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03.08 Second Amendment Legal Services Litigation DefenseAGENDA ITEM October 9, 2018 TO: Honorable Mayor and Members of the City Council THRU: Rick Otto City Manager FROM: Wayne W. Wintherslgph, City Attorney 1. SUBJECT ReviewedNerified By: City Manager Finance Dire or To Be Presen ed By: Wayne W. Winthers X Cons Calendar City Mgr Rpts Council Reports _ _ Legal Affairs Boards/Cmtes Public Hrgs Admin Reports Plan/Environ Second Amendment to Attorney Services Agreement with the law firm of Woodruff, Spradlin & Smart to provide legal services related to litigation defense in the matter of The Estate of Michael Perez v. City of Orange. 2. SUMMARY The City currently has an agreement with Woodruff, Spradlin & Smart ("Woodruff') to provide legal services in the matter of The Estate of Michael Perez v. City of Orange which will soon be expended. The proposed Second Amendment will increase the not to exceed amount by $90,000 from $90,000 to $180,000. 3. RECOMMENDED ACTION Approve a Second Amendment to Attorney Services Agreement with Woodruff, Spradlin & Smart in the amount of $90,000, and authorize the Mayor and City Clerk to execute on behalf of the City. 4. FISCAL IMPACT The total expenditure for this amendment is $90,000 and will be funded through the General Fund (100) 5. STRATEGIC PLAN GOAL(S) 1. Be a fiscally healthy community Strategies: b) Expend fiscal resources responsibly. ITEM # 3 -9 1 10/9/18 6. GENERAL PLAN IMPLEMENTATION Not Applicable. 7. DISCUSSION and BACKGROUND The City has retained the law firm of Woodruff, Spradlin & Smart to provide legal services with respect to litigation defense in the matter of The Estate of Michael Perez v. City of Orange. While the City Attorney's Office does handle most litigation matters, the City does contract with outside counsel when the complexity or staff time burden requires such. This litigation matter involve allegations of wrongful death, excessive force and civil rights allegations with numerous parties and is very time consuming for our in-house legal staff, which is why outside counsel has being retained. An amendment of the not to exceed amount is necessary to continue to carry out an appropriate defense in this case. S. ATTACHMENTS • Second Amendment to Attorney Services Agreement ITEM # 2 10/9/18 AGR-6569.2 SECOND AMENDMENT TO ATTORNEY SERVICES AGREEMENT This Second Amendment to Attorney Services Agreement (the "Second Amendment") is made and entered into as of , 2018, by and between the CITY OF ORANGE, a municipal corporation (the "City"), and WOODRUFF, SPRADLIN & SMART, a professional corporation (herein referred to as the "Law Firm"), with reference to the following: A. The City and the Law Firm entered into that certain Attorney Services Agreement (Agreement No. 6569) dated as of January 31, 2018 (the "Original Agreement"), which was later amended by that certain First Amendment to Attorney Services Agreement, dated as of May 2, 2018 (Agreement No. 6569.1) (the "First Amendment"). The Original Agreement and the First Amendment are incorporated herein by this reference; and B. The City and the Law Firm desire to further amend the Original Agreement to modify, amend and supplement certain portions of the Original Agreement. NOW, THEREFORE, the parties hereby agree as follows: Section 1. Defined Terms. Except as otherwise defined herein, all capitalized terms used herein shall have the meanings set forth for such terms in the Original Agreement. Section 2. Cross -References. The City and the Law Firm hereby agree that all references in the Agreement or this Second Amendment to the "Agreement" are deemed and construed to refer to the Agreement, as implemented by this Second Amendment. Section 3. Compensation. The total not -to -exceed compensation (exclusive of reimbursables) set forth in Section II of the Original Agreement for the services to be rendered thereunder was the sum of THIRTY THOUSAND DOLLARS and 00/100 ($30,000.00). Section II of the Original Agreement was amended by the First Amendment to provide for an increase of SIXTY THOUSAND DOLLARS and 00/100 ($60,000.00) in the total not -to -exceed compensation such that the Law Firm's total compensation under the Original Agreement, as amended by the First Amendment, would not exceed the sum of NINETY THOUSAND DOLLARS and 00/100 ($90,000.00). Section H of the Original Agreement is hereby amended to provide for an increase of NINETY THOUSAND DOLLARS and 00/100 ($90,000.00) in the total not -to -exceed compensation such that the Law Firm's total compensation under the Original Agreement, as amended by this First and Second Amendment shall not exceed ONE HUNDRED EIGHTY THOUSAND DOLLARS and 00/100 ($180,000.00) without the prior authorization of the City. Section 4. Integration. This Second Amendment, the agreements specifically referred to herein, and all attachments hereto (if any) integrate all of the terms and conditions mentioned herein, and supersede all negotiations with respect to the subject matter hereof. This Second Amendment amends, as set forth herein, the Original Agreement and the First Amendment and, except as specifically amended hereby, the Original Agreement and the First Amendment shall remain in full force and effect. To the extent that there is any conflict or inconsistency between the terms and provisions of this Second Amendment and the terms and provisions of the Original Agreement and/or the First Amendment, the terms and provisions of this Second Amendment shall control and govern the rights and obligations of the parties. IN WITNESS hereof, the parties enter into this Second Amendment on the year and day first above written. "LAW FIRM" WOODRUFF, SPRADLIN & SMART, a professional corporation *By: Printed Name: Title: *By: Printed Name: Title: "CITY" CITY OF ORANGE, a municipal corporation Lo Teresa E. Smith, Mayor ATTEST: Mary E. Murphy, City APPROVED AS TO FORM: Wayne W. Winthers, City Attorney *NOTE: The City requires the following signature(s) on behalf of the Law Firm: — (1) the Chairman of the Board, the President or a Vice President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office, please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City.