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Resolution Number 12-07-17-01RESOLUTION NO. 12-07-17-01 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPOINTING THE CITY ATTORNEY AND AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH THE LAW FIRM OF RUTAN & TUCKER. The City Council of the City of San Juan Capistrano, California, hereby finds, determines, declares, and resolves as follows: WHEREAS, the City Council has selected the law firm of Rutan & Tucker to provide Attorney Services for the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS: SECTION 1. Hans Van Ligten of the law firm of Rutan & Tucker is hereby appointed City Attorney of the City of San Juan Capistrano to serve at the pleasure of the City Council effective August 28, 2012. JSECTION 2. The City Council hereby approves and the Mayor is authorized to execute an agreement with the law firm of Rutan & Tucker for the provision of legal services, which agreement is attached hereto as Exhibit "A." PASSED, APPROVED, AND ADOPTED this 17th day of July, 2012. 1 7/17/2012 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF SAN JUAN CAPISTRANO ) I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano, do hereby certify that the foregoing Resolution No. 12-07-17-01 was duly adopted by the Cit M Council of the City of San Juan Capistrano at a Regular meeting thereof, held the 17 day of July 2012, by the following vote: AYES: CCYUNCIL MEMBERS: Reeve, Allevato, Taylor and Mayor Kramer NOES: G UNCIL MEMBER: None ABSEN G UNCIL MEMBER: Freese 7/17/2012 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"). RECITALS 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 of legal services and the compensation to ATTORNEY. COVENANTS 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 1 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 CITY, who shall be primarily responsible to described in this Agreement. ATTORNEY shall serve as City Attorney for perform or cause to be performed the work 1.3 The City Attorney shall be entitled to appoint Assistant City Attorneys and Deputy City Attorneys 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. ARTICLE 2 RESPONSIBILITIES OF ATTORNEY 2.1 ATTORNEY shall perform any and all work necessary for the provision of City Attorney services to CITY, including without 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 3140821.2 a07/11/12 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 from 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 perfonmed 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 ATTORNEY shall not subcontract any portion of the work required herein without prior written 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 ATTORNEY 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 ATTORNEY shall perform 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, ATTORNEY shall periodically report to CITY regarding the status of all legal matters being handled by ATTORNEY. 2.5 ATTORNEY 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 ATTORNEY by CITY. ARTICLE 3 RESPONSIBILITIES OF CITY 3.1 CITY shall provide full information to ATTORNEY and cooperate with ATTORNEY to the extent necessary to enable ATTORNEY to provide all services required pursuant to this Agreement. 3.2 CITY shall provide an office to ATTORNEY at City Hall for ATTORNEY's use during ATTORNEY'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 ATTORNEY'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. 235/099999-0074 3140821.2 a07/11/12 -2— ARTICLE 4 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 (10) hours per week, as well as attendance at all regular City Council and Planning Commission meetings, as referenced in Section 2.1 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 1, in an amount equal to the percentage change in the Consumer Price Index for All Urban Consumers for the Los Angeles — Riverside — Orange County area, for the 12 -month period ending January of the 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, ATTORNEY shall be paid for all of its reimbursable costs. As used herein, the term "reimbursable costs" shall include the following: 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; telecopier 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 ATTORNEY'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. ATTORNEY shall establish such separate billing matters as deemed appropriate by ATTORNEY and consistent with this Agreement. Each bill shall be itemized and shall reflect the date each task is performed, the amount of time spent performing each task, a brief description of the task performed, the identity of the ATTORNEY performing each task, and the 235/099499-0074 3140821.2 a07/11/12 —3— total monthly charge. Reimbursable costs shall be separately itemized. CITY shall pay all fees and reimbursable costs due to ATTORNEY within 30 days after receipt of invoice. ARTICLE 5 INDEPENDENT CONTRACTOR 5.1 The designated City Attorney in ATTORNEY's office shall be directly responsible for and shall report directly to the City Council in accordance with applicable California law. Otherwise, ATTORNEY 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 ATTORNEY or any of ATTORNEY's employees, except as herein set forth, and ATTORNEY expressly warrants not to, at any time or in any manner, represent that ATTORNEY, or any of ATTORNEY's agents, servants, or employees, are in any manner agents, servants, or employees of CITY, it being distinctly 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 ATTORNEY 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, the 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 hiring as many employees as ATTORNEY may deem necessary for the proper and efficient execution of this Agreement. ARTICLE 6 TERMINATION 6.1 The Term of this Agreement shall commence on the date first written 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 terminate this Agreement on the giving of ninety (90) days written notice to the CITY of such termination. Attorney will comply with all obligations required of it pursuant to the State Bar Act in connection with such termination and the transition to replacement counsel. ATTORNEY shall be compensated for its costs and services rendered through the effective date of such termination. ARTICLE 7 MISCELLANEOUS 7.1 Notices. Any notice to be given under this Agreement shall be given by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, addressed to ATTORNEY at 611 Anton Boulevard, Suite 1400, Costa Mesa, California, 92626, Attention: A. Patrick Munoz, and to CITY at City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, CA 92675, Attention: City Manager. 2351099999-0074 3140821.2 a0711 1112 -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. ATTORNEY 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 Authority. 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. (SIGNATURE PAGE FOLLOWS) 235/099499-0074 3140821.2 a07/11 /12 'S' "CITY" "ATTORNEY" Rutan & Tucker, LLP By: c`If��tL A. Patrick Muffoz, Partntr APPROVED AS TO FORM: nsross "s 74 314062.2 a07/I1112 -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 of Tax 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 Certificates 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 $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. 384/099499-0090 3721834.1 a07/11/12 2. DISCLOSURE COUNSEL SERVICES FEE SCHEDULE a. Each Issue or Series of Tax 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 Special Tax Bonds $25,000, plus 0.20 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. 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 requested by the joint powers authority. If a joint powers authority 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. 371/63x.1 aff/11 U12 -2-