for attorney conferences among Attorneys, without prior approval of City. Costs and Expenses In-office photocopying $0.25 per page (only after 25 pages per project) Mileage $0.405 per mile (IRS standard mileage rate) (out of Riverside or Orange County travel) Parking at Courthouse actual cost Filing fees, messenger fees, jury fees, expert fees actual cost 8