HomeMy WebLinkAboutC-4522 - PSA for Legal Services4 PROFESSIONAL SERVICES AGREEMENT WITH
BEST BEST & KRIEGER LLP
FOR LEGAL SERVICES
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THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and entered
into as of this 8th day of April, 2010, by and between the City of Newport Beach, a
California Municipal Corporation ( "City"), and Best Best & Krieger LLP, a California
Limited Liability Partnership whose address is 5 Park Plaza, Suite 1500, Irvine
California, 92614 ( "Consultant "), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City desires to engage Consultant to provide litigation and advisory legal
services, including but not limited to representing the City in the pending litigation
commonly referred to as Catanzarite v. City of Newport Beach, Orange County
Superior Court Case No. 30- 2009 - 00332874 ( "Project ").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. The principal member of Consultant for purposes of Project, shall be Scott C.
Smith.
E. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement. Consultant has been provided with a copy of the
City's Billing Guidelines and agrees to be bound by same, attached as Exhibit
"A" and incorporated herein by reference.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 1st day of May, 2012, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit "B" and incorporated herein by reference.
The City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
in Exhibit "B." The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates included within the attached Exhibit "B." Consultant's
compensation for all work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed
Twenty-Five Thousand Dollars and no /100 ($25,000) without prior written
authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit "B ".
5. PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Scott C. Smith to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit "B" or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Office of the City Attorney. Deputy
City Attorney Michael Torres shall be the Project Administrator and shall have
the authority to act for City under this Agreement. The Project Administrator or
his /her authorized representative shall represent City in all matters pertaining to
the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
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8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
8.4 During the term of this Agreement Consultant may be given confidential
information from City. Consultant shall keep this confidential information
confidential and not disclose the information to any third - parties.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "Indemnified Parties ") from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims'), which may arise from or in any manner relate (directly or indirectly) to
any breach of the terms and conditions of this Agreement, any work performed
or services provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and /or willful acts, errors and/or omissions of
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Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of
them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial. Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coveraoe. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coveraoe. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
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other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected .
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
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15.
16.
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written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more
of the assets of the corporation, partnership or joint- venture.
SUBCONTRACTING
The parties recognize that a substantial inducement to City for entering into this
Agreement is the professional reputation, experience and competence of
Consultant. Assignments of any or all rights, duties or obligations of the
Consultant under this Agreement will be permitted only with the express written
consent of City. Consultant shall not subcontract any portion of the work to be
performed under this Agreement without the prior written authorization of City.
OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
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22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional expense shall be borne by
Consultant. Nothing in this paragraph is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn: Michael Tomes, Deputy City Attorney
Office of the City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3131
Fax: 949 - 644 -3139
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
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Attention: Scott C. Smith, Esq.
Best Best & Krieger LLP
5 Park Plaza, Suite 1500
Irvine, CA 92614
Phone: (949) 263 -2600
Fax: (949) 260 -0972
26. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services
satisfactorily performed and costs incurred up to the effective date of termination
for which Consultant has not been previously paid. On the effective date of
termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any. breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
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29. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
30. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
31. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
32. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
33. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall continue in full force and effect.
34. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
35. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
CITY OF NEWPORT BEACH,
AAeonie
I orporation
ulvihill
Acting City Attorney
ATTEST:
a
CONSULTANT:
By:
Scat C. Smit ,
Partner
Best Best & Krieger LLP
Attachments: Exhibit "A"—Billing Guidelines
Exhibit "B" — Scope of Services & Schedule of Billing Rates
[END OF SIGNATURES]
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Exhibit "A"
Billing Guidelines
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CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
DATE: December 23, 2009
TO: Outside Counsel
FROM: David R Attorney
Matter: Outside Counsel Management Matters;
(A09- 00224]
RE: Outside Counsel Billing Guidelines
Poucr
Outside counsel services are to be provided to the City of Newport Beach effectively and
efficiently. The Office of the City Attorney ( "OCA ") retains outside counsel on an as
needed basis to address the legal needs of the City. We seek practical, solution- oriented
services. Services are to be realistically tailored to the task assigned and performed in an
efficient, capable manner. The goal of these guidelines is to set out staffing and billing
requirements to effectuate this policy. All billings must be consistent with these guidelines.
2. BILLING RATES:
Acceptable rates shall be established and confirmed prior to commencement of work on
any assigned matter. Written notice must be given of the intent to increase rates at least
ninety days prior to the effective date of the rate increase. Rates may be increased no
more often than once in a twelve month cycle.
3. APPRoyED LEGAL TEAM AND PROFESSIONAL STAFFING:
Each subject of outside counsel service must have an approved legal team. No billing will
be accepted from any individual who is not part of the approved legal team. Depending on
the complexity of the matter, the team could be as few as one attorney to as many legal
professionals as the legal team requires. No matter the size of the approved team, the
City shall assign matters to one responsible attorney. That individual will be responsible
for the quality of the work performed and the efficiency of the billings.
Generally, the following rules shall apply to the utilization of billing professionals on City
legal matters:
Legal work should be given to the least expensive billing professional qualified
to perform the work. The City encourages the use of paralegals in a manner
consistent with the paralegal's experience and skill level. Paralegals are ideally
suited for performing the legal aspects of investigation, document management,
and discovery, as well as focused research of procedural legal issues.
Outside Counsel Billing Guidelines
December 23, 2009
Page: 2
No more than one legal professional may make an appearance or attend an
event, absent prior approval by the City;
Replacement billing professionals must familiarize themselves with the assigned
matter at outside counsel's expense. The City will not pay for new legal team
members "getting up to speed" in an assigned matter.
Legal professional shall not bill for support, clerical, or other administrative
support services.
3. LEGAL RESEARCH:
Outside counsel are chosen based upon their knowledge and skill in particular areas of the
law. Generally, therefore, extensive legal research should not be necessary. On the other
hand, the City recognizes that each assignment has its own unique circumstances and
those circumstances may require extensive legal research to be performed. No legal
research beyond three hours, however, is authorized absent previous approval by the
OCA. Any billing for legal research beyond the three hour maximum that has not been
previously authorized by the OCA will be reduced to the three hour maximum. Legal
research includes the research of the issue and the drafting of any memorandum or similar
document related to the research. A copy of the work product based upon the research
must be provided to the OCA.
4. CONFERENCES'
It is generally not acceptable to bill multiple fine attorneys in meetings and conferring
internally, whether face to face or through electronic means. If internal firm conferences
occur, absent prior approval to the contrary, only the most senior attorney may bill his/her
time. No junior attorney may bill the time for the conference. The City recognizes,
however, that in complex matters conferences or team meetings may be necessary on a
periodic basis to achieve the efficient handling of a matter. In those circumstances, if
previously authorized, periodic conferences may be billed by all billing professionals in
attendance. The conferences must be structured to be efficient, and provide significant
benefit to the handling of the matter. Any billing of Internal conferencing or communication
must be broken out and fully itemized so that the amount of time spent on the
communication can be identified with specificity.
5. ACCEPTABLE COSTS:
General overhead costs are considered to be covered by the hourly rate billed by the legal
professionals and are not billable to the City. As such, library, legal research data bases,
clerical support and typing, ordinary long distance chargers and facsimile expense, and
other similar expenses, are all considered to be part of overhead and thus covered by the
hourly rate charged on a matter. Internal costs and out of pocket costs specific to a City
matter may, however, be billed at the actual cost incurred or at the best approximation of
that cost. Authorization must be obtained from City prior to incurring a cost in excess of
$250.
The following are costs acceptable for billing:
Outside Counsel Billing Guidelines
December 23, 2009
Page: 3
a. External out of pocket costs: Those costs incurred from service providers
outside of counsel's office will either be paid directly by the City or reimbursed at actual
cost incurred. These costs and expenses commonly include investigation costs, expert
witness fees, process service fees, jury fees, certification expenses, court and deposition
reporter and transcript expense, court filing fees, document filing fees and travel expenses.
Costs in excess of $1,000.00 may be forwarded directly to the City for payment directly by
the City. Advance deposits may be provided by the City if necessary and if the City is
provided sufficient time in advance in order to process the request.
b. Internal Costs: Internal costs that are actually incurred are reimbursable at
the best approximation of the expense. The following are acceptable approximations:
• Standard duplication expense or photocopying at 15¢ per page;
• Color duplication or photocopying expense 50¢ per page;
• Compact disc duplication $20.00 per disc.
C. Delivery Expenses: Delivery expenses are recognized as an appropriate
billable cost. The City will reimburse the expenses incurred in delivering materials as
necessary within the handling of an assignment. Counsel, however, shall avoid the need
for express delivery and the City will not reimburse for express delivery that is necessitated
solely due to counsel's failure to handle a matter in a more timely fashion.
Copies of invoices for all costs in excess of $250 shall be forwarded to the City prior to City .
reimbursement and the City reserves the right to examine all invoices for billed costs prior
to reimbursement.
6. Billina Format:
The following billing format features are required:
a. Billing Period Bills shall be generated no more often than monthly.
b. Summary Statement Where outside counsel is handling more than one
matter for the City, outside counsel shall provide the City a summary statement identifying
all invoices being billed in a month, giving the total amount billed on each invoice and the
total billed by outside counsel in the billing period.
c. Itemization: Block billing is not acceptable. Each bill must be itemized in
sufficient detail so that the City can identify the amount of time spent on a particular task
performed by each billing professional. Therefore, you should itemize essentially the task
by billing professional on a daily basis. For example, if there is legal research performed
regarding a motion and drafting of the motion in one day that time can billed together. As
stated above, however, any internal conferences must be fully itemized.
d. Minimum Billing. 0.1 hour (6 rrdnutes) shall be the minimum billing
increment. The City does not accept higher minimum billing increments.
Outside Counsel Billing Guidelines
December 23, 2009
Page: 4
e. Biller Idenfrfied. The legal services provider must be identified in the item
billed. No legal services professional will be accepted as a biller absent that individual
being an approved legal team member.
f. Recap of Billings: Professional services must be summarized at the end of
the billing. The summary must identify the professional service provider, the amount of
time spent, the rate charged, and the total amount billed for services from that professional
service provider.
e. Cost Billings: All costs must be clearly identified and the reasons for their
being Incurred given.
S. Audit:
The City reserves the right to conduct a file and billing audit on any legal matter it refers to
outside counsel.
9. Litigation Matters:
The City requires that a Litigation Plan and Cost Estimate CPlan ") be prepared and
updated in all litigation matters handled by outside counsel. Outside counsel shall utilize
the form provided by the City In preparing the Plan. Outside counsel may execute the
actions in the Plan once it is approved by the City.
Outside counsel must obtain prior authority from the City before engaging in any activity
that is not proposed in the Plan. Outside counsel must always obtain express authority
from City prior to:
• Filing any challenge to any pleading, either through demurrer or motion;
• Filing any cross- complaint or cross- claim;
• Initiating any law and motion proceeding;
• Engaging in affirmative discovery; or
• Proceeding with any writ action or appeal;
The City tecognizes that a Plan provides only a cost estimate and is not definitive of the
actual cost that will be incurred. The Plan can, and should, be updated if or when it
appears to be in adequate to achieve the City's goals in the litigation. The City expects
outside counsel to update the Plan at critical points within the case. Outside counsel shall
update the Plan ninety days before trial, laying out the plan for all final discovery, experts,
and trial.
Outside Counsel Billing Guidelines
December 23, 2009
Page: 5
10. Controllina Document:
These Billing Guidelines shall be controlling in all outside counsel relationships. If the
retainer agreement or letter from outside counsel differs in any way from the provisions of
these guidelines, the provisions of the Guidelines shall control.
P49,0=41— OuWde oa mwaft Guft& ea— RevisedFVW
Exhibit "B"
Scope of Services & Schedule of Billing Rates
15
Attorneys
Paralegals and Clerks
SPECIAL COUNSEL RATE SCHEDULE
$278
$161