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01-21-2020 - AGENDA ITEM 08 CONSIDERATION OF ENGAGEMENT OF LARSON O'BRIEN LLP IN CONNECTION WITH RICHARD MARTIN FRANCO, JR. AND YVONNE FRANCO V. CITY OF WEST COVINA MATTER11/16/2020 Print Staff Report AGENDA ITEM NO. 8 DATE: January 21, 2020 TO: Mayor and City Council FROM: David Carmany City Manager AGENDA STAFF REPORT City of West Covina I Office of the City Manager SUBJECT: CONSIDERATION OF ENGAGEMENT OF LARSON O'BRIEN LLP IN CONNECTION WITH RICHARD MARTIN FRANCO, JR. AND YVONNE FRANCO V. CITY OF WEST COVINA MATTER RECOMMENDATION: It is recommended that the City Council authorize the City Manager to negotiate and execute any documents necessary to provide for the continued engagement of Larson O'Brien LLP to provide legal counsel to the City in connection with the Richard Martin Franco, Jr. and Yvonne Franco v. City of West Covina matter. BACKGROUND: The City Manager executed an Engagement Agreement with Larson O'Brien LLP within the City Manager's purchasing authority, authorizing the firm to commence providing legal services to the City in connection with the Franco matter. Because the cost of the firm's legal services may exceed $30,000, staff now seeks City Council authorization for the City Manager to execute any documents necessary for the continued engagement of Larson O'Brien LLP. DISCUSSION: Larson O'Brien LLP is a boutique law firm that focuses its practice exclusively on litigation. The City engaged Larson O'Brien to provide legal counsel to the City in connection with the Franco matter. OPTIONS: The City Council has the following options: 1. Approve staff's recommendation; or 2. Provide alternate direction. Prepared by: Thomas Duarte, City Attorney Fiscal Impact https://destinyhosted.com/print_ag_memo.cfm?seq=646&rev_num=0&mode=Extemal&reloaded=true&id=93782 1/2 11/16/2020 Print Staff Report FISCAL IMPACT: The firm's hourly rates are as follows: • Attorneys - $550 per hour • Paralegals - $275 per hour Attachments Attachment No. 1 - Larson O'Brien LLP Engagement Letter CITY Achieve Fiscal Sustainability and Financial Stability COUNCIL GOALS & OBJECTIVES: https://destinyhosted.com/print_ag_memo.cfm?seq=646&rev_num=0&mode=Extemal&reloaded=true&id=93782 2/2 LARSON O'BRIENLLP Stephen G. Larson Direct: 213.436.4864 slarson@larsonobrienlaw.com VIA EMAIL January 2, 2020 Mike Weathermon c/o James R. Touchstone 3777 North Harbor Boulevard Fullerton, California 92835 Re: Engagement Letter Dear Mike This letter describes the terms on which Larson O'Brien LLP (the Firm, we or us) has agreed to provide legal services to you (the Client or you). Our internal policies and the provisions of the California Business and Professions Code require us to provide you with a written statement of the terms on which you have engaged us and on which we have agreed to provide legal services to you. Scone of Engagement We have been engaged to represent you in the lawsuit Franco v. City of West Covina et al., U.S.D.C. Case No. 5:18-cv-02587-JGB-SHK. Our engagement includes any services in connection with this matter that we may have undertaken prior to the date of this letter. The scope of our engagement under this letter may be enlarged from time to time as you ask us to perform additional services and we agree to perform such additional services. No additional written agreement will be required to document these periodic changes. For purposes of this engagement, we will be representing Client only in connection with the above -referenced engagement. All duties and responsibilities created and imposed by this agreement shall be owed solely to Client; we will not be deemed to represent the interests of any other entities or persons. Rates and Staffin You agree to pay our fees for services, which are primarily determined by multiplying the number of hours we spend working on your case by the hourly rates in effect for the professional providing those services. The professional rates for attorneys range from $395 to $1050 per hour. For this matter, the Finn has agreed to charge, and You and the City of West Covina have agreed to pay, $550 per hour for each attorney's time. The Firm reserves the right to staff the case as it deems appropriate and necessary, with all attorneys and professionals working under the supervision of the partners working on the matter. For example, the professionals whose services may be required in connection with our work on LARSON - O'BRIENLLP weathermen January 2, 2020 Page 2 your behalf may include consultants, advisors, litigation support specialists, and paralegals. The hourly rate for paralegals is currently $275 per hour. We will bill monthly and you agree to timely pay our monthly bills. We reassess our hourly rates from time to time, and make adjustments as appropriate. These adjustments may be reflected in the billing rates we charge to you during the course of our engagement. Third Party Payor As part of this arrangement, the City of West Covina (the "City") has agreed to pay for all of the fees and expenses incurred on your behalf, and we have agreed to look solely to the City for such payments. The Rules of Professional Conduct permit a third party to pay the lawyer for the fees and expenses of a client only if the client consents, there is no interference with the lawyer's independence of professional judgment or with the attorney -client relationship, and confidential information of the client is appropriately safeguarded. This will confirm that we will not permit any interference with our independence of professional judgment for you or with our attorney - client relationship with you and that we will safeguard confidential information in accordance with the Rules of Professional Conduct (which permits disclosure of such information to the extent permitted in this letter). You agree to our accepting compensation from the City for our representation of you, and City agrees to pay all of the fees and expenses incurred on behalf of you. Even though City has agreed to pay for all our fees and expenses in this matter, you acknowledge and agree that we are permitted to withdraw from representation of you if any of our fees and expenses for this matter are not paid in accordance with this letter. General Provisions The provisions attached to this letter and entitled "General Provisions" are incorporated into this letter with the same effect as if they were expressly set forth in this letter. Please review this letter, including the General Provisions, carefully and, if it comports with your understanding of our respective responsibilities, confirm this agreement by returning a signed copy of this letter to me at your earliest opportunity. If you have any questions, please do not hesitate to call to discuss them before countersigning this letter. Please note that our engagement will not be effective unless and until you sign the letter, we sign the letter, and you pay the retainer amount. LARSON - O'BRIENLLP We look forward to working with you. Very truly yours, LARSON O'BRIEN LLP By: Partner ACCEPTED AND AGREED: Mike Weathermon Date: ACCEPTED AND AGREED: The City of West Covina Date: Weathermen January 2, 2020 Page 3 LARSON - O'BRIENLLP GENERAL PROVISIONS Weathermen January 2, 2020 Page 4 Trial Retainer. A month before the commencement of a trial, you and the Firm will estimate trial fees. You agree to deposit the estimated trial fees into our Attorney -Client trust account. The Firm will bill against the deposit for fees incurred for and during trial. If the deposit is exhausted, you agree to deposit another estimated retainer (as agreed between us) into our trust account. You further agree to pay any balance remaining if the retainer is insufficient to cover the Firm's fees. Costs and Expenses. In addition to fees for services, you agree to pay all expenses incurred on your behalf and for certain in-house administrative services. We generally bill at the actual cost incurred by the Firm for expenses such as court filing fees, filing and recording fees of other government agencies, fees and expenses of accountants or other experts retained on your behalf, and charges for transcripts, depositions, parking, lodging and travel. In some cases, our customary charges for these services may exceed the direct costs incurred by us. You acknowledge responsibility to pay the fees and expenses of such third parties, and we may require retainers for such third party costs. You further agree you will, at our request, contract directly with third -party vendors or otherwise agree to be responsible directly to them for the payment of their fees. Expenses such as document reproduction, online computerized research, long-distance telephone and fax transmissions, mileage, staff overtime required to meet imposed deadlines, and messenger services will be charged at our standard rate in effect at the time the expense is incurred. Billing Practices and Payment Procedures. We submit bills on periodically, typically a monthly basis, after services are rendered. We will itemize the services performed by date, time required, and the professional performing the services. Our statements are payable on receipt, and prompt payment is a requirement of our continued representation. If statements are not paid within 30 days after the invoice date, we retain the right to charge interest on overdue amounts at the rate of 1% per month (12% Annual Percentage Rate). In the unfortunate event that we are forced to incur collection costs to obtain payment, you also will be responsible for the collection costs, including reasonable attorneys' fees. You agree to review each invoice promptly after you receive it, and notify us of any objections or defenses to payment. If you fail to do so within 30 days after you receive the invoice, you will be deemed to have approved the invoice and to have waived any objections to its payment in full. You acknowledge and agree that we have a lien on any award, judgment, recovery, or other amounts payable to you in the matters on which we represent or have represented you. Estimates. We may from time to time provide an estimate of the fees and expenses likely to be incurred by you in connection with the services we are providing. Any such estimate is not a fixed fee and does not constitute a commitment by us to perform services for that amount or an obligation by you to pay that amount. The fees and expenses required ultimately are a f mction of many conditions over which we have little or no control and may be more or less than any estimate. You will be responsible for the actual fees and expenses on the basis described in this LARSON - O'BRIENLLP Weathermen January 2, 2020 Page 5 agreement. Your obligation to pay such fees and expenses is not contingent upon successful completion of any project. No Guarantee of Results. During the course of our representation, we may express an opinion concerning the matter or various courses of action and the results that might be anticipated. Any such statement made by any attorney or employee of our Firm is intended to be an expression of opinion only, based on information available to us at the time, and must not be construed by you as a promise or guarantee of any particular result. Conflicts of Interest. We cannot, without appropriate consent, represent any party if there is a conflict of interest with any of our other clients. In order to avoid conflicts of interest among our clients, we maintain an index of relevant names. In connection with this matter, we searched our index for the names you have provided. In addition, please inform us at once if you learn in the future of other persons or entities that may be involved so we can perform a conflict of interest search with respect to them. Our search revealed that we have no conflict. Termination of Engagement. You may terminate this engagement at anytime. We can also terminate this relationship at any time, but if we find it necessary to terminate the relationship, we will, of course, comply with our ethical and professional obligations. Upon termination of this engagement, you will remain responsible for the payment of all fees and expenses incurred on account of the representation, including fees and charges to transfer work to another attorney. You also agree that, upon termination by either parry, we may apply to the court or other tribunal to withdraw as your counsel, and you consent to such withdrawal and to cooperate fully and promptly in freeing us of any obligation to perform further work, including the execution and delivery of a substitution of attorney form. In addition, you agree to immediately advise the appropriate court or tribunal of replacement counsel. Conclusion of Representation. At any time that there are no active matters in which we are representing you, you will be considered a former, rather than a current, client of ours, unless and until you ask us to perform additional services and we agree to perform such additional services. If you become a former client under any circumstances, we will be entitled, under applicable Rules of Professional Conduct, to undertake representations adverse to you in matters that are not the same as, or substantially related to, any matter in which we have represented you. However, under no circumstances will we, in the course of representing any other client, use or disclose any confidential, non-public information that we have obtained as a result of any representation of you. Retention and Destruction of Records. We may adopt policies from time to time concerning the retention and destruction of documents and records relating to engagements by clients. After the conclusion of our representation of you on any particular matter, we may destroy any records as we believe is appropriate. If you and we agree in a writing executed by both parties, that we will retain records for a specified period of time, that agreement will supersede this general rule. If we are required by applicable law to retain records for an applicable period, the applicable law will supersede the general rule. LARSON - O'BRIENLLP weathermen January 2, 2020 Page 6 Respondingto o Subpoenas and Other Requests for Information. If we are required to respond to a subpoena or other formal request from a third party or a governmental agency for our records or other information relating to services we have performed for you, or to testify by deposition or otherwise concerning such services, we will first consult with you as to whether you wish to supply the information demanded or assert your attorney -client privilege to the extent you may properly do so. You understand you will reimburse us for our time and expense incurred in responding to any such demand, including, but not limited to, search and photocopying costs, time reviewing documents, appearing at depositions or hearings, and otherwise litigating issues raised by the request. General Responsibilities of Attorney and Client. We will provide the above -described legal services for your benefit, for which you will be billed in the manner set forth above. We will keep you apprised of developments as necessary to perform our services and will consult with you as necessary to ensure the timely, effective and efficient completion of our work. We understand you will provide us with truthful information, the documents required to perform the services, to keep us informed of developments related to your matter, to make any business or technical decisions and determinations as appropriate to facilitate the completion of our services, to remit payment of our billing statements, in accordance with the procedures described above, and to cooperate fully with us in all matters related to your claims and defenses. Arbitration. We do not anticipate any dispute regarding our services. Nonetheless, if any dispute arises out of or relating to this letter, our relationship with Client or the City, or the services performed (including but not limited to disputes regarding attorneys' fees or costs and those alleging negligence, breach of fiduciary duty, fraud, or claim based on any statute), the dispute shall be resolved by binding arbitration and will not be determined by the courts or a jury, except as California law provides for judicial review of arbitration proceedings. Any dispute will be arbitrated by a neutral at the Judicial Arbitration and Mediation Service (JAMS) in Los Angeles County, California, pursuant to its procedures and rules, or any other private judge or arbitrator mutually selected by the parties. Should the parties be unable to agree upon an arbitrator within thirty (30) days after written notification of any dispute, the parties agree that an arbitrator may be selected by JAMS. Your agreement to arbitrate is not a condition of our representation, and if you do not wish to agree to arbitrate, you must advise us before signing this letter, so that we may delete this section of the letter. In addition, you are free to discuss the advisability of arbitration with us or your independent counsel and to ask any questions that you have. Unless you inform us that you do not agree to arbitrate disputes and we delete this section of the engagement agreement prior to its execution, you will be deemed to have agreed to arbitrate pursuant to the terms hereunder. The prevailing party in any litigation pertaining to this agreement shall be entitled to reimbursement of attorneys' fees and costs incurred. Errors and Omissions Insurance. The California Business & Professions Code requires us to inform you that we maintain errors and omissions insurance coverage applicable to the services to be rendered to you. LARSON • O'BRIENtze Weathermen January 2, 2020 Page 7 Confidentiality of Internal Firm Communications. We designate certain of the Firm's attorneys to represent us in connection with legal matters affecting the Firm that arise from time to time, such as claims brought against us by clients or others, collection actions brought by the firm or others, and various other legal matters. The discussions about the Firm's legal matters between these designated attorneys and other Firm personnel are intended to be confidential Effective Date. This agreement will not take effect, and we will have no obligation to provide services to you, until you return a signed copy of this agreement and pay the required retainer, but the effective date of this agreement will be retroactive to the date we first provided legal services to you. Even if this agreement is not executed and returned by you, you will be obligated to pay the reasonable value of any services we may have performed for you at your direction. Severability in the Event of Partial Invalidity. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect. Entire Agreement. This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties. This agreement may be modified only in writing and signed by both you and us. Facsimile signatures are as effective as original signatures.