93-025 City Attorney & Assistant City Attorney Legal Agreement, Charles T. Kilian Reso 8900, 8947 (x-ref agreement 80-064)RESOLUTION NO. 8900
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
APPOINTING THE CITY ATTORNEY AND ASSISTANT CITY ATTORNEY,
DESCRIBING THEIR DUTIES AND PROVIDING FOR HIS COMPENSATION
THE CITY COUNCIL OF THE CITY OF CUPERTINO RESOLVES AS
FOLLOWS:
Section 1. Previous Resolution and Memoranda Rescinded
All previous resolutions and memoranda of understanding regarding the
appointment, duties and compensation of the city attorney are hereby rescinded, and this
resolution is adopted in their place.
Section 2. Appointment
Charles T. Kilian is hereby appointed City Attorney, City of Cupertino, County of
Santa Clara, State of California.
Section 3. Duties of the City Attorney
The City Attorney's duties shall consist of the following:
a) Administrative duties
1) The City Attorney shall attend all regular and special meetings of
the City Council unless otherwise determined by the mayor. Duties in this connection shall
be to render advice and opinions with respect to all legal matters which may arise during
any such meeting; except, however, legal matters which are to be provided by special
counsel.
2) The City Attorney shall also attend meetings of other boards,
commissions, and committees of the City when requested by the City Council or City staff
at which time similar legal advice and opinions shall be rendered.
3) The City Attorney shall prepare resolutions, notices, contracts,
ordinances and other documents as necessary, or appropriate, in matters pertaining to the
City, when requested to do so by the City Council or City staff. He shall also examine for
legal sufficiency all documents submitted to him by the City.
4) The City Attorney shall provide the necessary legal services
required in connection with the acquisition of lands or easements, which shall constitute an
administrative duty up to the point direction is given to commence eminent domain
proceedings, at which point it shall be come a litigation service.
5) The City Attorney shall cooperate with, and assist, the City, its
officers, agents and employees, on all general legal matters pertaining to the City.
However, the City Attorney shall only provide legal advice to the staff when authorized to
do so by the City Council or the City Manager.
6) The City Attorney shall make himself available to meet with City
staff part of one day each week or at such other times as requested by City staff.
7) The City Attorney shall also perform such other legal services for
the City as may be requested by the City Council or City staff.
b) Litigation Duties
1) The City Attorney shall render the necessary legal services required
in connection with the conduct of eminent domain proceedings and other litigation in
which the City may be a party.
2) The City Attorney shall represent the City in all civil legal
proceedings but is expressly relieved from all prosecutorial responsibilities on the City's
behalf within the meaning of Section 41805(a) (1) of the California Government Code.
Section 4. Appointment of Assistant Oil Attorna
Cheryl Kershner is hereby appointed Assistant City Attorney, City of Cupertino,
County of Santa Clara, State of California.
Section 5. Duties of the Assistant Cily Attorney
The Assistant City Attorney shall assist the City Attorney in the performance of his
duties and shall act in the absence of the City Attorney for any cause. In addition, the
Assistant City Attorney is the chief prosecutor of the City and shall represent the City with
respect to all criminal litigation maintained by the City to enforce its ordinances or relevant
portions of state law.
Pa
Section 6. Retainer
The City Attorney shall received a monthly retainer from the City in the sum of
four thousand nine hundred fifty dollars ($4,950.00) which shall be considered full
compensation for the purposes of contributions and withholdings with respect to
retirement, social security, if any, income tax withholdings and the like. The monthly
retainer shall be paid on the first of each month for that succeeding month on the payroll
account of the City. Furthermore, the City shall contribute to PERS retirement, health and
dental benefits, life insurance benefits, as well as social security (if applicable) in the same
amounts it does for unrepresented City employees. The City Attorney shall be allowed to
participate in the City's deferred compensation program and PERS rebate program (if
available) in the same manner as regular City employees.
Section 7. Additional Compensation
In addition, the City Attorney shall receive the following contractual services
compensation:
Administrative
a) To the extent that the collective time of the City Attorney, the Assistant
City Attorney, and other members of the law firm of the City Attorney, for the
performance of administrative services, exceeds thirty-eight (38) hours in any one month,
excluding the time spent at or preparation for regular and special City Council meetings,
the City Attorney shall be entitled to receive additional compensation from the City at the
rate of $110.00 per hour.
b) Litigation
The City Attorney shall receive as compensation for the performance of his
litigation services, and for litigation services of the Assistant City Attorney, and other
members of the law firm of the City Attorney, compensation at the rate of $110.00 per
hour.
C) Miscellaneous
The City Attorney shall also be entitled to be reimbursed for costs and
expenses for attending conferences when approved in advance by the City Manager in
accordance with the same reimbursement schedule provided for other officers of the City.
3
d) Compensation of Assistant City Attorney
The Assistant City Attorney, and other members of the law firm of the
City Attorney shall look solely to the City Attorney for compensation for their services.
Section 8. Costs
The City Attorney shall be entitled to be reimbursed by the City for all costs
advanced by him such as court costs, filing fees, service of process fees, reporters' fees,
jurors' fees, witness fees, investigators' fees, appraisers' fees, cost of photographs and
charts needed in connection with litigation, and the like. The City Attorney shall also be
reimbursed for all long distance telephone calls made to points outside of Santa Clara
County. Reimbursement shall be made for all travel, meals, and lodging expenses incurred
by the City Attorney, the Assistant City Attorney, the Deputy City Attorney, and other
members of the law firm of the City Attorney, when on business outside of the County of
Santa Clara for the City, in accordance with the same reimbursement schedule provided
for other officers of the City.
Section 9. Overhead
Except as herein otherwise expressly provided, the City Attorney shall pay for his
own overhead, and that of the Assistant City Attorney and other members of the law firm
of the City Attorney, incurred at the office located in the Kodak Center, 1740 Technology
Drive, Suite 250, San Jose, California 95110-1315, including but not limited to rent,
telephone, secretarial„ bookkeeping, reception, postage, stationery, office supplies,
insurance, library, copying, taxes and license. Furthermore, telephone calls in which there
is no substantive conversation between the City Attorney or a member of his firm and a
City Council member or City staff shall be considered part of the overhead costs.
Nevertheless, the City shall supply the City Attorney with "City of Cupertino" letterhead
stationery and envelopes and shall also pay for all costs incurred in connection with
maintaining the special municipal law library books owned by the City which are on loan
to the City Attorney.
Section 10. Records, Monthly Statements and Audit
The City Attorney shall maintain careful and accurate records in his office of all
time spent by him, the Assistant City Attorney, and by other members of the law firm of
the City Attorney (to the closest 1/10th of an hour) and of all reimbursable costs advanced
by the firm in connection with the City's business. The City Attorney shall render at least
monthly statements to the City for the performance of all administrative and litigation
services following the services performed, the hours spent, the costs advanced, the amount
of additional compensation he is entitled to receive from the City for the period in
question. If approved, the additional compensation shown to be due by his statement shall
be paid to the City Attorney by the City in general warrant within thirty (30) days after
said approval. Books of account and the time records of the City Attorney, the Assistant
4
City Attorney, and other members of the law firm of the City Attorney, pertaining to
business transacted for the City, shall be open to audit by the City Auditor, upon prior
request of the City Council.
Section 11.
It shall be the City Attorney's responsibility and duty to have current knowledge of
laws and judicial decisions which may have an effect on municipal governments. City
Attorney's conferences with staff of the law firm shall be considered the City Attorney's
own responsibility, not the City's responsibility. He may be asked to meet the City
Council and/or staff to keep them abreast of laws and judicial decisions impacting
municipal government.
Section 12. Effective Date
The effective date of this Resolution shall be June 14, 1993.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 21 s t day of June , 1993, by the following vote:
Vote Members of the City Council
AYES: Dean, Goldman, Koppel, Sorensen, Szabo
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST:
/s/ Dorothy Cornel
City Clerk
5
APPROVED:
/s/ Nick Szabo
Mayor, City of Cupertino
JACKSON, ABDALAH @ RODRIGUEZ
August 9, 1993
The Honorable Mayor and
Members of the City Council
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
Re: City Attorney Contract
Reference No. CC. D1/M
Dear Mayor Szabo and Council Members:
VOICE MAIL
JACKSON 235-9842
ADBALAH 235-9810
ROORIGUEZ 235-9824
WONG 23S-9838
As requested, I have reviewed the proposed Agreement for
Legal Services with City Attorney, Charles T. Kilian. I have
also reviewed the proposal letter from Mr. Kilian, as well as
Resolution 8900 adopted June 2, 1993, and the proposed
Amendment to Resolution 8900.
In my opinion, the proposed Agreement is consistent with
the terms and conditions contained in the letter from Mr.
Kilian. I would point out that the Agreement provides for a
legal secretary, who will be a City employee. As a City
employee, the secretary would enjoy all the usual rights,
benefits and protections of the other permanent City
employees. Furthermore, upon hiring, the secretary could
automatically be deemed a permanent employee unless otherwise
indicated. I only bring this to your attention for your
information.
Also, the Agreement provides that any dispute would be
resolved in the courts (see paragraph 20). I considered the
possibility of including an arbitration clause. However,
upon further consideration, I concluded that the protection
of the laws enjoyed by the City could be waived or
significantly diluted in arbitration. Therefore, I am not
recommending an arbitration clause.
� 7
A PROFESSIONAL CORPORATION
JAMES E. JACKSON
104SS TORRE AVENUE
RICHARD K. ABDALAH
CUPERTINO, CALIFORNIA 95014
JAMES J. RODRIGUEZ•
CERTIFIED TAX SPECIALIST
TELEPHONE (408) 252-5211
JEFFREY H. WONG
FACSIMILE (408) 996-704S
'THE STATE BAR OF CALIFORNIA
BOARD OF LEGAL SPECIALIZATION
August 9, 1993
The Honorable Mayor and
Members of the City Council
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, CA 95014
Re: City Attorney Contract
Reference No. CC. D1/M
Dear Mayor Szabo and Council Members:
VOICE MAIL
JACKSON 235-9842
ADBALAH 235-9810
ROORIGUEZ 235-9824
WONG 23S-9838
As requested, I have reviewed the proposed Agreement for
Legal Services with City Attorney, Charles T. Kilian. I have
also reviewed the proposal letter from Mr. Kilian, as well as
Resolution 8900 adopted June 2, 1993, and the proposed
Amendment to Resolution 8900.
In my opinion, the proposed Agreement is consistent with
the terms and conditions contained in the letter from Mr.
Kilian. I would point out that the Agreement provides for a
legal secretary, who will be a City employee. As a City
employee, the secretary would enjoy all the usual rights,
benefits and protections of the other permanent City
employees. Furthermore, upon hiring, the secretary could
automatically be deemed a permanent employee unless otherwise
indicated. I only bring this to your attention for your
information.
Also, the Agreement provides that any dispute would be
resolved in the courts (see paragraph 20). I considered the
possibility of including an arbitration clause. However,
upon further consideration, I concluded that the protection
of the laws enjoyed by the City could be waived or
significantly diluted in arbitration. Therefore, I am not
recommending an arbitration clause.
� 7
The Honorable Mayor and
Members of the City Council
CITY OF CUPERTINO
August 9, 1993
Page 2
In sum, the Agreement appears to be in good order. I
appreciate the opportunity to assist the Council in this
matter.
Very truly yours,
,�7
RICHARD K. A DALAH
RKA:csc
cc: Charles T. Kilian, Esq.
AGREEMENT FOR LEGAL SERVICES
City of Cupertino, a California municipality
located at 10300 Torre Avenue, City of Cupertino,
California (95014-3202) (hereinafter referred to as
"City") and Charles T. Kilian, whose business address is
1740 Technology Drive, Suite 250, San Jose, California
95110 (hereinafter referred to as "City Attorney"), in
consideration of the mutual promises made herein, agree
as follows:
Paragraph 1 Term of the Agreement
The provisions of this Agreement shall commence
upon its execution and shall, unless extended pursuant
to paragraph 2 of this Agreement, or terminated early
pursuant to Paragraph 3 of this Agreement, expire on
December 31, 1999.
Paragraph 2 Notice of Expiration/Automatic Extension
At least one year prior to expiration of this
Agreement or of any extension thereof, either party may,
by written notice serve upon the other, a notice of
non -renewal of this Agreement. If neither party serves
such notice, then this Agreement is automatically ex-
tended for one additional year under the same terms and
[D2/AB/A/L/S] 1
conditions. It is the intent of the parties that each
party shall provide the other the maximum notice of
non -renewal as described herein to allow for an orderly
transition of City Attorney responsibilities and duties
should this Agreement not be renewed.
Paragraph 3 Early Termination
Notwithstanding any provision contained in this
Agreement to the contrary, the City Attorney holds
office at the pleasure of -the City Council and therefore
this Agreement, or any extension thereof may be termi-
nated, at any time by the City upon written notice. In
the event that the City terminates this Agreement prior
to its expiration for cause, as defined herein, then
such termination may occur immediately and, in that
event, the City will have no further obligation, finan-
cially or otherwise, to the City Attorney under the
terms of this Agreement.
In the event that the City terminates this Agree-
ment prior to its expiration for any reason other than
for cause, then the City agrees to pay to City Attorney,
in addition to any compensation previously earned under
the terms of this Agreement, a payment of one year's
retainer of no less than $105,000 payable at the City
Attorney's option in lump sum upon termination, in lump
sum on January 1 of the year following termination, or
[D2/AB/A/L/S] 2
in twelve equal monthly installments.
The parties intend by this Agreement to provide
this additional payment in order to defray the City
Attorney's costs in re-entering private practice at the
level he had prior to -the execution of this Agreement.
It is also recognized by -the parties, that in reliance
upon this Agreement, the City Attorney will forthwith
take steps to terminate his current leasing arrangements
with other private attorneys and that therefore, said
additional payment provision described herein, shall
become effective immediately upon the execution of this
Agreement. Notwithstanding any provision contained in
this Agreement to -the contrary, this Agreement, or any
extension thereof, may be terminated by the City
Attorney, without further obligation, in the event he is
appointed or elected to judicial office.
As used herein the term "for cause" shall mean
only the following:
1) Death of the City Attorney
2) The continued incapacity on the part of the
City Attorney to perform his duties for a period of
ninety (90) consecutive days or more.
3) The wilful breach of duty by the City Attorney
in the course and scope of his duties as City Attorney.
4) The habitual neglect by the City Attorney of
[D2/AB/A/L/S] 3
his duties.
5) The wilful or permanent material breach of any
obligations contained in this Agreement.
6) Disbarment of the City Attorney or suspension
of the City Attorney's right to practice law in Cali-
fornia.
7) The conviction of -the City Attorney of any
felony involving moral turpitude.
Paragraph 4 Duties of City Attorney
The duties and responsibilities of the City
Attorney shall be those contained in Section 3 of
Resolution No. 8900 previously adopted by the City
Council. However, the City Attorney shall be available
to the City Council or staff up to a maximum of 75% of
his normal working time (amounting to approximately 130
hours per month). If at any time during the term of
this Agreement, or any extensions thereof_, the City
requires the use of the City Attorney's time in excess
of 75%, then, in that event, the parties will meet and
confer in good faith, regarding alternative arrangements
for legal services including retaining additional at-
torneys and/or adjusting the City Attorney's compensa-
tion schedule.
[D2/AB/A/L/S] 4
Paragraph 5 Compensation schedule
A. Current Schedule
The City Attorney's compensation from the date
of -the execution of this Agreement until December 31,
1994 shall, unless modified by agreement of the parties,
remain as it currently exists pursuant to Resolution No.
8900 previously adopted by the City Council.
B. Flat Retainer Commencing January 1, 1995
The City Attorney's initial retainer commenc-
ing January 1, 1995 shall be $105,000 annually for the
performance of all duties and responsibilities for the
City of Cupertino as City Attorney. The initial re-
tainer will be automatically increased at the same per-
centage, and at -the same time, as any increase in the
compensation of the City Manager. The payment of the
annual retainer shall be made by the City on a bi-weekly
basis and shall be subject to withholding in -the same
manner as are the salaries of City employees.
C. Fringe Benefits
The City shall also pay, commencing January 1,
1995, to City Attorney all fringe benefits which are, or
become available to the City Manager (excluding disabili-
ty insurance and housing allowance) based upon the annu-
al retainer above described.
[D2/AB/A/L/S] 5
These benefits include but are not limited to,
PERS retirement benefits based upon his annual retainer,
health and dental benefits, life insurance, deferred
compensation program, and administrative leave pay out.
The City Attorney shall receive 20 days paid vacation
per year, plus sick days, holidays, and administrative
leave.
In lieu of utilizing the City's disability
plan, the City Attorney shall be allowed to continue
with his own private disability plan at its current lev-
el of protection and the City shall reimburse him the
actual cost of said plan on a monthly basis.
Paragraph 6 Office Space
On or before December 31, 1995, the City shall
enter into a five year lease (commencing January 1,
1995) for adequate office space for the City Attorney, a
legal secretary, paralegal, and .file storage which would
be in the vicinity of City Hall. The City Attorney and
City staff will cooperate in negotiating an appropriate
office lease. The City, in addition to the rent of said
space, shall pay for all improvements, carpets, and
drapes for said office.
Paragraph 7 Legal Secretary
Commencing January 1, 1995, the City shall hire,
as a City employee, the City Attorney's current legal
[D2/AB/A/L/S] 6
secretary, or another secretary designated by him, free
of any hiring prerequisites of the City with the excep-
tion of a physical examination. As a City employee -the
legal secretary will receive a salary equal to the range
and step of the City Manager's secretary and he or she
shall receive the same fringe benefits, including paid
vacation, which is available for -that classification.
Secretarial "back-up" will be provided by a temporary
secretarial service at City's expense.
Paragraph 8 Law Library
This City will reimburse City Attorney for the
costs of on-going subscriptions to:
- Attorney General's Opinions
- McQuillan Municipal Law
- League of California Cities
Municipal Law Handbook
- Legal Secretary's Handbook
- L.A. Daily Journal
- Martindale-Hubbel Directory
Expenses
- Other books and periodicals which -the City
Attorney owns related to municipal law.
The City Attorney and City staff shall co-
operate in exploring an arrangement with an attorney's
office near City Hall for the City Attorney's use of an
[D2/AB/A/L/S] 7
existing law library. If no such library is available,
'the City Attorney and staff will develop an annual bud-
get for law book acquisition.
Paragraph 9 Supplies and Equipment
During -the term of this Agreement, the City shall
pay for all. office supplies and equipment necessary for
a law office, including, but not limited -to, telephone,
fax machine, small copy machine, computer/word processor
for secretarial use (compatible with the City's system),
necessary furniture and file cabinets. The City shall
pay all on-going telephone bills except that -the City
Attorney shall reimburse the City for all long distance
calls not used for City business. The City shall pay
for all City stationery and postage. The City shall
reimburse the City Attorney for all telephone calls made
on his car telephone for City purposes.
Paragraph 10 Malpractice Insurance
The City shall reimburse the City .Attorney for 750
of his malpractice insurance premium based upon current
coverage.
Paragraph 11 Taxes
The City shall reimburse the City Attorney for any
property tax, assessment, or business license -tax owed
as a result of maintaining an office in Cupertino.
[D2/AB/A/L/S] 8
Paragraph 12 Bar Dues
The City shall reimburse the City Attorney for all
state and local bar dues.
Paragraph 13 Moving Expenses
The City shall pay the actual cost of :moving 'the
City Attorney's office to Cupertino (not to exceed
$1,500).
Paragraph 14 Backup and Special Projects
The City shall provide the City Attorney a discre-
tionary annual budget of $25,000 to retain an Assistant
City Attorney on an hourly basis -to act in his absence
and to perform other special projects as needed.
Paragraph 15 Costs of Litigation, Travel and Education
The City shall pay for all non -attorney litigation
costs (.filing fees, investigations, discovery costs,
etc.) and shall reimburse the City Attorney for all mile-
age, meals, and travel costs on the same basis as is
available to -the City Manager. An educational and con-
ference budget shall be established similar to that of
the City Manager.
Paragraph 16 City Attorney Ordinance
A City Attorney ordinance shall be enacted prior
to January 1, 1995, which will govern the relationship
between the City Attorney and:
[D2/AB/A/L/S] 9
1) Councilmembers
2) City Staff
3) Members of the Public
At the beginning of each fiscal year, -the City
Attorney and City Manager shall meet and confer in good
faith regarding the allocation of the City Attorney's
time among City departments. Any department exceeding
its allocated time must obtain the City Manager's writ-
ten approval for additional time. The City Attorney and
City Manager shall meet and confer on a regular basis
for the purpose of adjusting time allocations among
departments.
Paragraph 17 Unanticipated Legal Events
The City Council and the City Attorney shall meet
and confer in good faith with respect to any unforesee-
able legal events which would require additional legal
support for the City.
Paragraph 18 Private Practice
The City Attorney may continue a limited private
practice from the office located in Cupertino provided
that such practice shall not interfere with his obliga-
tions to the City. Such private practice may include
representation of other public agencies, teaching, judg-
ing on a pro tem basis, advising and representing in-
dividuals and businesses provided -that such representa-
[D2/AB/A/L/S] 10
tion does not involve any real or apparent conflict of
interest.
Paragraph 19 Notices
Any notices given hereinunder by either party
to the other shall be in writing and may be transmitted
by personal delivery or by mail, registered or certi-
fied, post prepaid with return receipt requested.
Mailed notices shall be addressed to -the parties at the
addresses appearing in the introductory paragraph of
this Agreement, but each party may change the address by
written notice in accordance with the section.
Paragraph 20 Attorneys' Fees and Costs
If any legal action is necessary to enforce or
interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorneys' fees
and costs in addition to any relief to which he may be
entitled.
Paragraph 21 Independent Counsel
The City Attorney has prepared and reviewed this
Agreement only on his own behalf. The City has retained
the services of attorney Richard Abdalah to review and
approve the form of this Agreement on behalf of the City
Council.
[D2/AB/A/L/S] 11
Executed on August 21 , 19 93, Cupertino,
California.
i
CHARLES T. KILIAN
ATTEST
APPROVED AS TO FORM
RICHARD ABDALAH, Special
Counsel
[D2/AB/A/L/S] 12
r
MAYOR, CITY OF CUPERTINO
RESOLUTION NO. 8947
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CUPERTINO AMENDING RESOLUTION NO.
8900 WITH RESPECT TO COMPENSATION OF THE
CITY ATTORNEY
WHEREAS, Resolution No. 8900 Appointing the City
Attorney, Describing his Duties and Providing for His
Compensation was adopted by the City Council on June 21,
1993; and
WHEREAS, The City Council and the City Attorney
wish to provide, in the future, for an alternate method
of compensation which will limit legal costs, enable the
City to more accurately budget for legal costs, and
stabilize the compensation paid to the City Attorney;
and
WHEREAS, the City Attorney is willing to forego
his non -municipal private legal practice, at its current
level, in reliance -upon a future schedule of compensa-
tion, which would allow him to devote more of his time
to the representation of the City of Cupertino;
[ORD/RES/RC/D2] 1
NOW, THEREFORE, BE IT RESOLVED by the City Council
of the City of Cupertino that Resolution No. 8900 be
modified to incorporate the agreement herein attached as
part of his compensation as fixed pursuant to § 36506 of
the California Government Code.
The Mayor of the City of Cupertino is authorized
to execute said agreement on behalf of the City of
Cupertino.
PASSED AND ADOPTED at a regular meeting of the
City Council of the City of Cupertino, duly held on the
17th day of August, 1993, by the following vote:
Vote Members of the City Council
AYES: Dean, Goldman, Koppel, Sorensen, Szabo
NOES: None
ABSENT: None
ABSTAIN: None APPROVED:
/s/ Nick Szabo
Mayor, City of Cupertino
ATTEST:
/s/ Kim M. Smith
City Clerk
[ORD/RES/RC/D2] 2
AGREEMENT FOR LEGAL SERVICES
THIS AGREEMENT is entered into this day of January, 1995, by
and between CHARLES T. KILIAN, herein called the "Client," and
McDONOUGH, HOLLAND & ALLEN, A Professional Corporation, engaged
in the practice of law in Sacramento, the East Bay and Yuba City within the
State of California, herein called "Special Counsel."
Recitals
A. The Client and Special Counsel previously entered into a
contract for certain limited activities, including initial consultation and legal
advice, regarding certain municipal investment matters pertaining to the City
of Cupertino (the "City").
B. The Client, with the approval of the City Council of City, desires
to further engage Special Counsel to provide additional legal services to the
Client and the City as required in connection with representation of the City
in litigation to be initiated against Dean Witter Reynolds, Inc., et al.,
pertaining to certain municipal investment matters.
Agreements
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Scope of Services. Special Counsel shall perform legal services
as may be required from time -to -time by the Client, the City and its officers in
connection with the representation of Client and/or the City pertaining to
municipal investment matters, including litigation which may be initiated
pertaining thereto, including, but not limited to: advice, consultation, legal
research and opinions, preparation and filing of any court documents,
attendance at meetings, court. hearings or other proceedings, and any other
actions and documents relating thereto. Iris P. Yang, a principal member of
the firm of Special Counsel, shall be responsible for the performance of
services hereunder and shall supervise any services performed by other
members of Special Counsel's firm. It is understood that the City has General
Counsel (the City Attorney) to render day-to-day and on-going legal services
and Special Counsel shall, as required and to the extent requested by Client
and City, coordinate its services hereunder with the City's General Counsel.
KIL/LegalServsAgmt 1/20/95
deposition and court reporter fees, computerized legal research, major
photocopying and staff overtime, if and to the extent required.
C. Methods of Payment.
(1) Monthly Statements. As a condition precedent to
any payment to Special Counsel under this Agreement, Special Counsel shall
submit monthly to the Client a statement of account which clearly sets forth
by dates the designated items of work for which the billing is submitted.
(2) Timing of Payment. The Client shall review
Special Counsel's monthly statements and. pay Special Counsel for services
rendered and costs incurred hereunder, at the rates and in the amounts
provided hereunder, within thirty (30) days after the date of the monthly
statement. Special Counsel will add a late charge of 5% of the fees and costs
incurred during the period covered by the monthly statement if payment is
not received within the time provided herein.
4. Errors and Omissions Insurance. Special Counsel maintains
errors and omissions insurance applicable to the services to be rendered
herein.
5. Professional Liability Insurance. Special Counsel maintains
professional liability insurance providing errors and omissions coverage for
professional services rendered by the firm, its attorneys and employees while
performing the firm's business. The policies which are in effect at the present
time are issued on a "claims made" form on an annual basis and, subject to
the terms, conditions, exclusions and deductible per claim, are intended by
Special Counsel to provide coverage for such professional services which
include those contemplated to be rendered under this Agreement. However,
Special Counsel makes no representation or warranty, whether express or
implied, that any insurer which issues a policy to Special Counsel now or in
the future will cover all claims which may be made during the term or after
expiration of such policy.
6. Employment of Other Counsel, Specialists or Experts. Special
Counsel will not employ or otherwise incur an obligation to pay other
counsel, specialists or experts for services in connection with this Agreement
without prior approval of Client.
7. Client's Duties. Client agrees to be truthful with Special
Counsel, to cooperate with Special Counsel, to keep Special Counsel informed
KIL/LegalServsAgmt 3 1/20/95
IN WITNESS WHEREOF, the Client and Special Counsel have
executed this Agreement as of the date first above written.
CHARLES T. K IAN
"CLIENT"
McDONOUGH, HOLLAND & ALLEN
A Professional Corporation
By
166 P. )*9
"SPECIAL COUNSEL"
KIL/LegalServsAgmt 5 1/20/95