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
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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.
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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.
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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.;
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By: \,j
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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.
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