2012/02/15 McCune and Harber Legal services LEGAL SERVICES AGREEMENT
McCune & Harber
THIS AGREEMENT for Professional Services ("Agreement") is made this 15th day of
February, 2012 ("Effective Date") by and between the CITY OF MENIFEE ("City") and MCCUNE
AND HARBER ("Attorneys") (together sometimes referred to the "Parties").
Section 1. SERVICES. Subject to the terms and conditions set forth in this Agreement,
Attorneys shall provide to City the services and supplies as described in the Scope of Work
(Exhibit A).
1.1 Term of Services. The term of this Agreement shall begin on the Effective Date
and shall upon termination of the litigation set forth in Exhibit A or otherwise
pursuant to Section 8. The term of the Agreement may be otherwise terminated
or extended as provided for in Section 8. The time provided to Attorneys to
complete the services required by this Agreement shall not affect the City's right
to terminate the Agreement, as provided for in Section 8.
1.2 Standard of Performance. Attorneys shall perform all services required
pursuant to this Agreement in the manner and according to the standards
observed by a competent practitioner of the profession in which Attorneys are
engaged in the geographical area in which Attorneys practices its profession and
to the sole satisfaction of the Contract Administrator, as identified in Section 10.7.
1.3 Assignment of Personnel. Attorneys shall assign only competent personnel to
perform services pursuant to Agreement. In the event that City, in its sole
discretion, at any time during the term of this Agreement, desires the
reassignment of any such persons, Attorneys shall, immediately upon receiving
notice from City of such desire of City, reassign such person or persons.
•1.4 Time. Attorneys shall devote such time to the performance of services pursuant
to this Agreement as may be reasonably necessary to satisfy Attorneys'
obligations hereunder.
1.5 Authorization to Perform Services. The Attorneys are not authorized to
perform any services or incur any costs whatsoever under the terms of this
Agreement until receipt of authorization from the Contract Administrator.
Section 2. COMPENSATION. City hereby agrees to pay Attorneys a sum not to exceed
TWENTY FOUR THOUSAND DOLLARS ($24,000) based on the services and the rates
contained in Exhibit B. City shall pay Attorneys for services rendered pursuant to this
Agreement at the time and in the manner set forth herein. The payments specified below shall
be the only payments from City to Attorneys for services rendered pursuant to this Agreement.
Attorneys shall submit all invoices to City in the manner specified herein. Except as specifically
authorized in advance by City, Attorneys shall not bill City for duplicate services performed by
more than one person.
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2.1 Invoices. Attorneys shall submit invoices during the term of this Agreement,
based on the cost for services performed. Legal services shall be itemized on
the basis of A 0 hours.
2.2 Monthly Payment. City shall make monthly payments, based on invoices
received, for services satisfactorily performed, and for authorized costs incurred.
City shall have 30 days from the receipt of an invoice that complies with all of the
requirements above to pay Attorneys.
2.3 Total Payment. City shall not pay any additional sum for any expense or cost
whatsoever incurred by Attorneys in rendering services pursuant to this
Agreement. City shall make no payment for any extra, further, or additional
service pursuant to this Agreement.
In no event shall Attorneys submit any invoice for an amount in excess of the
maximum amount of compensation provided above either for a task or for the
entire Agreement, unless the Agreement is modified in writing prior to the
submission of such an invoice.
2.4 Reimbursable Expenses. Reimbursable expenses are included within the
maximum amount of the contract.
2.6 Payment of Taxes. Attorneys are solely responsible for the payment of
employment taxes incurred under this Agreement and any federal or state taxes.
2.6 Payment upon Termination. In the event that the City or Attorneys terminates
this Agreement pursuant to Section 8, the City shall compensate the Attorneys
for all outstanding costs and reimbursable expenses incurred for work
satisfactorily completed as of the date of written notice of termination. Attorneys
shall maintain adequate logs and timesheets in order to verify costs incurred to
that date.
Section 3. FACILITIES AND EQUIPMENT. Except as otherwise provided, Attorneys shall,
at its sole cost and expense, provide all facilities and equipment necessary to perform the
services required by this Agreement.
Section 4. INSURANCE REQUIREMENTS. Attorneys, at its own cost and expense, shall
procure the types and amounts of insurance checked below and provide Certificates of
Insurance, indicating that Attorneys has obtained or currently maintains insurance that meets
the requirements of this section-and which is satisfactory, in all respects, to the City. Attorneys
shall maintain the insurance policies required by this section throughout the term of this
Agreement. The cost df such insurance shall be included in the Attorneys' compensation.
Attorneys shall not allow any subcontractors to commence work on any subcontract until
Attorneys 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.
4.1 Workers' Compensation. Attorneys shall, at its sole cost and expense,
maintain Statutory Workers' Compensation Insurance and Employer's Liability
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Insurance for any and all persons employed directly or indirectly by Attorneys.
The Statutory Workers' Compensation Insurance and Employer's Liability
Insurance shall be provided with limits of not less than ONE MILLION DOLLARS
($1,000,000.00) per accident. In the alternative, Attorneys may rely on a self-
insurance program to meet those requirements, but only if the program of self-
insurance complies fully with the provisions of the California Labor Code.
Determination of whether a self-insurance program meets the standards of the
Labor Code shall be solely in the discretion of the Contract Administrator. The
insurer, if insurance is provided, or the Attorneys, if a program of self-insurance is
provided, shall waive all rights of subrogation against the City and its officers,
officials, employees, and authorized volunteers for loss arising from work
performed under this Agreement.
4.2 Commercial General
Automobile Liabilitv Insurance.
4.2.1 General requirements Attorneys, at its own cost and expense, shall
maintain commercial general and automobile liability insurance for the
term of this Agreement in an amount not less than ONE MILLION
DOLLARS ($1,000,000.00) per occurrence, combined single limit
coverage, for risks associated with the work contemplated by this
Agreement. If a Commercial General Liability Insurance or an Automobile
Liability form or other form with a general aggregate limit is used, either
the general aggregate limit shall apply separately to the work to be
performed under this Agreement or the general aggregate limit shall be at
least twice the required occurrence limit. Such coverage shall include but
shall not be limited to, protection against claims.arising from bodily and
personal injury, including death resulting therefrom, and damage to
property resulting from activities contemplated under this Agreement,
including the use of owned and non-owned automobiles.
4.2.2 Minimum scope 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.
4.2.3 Additional requirements Each of the following shall be included in the
insurance coverage or added as a certified endorsement to the policy:
a. The insurance shall cover on an occurrence or an accident basis,
and not on a claims-made basis.
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b. Any failure of Attorneys to comply with reporting provisions of the
policy shall not affect coverage provided to City and its officers,
employees, agents, and volunteers.
4.3 Professional Liability Insurance.
4.3.1 General requirements. Attorneys, at its 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.
4.3.2 Claims-made limitations. The following provisions shall apply if the
professional liability coverage is written on a claims-made form:
a. The retroactive date of the policy must be shown and must be
before the date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be
provided for at least five years after completion of the Agreement
or the work, so long as commercially available at reasonable
rates.
C. If 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, Attorneys must provide
extended reporting coverage for a minimum of five years after
completion of the Agreement or the work. The City shall have the
right to exercise, at the Attorneys' sole cost and expense, any
extended reporting provisions of the policy, if the Attorneys
cancels or does not renew the coverage.
d. A copy of the claim reporting requirements must be submitted to
the City prior to the commencement of any work under this
Agreement.
4.4 All Policies Requirements.
4.4.1 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.
4.4.2 Verification of coverage. Prior to beginning any work under this
Agreement, Attorneys shall furnish City with Certificates of Insurance, and
upon request, 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.
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4.4.3 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 by either party, 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, Attorneys shall provide written notice to City
at Attorneys' earliest possible opportunity and in no case later than ten
(10)working days after Attorneys are notified of the change in coverage.
4.4.4 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 Attorneys, including the
insured's general supervision of Attorneys; products and completed
operations of Attorneys, as applicable; premises owned, occupied, or
used by Attorneys; and automobiles owned, leased, or used by the
Attorneys 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.
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.
4.4.6 Deductibles and Self-insured Retentions. Attorneys shall disclose to
and obtain the 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.
During the period covered by this Agreement, only upon the prior express
written authorization of Contract Administrator, Attorneys 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 Attorneys 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.
4.4.6 Subcontractors. Attorneys shall include all subcontractors as insureds
under its policies or shall furnish separate certificates and certified
t
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endorsements for each subcontractor. All coverages for subcontractors
shall be subject to all of the requirements stated herein.
4.4.7 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.
4.5 Remedies. In addition to any other remedies City may have if Attorneys 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 Attorneys' breach:
• Obtain such insurance and deduct and retain the amount of the premiums
for such insurance from any sums due under the Agreement;
• Order Attorneys to stop work under this Agreement or withhold any payment
that becomes due to Attorneys hereunder, or both stop work and withhold
any payment, until Attorneys demonstrates compliance with the
requirements hereof; and/or
• Terminate this Agreement.
Section 5. INDEMNIFICATION
(a) Indemnification for Other than Professional Liability. Other than in the performance
of professional services and to the full extent permitted by law, Consultant shall
indemnify, protect, defend and hold harmless City, and any and all of its employees,
officials and agents from and against any liability (including liability for claims, suits,
actions, arbitration proceedings, administrative proceedings, regulatory proceedings,
losses, expenses or costs of any kind, whether actual, alleged or threatened, including
Attorneys fees and costs, court costs, interest, defense costs, and expert witness fees),
where the same arise out of, are a consequence of, or are in any way attributable to, in
whole or in part, the performance of this Agreement by Attorneys by any individual or
entity for which Attorneys are legally liable, including but not limited to officers, agents,
employees or sub-contractors of Attorneys.
(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.
Section 6. STATUS OF ATTORNEYS.
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6.1 Independent Contractor. At all times during the term of this Agreement,
Attorneys shall be an independent contractor and shall not be an employee of
City. City shall have the right to control Attorneys only insofar as the results of
Attorneys' services rendered pursuant to this Agreement and assignment of
personnel pursuant to Subparagraph 1.3; however, otherwise City shall not have
the right to control the means by which Attorneys accomplishes services
rendered pursuant to this Agreement. Notwithstanding any other City, state, or
federal policy, rule, regulation, law, or ordinance to the contrary, Attorneys and
any of its employees, agents, and subcontractors providing services under this
Agreement shall not qualify for or become entitled to any compensation, benefit,
or any incident of employment by City, including but not limited to eligibility to
enroll in the California Public Employees Retirement System (PERS) as an
employee of City and entitlement to any contribution to be paid by City for
employer contributions and/or employee contributions for PERS benefits.
Section 7. LEGAL REQUIREMENTS.
7.1 Governina Law. The laws of the State of California shall govern this
Agreement.
7.2 Compliance with Applicable Laws Attorneys and any subcontractor shall
comply with all applicable local, state and federal laws and regulations applicable
to the performance of the work hereunder.
7.3 Licenses and Permits. Attorneys represents and warrants to City that Attorneys
and its employees, agents, and any subcontractors have all licenses, permits,
qualifications, and approvals of whatsoever nature which are legally required to
practice their respective professions. Attorneys represents and warrants to City
that Attorneys and its employees, agents, any subcontractors shall, at their sole
cost and expense, keep in effect at all times during the term or this Agreement
any licenses, permits, and approvals that are legally required to practice their
respective professions. In addition to the foregoing, Attorneys and any
subcontractors shall obtain and maintain during the term of this Agreement.valid
Business Licenses from City.
Section 8. TERMINATION AND MODIFICATION
8.1 Termination. City may cancel this Agreement at any time and without cause
upon written notification to Attorneys.
Attorneys may cancel this Agreement upon 30 days' written notice to City and
shall include in such notice the reasons for cancellation.
In the event of termination, Attorneys shall be entitled to compensation for
services performed to the effective date of termination; City, however, may
condition payment of such compensation upon Attorneys delivering to City any or
all documents, photographs, computer software, video and audio tapes, and
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other materials provided to Attorneys or prepared by or for Attorneys or the City
in connection with this Agreement.
8.2 Amendments. The parties may amend this Agreement only by a writing signed
by all the parties.
8.3 Assignment and Subcontracting. City and Attorneys recognize and agree that
this Agreement contemplates personal performance by Attorneys and is based
upon a determination of Attorneys' unique personal competence, experience, and
specialized personal knowledge. Moreover, a substantial inducement to City for
entering into this Agreement was and is the professional reputation and
competence of Attorneys. Attorneys may not assign this Agreement or any
interest therein without the prior written approval of the Contract Administrator.
Attorneys shall not subcontract any portion of the performance contemplated and
provided for herein, other than to the subcontractors noted in the proposal,
without prior written approval of the Contract Administrator. In the event that key
personnel leave Attorneys' employ, Attorneys shall notify City immediately.
8.4 Survival. All obligations arising prior to the termination of this Agreement and all
provisions of this Agreement allocating liability between City and Attorneys shall
survive the termination of this Agreement.
Section 9. KEEPING AND STATUS OF RECORDS.
9.1 Records Created as Part of Attorneys' Performance. All records, files, or any
other documents or materials, in electronic or any other form that Attorneys
prepares or obtains pursuant to this Agreement and that relate to the matters
covered hereunder shall be the property of the City. Attorneys hereby agrees to
deliver those documents to the City upon termination of the Agreement. It is
understood and agreed that the documents and other materials, including but not
limited to those described above, prepared pursuant to this Agreement are
prepared specifically for the City and are not necessarily suitable for any future or
other use.
9.2 Attorneys' Books and Records. Attorneys shall maintain any and all ledgers,
books of account, .invoices, vouchers, canceled checks, and other records or
documents evidencing or relating to charges for services or expenditures and
disbursements charged to the City under this Agreement for a minimum of three
(3) years, or for any longer period required by law, from the date of final payment
to the Attorneys to this Agreement.
9.3 Inspection and Audit of Records. Any records or documents that Section 9.2
of this Agreement requires Attorneys to maintain shall be made available for
inspection, audit, and/or copying at any time during regular business hours, upon
oral or written request of, the City. Under California Government Code Section
8546.7, if the amount of public funds expended under this Agreement exceeds
Ten Thousand Dollars ($10,000.00), the Agreement shall be subject to the
examination and audit of the State Auditor, at the request of City or as part of any
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audit of the City, for a period of three (3) years after final payment under the
Agreement.
Section 10. MISCELLANEOUS PROVISIONS.
10.1 Attorneys' Fees. If either party to this Agreement brings any action, including an
action for declaratory relief, to enforce or interpret the provision of this
Agreement, the prevailing party shall be entitled to reasonable Attorneys' fees in
addition to any other relief to which that party may be entitled. The court may set
such fees in the same action or in a separate action brought for that purpose.
10.2 Venue. In the event that either party brings any action against the other under
this Agreement, the parties agree that trial of such action shall be vested
exclusively in Riverside County.
10.3 Severability. If a court of competent jurisdiction finds or rules that any provision
of this Agreement is invalid, void, or unenforceable, the provisions of this
Agreement not so adjudged shall remain in full force and effect. The invalidity in
whole or in part of any provision of this Agreement shall not void or affect the
validity of any other provision of this Agreement.
10.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision
of this Agreement does not-constitute a waiver of any other breach of that term or
any other term of this Agreement.
10.5 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and shall apply to and bind the successors and assigns of the parties.
10.6 City Contract Administration. This Agreement shall be administered by City
Senior Manager, Community Improvement, Outreach and Communication, Rob
Johnson ("Contract Administrator"). All correspondence shall be directed to or
through the Contract Administrator or his or her designee.
10.7 Notices. Any written notice to Attorneys shall be sent to:
McCune and Harber
515'S. Figueroa Street, Suite 1150
Los Angeles, California 90071
Any written notice to City shall be sent to the Contract Administrator with a copy
to:
City Clerk
City of Menifee
29714 Haun Road
Menifee, CA. 92586
10.8 Integration. This Agreement, including the proposal attached hereto and
incorporated herein as Exhibit A and Exhibit B represents the entire and
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integrated agreement between City and Attorneys and supersedes all prior
negotiations, representations, or agreements, either written or oral.
10.9 Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be an original and all of which together shall constitute one
agreement.
The. Parties have executed this Agreement as of the Effective Date.
CITY F MENIFEE TTO N
By:
William A. Rawlings, City nager (`
Name:
Its:
Attest:
Kathy Bennett, City Clerk
Approved o orm:
Joseph W. he , ttorne'
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EXHIBIT A
SCOPE OF SERVICES
Attorneys shall provide civil litigation services representing the City and its officials in the
Riverside County Superior Court Case-- Moyle v. City of Menifee. All work shall be under the
direction of the City Attorneys.
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EXHIBIT B
RATE SHEET
Attorneys $175.00 per hour
Paralegals/Law Clerks $85.00 per hour
Plus reasonable and customary costs as approved by the City.
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