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HomeMy WebLinkAboutC-4538 - PSA for Special Counsel Services in Eminent DomainPROFESSIONAL SERVICES AGREEMENT WITH WOODRUFF, SPRADLIN & SMART FOR SPECIAL COUNSEL SERVICES IN EMINENT DOMAIN THIS AGREEMENT is made and entered into as of this ," day of April, 2010 ( "effective date "), by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and WOODRUFF, SPRADLIN & SMART, A California Professional Corporation whose address is: 555 Anton Boulevard, Suite 1200, Costa Mesa, California, 92626 ( "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 is requires special counsel services in all facets of eminent domain proceedings for the City. C. City desires to engage Consultant to act as Eminent Domain Counsel on an as- needed basis ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal Eminent Domain Counsel for purposes of the Project shall be Craig Farrington. F. City has solicited and received a statement of qualifications and 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. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Term shall be for a period of two (2) years to commence upon effective date of this Agreement. The term of this Agreement shall automatically be extended for three (3) additional one (1) year terms with the extensions to automatically commence upon the expiration of the initial term or any extended term, unless the City notifies Contractor in writing at least thirty (30) days before the end of the initial term or any extended term, of its intent to terminate this Agreement at the conclusion of the initial term or any extension. Time is of the essence in the performance of services under this Agreement. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all required legal services in the representation of the City as legal advisor and/or litigator in all facets of eminent domain proceedings for the City. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner 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, the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference, and the Outside Counsel Billing Guidelines attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Thousand Dollars and no /100 ($100,000.00) per year without prior written authorization from City. Upon assignment of a new matter to Consultant by the Project Administrator, Consultant shall complete and submit for approval to the Project Administrator the Litigation Plan and Cost Estimate within seven (7) business days of assignment. 4.1 City shall reimburse Consultant 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. Document reproduction charges, compact disc reproduction charges, overnight delivery charges, messenger charges, and printing expenses. B. 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. C. Actual costs for travel. 4.2 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. Extra Special Counsel Agreement Page 2 Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. No billing rate changes shall be made during the term of this Agreement. 4.3 External out of pocket expenses for outside service providers: Costs beyond $250.00 must be authorized in writing by the Project Administrator in advance of the service. Costs in excess of $500.00 may be forwarded directly to the Project Administrator for payment directly by the City. 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 Craig G. Farrington to be its Project Manager. Consultant shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld. 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. The City Attorney or their designee 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 To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable, 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. 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. Special Counsel Agreement Page 3 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. 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, Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of 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, Special Counsel Agreement Page 4 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. Special Counsel Agreement Page 5 D. Coverage Requirements. L Workers' Compensation Coverage. 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 Coverage. 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 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 five million dollars ($5,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. 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. ii. 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. Special Counsel Agreement Page 6 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. A. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either parry except after thirty (30) calendar days (10 calendar days 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. 15. 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. 16. 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. Special Counsel Agreement Page 7 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, 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 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. All Documents, including drafts, 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. 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. 20. 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 Special Counsel Agreement Page 8 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. 21. 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. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. 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. 24. 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: City Attorney Office of the City Attorney City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3131 Fax: (949) 644 -3139 Special Counsel Agreement Page 9 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Craig G. Farrington Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Phone: (714) 558 -7000 Fax: (714) 835 -7787 25. 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. 26. 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. 27. 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 Special Counsel Agreement Page 10 same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. Special Counsel Agreement Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, OFFICE OF THE CITY ATTORNEY A Municipal Corporation By: y: VVv KydE,/R en, Leonie Mulvihill, Deputy City Attorney Acting City Attorney ATTEST: Leilani Brown, City Clerk CONSULTANT: WOODRUFF, SPRADLIN & SMART, APC By: (Corporate O cer) Title: S t�E�✓ �' Print Name: 44NnJA-ra-> `2 .2.; i By: \,j Title:ZC Print Name:c�(1�-�� Attachments: Exhibit A — Schedule of Billing Rates Exhibit B — Outside Counsel Billing Guidelines Special Counsel Agreement Page 12 EXHIBIT A SCHEDULE OF BILLING RATES Hourly Rate for Legal Personnel: Blended'Attomey Rate: $250 Paralegals: $120 Standard Charaes: Attorneys and paralegals charge for time in minimum units of six minutes. Costs and Expenses: • Costs advanced to third parties for clients are billed the Firm's cost (e.g., consultants, experts, court reporters). • Computerized legal research will be performed at client's expense based on the Finn's cost. • Clients are not charged for ordinary long distance telephone expenses, word processing time, incoming or outgoing facsimile transmissions. • Mileage for travel shall be billed at the IRS approved rate (currently $.050 per mile). • Costs advanced will itemized on the client bill. • Rates for in -house costs are currently: Standard photocopying: $0.15 per page Color photocopying $0.50 per page Special Counsel Agreement Page A -1 L014444360H CITY OF NEWPORT BEACH OFFICE OF THE CITY ATTORNEY DATE: December 23, 2008 TO: Outside Counsel FROM: David R Attorney Matter: Outside Counsel Management Matters; [A08 -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. 131LUNG 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. APPROVED 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 periommed 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 REsEARcN: 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 firm attomeys in meetings and oonfeMng intemally, whether face to face or through electronic means. If internal firm conferences occur, absent prior approval to the contrary, only the most senior attomey may bill his/her time. No junior adomey 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. S. 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. Billing 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 minutes) 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 ldendfled: The legal services provider must be Identifled 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 ousts must be clearly identified and the reasons for their being incurred given. 8. Audit: The City reserves the right to conduct a file and billing audit on any legal matter it refers to outside counsel. 9. Litivation 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 recognizes 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 R 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 December23, 2009 Page: 5 70. Controlling Document: These Billing Guidelines shall be controlling in all outside counsel relationships. tf 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. Ia09.00z241- oraslm Qaaue Sft Goa- ReWsedFawl