HomeMy WebLinkAboutC-4752 - PSA for Special Counsel Services in Transactional Land Use`75-2
PROFESSIONAL SERVICES AGREEMENT WITH
KANE, BALLMER & BERKMAN, A LAW CORPORATION
FOR SPECIAL COUNSEL SERVICES IN TRANSACTIONAL LAND USE
THIS PROFESSIONAL SERVVII�t EMENT ( „Agreement') is made and
entered into as of this o�Qday of e 0 ( "effective date "), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter City
( "City "), and KANE, BALLMER & BERKMAN, a Law Corporation ( "Consultant'), whose
address is 515 South Figueroa Street, Suite 1850, Los Angeles, California, 90071 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 requires special counsel services in all facets of transactional land
use for the City.
C. City desires to engage Consultant to act as Special Counsel on an as-
needed basis for land use matters ( "Project').
D. Consultant possesses the skill, experience, ability, background,
certification and knowledge to provide the services described in this Agreement.
E. The principal Special Counsel for purposes of the Project shall be Murray
O. Kane and Susan Y. Apy.
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 Consultant
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.
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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 transactional land use 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
Twenty Five Thousand Dollars and no /100 ($25,000.00) per contract year without
prior written authorization from City.
Upon assignment of a new matter to Consultant by the Project Administrator (as
defined in Section 6), 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:
4.1.1 Document reproduction charges, compact disc reproduction
charges, overnight delivery charges, messenger charges, and printing expenses.
4.1.2 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.
4.1.3 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 $200.00 must be authorized in writing by the Project Administrator in advance of
the service.
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 Murray O. Kane and Susan Y.
Apy 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.
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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,
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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, policies of insurance of the type and amounts described below
and in a form satisfactory to City.
14.1 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
Consultant shall procure and maintain for the duration of the contract insurance
against claims for injuries to persons or damages to property, which may arise from or
in connection with the performance of the Work hereunder by Consultant, his agents,
representatives, employees or subconsultants. The cost of such insurance shall be
included in Consultant's bid.
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14.2 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.
14.3 Coverage Requirements.
14.3.1 Workers' Compensation Coverage. Consultant shall
maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability
Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's
employees in accordance with the laws of the State of California, Section 3700 of the
Labor Code In addition, Consultant shall require each subconsultant to similarly
maintain Workers' Compensation Insurance and Employer's Liability Insurance in
accordance with the laws of the State of California, Section 3700 for all of the
subconsultant'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 (ten (10) calendar
days written notice of non - payment of premium) prior to such change.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and
volunteers.
14.3.2 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, blanket contractual liability.
14.3.3 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
accident.
14.3.4 Professional Liability (Errors & Omissions) Coverage.
Consultant shall maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of one million
dollars ($1,000,000) limit per claim and in the aggregate.
14.4 Other Insurance Provisions or Requirements. The policies are to contain,
or be endorsed to contain, the following provisions:
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14.4.1 Waiver of Subrogation. All insurance coverage maintained
or procured pursuant to this agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and volunteers or
shall specifically allow Consultant or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Consultant
hereby waives its own right of recovery against City, and shall require similar written
express waivers and insurance clauses from each of its subconsultants.
14.4.2 Enforcement of Contract Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.4.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.4.4 Notice of Cancellation. Consultant agrees to oblige its
insurance agent or broker and insurers to provide to City with thirty (30) days notice of
cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.5 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
14.6 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 co- tenancy, 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.
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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.
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.
18. CONFIDENTIALITY
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.
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20. WITHHOLDINGS
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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.
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:
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Attn: Leonie Mulvihill, Assistant 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
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attn: Murray O. Kane, Esq.
Kane, Ballmer & Berkman
515 South Figueroa Street
Suite 1850
Los Angeles, CA, 90071
Phone: (213) 617 -0480
Fax: (213) 625 -0931
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
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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
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.
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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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFI I?? I I CITY ATTORNEY
Date
Bye / N r V L-- -
Leonie Mulvihill,
Assistant City Attorney
ATTEST: p,� �
Date:
By: V `kkti
Leilani Brown,
City Clerk
s
Lu
�x
CITY OF NEWPORT BEACH,
A Califor �a4unicipal Corporation
Date:1®
CDBy. s
David R. Hunt,
City Attorney
CONSULTANT: KANE, BALLMER &
BERKMAN, A LAW CORPORATION
By:
Title: /".'L/ .� r r✓
Print Name:
Date: 1 30
By:
Title:
Print Name:
Date:
Attachments: Exhibit A — Schedule of Billing Rates
Exhibit B — Outside Counsel Billing Guidelines
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EXHIBIT A
THIS PAGE
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INTENTIONALLY
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Hourly Rates
Murray O. Kane ...........................$350
/hour
Senior Principal ......
......................$275 /hour
Principal ..................
.....................$275 /hour
Senior Counsel ............................
$275 /hour
Senior Associate ....
......................$225 /hour
Associate .......... ...........................$200
/hour
Paralegal ........ ..............................$
I50 /hour
Legal Assistant ......
......................$125 /hour
Classification of Attorneys and Other Professionals
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Murray O. Kane .... Senior Principal (Partner) .....................$350 /hour
Royce K. Jones.... Senior Principal (Partner)..... .................
$275 1hour
Susan Y. Apy ...................Principal
( Partner) ... ...................
$275 /hour
Susan Y. Cola ...................
Principal ( Partner) ... ............... ....
$275 /hour
Donald P. Johnson ...............Senior
Counsel......................
$275/hour
Bruce Gridley .......................Senior
Counsel......................
$275 /hour
Deborah L. Rhoads- ............
Senior Counsel......................
$275 /hour
J. Arnoldo Beltran ...............
Senior Counsel......................
$275 /hour
Todd C. Mooney ................Senior
Associate......................
$225 1hour
Jhaila R. Brown ....... ......................Associate
....................
$200/hour
Gustavo Lamanna .. ......................Associate
...................
$200 /hour
Theodore M. Ballmer ..................
Associate......................
$200/hour
NOTE: The same hourly rate is applicable to Court appearances
Travel, subsistence, and other out -of pocket expenses authorized in connection with the
performance of duties under the agreement would include, along with any other such
authorized expenses:
a. The amount of the actual cost of coach class transportation by common
carrier or at the per mile rate established by the IRS, if travel is performed
by privately -owned vehicle;
b. Reasonable subsistence expenses, supported by detailed records in the
amount of actual costs;
C. Taxi fares, long distance telephone calls, and similar expenditures in the
amount of the actual cost;
d. Duplication costs for all copies at cost of twenty -five (25) cents per page,
and facsimile costs at one dollar (1.00) per page; and
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e. Fees and costs incurred by the Firm in engaging consultants and experts
approved by the client.
The Firm shall not be reimbursed for secretarial or typist services for normal office
operating expense, with the exception of word processing fees, but only if noted in the
rate schedule.
The Finn shall be reimbursed for actual litigation costs, fees and expenses, such as filing
fees, expert witness fees, charges for service of process and costs of investigation.
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EXHIBIT B
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KANE, BALLMER & BERKMAN Page B -1
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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
Poucv
Outside counsel services are to be provided to the City of Newport Beach effectively and
efficiently. The Office of the City Attorney (°OCK) 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. 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 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.
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Outside Counsel Billing Guidelines
December 23,2009
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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 firm attorneys in meetings and conferring
intemally, 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:
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Outside Counsel Billing Guidelines
December 23, 2009
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a. Extemal 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 minutes) shall be the minimum billing
increment. The City does not accept higher minimum billing increments.
Outside Counsel Billing Guidelines
December23,2009
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e. Biller Identified: 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.
8. Audit:
The City reserves the right to conduct a file and billing audit on any legal matter it refers to
outside counsel.
S. 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-oomplaint 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 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.
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Outside Counsel Billing Guidelines
December 23, 2009
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10. Controlling Document:
These Billing Guidelines shall he controlling in all outside counsel relationships. H 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.
(AO&W2XJ —Q Wde CwenveF Sft Cufdellnes— Revised Fine)