2011/11/08 Joseph W. Fletcher Interim attorney legal services INTERIM CITY ATTORNEY LEGAL SERVICES AGREEMENT
THIS AGREEMENT is entered into this 8th day of November 2011, between the Law Offices
of Joseph W. Fletcher, a sole proprietorship (hereinafter"Attorney") and the City of Menifee, a
municipal corporation(hereinafter"City").
RECITALS:
A. City seeks the services of an attorney to serve as its interim city attorney pending
selection of a permanent attorney or firm to serve as City Attorney for the City.
B. By motion passed in public session on October 27, 2011, the City Council authorized
and directed City Manager William Rawlings, ("Manager") to retain the services of an interim
city attorney upon such terms has he may deem appropriate.
C. Manager seeks to retain a seasoned, experienced municipal attorney with
demonstrated independence having no prior affiliation with the City, its officers and officials or
community of Menifee.
D. Attorney represents that he meets the requirements set forth above in that he has 27
years experience in municipal law, 20 of those as city attorney, that he has no prior or existing
knowledge of or affiliation with any members of the City Council, any City employees or any
members of the Menifee community and is willing to serve as Interim City Attorney for the City
pursuant to the terms set forth below.
WHEREFORE, in consideration of the covenants contained herein, the parties agree as
follows:
1. SCOPE OF SERVICES. City hires and appoints Attorney as Interim City Attorney of
the City of Menifee. Attorney shall have those powers and responsibilities of a city attorney as
set forth in this Agreement,the City's ordinances, and State Law including, but not limited to,the
following:
a. Attendance at all City Council regular and special meetings,unless excused.
b. Attendance at meetings of those City advisory boards and commissions as
requested by the City Council or City Manager.
c. Rendering of routine legal advice, telephone and personal consultations, oral or
in writing, with members of the City Council and City staff(as approved by the City Manager).
d. Review and/or preparation of staff reports, ordinances, resolutions, agreements,
contracts, forms, notices, certificates, deeds, leases and other documents required by the City
Council or City Manager.
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e. Legal work pertaining to property acquisitions,property disposals,public
improvements, easement dedications, and right-of-way abandonment.
f. Enforcement of City codes, zoning regulations and building standards through
administrative actions. Judicial enforcement, criminal or civil, shall be assigned to outside
counsel separately retained by the City.
g. The coordination of outside legal counsel as needed and as directed by the City
Council or City Manager.
h. Other duties and functions normally and customarily provided by a city
attorney in California consistent with Sections 41801-41804 of the California Government Code.
2. COORDINATION OF DUTIES. The City Attorney will coordinate all service
provided under this Agreement with the City Manager.
3. LEGAL FEES AND BILLING PRACTICES. City agrees to compensate Attorney for
all services covered by this Agreement at the rate of$165 per hour not to exceed$24,000. Time
is charged in units of one tenth(.1) of an hour. The time charged for all time Attorney dedicates
to services covered by this Agreement shall include time Attorney spends on telephone calls
relating to City's matter, including calls with City and other parties and attorneys. Attorney will
not charge for travel time, other than City Manager-approved travel set forth below.
4. ATTORNEYS AUTHORIZED. Joseph W. Fletcher shall be Interim City Attorney
pursuant to this Agreement and shall be the primary service provider. With the consent of the
City Manager, Attorney may subcontract with other attorneys to provide services on an as-
needed basis to meet the City's needs if Mr. Fletcher is unavailable. Fees shall be paid to
Attorney and Attorney shall be responsible for payments to subcontracted attorneys.
5. COSTS AND OTHER CHARGES.
a. Attorney agrees that only the following out of pocket expenses will be billed to
the City, for which the City agrees to reimburse Attorney: fees or charges paid by Attorney on
behalf of the City including those fixed by law or assessed by public agencies; messenger and
other delivery fees (other than regular US Mail); third-party extraordinary printing or
reproduction costs; travel costs including parking and mileage, (other than travel between
Attorney's office and City Hall or other City Facility for scheduled meetings); and City
Manager-approved consultants' fees and other similar items. All costs and expenses will be
charged at Attorney's actual cost, with the exception of mileage which will be billed at the
prevailing IRS Standard Mileage Rates for business miles driven.
b. Special Travel. City agrees to pay transportation,meals, lodging and all other
costs of any necessary out-of-town travel by Attorney, approved in advance by the City
Manager. City will also be charged the hourly rates for the time Attorney spends travelling for
such City Manager-approved travel.
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c. Consultants. To aid in the representation of the City, it may become necessary
to hire consultants. They shall only be retained with City Manager's prior consent. City agrees
to directly pay such fees and charges.
6. BILLING STATEMENTS. Attorney will send City monthly statements for fees and
costs incurred in the prior month on or about the 1 Oth day of the month. The statements shall
include the amount, rate, basis of calculation or other method of determination of the fees and
costs, which costs will be clearly identified by item and amount. Each statement will be payable
within 20 days of its receipt.
7. TERM; DISCHARGE AND WITHDRAWAL. The term of this Agreement shall be
for a maximum of four months, if not extended by mutual agreement of the parties.
Notwithstanding the foregoing, City Council may discharge Attorney at any time. Likewise,
Attorney may withdraw prior to the end of the term with City's consent or for good cause. Good
cause includes City's breach of this Agreement, refusal to cooperate or to follow Attorney's
advice on a material matter or any fact or circumstance that would render Attorney's continuing
representation unlawful or unethical. When Attorney's services conclude, all unpaid charges
will immediately become due and payable. After services conclude, Attorney will, upon City's
request, deliver City's file and property in Attorney's possession, whether or not City has paid
for all services.
8. DISCLAIMER OF GUARANTEE. Nothing in this Agreement and nothing in
Attorney's statements to City will be construed as a promise or guarantee about the outcome of
matters. Attorney makes no such promises or guarantees.
9. CITY'S OBLIGATIONS. City, through its City Council, City Manager and its
officers and employees agrees to be truthful with Attorney,to cooperate,to keep Attorney
informed of any information or developments which may come to City's attention necessary or
valuable to Attorney's representation of the City, to abide by this Agreement and to pay
Attorney's bills within thirty days from receipt . City will assist Attorney in providing
information and documents necessary for the representation.
10. INDEPENDENT CONTRACTOR. Attorney shall, during the entire term of this
Agreement, be construed to be an independent contractor and not an employee of the City. This
Agreement is not intended nor shall it be construed to create an employer-employee relationship,
a joint venture relationship, or to allow the City to exercise discretion or control over the
professional manner in which Attorney performs the services which are the subject matter of this
Agreement; however,the services to be provided by Attorney shall be provided in a manner
consistent with all applicable standards and regulations governing such services. Attorney shall
pay all salaries and wages, employer's social security taxes, unemployment insurance and similar
taxes relating to employees and shall be responsible for all applicable withholding taxes.
11. INSURANCE REQUIREMENTS. Before beginning any work under this
Agreement, Attorney, at his own cost and expense, shall procure the types and amounts of
insurance checked below and provide Certificates of Insurance, indicating that Attorney has
obtained or currently maintains insurance that meets the requirements of this section and which
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is satisfactory, in all respects, to the City. Attorney shall maintain the insurance policies required
by this section throughout the term of this Agreement. The cost of such insurance shall be
included in the Attorney's compensation. Attorney shall not allow any subcontractor, consultant
or other agent to commence work on any subcontract until Attorney has obtained all insurance
required herein for the subcontractor(s) and provided evidence thereof to City. Verification of
the required insurance shall be submitted and made part of this Agreement prior to execution.
Attorney acknowledges the insurance policy must cover inter-insured suits between the City and
other Insureds.
11.1 CommercialGeneral
Automobile Liability Insurance.
11.3 Minimum scone of coverage. Commercial general coverage shall be at
least as broad as Insurance Services Office Commercial General Liability
occurrence form CG 0001 or GL 0002 (most recent editions) covering
comprehensive General Liability and Insurance Services Office form number GL
0404 covering Broad Form Comprehensive General Liability. Automobile
coverage shall be at least as broad as Insurance Services Office Automobile
Liability form CA 0001 (ed. 12/90) Code 8 and 9. No endorsement shall be
attached limiting the coverage.
11.4 Additional requirements. Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
11.4.1.1 The insurance shall cover on an occurrence or an
accident basis, and not on a claims-made basis.
11.4.1.2Any failure of Attorney to comply with reporting
provisions of the policy shall not affect coverage
provided to City and its officers, employees,
agents, and volunteers.
11.5 Professional Liability Insurance.
11.5.1 General requirements. Attorney, at his own cost and expense,
shall maintain for the period covered by this Agreement
professional liability insurance for licensed professionals
performing work pursuant to this Agreement in an amount not
less than ONE MILLION DOLLARS ($1,000,000) covering the
licensed professionals' errors and omissions. Any deductible or
self-insured retention shall not exceed$150,000 per claim.
11.5.2 Claims-made limitations. The following provisions shall
apply if the professional liability coverage is written on a
claims-made form:
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11.5.2.1The retroactive date of the policy must be shown
and must be no later than the commencement of the
work.
11.5.2.2Insurance must be maintained and evidence of
insurance must be provided for at least five (5)
years after completion of the Agreement or the
work, so long as commercially available at
reasonable rates.
11.5.2.3If coverage is canceled or not renewed and it is not
replaced with another claims-made policy form
with a retroactive date that precedes the date of this
Agreement, Attorney must provide extended
reporting coverage for a minimum of five (5) years
after completion of the Agreement or the work.
Such continuation coverage may be provided by
one of the following: (1) renewal of the existing
policy; (2) an extended reporting period
endorsement; or (3) replacement insurance with a
retroactive date no later than the commencement of
the work under this Agreement. The City shall have
the right to exercise, at the Attorney's sole cost and
expense, any extended reporting provisions of the
policy, if the Attorney cancels or does not renew
the coverage.
11.5.2.4A copy of the claim reporting requirements must be
submitted to the City prior to the commencement
of any work under this Agreement.
11.6 All Policies Requirements.
11.6.1 Acceptability of insurers. All insurance required by this
section is to be placed with insurers with a Bests' rating of no
less than A:VII and admitted in California.
11.6.2 Verification of coverage. Prior to beginning any work under
this Agreement, Attorney shall furnish City with Certificates of
Insurance, additional insured endorsement or policy language
granting additional insured status complete certified copies of
all policies, including complete certified copies of all
endorsements. All copies of policies and certified endorsements
shall show the signature of a person authorized by that insurer
to bind coverage on its behalf. The Certificate of Insurance
must include the following reference: d
F The name and address for Additional Insured
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endorsements, Certificates of Insurance and Notice of
Cancellation is: City of Menifee, 29714 Haun Road, Menifee,
CA 92586. The City must be endorsed as an additional insured
for liability arising out of ongoing and completed operations
by or on behalf of the Attorney.
11.6.3 Notice of Reduction in or Cancellation of Coverage. A
certified endorsement shall be attached to all insurance obtained
pursuant to this Agreement stating that coverage shall not be
suspended, voided, canceled or materially changed by either
parry, or reduced in coverage or in limits, except after thirty
(30) days' prior written notice by certified, mail, return receipt
requested, has been given to the City. In the event that any
coverage required by this section is reduced, limited, cancelled,
or materially affected in any other manner, Attorney shall
provide written notice to City at Attorney's earliest possible
opportunity and in no case later than ten(10) working days after
Attorney is notified of the change in coverage.
11.6.4 Additional insured; primary insurance. City and its officers,
employees, agents, and authorized volunteers shall be covered
as additional insureds with respect to each of the following:
liability arising out of activities performed by or on behalf of
Attorney, including the insured's general supervision of
Attorney; products and completed operations of Attorney, as
applicable; premises owned, occupied, or used by Attorney; and
automobiles owned, leased, or used by the Attorney in the
course of providing services pursuant to this Agreement. The
coverage shall contain no special limitations on the scope of
protection afforded to City or its officers, employees, agents, or
authorized volunteers. The insurance provided to the City as an
additional insured must apply on a primary and non-
contributory basis with respect to any insurance or self-
insurance program maintained by the City. Additional insured
status shall continue for(1) year after delivery of product(s).
A certified endorsement must be attached to all policies stating
that coverage is primary insurance with respect to the City and
its officers, officials, employees and volunteers, and that no
insurance or self-insurance maintained by the City shall be
called upon to contribute to a loss under the coverage.
11.6.5 Deductibles and Self-insured Retentions. Attorney shall
obtain the written approval of City for the self-insured
retentions and deductibles before beginning any of the services
or work called for by any term of this Agreement.
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During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Attorney may increase
such deductibles or self-insured retentions with respect to City, its officers,
employees, agents, and volunteers. The Contract Administrator may
condition approval of an increase in deductible or self-insured retention
levels with a requirement that Attorney procure a bond guaranteeing
payment of losses and related investigations, claim administration, and
defense expenses that is satisfactory in all respects to each of them.
11.6.6 Subcontractors. Attorney shall include all subcontractors as
insureds under its policies or shall furnish separate certificates
and certified endorsements for each subcontractor. All
coverages for subcontractors shall be subject to all of the
requirements stated herein.
11.6.7 Variation. Contract Administrator may approve in writing a
variation in the foregoing insurance requirements, upon a
determination that the coverage, scope, limits, and forms of
such insurance are either not commercially available, or that the
City's interests are otherwise fully protected.
11.7 Remedies. In addition to any other remedies City may have if Attorney
fails to provide or maintain any insurance policies or policy endorsements to
the extent and within the time herein required, City may, at its sole option,
exercise any of the following remedies, which are alternatives to other
remedies City may have and are not the exclusive remedy for Attorney's
breach:
• Obtain such insurance and deduct and retain the amount of the premiums for
such insurance from any sums due under the Agreement;
• Order Attorney to stop work under this Agreement or withhold any payment
that becomes due to Attorney hereunder, or both stop work and withhold any
payment, untilAttorney demonstrates compliance with the requirements
hereof, and/or
• Terminate this Agreement.
12. INDEMNIFICATION. (a) Indemnification for Professional Liability. Where the
law establishes a professional standard of care for Attorney's Services, to the fullest extent
permitted by law,Attorney shall indemnify,protect, defend and hold harmless City and any and
all of its officials, employees and agents ("Indemnified Parties") from and against any and all
losses, liabilities, damages, costs and expenses, including attorney's fees and costs to the extent
same are caused in whole or in part by any negligent or wrongful act, error or omission of
Attorney, its officers, agents, employees or sub-consultants (or any entity or individual that
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Attorney shall bear the legal liability thereof) in the performance of professional services under
this Agreement.
(b) The provisions of this section do not apply to claims occurring as a result of City's sole or
active negligence. The provisions of this section shall not release City from liability arising from
gross negligence or willful acts or omissions of City or any and all of its officials, employees and
agents.
13. NO CONFLICTS OF INTEREST OR AFFILIATIONS. Attorney covenants that he
presently has no interests and shall not have interests, direct or indirect, which would conflict in
any manner with performance of services specified under this Agreement. Attorney further
covenants that he has no knowledge of, or relationship with, any member of the City Council,
any City employee or any member of the Menifee community.
14. NOTICE. Any notice, tender, demand, delivery, or other communication pursuant to
this Agreement shall be in writing and shall be deemed to be properly given if delivered in
person or mailed by first class or certified mail,postage prepaid, or sent by telefacsimile or other
telegraphic communication in the manner provided in this Section, to the following persons:
To City: City of Menifee
Attn: City Manager
29714 Haun Rd.
Menifee, CA 92586
Fax (951) 679-3843
To Attorney: Law Offices of Joseph W. Fletcher
P.O. Box 3132
Tustin, CA 92781
Fax (714) 486-1798
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,_
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by telefacsimile, communication shall be effective or
deemed to have been given twenty-four(24)hours after the time set forth on the transmission
report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of
calculating these time frames, weekends, federal, state, County or City holidays shall be
excluded.
15. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties. No other agreement, statement, or promise made on or before the effective date of this
Agreement will be binding on the parties.
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16. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this
Agreement is held in whole or in part to be unenforceable for any reason,the remainder of that
provision and of the entire Agreement will be severable and remain in effect.
17. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may be
modified by subsequent agreement of the parties only by an instrument in writing signed by both
of them or an oral agreement only to the extent that the parties carry it out.
18. COUNTERPARTS. This Agreement may be executed in counterparts.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date
first above written.
CITY OF MENIFEE
a municipal corporation
B -
Y.
William Rawlings
City Manager
Sy:AWOFF ES JO PH . FLETCHER
. Fletcher
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