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HomeMy WebLinkAbout11/5/2003 - STAFF REPORTS (17) LEGAL SERVICES AGREEMENT BETWEEN THE CITY OF PALM SPRINGS, AND SULMEYER, KUPETZ, BAUMANN & ROTHMAN, A PROFESSIONAL CORPORATION FOR LEGAL SERVICES THIS LEGAL SERVICES AGREEMENT ("Agreement") dated January 1, 2003, is made by and between the City of PALM SPRINGS ("CITY"), on one hand and SULMEYER, KUPETZ, BAUMANN & ROTHMAN, a Professional Corporation ("CONTRACTOR"). WITNESSETH: WHEREAS, CITY is in need of legal services with specific emphasis on bankruptcy and bankruptcy related matters in the Desert Hot Springs, Chapter 9 Bankruptcy matter, and WHEREAS, CONTRACTOR possesses skill and ability in the field of law for which CITY requires legal services, and WHEREAS, CITY desires to engage the services of CONTRACTOR to provide said legal services. WHEREAS, the Cities of SIMI VALLEY, PALM SPRINGS, HEMET, MORENO VALLEY, PALM DESERT, AND LA QUINTA desire to retain the services of CONTRACTOR to share on a pre-arranged percentage basis the responsibility of payment to CONTRACTOR. WHEREAS, each city has agreed to enter into a separate agreement with the CONTRACTOR NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: [PVZ\AGT\467153.1 9/30/03(4.20 PM)] I / f 1. TERM. The term of this Agreement shall be from January 1, 2003, through January 31, 2004. 2. CITY'S OBLIGATIONS. For providing services as specified in this Agreement CITY will pay and CONTRACTOR shall receive therefor: payments based upon the schedule of charges attached hereto on Exhibit A and made a part hereof by this reference. The cities of SIMI VALLEY, PALM SPRINGS, HEMET, MORENO VALLEY, PALM DESERT AND LA QUINTA will collectively participate in paying the CONTRACTOR for fees generated under this agreement. However, each City has agreed to pay a pre-arranged Percentage of Responsibility ONLY, which is specified in each separate agreement with the cities and this Agreement at Section 14 below. The aggregate sum of CITY's obligation (CITY's share only)to CONTRACTOR under this Agreement shall not exceed $40,000 unless further authorized in writing by the City Attorney or his or her designee. Payments to the CONTRACTOR shall be made within 30 days after receipt of an original invoice from the CONTRACTOR and receipt of services by CITY. 3. CONTRACTOR'S OBLIGATION. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by CITY, CONTRACTOR agrees with CITY to provide said services, which shall meet or exceed the usual and customary professional standards applicable to the field of law, which is the subject of those services. Upon receipt of a file, CONTRACTOR shall provide an independent written evaluation of the litigation to the City Attorney. CONTRACTOR shall render interim verbal evaluations and provide semi-annual written status reports on each active file on or about May 31 and November 30 of each year. CONTRACTOR shall assist in negotiating settlements of cases as appropriate in cooperation with the City Attorney of CITY. [FVZ\AG7\467153.1 9/30/03(4:20 PM)] 2 V " / 4. INSURANCE AND INDEMNIFICATION. 4.1 The CONTRACTOR shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to CITY, during the entire term of this Agreement including any extension thereof, the following policies of insurance: 4.1.1 Commercial General Liability Insurance. A policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least $1,000,000 bodily injury and property damage including coverages for contractual liability,personal injury, independent contractors, broadform property damage, products and completed operations. The General Liability Policy shall name the CITY as an additional insured in accordance with standard ISQ additional insured endorsement form CG2010(1185) or equivalent language. 4.1.2 Worker's Compensation Insurance. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which will include $1,000,000 employer's liability. 4.1.3 Business Automobile Insurance. A policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of$1,000,000 bodily injury and property damage. Said policy shall include coverage for owned, non-owned, lased and hired cars. 4.1.4 Additional hisurance. [FVZ\AGT\467153.1 9/30/03(4:20 PM)] 3 1 A-3 Policies of such other insurance, including professional liability insurance in a minimal amount of$1,000,000 if contract has professional liability exposure, as may be required in the Special Requirements. All of the above policies of insurance shall be primary insurance and shall name the CITY, its officers, employees and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against the CITY, its officers, employees and agents and their respective insurers. In the event any of said policies of insurance are canceled, the CONSULTANT shall, prior to cancellation date, submit new evidence of insurance in conformance with this Section 4.1 to Contract Officer. No work or services under this Agreement shall commence until the CONSULTANT has provided the CITY with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders are approved by the CITY. The CONTRACTOR agrees that the provisions of this Section 4.1 shall not be construed as limiting in any way the extent to which the CONSULTANT may be held responsible for the payment of damages to any persons or property resulting from the CONSULTANT'S activities or the activities of any person or persons for which the CONSULTANT is otherwise responsible. In the event the CONSULTANT subcontracts any portion of the work in compliance with Section 11 of this Agreement, the contract between the CONSULTANT and each subcontractor shall require the subcontractor to maintain the same policies of insurance that the CONSULTANT is required to maintain pursuant to this Section 4.1. [FVZ\AGT\467153 1 9/30/03(4:20 PM)] 4 5. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Manager and City Attorney of CITY. 6. TERMINATION. CITY may terminate this Agreement immediately with or without cause by written notice to CONTRACTOR to said effect. CONTRACTOR may terminate this Agreement with or without cause on 30 days written notice, except, however,that this notice period shall be extended if CITY'S interests may be prejudiced thereby. In the event of termination by either party hereto, CONTRACTOR shall be entitled to the reasonable value of its services performed prior to said termination, and shall promptly forward, together with a written closing report, all files, including but not limited to,pleadings, exhibits and notes, to CITY or its designee. The closing report shall describe the facts of the case(s), discuss all applicable laws thereto, evaluate the liability or prospects of recovery or other relief, probable estimated damages/recovery, aggregate fees and costs to date, and list and describe all future scheduled appearances and filings/pleadings due dates. 7. CONFLICT OF INTEREST. CONTRACTOR agrees that it shall scrupulously avoid performing services for any party or entering into any contractual or other relationship with any party which might create a conflict with the rendering of services hereunder, and CITY shall immediately be informed by CONTRACTOR of any conflict of interest or potential conflict of interest which may arise during the term hereof by virtue of any past, present, or prospective act or omission of CONTRACTOR. Upon receiving said notification, or otherwise learning of such a conflict or potential conflict, CITY may exercise its rights under Section 6 hereof, or resolve said conflict by any other reasonable means in its sole discretion. [F VZ\AGT\467153.1 9/30/03(4:20 PM)] 5 ,^hs 8. INCORPORATION BY REFERENCE. Exhibit A attached hereto and made a part hereof shall be incorporated herein. Any conflict between Exhibit A or any other writings incorporated herein and this Agreement shall be resolved by the ternis of this Agreement without reference to Exhibit A or such other writings. 9. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding or representation be binding upon the parties hereto. 10. INDEPENDENT CONTRACTOR. CONTRACTOR shall be deemed to be acting as an independent contractor. The employees of CONTRACTOR shall not be deemed or construed to be the agents or employees of CITY for any ptupose, including, but not limited to, tort liability or to employee benefits such as retirement, worker's compensation, or disability insurance. 11. ASSIGNMENT. This Agreement or any provision hereof or any right or obligation arising hereunder is not assignable in whole or part, without the express written consent of CITY. Any attempt by CONTRACTOR to assign or subcontract any performance of the services to be rendered pursuant to this Agreement without the consent of CITY shall be null and void, shall create no financial obligation on the part of CITY, and shall constitute a material breach of this Agreement. Notwithstanding these general provisions, CONTRACTOR may retain such geoteclmical, engineering and other consultants and experts as CONTRACTOR may from time to time deem appropriate and make disbursements therefor (eg. witness, expert, and consulting [FVZ\AGT\467153 1 9/30/03(420 PM)] 6 1 fees, etc.) which shall be included with monthly billings, subject to the provisions of Section 13 hereof. CONTRACTOR shall require that all consultants and experts shall submit invoices detailing case name and the identity, schedule and description of the work performed. 12. ANTI-DISCRIMINATION. In the performance of the terms of this Agreement, CONTRACTOR agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of the age, race, color, sex, national origin or ancestry, or religion of such persons. 13. AUDIT. CITY or its designee shall have the option of inspecting and/or auditing all records and other written material used by CONTRACTOR in preparing its statements to CITY as a condition precedent to any payment to CONTRACTOR. CONTRACTOR shall make no charge for time expended in providing information necessary for auditing records. No monthly billings hereunder shall exceed $15,000 nor shall any single cost item in excess of$1,000 be billed in any month without prior authorization for the rendering of said services or the incurring of said costs by the City Attorney or his or her designee. 14. NOTICE. All written notices to the parties hereto shall be sent by United States mail,postage prepaid by registered or certified mail addressed as follows: CITY: Percentage of Responsibility David Hirsch City Attorney, City of Simi Valley 30.0566% 2929 Tape Canyon Road Simi Valley, California 93063-2199 Dawn Honeywell City Attorney, City of Palm Springs 22. 62940 Aleshire, Wynder & Sylva, LLP 18881 Von Karman Avenue, Suite 400 Irvine, California 92612 Julie Biggs Amy Morgan [PVZ\AG71467153.1 9/30/03(4 20 PM)] 7 711 City Attorney, Hemet 12.2046% Burke, Williams & Sorensen 3403 loth Street, Suite 300 Riverside, California 92502 Robert Herrick City Attorney, City of Moreno Valley 22. 1844% 14177 Frederick Street Post Office Box 88005 Moreno Valley, California 92552-0805 David J. Erwin City Attorney, Palm Desert 08. 3271% Best, Best & Krieger P.O. Box 13650 Palm Desert, California 92255 Kathy Jenson City Attorney, La Quinta 04 .5979% Rutan & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92628-1950 CONTRACTOR Frank V. Zerunyan, Member SULMEYER, KUPETZ, BAUMANN & ROTHMAN 300 South Grand Avenue, 141h Floor Los Angeles, California 90071 15. SEVERABILITY. Should any section, subsection, or provision hereof be found invalid or unenforceable by any court of competent jurisdiction, such ruling shall not affect the remainder hereof, which shall remain in full force and effect. 16. AUTHORITY TO EXECUTE AGREEMENT. Both CITY and CONTRACTOR do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute agreements for such party. 17. COUNTERPARTS. This Agreement may be executed in two (2) counterparts, each of which shall be deemed an original, but taken together shall constitute one instrument. [FVZ\AGT\467153 1 9/30/03(420 PM)] 8 (/ IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. ATTEST: CITY OF PALM SPRINGS A Municipal Corporation By: David H. Ready, City Manager APPROVED AS TO FORM: SULMEYER KUPETZ BA & ROTHMA ALESHIR/E, WYNDER& SYLVA, LLP By David Aleshire, City Attorney FrankT. Zeruny [FVZ\AGT\467153.1 9/30/03(4:37 P"] 9 EXHIBIT A 1. The aggregate sum of CITY'S obligation (CITY's share only)to CONTRACTOR under this Agreement shall not exceed $40,000 unless further authorized in writing by the City Attorney or his or her designee. 2. Time will be billed in six-minute increments. In addition to the hourly fees, CONTRACTOR shall be reimbursed for its actual out-of-pocket expenses for filing fees, postage, messenger service, travel, contractor reproduction of documents, etc. but without any additional cost for having advanced the funds. CONTRACTOR shall not be reimbursed for utilities, insurance or for staff time or overtime in performing secretarial/clerical functions or word processing. 3. CONTRACTOR'S billings shall be segregated by case name and shall be itemized and state all out-of-pocket expenses described above as well as identify each attorney providing service,the nature of the service rendered,the time consumed in rendering such services, the hourly rates for the services, and the total billings (expenses and time) for each case. Billings shall be submitted not more frequently than monthly. 4. ALL ATTORNEY AND PARALEGAL TIME shall be billed at the rates attached hereto as Exhibit Al (as a courtesy CONTRACTOR shall honor 2002 rates as opposed to increased 2003 rates, which are also attached for information purposes only). Provided that CONTRACTOR's Invoices are paid in a timely manner as provided herein, CITY shall be entitled to a 10% Discount on all the 2002 rates stated on Exhibit Al. The billing rates shall be subject to annual review and adjustment as maybe agreed between the parties to this Agreement. Any rate increase will require amendment to this Agreement. [FVZ\AGT\467153.1 9/30/03(4:20 PM)] 10 �� SULMEYER, KUPETZ, BAUMANN &ROTHMAN 2003 RATES FOR PROFESSIONAL SERVICES ATTORNEYS INITIALS RATE Abrams, J. G. JGA 325 Avery, W. H. WHA 325 Baumann, R. G. RGB 400 Davis, J. R. JRD 350 Ehrenberg, H. M. HME 400 Gordon, R. E. REG 500 Horoupian, M. S. MSH 325 Kilbride, W. K. WKK 300 Kupetz, A. L. ALK 500 Kupetz, D. S. DSK 425 Lev, D. A. DAL 350 Madris, H. N. HNM 325 Miller, E. D. EDM 350 Pomerance, J. M. JMP 325 Rallis, D. G. DGR 375 Sahn, V. A. VAS 425 Saperstein, I. ISS 375 Shaham, Y. YXS 200 Simons, L. D. LDS 275 Sousa, A. M. AMS 375 Sparer, L. LXS 275 Stanfield, D. C. DCS 350 Sulmeyer, I. IS 550 Tippie, A. G. AGT 425 Tompkins, M. A. MAT 225 Wainess, S. R. SRW 375 Walden, L. A. LAW 285 Zerunyan, F. V. FVZ 350 LAW CLERK Stuhl, S. A. SAS 150 PARALEGALS Iturrizaga, J. I. JII 120 Kennedy, R. G. RGK 130 Mann-Wooten, T. TMW 65 DOCUMENTCLERK Thompson, M. MT 60 Members 325-550 Of Counsel 325-500 Associates 200-325 [FVZ\AG71467153.1 9/30/03(4 20 PM)] SULMEYER, KUPETZ, BAUMANN &ROTHMAN EXHIBIT A 1 2002 RATES FOR PROFESSIONAL SERVICES ATTORNEYS INITIALS RATE Abrams,J, G. JGA 300 Avery,W. H. WHA 300 Baumann, R. G. RGB 400 Davis,J.R. JRD 300 Ehrenberg, H. M. HME 375 Gordon, R. E. REG 450 Horoupian, M. S. MSH 275 Kilbride,W. K. WKK 275 Kupetz,A. L. ALK 500 Kupetz, D, S. DSK 375 Lev, D.A. DAL 300 Madris, H. N. HNM 275 Miller, E. D. EDM 300 Pomerance, J. M. JMP 300 Rallis, D. G. DGR 350 Sahn,V.A. VAS 400 Saperstein, I. ISS 375 Shaham,Y. YXS 175 Sousa,A. M. AMS 325 Sparer, L. LXS 250 Stanfield, D. C. DCS 325 Sulmeyer, I. IS 550 Tippie,A. G. AGT 400 Tompkins, M.A. MAT 195 Wainess, S. R. SRW 350 Zerunyan, F. V. FVZ 325 LAW CLERK Stub[, S.A. SAS 150 PARALEGALS Franklin,Y. D. YDF 110 Iturrizaga, J. I. JII 110 Kennedy, R. G. RGK 120 Mann-Wooten, T. TMW 60 DOCUMENT CLERK Thompson, M. MT 60 Members 295-550 Of Counsel 275-450 Associates 180-275 ✓J 1 [FVZ\AG71467153.1 9/30/03(4 20 PM)] 12 ` ' • ` "� MINUTE ORDER NO. APPROVING AN AGREEMENT WITH SULMEYER, KUPETZ, BAUMANN & ROTHMAN, A PROFESSIONAL CORPORATION, FOR LEGAL SERVICES IN AN AMOUNT NOT-TO-EXCEED $40,000. --------------- I HEREBY CERTIFY that this Minute Order, approving an agreement with Sulmeyer, Kupetz, Baumann & Rothman, a professional corporation, for legal services in an amount not-to-exceed $40,000 was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 51h day of November, 2003. PATRICIA A. SANDERS City Clerk