25-018 Interim City Attorney Agreement with Aleshire & Wynder LLP (Floy Andrews)01276.0004/1053081.3 1
INTERIM CITY ATTORNEY SERVICES AGREEMENT
This INTERIM CITY ATTORNEY SERVICES AGREEMENT (“Agreement”) is
entered into by and between the CITY OF CUPERTINO (“City”), a California municipal
corporation, and ALESHIRE & WYNDER, LLP (“Firm”), effective on the last date signed
below. The City and the Firm shall each be a “Party” and shall collectively be referred to as the
Parties.”
1. Appointment
City Council hereby appoints Floy E. Andrews (“Andrews”) as the City Attorney (“City
Attorney”), on an interim basis and hires the Firm as its interim City Attorney, to render such
legal services as are customarily rendered by such official and as further specified herein,
including attending meetings of the City Council and any other City boards and commissions and
their affiliated agencies, as needed or requested by the City Council. The City Attorney shall
report to the City Council, and shall hold office hours at City Hall, 10300 Torre Avenue,
Cupertino, as needed. Other members of the Firm may provide services to City as directed by
Andrews. The Firm represents that it employs, or will employ at its own expense, all personnel
required for the satisfactory performance of any and all tasks and services set forth herein.
Within sixty (60) days of the execution of this Agreement, the Parties will meet to mutually
agree upon an amendment to this Agreement to further define the Firm’s scope of services and
compensation, if necessary. This Agreement shall be for a term of one year from its effective
date. The term may be extended by mutual written agreement.
The Firm represents that it possesses all necessary training, licenses, and permits to
perform the Services, and that its performance of the Services will conform to the standard of
practice of a professional that specializes in performing professional services of a like nature and
complexity. The Firm further agrees to perform legal services in a manner that complies with the
California Rules of Professional Conduct and state laws relating to conflicts of interest and self-
dealing, including the California Political Reform Act (Government Code sections 81000 et seq.)
and Government Code sections 1099 et. seq. Violation of the professional conduct and ethics
laws is cause for termination of this Agreement and recovery by City of fees paid for services
performed in violation of said rules and law.
2. Scope of Work and Duties
The Firm shall perform any and all work necessary for the provision of City Attorney services to
City, as set forth in the Municipal Code, including, but not limited to, the following:
a) Attendance at meetings of the City Council, or any other City boards and
commissions and other affiliated entities, unless excused by the Mayor or Vice Mayor as needed;
and
b) Provide legal advice, written legal opinions, and consultation on all matters
affecting City to the City Council, City Manager, boards, commissions, committees, officers, and
employees of City and as requested by the City Council, the City Manager, or their designee, in
01276.0004/1053081.3 2
accordance with such policies and procedures as may be established by City from time to time;
and
c) Be available for consultation with City staff, personally, electronically, and
telephonically, as needed on legal matters which are within their area of operation; and
d) Prepare or review necessary legal documents such as: ordinances, and resolutions;
agreements of any nature; real property instruments of any nature including purchase agreements
and escrows, leases, covenants, deeds, easements and licenses; bonds of any size, amount, and
offering terms and conditions; public works construction documents including bid specifications,
contracts, bonds, insurance, liens and related documents; memorandum of understanding;
franchise agreements; and all similar documents; and
e) The City Attorney shall manage the in-house legal office in a manner to promote
the efficiency and utility of the personnel, encourage their professional development, and cause
legal affairs of City to be successfully resolved; and
f) Represent and advise City on pending and potential litigation, in an efficient and
expeditious manner, in any such litigation; it is expressly understood that the Firm shall not be
responsible for any pending litigation matter(s) handled by attorneys previously or otherwise
employed by City until such files have been transferred to the Firm and the Firm has specifically
appeared in the matter(s) as attorneys of record on behalf of City; and
g) Hold regular office hours at City Hall; and
h) Attend meeting with in-house attorney staff to discuss projects and workloads; and
i) Monitor pending and current legislation and case law as appropriate; and provide
updates to all in house attorney staff and City Manager; and
j) Supervise all outside legal services, if any; and
k) Provide representation to City in all of its legal affairs, including, but not limited
to, municipal law, land use, environmental, toxics, mining, water, tort defense, personnel, labor
representation, code enforcement, criminal prosecution, redevelopment, housing, cable television,
finance, franchising, contracts, enterprise and other matters, except where conflicts exist or where
the City Council may otherwise direct. The City Attorney shall represent City in all of the
foregoing legal matters, and in initiating and defending all litigation unless otherwise directed by
the City Council; and
l) Keep City informed as to the progress and status of all pending matters in
accordance with such procedures as the City Council may establish from time to time; and
m) Manage, control and oversee the delivery of legal services in a competent,
professional, and cost-effective manner. Issues impacting the Firm’s provision of services shall be
promptly reported. All legal services provided by the Firm shall be properly supervised and all
personnel shall be qualified to handle the work assigned. If outside special counsel is retained,
01276.0004/1053081.3 3
unless otherwise directed by the City Council, such special counsel shall be supervised by the City
Attorney; and
n) Provide monthly confidential updates to the City Council and City Manager on the
status of major projects and high profile or high-risk litigation and provide quarterly reports on the
cost of the Firm’s services.
All the foregoing legal services shall be coordinated under the direction of the Mayor, City
Council, and City Manager. Notwithstanding any other provision contained herein, any legal
services may only be ultimately authorized by the City Council. Nothing in this Agreement shall
be construed in any manner as limiting the ultimate and absolute discretion of the City Council, at
any time, to assign or reassign any legal matter of the City from or to the Firm.
3. City Duties
City agrees to provide such information, assistance, cooperation, and access to books,
records, and other information as is necessary for the Firm to effectively render its professional
services under this Agreement. To the extent City desires services to be rendered on site, City, at
City’s expense, will make available sufficient office space, furniture, telephones, computers,
facsimile machines, and administrative support, as may be necessary therefor. City further agrees
to abide by this Agreement, and to pay the Firm’s bills for fees, costs, and expenses.
4. Legal Fees, Costs, and Billing Practices
The Firm’s hourly billing rates for general advisory services will be as follows:
Partner $325
Sr. Associate $305
Associate $285
Law Clerk $195
Paralegal $195
Document Clerk $125
The Firm’s hourly billing rates for litigation & special services will be as follows:
Partner $385
Sr. Associate $305
Associate $285
Law Clerk $195
Paralegal $195
Document Clerk $125
Special services include all matters requiring special expertise above and beyond routine
municipal assignments and/or routine matters, including but not limited to: complex planning,
land use and housing, refuse and solid waste, major contracts, economic development projects,
municipal finance, public works contracting, real estate, rent control and just cause eviction law,
eminent domain/regulatory takings, labor and employment, investigations, enterprise funds,
01276.0004/1053081.3 4
environmental and toxics, water, energy, utilities, franchise-cable and telecommunications, and
police and fire matters.
Some unique services, such as bond financing work, will be billed at $500 for Attorneys.
Reimbursables, such as work being refunded by a developer to City, are $400-700,
for Partners and $350-600 for Associates. The specific determination of a rate within the above
ranges shall be based upon the experience of the attorney and subject to mutual agreement prior
to the performance of these unique services.
Fees will be charged for all time actually expended in increments of one-tenth of an hour.
The Firm will not bill to a minimum increment greater than one-tenth (0.10) of an hour. The
Firm will annually increase these billing rates consistent with any annual increase in the
Consumer Price Index (October over October time period) for All Urban Consumers (not
seasonally adjusted) San Francisco-Oakland-Hayward area (1982-1984 = 100) as published by
the Bureau of Labor Statistics, U.S. Department of Labor, rounded to the nearest whole $1. The
Firm will implement the increase each year on January 1st, or as soon thereafter as the CPI
information is published. The Firm may otherwise increase these rates periodically to reflect the
advancing experience, capability, and seniority of Firm members as well as general economic
factors. The Firm has errors and omissions insurance coverage applicable to the services being
provided under this Agreement.
City will also reimburse the Firm for payments to third parties, including other legal
firms, incurred in the course of representation. City will not reimburse for ordinary costs of
business, including but not limited to, overhead costs, staff time, long-distance telephone,
facsimile, postage, and routine photocopying. City will reimburse for non-routine photocopying
costs (e.g., litigation matters, document review, color copies, and large print jobs) at a cost of 10
cents per page and will reimburse for charges for electronic legal research time. No lodging
expenses will be charged for attendance at City Council meetings or other meetings at City Hall,
but travel time is billed at the hourly billing rates set forth above.
The Firm will provide detailed monthly billing statements for fees and expenses incurred.
City agrees to pay the Firm’s billed fee and expenses within thirty (30) days after billing.
Monthly billing statements shall set forth a description of all work performed, hours worked,
identify the person undertaking the work, and rates charged.
5. Insurance
The Firm agrees to maintain insurance in the following amounts:
a. Comprehensive General Liability Insurance with coverage limits of not less than One
Million Dollars ($1,000,000) including products and operations hazard, contractual insurance,
broad form property damage, independent consultants, personal injury, underground hazard, and
explosion and collapse hazard where applicable.
01276.0004/1053081.3 5
b. Automobile Liability Insurance for vehicles used in connection with the performance
of this Agreement with minimum limits of One Million Dollars ($1,000,000) per claimant and
One Million dollars ($1,000,000) per incident.
c. Worker's Compensation insurance as required by the laws of the State of California.
d. Professional Errors and Omissions Insurance with coverage limits of not less than One
Million Dollars ($1,000,000).
The policy or policies required by this Agreement shall be issued by an insurer admitted
in the State of California and with a rating of at least A: VII in the latest edition of Best’s
Insurance Guide, or a California approved Surplus Lines carrier (e.g., Lloyd's of London).
6. Authorized Representative of City
The City Council shall direct the Firm's provision of services under this Agreement. The
City designates the Mayor as the authorized representative to be the primary person to
communicate with the Firm regarding the subject matter of this Agreement. This designation is
intended to establish a clear line of authority and to minimize potential uncertainty, but not to
preclude communication between the Firm and other representatives of City. Unless directed
otherwise by the City, all correspondence and bills will be directed to the Mayor (currently Liang
Chao (lchao@cupertino.gov)), with a copy to Serena Tu, Executive Assistant, City Manager’s
Office (serenat@cupertino.gov). The City may update the officials or employees designated in
this paragraph by providing written notice to the Firm.
7. Conclusion of Services, Discharge and Withdrawal
Unless otherwise agreed in writing, the representation of Client under this Agreement
will automatically terminate at the time the Firm completes the legal services agreed to under
this agreement.
The City may discharge the Firm at any time, with or without cause, by providing written
notice to the Firm, which is effective upon receipt by the Firm. Discharge without cause will
normally include a ninety (90) workday notice period to permit transition of matters and
responsibilities to new counsel. In the event of discharge, if the Firm is the attorney of record in
any proceeding, the Firm will promptly provide City with a substitution of attorney form if
requested by City. City will execute and return the substitution of attorney form immediately
upon receipt from the Firm.
The Firm may withdraw upon ninety (90) workdays’ prior written notice, with or without
cause. The Firm may withdraw at any time as permitted under the Rules of Professional Conduct
of the State Bar of California. A valid reason for withdrawal by the Firm would include, but not
be limited to, City's consent, City's breach of this Agreement, City’s failure to pay fees and costs
as provided in this Agreement, City’s conduct renders it unreasonably difficult for the Firm to
carry out the representation effectively, City declines to pay for the Firm’s services at an
increased rate under Section 2, or any fact or circumstances that would render the Firm’s
01276.0004/1053081.3 6
continuing representation unlawful or unethical. If the Firm withdraws from representing City
under this Section, it will have the right to terminate this Agreement and withdraw as counsel for
City in any litigation where the Firm has appeared before a court. At such time as the Firm’s
services conclude, all unpaid fees for legal and related services and costs and expenses will
immediately become due and payable.
8. Case Files
After the Firm’s Services conclude, the Firm will, upon City's request, deliver the files
for all City matters to City. If City does not request the files for this matter, the Firm will retain
them for a period of five years after the matter is closed. If City does not request delivery of the
files before the end of the five-year period, the Firm will have no further obligation to retain the
files and may, at the Firm's discretion, destroy them without further notice to City. At any point
during the five-year period, City may request delivery of the files. If City so requests, paper
copies of original documents (or the originals themselves) will be provided free of charge. City
agrees to pay for any additional fees or costs incurred to produce copies of electronic files, if
City requests those files.
9. No Guarantee
Nothing in this Agreement and nothing in the Firm’s statements to City will be construed
as a promise or guarantee about the outcome of any matter. The Firm makes no such promises or
guarantees.
10. Conflicts
The Firm has no present employment which is adverse to City, and agrees that it shall not
represent clients in either litigation or non-litigation matters against City. However, the Firm
may have past and present clients or may have future clients, which, from time to time, may have
interests adverse to City. The firm reserves the right to represent such clients in matters not
connected with its representation of City. The Firm shall promptly disclose to the City Council
and City Manager any such actual or potential conflict immediately wherever the same shall
arise or come to the attention of the Firm.
If a potential conflict of interest arises in the Firm’s representation of two clients, if such
conflict is only speculative or minor, the Firm shall seek waivers from each client with regards to
such representation. However, if real conflicts exist, the Firm would withdraw from representing
either client in the matter, and assist them in obtaining outside special counsel.
The Firm maintains a strict policy forbidding political contributions in city council races
in the cities we represent or propose to represent and will adhere to this policy as to City. This
policy is in conformity with the Ethics Policy adopted by the City Attorneys Department of the
League of California Cities.
11. Independent Contractor
01276.0004/1053081.3 7
The Firm shall at all times herein be deemed an independent contractor wholly
responsible for the manner in which it performs the Services under this Agreement and fully
liable for the acts and omissions of its employees, subconsultants, and agents. Under no
circumstances shall this Agreement be construed as creating an employment, agency, joint
venture, or partnership relationship between City and the Firm, and no such relationship shall be
implied from performance of this Agreement. The terms of this Agreement referring to direction
from City shall be construed as providing for direction as to the scope of Services, and not as to
the means and methods by which a result is obtained. The Firm shall pay all other taxes
including but not limited to any applicable City of Cupertino business tax, not explicitly assumed
in writing by City under this Agreement. The Firm shall comply with all valid administrative
regulations respecting the assumption of liability for the payment of payroll taxes and
contributions as above described and to provide any necessary information with respect thereto
to proper authorities. In the event that the Firm or any employee, agent, or subcontractor of the
Firm providing services under this Agreement is determined by a court of competent jurisdiction,
arbitrator, or administrative authority, including but not limited to the California Public
Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of
City, the Firm shall indemnify, defend, and hold harmless City for the payment of any employee
and/or employer contributions for PERS benefits on behalf of Contractor or its employees,
agents, or subcontractors, as well as for the payment of any penalties and interest on such
contributions, which would otherwise be the responsibility of City, and actual attorney’s fees
incurred by City in connection with the above.
Notwithstanding the Firm's independent contractor relationship with City, City may, from
time to time (i.e. annually), and at its sole discretion, conduct an evaluation of the Firm’s
services as outside counsel, including conducting such evaluation in closed session as permitted
under Government Code section 54957.
12. Indemnification and Liability
To the fullest extent permitted by the law, the Firm shall indemnify and hold harmless
City and its officers, agents, departments, officials, representatives and employees (collectively
Indemnitees”) from and against any and all claims, loss, cost, damage, injury (including,
without limitation, injury to or death of an employee of the Firm or its subconsultants), expense
and liability of every kind, nature and description (including, without limitation, incidental and
consequential damages, court costs, paralegal and attorneys' fees (including costs attributable to
in-house paralegals and attorneys), City staff costs, litigation expenses and fees of expert
consultants or expert witnesses incurred in connection therewith and costs of investigation) that
arise from or relate to, directly or indirectly, in whole or in part, from the services under this
Agreement, or any part thereof, but only to the proportionate extent caused by any negligent act
or omission of the Firm, any subconsultant of the Firm, anyone directly or indirectly employed
by them, or anyone that they control (collectively “Liabilities”).
Irrespective of any language to the contrary in this Agreement, the Firm has no duty to
provide or to immediately pay for an up-front defense of City against claims or allegations
unproved in a final judgment in all courts, but shall reimburse those litigation costs and expenses
referenced herein that are incurred by City to the proportionate extent caused by the negligence
01276.0004/1053081.3 8
of the Firm, any subconsultant of the Firm, anyone directly or indirectly employed by them, or
anyone that they control. The Firm's indemnification and hold harmless obligation shall not
exceed the Firm's finally determined percentage of liability based upon the comparative fault of
the Firm.
The Parties agree, to the fullest extent permitted by law, to submit to mediation, any
dispute, cause, or controversy arising out of or relating to the validity, enforceability,
interpretation, performance, or breach of this section, including, but not limited to, the
determination of liability based upon the comparative fault of the Firm (“Claims”). In the event
the parties do not resolve any Claims through mediation, then the Firm and City agree to binding
arbitration of such Claims through JAMS, under California Code of Civil Procedure sections
1280 through 1294.4. The parties further agree that this Agreement is intended to be strictly
construed to provide for mediation followed by arbitration, if necessary, as the sole and exclusive
means for resolution of all disputes under this section (including, but not limited to, the
determination of liability based upon the comparative fault of the Firm) to the fullest extent
permitted by the. The Parties expressly waive any entitlement to have such controversies decided
by a court or a jury.
Any mediation and/or arbitration of Claims under this section shall occur in Santa Clara
County, California. The Parties shall be responsible for their own attorneys’ fees and related
hearing costs and shall split equally the costs for the mediator and/or arbitrator. The provisions of
this section shall survive the completion of the services or termination of this Agreement.
If any provision in 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. This Agreement may be modified only by written agreement.
13. Non-Waiver
The failure of City or the Firm to seek redress for violation of, or to insist upon, the strict
performance of any term or condition of this Agreement shall not be deemed a waiver by that
party of such term or condition, or prevent a subsequent similar act from again constituting a
violation of such term or condition. Payment to the Firm of compensation under this Agreement
shall not be deemed to waive City’s rights or the Firm’s rights contained in this Agreement.
14. Severability
If any term, condition or provision of this Agreement is held by a court of competent
jurisdiction to be unenforceable, invalid, or void, the remaining provisions will nevertheless
continue in full force and effect and shall not be affected, impaired or invalidated in any way.
15. Disputes
City and the Firm agree to have disputes (except where City may request arbitration of a
fee dispute by the State Bar) that arise out of, or relate to this Agreement, including but not
limited to claims of negligence or malpractice arising out of or relating to the legal services
01276.0004/1053081.3 9
provided by the Firm to City, decided by binding arbitration in accordance with the provisions of
the Code of Civil Procedure section 1280 et seq. and administered by JAMS pursuant to its
comprehensive arbitration rules and procedures. This clause shall not preclude parties from
seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. the
Firm and City shall each have the right of discovery in connection with any arbitration
proceeding in accordance with, and to the full extent allowed by, the California Rules of Civil
Procedure section 1283.05. City, however, may request arbitration of a fee dispute by the State
Bar as provided by Business and Professions Code Section 6200, et seq. Alternatively, any legal
action or proceeding by City against the Firm related to this Agreement may be brought in the
courts of Los Angeles County, State of California.
16. Remedies
The rights and remedies of City provided in this Agreement are not intended to be
exclusive, and are in addition to any other rights and remedies permitted by law.
17. Binding Agreement
This Agreement is intended to be binding on the parties and their respective successors and
assigns.
18. Counterparts
This Agreement may be executed in counterparts, all of which taken together will be
considered one original document.
19. Integrated Agreement; Amendment
This Agreement, including all exhibits, contains all of the agreement of the parties and
cannot be amended or modified except by written agreement. No prior oral or written
understanding shall be of any force or effect with respect to those matters covered in this
Agreement. This Agreement may be amended at any time by the mutual consent of the parties by
an instrument in writing.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
of execution by City.
ACCEPTED AND AGREED: ALESHIRE & WYNDER, LLP
City of Cupertino, a municipal corporation a California limited liability partnership
By:_______________________ By:_________________________
Floy Andrews, Partner
Its: _______________________ Date: _______________________
Date: _____________________
Feb 20, 2025Mayor
Liang Chao (Feb 23, 2025 11:30 PST)
Liang Chao
02/23/2025
01276.0004/1053081.3 10
ATTEST:
Kirsten Squarcia, City Clerk
Date:
Kirsten Squarcia (Feb 24, 2025 08:16 PST)
Kirsten Squarcia
02/24/2025
City of Cupertino - Interim City Attorney
Agreement
Final Audit Report 2025-02-20
Created:2025-02-20
By:Araceli Alejandre (aracelia@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAAgVksEzR-LXSJ6W3pmXYuT2FThzCxMnFU
City of Cupertino - Interim City Attorney Agreement" History
Document created by Araceli Alejandre (aracelia@cupertino.org)
2025-02-20 - 8:58:54 PM GMT- IP address: 64.165.34.3
Document emailed to fandrews@awattorneys.com for signature
2025-02-20 - 9:00:05 PM GMT
Email viewed by fandrews@awattorneys.com
2025-02-20 - 9:30:52 PM GMT- IP address: 50.112.162.3
Signer fandrews@awattorneys.com entered name at signing as Floy Andrews
2025-02-20 - 9:55:29 PM GMT- IP address: 50.112.162.3
Document e-signed by Floy Andrews (fandrews@awattorneys.com)
Signature Date: 2025-02-20 - 9:55:31 PM GMT - Time Source: server- IP address: 50.112.162.3
Agreement completed.
2025-02-20 - 9:55:31 PM GMT
City of Cupertino - Interim City Attorney
Agreement
Final Audit Report 2025-02-24
Created:2025-02-22
By:Kirsten Squarcia (kirstens@cupertino.org)
Status:Signed
Transaction ID:CBJCHBCAABAA_0TY4xZFkgRJ61GBNjZ7B2llSJ3Ap590
"City of Cupertino - Interim City Attorney Agreement" History
Document created by Kirsten Squarcia (kirstens@cupertino.org)
2025-02-22 - 4:54:10 PM GMT
Document emailed to lchao@cupertino.gov for signature
2025-02-22 - 5:05:51 PM GMT
Email viewed by lchao@cupertino.gov
2025-02-22 - 5:06:52 PM GMT
Signer lchao@cupertino.gov entered name at signing as Liang Chao
2025-02-23 - 7:29:58 PM GMT
Document e-signed by Liang Chao (lchao@cupertino.gov)
Signature Date: 2025-02-23 - 7:30:00 PM GMT - Time Source: server
Document emailed to kirstens@cupertino.gov for signature
2025-02-23 - 7:30:05 PM GMT
Email viewed by kirstens@cupertino.gov
2025-02-23 - 7:30:41 PM GMT
Signer kirstens@cupertino.gov entered name at signing as Kirsten Squarcia
2025-02-24 - 4:16:44 PM GMT
Document e-signed by Kirsten Squarcia (kirstens@cupertino.gov)
Signature Date: 2025-02-24 - 4:16:46 PM GMT - Time Source: server
Agreement completed.
2025-02-24 - 4:16:46 PM GMT