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15-0203_BEST BEST & KRIEGER_Agenda Report_D12TO: FROM: DATE: SUBJECT: February 3, 2015 Consideration of a Request for Proposals for City Attorney Services (City Attorney Services) RECOMMENDATION: 2/3/2015 012 By motion, direct the City Manager to release a Request for Proposals for City Attorney Services. EXECUTIVE SUMMARY: The City Council requested the City Manager to identify alternative methods for providing City Attorney Services and to prepare a Request for Proposals (RFP) for City Attorney Services. Options for structuring City Attorney Services and a proposed RFP are discussed below. If the City Council is agreeable to the proposed RFP (Attachment 1), then the City Manager will release the RFP for City Attorney Services. DISCUSSION/ANALYSIS: Since August 28, 2012, City Attorney Services are being provided by Hans Van Ligten (City Attorney) with the law firm of Rutan and Tucker, LLP. Rutan and Tucker, LLP, is a large full service law firm providing legal services to the private and public sectors. Its municipal and governmental practice group provides City Attorney and general counsel services in a wide range of matters, including, land use, environmental, franchise, housing, elections, public works, water, litigation, labor law and other matters. The City's Agreement with Rutan and Tucker, LLP, for City Attorney Services (Attachment 2) includes; attendance at regular City Council and Planning Commission meetings, drafting and reviewing ordinances, resolutions, contracts and agreements, litigation, prosecution, office hours at City Hall, providing legal advice to the City Council, City Manager, officials and staff as needed. City Council Agenda Report February 3, 2015 Pa e 2 of4 The City Attorney is compensated for retainer services and non-retainer services. The current monthly $10,077.00 retainer fee includes; City Hall offices hours of 9 to 10 hours per week and attending City Council and Planning Commission meetings. Non-retainer attorney services are compensated at $229.00 per hour and paralegal services at a rate of $75.00 to $200.00 per hour. The City Council may consider alternative methods of providing City Attorney Services when considering proposals for City Attorney Services. These alternatives are discussed below: In-House City Attorney The City may directly employ a full-time City Attorney. This person will need to have Brown Act and general Municipal law experience, but will likely need to contract out specialty services, such as franchise, litigation, utility, environmental law, real estate, etc., and law firms usually charge more for specialty work than for work performed under the agreed upon retainer hours. The City would also incur the cost of providing administrative support and overhead costs. This alternative could benefit a City that has a limited need for special legal services or litigation services. Sole Practitioner This alternative is similar to an in-house City Attorney but potentially more cost effective, if all City Attorney Services are provided on a limited monthly retainer. This person will also have Brown Act and general Municipal law experience, but the City will need to contract out specialty services, including litigation. City Attorney with Small Firm Services can be provided by a designated City Attorney. It may be more expensive than the Sole Practitioner, but will allow the single City Attorney to ask for firm assistance on routine matters to allow for faster response times. Special services, such as, litigation, environmental, land use, employment, etc., usually still need to involve retaining Special Counsel, at higher rates, outside the City Attorney's firm. City Attorney with Large Firm City Attorneys with a larger firm often offer a wider range of legal expertise and resources, which can provide a City an advantage in potential litigation. Most legal matters can be handled by the firm's staff. Fees at large firms may be higher but can be managed through retainers and negotiated fees for Special Counsel legal services. City Council Agenda Report February 3, 2015 Pa e 3 of4 Additionally, there are regional and national law firms which may offer different resources that could benefit public agencies. A survey of 14 Orange County Cities with similar populations to San Juan Capistrano found that 13 contract for City Attorney Services with large, full service law firms. The City of Laguna Niguel contracts with Terry Dixon for full time, in-house City Attorney Services and a part-time paralegal assistant. City Population* Aliso Viejo Brea Cypress Dana Point Laguna Beach Laguna Hills Laguna Niguel Laguna Woods Lake Forest Mission Viejo Rancho Santa Margarita San Clemente** San Juan Capistrano Stanton *Population data from 201 0 Census •• Currently in RFP Process 47,823 39,282 47,802 33,351 22,723 30,344 62,979 16,192 77,264 93,305 47,853 63,522 34,593 38,186 City Attorney Services Provider Best Best & Krieger Richard Watson and Gershon Aleshire and Wynder Rutan and Tucker Rutan and Tucker Woodruff, Spradlin and Smart Terry Dixon, Attorney at Law Rutan and Tucker Best Best & Krieger Lozano Smith, Attorneys at Law Woodruff, Spradlin and Smart Rutan and Tucker Rutan and Tucker Best Best & Krieger The proposed RFP for City Attorney Services may be used to request proposals from various types of law firms. If the City Council is agreeable to the proposed RFP, it will be released and advertised to the public. FISCAL IMPACT: The potential financial impact of an alternative or new Agreement for City Attorney Services are unknown at this time. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: • On July 17, 2012, the City Council Approved an Agreement for Provision of City Attorney Services with Rutan and Tucker, LLP. City Council Agenda Report February 3, 2015 COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: Not applicable. A TT ACHMENT(S): Attachment 1 -Draft Request for Proposals for City Attorney Services Attachment 2 -Agreement for Provision of City Attorney Services REQUEST FOR PROPOSALS City Attorney Services Thank you for considering the attached Request for Proposals (RFP). If you are interested in submitting a Proposal, please follow these instructions for submissions: Due Date and Time: City Attorney-Request for Proposal must be clearly marked on the outside of the envelope containing one (1) original and six (6) copies of the proposal. The original proposal must be unbound. Pricing information shall be submitted in a separate sealed envelope enclosed in the proposal envelope. !.Submit Proposal to: City of San Juan Capistrano Attn: Tom Bokosky 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Any requests for clarification or other questions concerning this RFP must be submitted in writing and sent via email to Tom Bokosky, Human Resources Manager, and no later than Email: tbokosky@sanjuancapistrano.org Subject Line: City Attorney RFP The City of San Juan Capistrano reserves the right to reject any or all Proposals, to waive any informality in any Proposal, and to select the Proposal that best meets the City's needs. Attachment 1 REQUEST FOR PROPOSALS for CITY ATTORNEY SERVICES The City of San Juan Capistrano (hereinafter referred to as the "City") is requesting proposals to establish a contract for City Attorney Services, with work to commence on or about , 2015. The City reserves the right to enter into more than one contract depending upon the areas of expertise of the submitting firms. Proposals must be submitted to the City of San Juan Capistrano, no later than the date and time stated on this RFP cover sheet. Proposals shall be reviewed and rated on the basis of the selection criteria indicated in the "SELECTION PROCESS" section of this RFP. The City will then determine which proposal(s) best meets the City's requirements. Proposals shall be submitted in sealed envelopes marked on the outside, "City Attorney Services, Request for Proposals" (Please see cover sheet for additional submittal information.) The City reserves the right to reject any or all proposals, to waive any informality in any proposal and to select the proposal that best meets the City's needs. 1. OVERVIEW OF PROJECT The City of San Juan Capistrano invites interested legal firms and individuals to submit proposals for City Attorney Services as described in the scope of work set forth in this Request for Proposal (RFP). The City Attorney is appointed by the City Council and it seeks a City Attorney who will provide clear, understandable, and independent legal advice. The firm/individual must be qualified to provide expertise in the areas of general municipal law, land use, personnel and labor relations, open meeting, conflict of interest laws and among others. The municipal government of San Juan Capistrano was incorporated in 1961 and operates under a Council/Manager form of government. The City Council appoints the City Manager, who oversees five (5) departments, City Manager, Finance, Community Services, Development Services, and Public Works and Utilities. The City contracts with Orange County Sheriff's Department for police services and fire services are provided by the Orange County Fire Authority. The City's combined operating and capital budgets total an estimated $82.9 million for Fiscal Year 2014-2015. Establishing and maintaining an effective and successful working relationship with the City Council, City Manager and Department Heads is critical for the City Attorney. 2. COMMUNITY PROFILE The City of San Juan Capistrano, population 34,593, is a captivating community with an engaged citizenry located in desirable southern Orange County. Midway between Los Angeles and San Diego, the City of San Juan Capistrano is a picturesque and historic community within an area of 14.4 square miles. The City is unique in Southern California with the benefit of having a true central historic downtown complete with a turn of the century railroad depot, mission, Los Rios Historic District, Camino Real Playhouse, and numerous shops and restaurants all within walking distance. Founded in 1776, by Father Junipero Serra, as the site of the historic Mission San Juan Capistrano, the City is renowned as the place the swallows return annually in March from their winter in Argentina. The Mission, one of California's earliest Spanish Missions, sits at the heart of the downtown and hosts more than 300,000 visitors annually. San Juan Capistrano is predominately residential with a mix of commercial, industrial, agricultural, and tourist-oriented uses. San Juan Capistrano has a strong community value system embodied in its General Plan, and the underlying philosophy of the City is to improve and maintain the quality of life for residents while preserving and enhancing its historic character. High development standards, ridgeline protection and open space and historic preservation further enhance this village like setting. 3. SCOPE OF SERVICES The City Council is seeking proposals from law firms or individuals with experience in advising and representing California cities for the provision of full City Attorney Services. The City Attorney is appointed by and reports to the City Council. The City Attorney is the chief legal counsel for the City of San Juan Capistrano and, as such, is responsible for advising on all legal matters. The following are primary responsibilities the City will require of its City Attorney: 1. Advise the City Council, Commissions and City officials on legal matters pertaining to municipal government, including the Brown Act and parliamentary procedures for running meetings. 2. Attend all City Council and Planning Commission meetings (unless excused) and other meetings as requested. 3. On a monthly basis, provide a written status report of assigned projects, requests, and litigation in order to keep the City Council informed of important legal issues and to facilitate the City Council's periodic evaluation of the City Attorney. 4. Provide legal advice, consultations and opinions to the City Council, Successor Agency, Housing Authority, City Manager and staff. 5. Prepare and/or review all ordinances, resolutions, municipal contracts, joint powers agreements, and other agreements and contracts entered into by the City. 6. Research and submit legal opinions on municipal or other legal matters as requested by the City Council or City Manager. 7. Alert the City in a timely manner on new State or Federal legislation or judicial decisions that may impact the City and propose appropriate action(s) to assure compliance. Inform the City Council and recommend to staff changes to City ordinances and policies as needed. 8. Provide guidance on personnel matters, including policy and procedures affecting employees; review memoranda of understanding or other labor agreements. 9. Provide legal work pertaining to land use issues including but not limited to property acquisitions, property disposals, public improvements, easements, dedications, the California Environmental Quality Act and public utilities 10. Enforce City codes, zoning regulations, and building standards through administrative and judicial actions. Commence and prosecute criminal actions necessary to enforce municipal ordinances. 11. Attend staff meetings at the request of the City Manager (currently held weekly) and provide designated office hours or times of availability at City Hall as requested by the City. 12. Promptly respond to calls, e-mails, and correspondence from the City Council, City Manager and staff. 13. Review current documents, policies, and forms to ensure compliance to current laws. 14. Coordinate and monitor the work of special legal counsel as needed and directed by the City Council or City Manager, including matters covered by the City's participation in the California Joint Powers Insurance Authority (CJPIA) 4. CITY ATTORNEY PROFILE The ideal City Attorney is someone who has a demonstrated history of working collaboratively with City Councils, City Managers, department heads and adheres to the rule of law. A successful City Attorney must be professional, responsive to the City and community and someone who upholds the principals of open and civic participatory governance. The City Attorney will also be effective in mediating conflicts and disputes. Providing clear and concise legal advice along with a superior customer service aptitude is critical for the City Attorney. 5. ORGANIZATION OF PROPOSAL If your proposal does not include all of the items below, it may be deemed non- responsive. The proposal will be evaluated by the City and shall include, at a minimum, the following information: • CITY ATTORNEY RESUME Identify the person you propose to be the City Attorney and provide a current resume. This information should include relevant academic training, certificates and descriptions of prior experience. This section shall also identify and define the experience of other key personnel and sub-attorneys assigned to the services. • EXPERIENCE I QUALIFICATIONS INFORMATION Please describe your firm's qualifications for providing City Attorney and legal services to the City of San Juan Capistrano as detailed in the Section 3 -Scope of Services. Be sure to include the following components in your response. 1. The overall capabilities, qualifications, training and areas of expertise for the proposed City Attorney and each of the partners, principals and associates who may be assigned to work with the City. a. Name of individuals with resumes b. Length of employment with your firm c. Specialization d. Legal training e. Date of admittance to California Bar f. Years of practice g. Municipal or other local public sector experience 2. Identify the individual(s) that you would propose as Assistant or Deputy City Attorney and/or who would be designated as backup legal representation for the City, in the event of the absence or unavailability of the City Attorney. Please indicate the number of years of experience serving as a City Attorney, Assistant City Attorney or comparable position. 3. Identify the location of the firm's office(s) serving the City. Office hours at San Juan Capistrano City Hall are necessary, please specify the day(s) of the week and hours preferred. 4. Describe the response time we can expect from the City Attorney to inquiries made by the City Council and City Manager. 5. Please submit samples of typical reports, responses and legal opinions you have provided to other municipalities, with any sensitive information redacted. 6. Describe your firm's suggested process for transmittal of requests and other material between the City and the City Attorney in a timely fashion. 7. Identify the support personnel that would work with the City and provide a brief description of their function. Include any changes you would propose, now or in the future, should your firm be awarded a contract with the City. 8. Describe systems/methods that would be utilized to provide services in a cost effective manner. 9. The City will require monthly itemized invoices for services rendered. Please submit an example of a typical invoice for a public agency, with any sensitive information redacted. 10.1dentify the types of in-service training (such as ethics and AB 1234, commission roles and responsibilities, how to conduct performance evaluations, harassment, etc.) your firm is capable of providing to the City. 11. The City is a member of the California Joint Powers Insurance Authority (CJPIA) for the handling of workers' compensation and liability claims. Please describe your firm's experience working with the CJPIA. 12. The City seeks to identify and avoid any conflicts or possible conflicts of interest. Please address the following: a) Please list any political contributions of money, in-kind services, or loans made to any member of a City Council within the last three years by the applicant law firm and all of its attorneys, including the attorney being proposed to represent the City of San Juan Capistrano. b) Please list all public agency clients for which your firm currently provides services or is under retainer. c) Please list all public agency clients for which your firm previously provided services over the last five years. 13. Describe the methods that would be utilized to provide the City Council with annual updates relative to your firm's accomplishments and significant activities. • REFERENCES Provide a minimum of five (5) references for similar work that your firm has provided within the last three (3) years. Include a detailed description of the services, the agency or firm names, contact names and phone numbers, and dates of services performed. • COST SUMMARY This section shall define the fee schedule/pricing information for the services and shall be submitted in a separate sealed envelope enclosed in the proposal envelope. OPTION A-FIXED RETAINER PLUS HOURLY BILLING Please quote a fixed retainer fee to be charged for general governmental services and the items noted herein that are to be covered by the retainer. Clearly note any services that your firm would not provide as part of the retainer duties and prefer to bill on an hourly basis. Please be specific. Also state separately the rate(s) for any other cost items proposed to be itemized and billed (i.e. photocopying, Westlaw, or Lexis fees, overhead factor, etc.). Please be specific. If there are any services routinely performed at no cost, list those services. OPTION B-HOURLY FEES FOR ALL WORK WITHOUT A RETAINER Please quote the dollar amount of hourly fees and costs your firm will charge for providing legal services to the City covered by your proposal. For the hourly fees portion of your proposal, please identify the hourly rate of each attorney and support personnel. Identify the minimum increment of time billed for each service, e.g. phone calls, correspondence, personal conference. Also state separately the rate for any other cost items proposed to be itemized and billed (i.e. photocopying, Westlaw, or Lexis fees, overhead factor, etc.). If there are any services routinely performed at no cost, list those services. OPTION C -PROPOSER'S CHOICE Use any combination of retainer and hourly rates that you choose to deliver the requested services. Hourly Rates Identify your proposed billing rates as shown in the format displayed below. This table is just a sample. Please provide all appropriate titles and rates. The City shall not reimburse Contractor for local travel-related expenses, so any such costs must be included in the hourly rates set forth herein. The City will, however, provide reimbursement for reasonable pre-approved travel out of the area to include airfare and hotel reimbursement only. I Labor Rates City Attorney $ per hour Assistant City Attorney $ per hour 1 Associate $ per hour I Clerk $ per hour Paralegal 1$ per hour Special Services 1$ per hour I Please provide your minimum unit of time for billing (e.g., 6 minutes, 10 minutes, etc.) Training Costs Please provide the costs of any in-service training (such as ethics and AB 1234, commission roles and responsibilities, how to conduct performance evaluations, harassment, etc.) relating to the Experience I Qualifications Information, item 11, set forth above. Payment The City requests to be provided a monthly itemized statement which indicates work completed and hours of service rendered, within 30 days of the month end. The City shall, within 45 days of receiving such statement, review the statement and pay all approved charges. • SIGNATURE The proposal shall be signed by an official authorized to bind the firm, and shall contain a statement to the effect that the proposal is valid for ninety (90) days. 6. SELECTION PROCESS The contract award will be made after selection of one (or more) respondent's proposal from among all respondents with implementation of services to follow. However, this RFP does not indicate a commitment by the City to award a contract to any successful respondent(s). The City intends to evaluate the proposed services based upon the data presented in response to the RFP. The following general selection criteria will be used to evaluate each attorney firm: 1. Experience and qualifications of firm and proposed City Attorney, other key personnel, and sub-attorneys, if applicable. 2. References for similar work completed within the last three years. 3. Responsiveness to the Request for Proposals. 4. Fair and reasonable pricing. The City reserves the right to reject any or all Proposals, to waive any informality in any Proposal, and to select the Proposal that best meets the City's needs. The City shall require an interview with the highest rated firm(s) as part of the selection process. The City also reserves the right to negotiate final pricing, services and terms with the most qualified proposer(s). 7. GENERAL INFORMATION Any costs incurred in the preparation of a proposal, presentation to the City, travel in conjunction with such presentations, or samples of items shall be the responsibility of the respondent. The City assumes no responsibility and no liability for costs incurred by respondents prior to issuance of a contract or purchase order. The proposer shall furnish the City with such additional information as the City may reasonably require. Any questions or requests for clarification must be submitted in writing and sent via email as set forth on the cover sheet of this RFP. All data, documents and other products used or developed during performance of the services will remain the property of the City upon completion of the services. One (1) original and six (6) copies of the completed proposal must be enclosed in a sealed envelope and addressed as stated on the cover sheet. The original proposal must be unbound. One copy of the fee schedule/pricing information shall be submitted in a separate sealed envelope within the proposal envelope. The proposal envelope must be marked, "City Attorney Services-Request for Proposal" 8. AGREEMENT AGREEMENT FOR PROVISION OF CITY ATTORNEY SERVICES THIS AGREEMENT is made, entered into, and shall become effective this __ day of , 2015, by and between the City of San Juan Capistrano (hereinafter referred to as the "City") and (hereinafter referred to as the "Attorney"). RECITALS: WHEREAS, City desires to retain the services of Attorney regarding the City's proposal to provide City Attorney Services to the City; and WHEREAS, Attorney is qualified by virtue of experience, training, education and expertise to accomplish such services. NOW, THEREFORE, City and Attorney mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Attorney shall consist of those tasks as set forth in Exhibit "A," attached and incorporated herein by reference. To the extent that there are any conflicts between the provisions described in Exhibit "A" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Term. This Agreement shall commence on the effective date of this Agreement. Section 3. Compensation. 3.1 Amount. Total compensation for the services hereunder shall as set forth in Exhibit "B," attached and incorporated herein by reference. 3.2 Method of Payment. Subject to Section 3.1, The City requests to be provided a monthly itemized statement which indicates work completed and hours of service rendered, within 30 days of the month end. The City shall, within 45 days of receiving such statement, review the statement and pay all approved charges. 3.3 Records of Expenses. Attorney shall keep complete and accurate records of all costs and expenses incidental to services covered by this Agreement. These records will be made available at reasonable times to the City. Invoices shall be addressed as provided for in Section 16 below. Section 4. Independent Contractor. It is agreed that Attorney shall act and be an independent contractor and not an agent or employee of the City, and shall obtain no rights to any benefits which accrue to Agency's employees. Section 5. Limitations Upon Subcontracting and Assignment. The experience, knowledge, capability and reputation of Attorney, its principals and employees were a substantial inducement for the City to enter into this Agreement. Attorney shall not contract with any other entity to perform the services required without written approval of the City. This Agreement may not be assigned, voluntarily or by operation of law, without the prior written approval of the City. If Attorney is permitted to subcontract any part of this Agreement by City, Attorney shall be responsible to the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Attorney. City will deal directly with and will make all payments to Attorney. Section 6. Changes to Scope of Work. For extra work not part of this Agreement, a written authorization from City is required prior to Attorney undertaking any extra work. In the event of a change in the Scope of Work provided for in the contract documents as requested by the City, the Parties hereto shall execute an addendum to this Agreement setting forth with particularity all terms of the new agreement, including but not limited to any additional Attorney's fees. Section 7. Familiarity with Work and/or Construction Site. By executing this Agreement, Attorney warrants that: (1) it has investigated the work to be performed; (2) if applicable, it has investigated the work site(s), and is aware of all conditions there; and (3) it understands the facilities, difficulties and restrictions of the work to be performed under this Agreement. Should Attorney discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform the City of this and shall not proceed with further work under this Agreement until written instructions are received from the City. Section 8. Time of Essence. Time is of the essence in the performance of this Agreement. Section 9. Compliance with Law. Attorney shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. Section 10. Conflicts of Interest. Attorney covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of the services contemplated by this Agreement. No person having such interest shall be employed by or associated with Attorney. Section 11. Copies of Work Product. At the completion of the work, Attorney shall have delivered to City at least one (1) copy of any final reports and/or notes or drawings containing Attorney's findings, conclusions, and recommendations with any supporting documentation. All reports submitted to the City shall be in reproducible format, or in the format otherwise approved by the City in writing. Section 12. Ownership of Documents. All reports, information, data and exhibits prepared or assembled by Attorney in connection with the performance of its services pursuant to this Agreement are confidential to the extent permitted by law, and Attorney agrees that they shall not be made available to any individual or organization without prior written consent of the City. All such reports, information, data, and exhibits shall be the property of the City and shall be delivered to the City upon demand without additional costs or expense to the City. The City acknowledges such documents are instruments of Attorney's professional services. Section 13. Indemnity. Contractor agrees to defend and indemnify City and its officers, agents and employees against, and to hold and save them harmless from, any and all actions, claims, damages to persons or property, penalties, obligations, or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of the willful or negligent act, errors or omissions of Contractor, its agents, employees, or subcontractors, in performance of the professional services under this Agreement, as well as for all acts, errors or omissions of Contractor, its agents, employees, or subcontractors which are in any way related to the services for which Contractor has been contracted, yet do not arise or occur from the performance of professional services. Section 14. Insurance. Insurance Coverage Required. The policies and amounts of insurance required hereunder shall be as follows: A. Comprehensive General Liability Insurance which affords coverage including completed operations and contractual liability, with limits of liability of not less than $1,000,000 per occurrence and $2,000,000 annual aggregate for liability arising out of Contractor's performance of this Agreement. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set forth above. If written with an aggregate, the aggregate shall be double the each occurrence limit. Such insurance shall be endorsed to: (1) Name the City of San Juan Capistrano and its employees, representatives, officers and agents (collectively hereinafter "City and City Personnel") as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. B. Automobile Liability Insurance with a limit of liability of not less than $1,000,000 each occurrence and $1,000,000 annual aggregate. The limits shall be provided by either a single primary policy or combination of policies. If limits are provided with excess and/or umbrella coverage the limits combined with the primary will equal the minimum limits set above. Such insurance shall include coverage for all "owned," "hired" and "non-owned" vehicles, or coverage for "any auto." Such insurance shall be endorsed to: (1) Name the City of San Juan Capistrano and its employees, representatives, officers and agents as additional insured for claims arising out of Contractor's performance of this Agreement. (2) Provide that the insurance is primary and non-contributing with any other valid and collectible insurance or self-insurance available to City. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. C. Workers' Compensation Insurance in accordance with the Labor Code of California and covering all employees of the Contractor providing any service in the performance of this agreement. Such insurance shall be endorsed to: Waive the insurer's right of Subrogation against the City and City Personnel. A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. D. Professional Liability Insurance with m1mmum limits of $3,000,000 each claim. Covered professional services shall include all work performed under this Agreement and delete any exclusion that may potentially affect the work to be performed. E. Evidence of Insurance: Contractor shall provide to City a Certificate(s) of Insurance evidencing such coverage together with copies of the required policy endorsements no later than five (5) business days prior to commencement of service and at least fifteen (15) business days prior to the expiration of any policy. Coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits, non- renewed, or materially changed for any reason, without thirty (30) days prior written notice thereof given by the insurer to City by U.S. mail, or by personal delivery, except for nonpayment of premiums, in which case ten (10) days prior notice shall be provided. Signed insurance certificates and endorsements must be sent via email from Contractor's insurance broker/agent to the City at mmorris@sanjuancapistrano.org. Certificate Holder: City of San Juan Capistrano, California 32400 Paseo Adelanto San Juan Capistrano, CA 92675 F. Endorsements: A statement on an insurance certificate will not be accepted in lieu of the actual endorsement. Insurance policies shall not be in compliance if they include any limiting provision or endorsement that has not been submitted to the City for approval. Additional Insured Endorsements shall not: 1. Be limited to "Ongoing Operations" 2. Exclude "Contractual Liability" 3. Restrict coverage to the "Sole" liability of Contractor 4. Contain any other exclusion contrary to the Agreement. G. Any Deductible in Excess of $50,000 and/or Self-Insured Retentions must be approved in writing by the City. H. Acceptability of Insurers. Each policy shall be from a company with current A.M. Best's rating of A VII or higher and authorized to do business in the State of California. I. Insurance of Subcontractors. Contractor shall be responsible for causing Subcontractors to maintain the same types and limits of coverage in compliance with this Agreement, including naming the City as an additional insured to the Subcontractor's policies. 14.1 Terms of Compensation. Attorney shall not receive any compensation until all insurance provisions have been satisfied. 14.2 Notice to Proceed. Attorney shall not proceed with any work under this Agreement until the City has issued a written "Notice to Proceed" verifying that Attorney has complied with all insurance requirements of this Agreement. Section 15. Termination. City shall have the right to terminate this Agreement without cause by giving thirty (30) days' advance written notice of termination to Attorney. In addition, this Agreement may be terminated by any party for cause by providing ten (1 0) days' notice to the other party of a material breach of contract. If the other party does not cure the breach of contract, then the agreement may be terminated subsequent to the ten (1 0) day cure period. Section 16. Notice. All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: To Attorney: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Section 18. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 19. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 20. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 21. Counterparts and Facsimile signatures. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same affect as if all the Parties had executed the same instrument. Counterpart signatures may be transmitted by facsimile, email, or other electronic means and have the same force and effect as if they were original signatures. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Hans Van Ligten, City Attorney CITY OF SAN JUAN CAPISTRANO By: __ ~~~--~~---------­ Derek Reeve, Mayor AGREEMENT FOR PROVISION OF CITY ATTORNEY SERVICES THIS AGREEMENT is made and entered into as of the 28th day of August, 2012, by and between the City of San Juan Capistrano, a California municipal corporation (the "CITY") and Rutan & Tucker LLP, a California limited liability partnership ("ATTORNEY"). A. CITY has solicited proposals and conducted interviews with several law firms and has chosen Attorney to provide legal services to the CITY. B. CITY and ATTORNEY desire to identify the areas of ATTORNEY's responsibilities for provision oflegal services and the compensation to ATTORi\IEY. Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CITY and ATTORNEY hereby agree as follows: ARTICLE I APPOINTMENT OF CITY ATTORNEY 1.1 Pursuant to Government Code Section 36505, City Council of CITY hereby appoints ATTORNEY to provide contract city attorney services for CITY. The term CITY shall be deemed to include services provided in connection with CITY's acting as successor agency to the former San Juan Capistrano Community Redevelopment Agency, as well as any CITY affiliated entity, including, but not limited to, the San Juan Capistrano Housing Authority. 1.2 Hans Van Ligten, a partner with ATTORNEY shall serve as City Attorney for CITY, who shaH be primarily responsible to perfonn or cause to be perfonned the work described in this Agreement. 1.3 The City Attorney shall be entitled to appoint Assistant City Attorneys and Deputy City Attomeys as necessary to perform the services referenced in this Agreement. The selection of the Attorney to act in the capacity of Assistant City Attorney and! or Deputy City Attorney shall be subject to the approval of the City Council. ARTICLE2 RESPONSIBILITIES OF A TTORi\fEY 2.1 ATTORt'-fEY shall perform any and all work necessary for the provision of City Attorney services to CITY, including withont limitation the following: attendance at regular City Council and Planning Commission meetings; drafting and review of ordinances, resolutions and agreements; office hours at City Hall on the afternoons of all regularly scheduled City 235/099999-0074 314()821.2 a{l7!! 1/f2 Attachment 2 Council meeting days and all regularly scheduled Planning Commission meeting days; office hours at City Hall on such mornings as the City Manager shall designate for staff meetings; provision of legal services to the City Council, City Manager, and Boards, Commissions, Committees, officers and employees of CITY as requested by CITY's City Council or in accordance with such policies and procedures as may be established by CITY fi·om time to time; attendance at meetings other than the regular City Council and Planning Commission meeting on an as-requested basis; provision of litigation and bond counsel services on an as requested basis; and provision of such other legal services as shall be necessary. 2.2 ATTORNEY represents the tasks and services required herein will be performed by ATTORNEY, or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be authorized and permitted under applicable state and local law to perform such tasks and services. 2.3 A ITORNEY shall not subcontract any portion of the work required herein without prior VvTitten approval of CITY; provided, however, that ATTORNEY shall be authorized to retain on behalf of CITY expert witnesses for litigation matters and other nonlegal subcontractors as may be necessary to enable AITORNEY to perform the required services required hereunder. Retention of any expert witness or other subcontractors costing more than $10,000.00 shall require prior consent of the City Council. 2.4 ATTORL"!EY shall pertorm all work required hereunder in a prompt and professional manner and shall exercise the standards of care required for the provision of legal services. Upon request or in accordance with such procedures as CITY may establish from time to time, A ITORl,JEY shall periodically report to CITY regarding the status of ali legal matters being handled by ATTORNEY. 2.5 A ITORNEY shall comply with all applicable federal, state and local laws, ordinances, and regulations. 2.6 ATTORNEY shall make no change in the character or extent of the work required by this Agreement, except as may be authorized in writing by CITY. Such supplemental work authorization shall set forth the specific changes of work to be performed and/or adjustment of fees to be paid to ATTORL'-lnY by CITY. ARTICLE 3 RESPONSIBILITIES OF CITY 3.! CITY shall provide full information to ATTOR.NEY and cooperate with A 1TORNEY to the extent necessary to enable A TTOR]','EY to provide all services required pursuant to this Agreement. 3.2 CITY shall provide an office to ATTOR.J'\inY at City Hall for AITORL"!EY's use during A1TORL"!EY' s office hours. Said office shall be wired for access to the Internet to enable ATTORNEY to perform such legal research as may be necessary during ATTOR.NEY's office hours. CITY shall provide at its expense such legal books for ATTORNEY's use at City Hall as City Council may approve from time to time during the normal budgetary process. 235!099999-(){)74 314082!.2 aO?/ll/12 -2- ARTICLE4 PAYMENT 4.1 CITY shall compensate ATTORNEY for the Retainer and Non-Retainer Services as provided herein. CITY shall compensate ATTORNEY for Retainer Services at a rate of $10,000.00 per month, plus reimbursable costs. CITY shall compensate ATTORNEY for Non- Retainer Services at the composite rate of $229.00 per hour and paralegal services at a rate of $75.00 per hour to $200.00 per hour, plus reimbursable costs. The monthly rate for Retainer Services shall apply regardless of the number of hours of legal services actually provided. The monthly rate for Retainer Services and the hourly rate for Non-Retainer services shall apply to all attorney services, regardless of the identity of the attorney performing the work. 4.2 For the purposes of the this Agreement, Retainer Services shall mean office hours at City Hall on afternoons of regular City Council and Planning Commission meeting days, and office hours at City Hall once per week in the mornings on such days as the City Manager shall designate for staff meetings to equate to nine (9) to ten (1 0) hours per week, as well as attendance at all regular City Council and Planning Commission meetings, as referenced in Section2.1 of this Agreement. Non-Retainer Services shall include all legal services provided to CITY other than Retainer Services, with the exception of Bond Counsel Services and Reimbursable Services. Bond Counsel Services shall be billed in accordance with Exhibit A attached hereto. Reimbursable Services are services for which CITY will be reimbursed by third parties and ATTORNEY may bill CITY at its current design rates for all such services. Adjustment in the above rates shall occur on an annual basis effective September I, in an amount equal to the percentage change in the Consumer Price Index for All Urban Conswners for the Los Angeles--Riverside-Orange County area, for the 12-month period ending January ofthe same calendar year. Any other changes may be considered by the City Council for as part of CITY's annual review of ATTORNEY'S performance. 4.3 In addition to its billing for attorney services, ATTORt"JEY shall be paid for all of its reimbursable costs. As used herein, the term "reimbursable costs" shall include the follmving: attorney's normal hourly charge for paralegal services; charges for any expert witnesses, consultants or subcontractors authorized to be retained by ATTORNEY on behalf of CITY; long distance telephone charges (excluding telephone calls between ATTORNeY's office and City Hall); reasonable travel expenses (excluding travel between ATTORNEY's office and City Hall); document reproduction expenses; telec.opier charges; mobile internet connection charges; computerized research charges; litigation expenses, including without limitation court filing fees, court reporter's fees, jury fees, witness fees, and the like; personal messenger service charges; and other reasonable and necessary out-of-pocket expenses. The term "reimbursable costs" shall not include any overhead or administrative charge relating to ATTORNEY's office or ATfORNEY' s normal cost of equipment and supplies except as expressly set forth herein. 4.4 ATTORNEY shall bill CITY monthly for services performed pursuant to this Agreement. ATTO~NEY shall establish such separate billing matters as deemed appropriate by ATTOR.NEY and consistent ''lith this Agreement. Each bill shall be itemized and shall reflect the date each task is performed, the ammmt of time spent performing each task, a brief description of the task performed, the identity of the ATTORNEY performing each task, and the 235/099999-0074 31:40821.2 aOi!l !/12 -3- total monthly charge. Reimbursable costs shall be separately itemized. CITY shall pay all fees and reimbursable costs due to ATTOR!\lEY within 30 days after receipt of invoice. ARTICLES INDEPENDENT CONTRACTOR 5.1 The designated City Attorney in ATTOR...NEY's office shall be directly responsible for and shall report directly to the City Council in accordance with applicable California law. Otherwise, A TTORi\lEY is an independent contractor and not an employee of CITY and neither CITY nor any of its employees shall have any control over the conduct of ATTOR...NEY or any of ATTORNEY's employees, except as herein set forth, and ATfOR._'lEY expressly warrants not to, at any time or in any manner, represent that ATTOR.,1\!EY, or any of ATTOR.t'\!EY's agents, servants, or employees, are in any mam1er agents, servants, or employees of CITY, it being distincily understood that said ATTORNEY is and shall at all times remain as to CITY a wholly independent contractor and that ATTORNEY's obligations to CITY are solely such as are prescribed by this Agreement. 5.2 This Agreement contemplates the personal services of ATTOR1"!EY and ATTORNEY's partners and employees, and it is recognized by the parties hereto that a substantial inducement to CiTY for entering into this Agreement was, and is, ilie professional reputation and competence of ATTORNEY and ATTORNEY's employees. Neither this Agreement nor any interest therein may be assigned by ATTORNEY, except upon written consent of CITY. Nothing herein is intended to or shall be construed as preventing ATTORNEY from employing or hiriug as many employees as ATTORNEY may deem necessary for the proper and efficient execution of this Agreement. ARTICLE 6 TERMJNATION 6.1 The Term of this Agreement shall commence on the date first "WTitten above and shall continue thereafter unless terminated by either party hereto pursuant the terms of this Agreement. CITY may terminate this Agreement upon providing Attorney thirty (30) days' written notice prior to termination. Attorney may termillate this Agreement on the giving of ninety (90) days written notice to the CITY of such tennination. Attorney will comply with all obligations required of it pursuant to the State Bar Act in connection with such te1mination and thP: .... rnn..;;;:itlnn tn rP1')l:<:~f'P.mP.-nt ('run"'<::<Pl li TT{)Dl\.n::;v .,t ... ,.,H h.c. "'"'I11 .... "' ..... "' ..... +"'...t -C,.,~ .:-o-~ ~~-+-~·--4 ----' t-~~----~-~ v~ ~-,t'~---~~~-..,_.._., '"'"'""'-<"'-'""'.._. ,~.,._...<..._. ..... , .. ~..._,.a. .;JJ..l~.t•U VV '""V.l..l p~.<!li3ctt..VU l.V.l lQ \..JVClot;:, a.llU- services rendered through the effective date of such termination. ARTICLE 7 MISCELLANEOUS 7.1 Notices. Any notice to be given m1der this Agreement shall be given by enclosing ilie same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed to ATTORL'\!EY at 611 Anton Boulevard, Suite 1400, Costa Mesa, California, 92626, Attention: A. Patrick Mufioz, and to CITY at City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675, Attention: City Manager. 235/09!?999-0074 3140821.2 a07/11/I2 -4- 7.2 Non-Discrimination. In connection with the execution of this Agreement, ATTORNEY shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. A TIORJ.,fEY shall take affirmative action to ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, or national origin. Such actions shall include, but not be 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. 7.3 Interpretation of Agreement. This Agreement shall be construed and interpreted both as to validity and performance of the parties in accordance with the laws of the State of California. 7.4 Integrated Agreement. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. No prior oral or written understanding shall be of any force of effect with respect to those matters covered in this Agreement. 7.5 Corporate Authoritv. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that in so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. 7.6 Insurance. We advise you that ATTORNEY does maintain errors and omissions insurance coverage applicable to the services to be rendered under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed with all the formalities required by law on the date first written above. 235!099999-0074 314082l.2 aO?/H/12 (SIGNATURE PAGE FOLLOWS) -5- APPROVED AS TO FORM: r-· "' fi•.\ ;1 j . ([Jv10JlyjttJL1hw©lfD~~/ Omar Sandd>iial, City Attorney l 235/099999-0074 3140821.2 aD?fl.l/12 ' "CITY" Attest: "ATTOR.c'!EY" Rutan & Tucker, LLP -6- EXHIBIT A BOND COUNSEL, DISCLOSURE COUNSEL AND ISSUER COUNSEL SERVICES Attorney shall provide bond counsel, disclosure counsel and issuer counsel services in connection with the issuance of bonds or other securities by City, if and when requested by City. The compensation for those services shall be as follows: 1. BOND COUNSEL FEE SCHEDULE a. Each Issue or Series ofT ax Allocation Bonds $35,000, plus 0.25 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.10 percent of the principal amount in excess of $10,000,000, b. Each Issue or Series of Special Assessment Bonds $35,000, plus 0.25 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.10 percent of the principal amount in excess of $10,000,000. Assessment district formation (including ballot proceedings) are paid separately at a composite hourly rate of $230 per hour. c. Each Issue or Series of Special Tax Bonds $35,000, plus 0.25 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.10 percent of the principal amount in excess of $10,000,000. Community facilities district formation (including election proceedings) are paid separately at a composite hourly rate of $230 per hour (or at design rates if Client is reimbursed by a third party.) d. Each Issue or Series of Certficates of Participation, Revenue Bonds and 501 (c)(3) Bonds $35,000, plus 0.25 percent of the principal amount between $5,000,000 and $10,000,000, plus 0,10 percent of the principal amount in excess of $10,000,000. e. Each Issue or Series of Multifamily and Single Family Mortgage Revenue Bonds 31W0999"99-0090 3721834.1 a07/l.ll!2 $40,000, plus 0.25 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.10 percent of the principal amount in excess of $10,000,000. 2. DISCLOSURE COUNSEL SERVICES FEE SCHEDULE a. Each Issue or Series ofT ax Allocation Bonds $20,000, plus 0.15 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.08 percent of the principal amount in excess of $10,000,000. b. Each Issue or Series of Special Assessment Bonds $20,000, plus 0.15 percent of the principal amount in excess of $5,000,000. c. Each Issue or Series of Soecial Tax Bonds $25,000, plus 0.20 percent of the principal amount bel\veen $5,000,000 and $10,000,000, pius 0.10 percent of the principal amount in excess of $10,000,000. d. Each Issue or Series of Certificates of Participation. Revenue Bonds and 501(c)(3) Bonds $20,000, plus 0.15 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.08 percent of the principal amount in excess of $10,000,000. e. Each Issue or Series of Multifamily and Single Family Mortgage Revenue Bonds $30,000, plus 0.15 percent of the principal amount between $5,000,000 and $10,000,000, plus 0.08 percent of the principal amount in excess of $10,000,000. 3. ISSUER COUNSEL SERVICES FEES If Attorney's role is to provide only advisory services in connection with a public finance transaction, Attorney shall be paid a composite hourly rate of $300 per hour. 4. JOINT POWERS AUTHORITY In the event City forms or is a member of a joint powers authority which has the power to issue bonds or other securities, Attorney shall provide bond counsel, disclosure counsel and issuer counsel services to the joint powers authority in connection with the issuance of bonds or other securities. if and when reauested bv the ioint oowers authoritv. If a ioint oowers a11thoritv is ' ~ . ' ~ . ,-- ---. ; - formed, it shall be included in the definition of "City" for purposes of this Agreement The compensation for services in connection with service to the joint powers authority shall be as specified herein. 38•l-J'099S99-0090 3721334.1 a{)7f11/12 -2-