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HomeMy WebLinkAboutC-4986 - Legal Services Agreement for Special Counsel ServicesLEGAL SERVICES AGREEMENT WITH CATHERINE WOLCOTT FOR SPECIAL COUNSEL SERVICES I THIS AGREEMENT F REGAL SERVICES ( "Agreement ") is made and entered into as of this day of October, 2011 by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and CATHERINE WOLCOTT, a California licensed attorney ( "Wolcott"), whose address is P.O. Box 3298, Newport Beach, California 92659 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Wolcott to provide legal services relative to special advisory, investigation, administrative and litigation matters ( "Legal Services "). C. Wolcott possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement, and is specially experienced and qualified to perform such services. D. City has solicited and received a proposal from Wolcott, has reviewed the previous experience and evaluated the expertise of Wolcott, and desires to retain Wolcott 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 The term of this Agreement shall commence on November 1, 2011, and shall terminate on October 31, 2013 unless terminated earlier as set forth herein. 2. SCOPE OF SERVICES Wolcott shall provide legal services related to special advisory, investigation, administrative and litigation matters ( "Legal Services "). 3. RESPONSIBILITIES OF WOLCOTT AND CITY 3.1 Responsibilities of Wolcott. Wolcott will perform the Legal Services called for under this Agreement, keep City informed of progress and developments in this matter, and respond promptly to City's inquiries and communications. If this Agreement is transferred to another legal entity at a subsequent date, as provided in Paragraph 13 of this Agreement, the services will continue to be performed by Catherine Wolcott, Esq. ( "Lead Attorney "). 3.1.1 Wolcott shall not remove or reassign the Lead Attorney or any personnel listed in Exhibit A or assign any new or replacement personnel for the Legal Services without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 3.1.2 Wolcott, at her sole discretion, may decline specific assignments of Legal Services. Wolcott warrants that she will continuously furnish the necessary personnel to complete Legal Services assignments she accepts in a timely manner as contemplated by this Agreement. 3.2 Responsibilities of City. City will be truthful and cooperative with Wolcott, keep Wolcott informed of developments and timely make any payments required by this Agreement. City shall provide access to, and upon request of Wolcott, 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 Wolcott's work schedule. 4. LEGAL FEES AND BILLING PRACTICES 4.1 Time and Expense. City shall pay Wolcott for the Legal 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 ( "Billing Guidelines') attached hereto as Exhibit B and incorporated herein by reference. Wolcott's compensation for all Legal Services performed in accordance with this Agreement, including all reimbursable items and outside fees, shall not exceed Twenty -Five Thousand Dollars and no /100 ($25,000.00) without prior written authorization from City. 4.2 Case Evaluation. If requested of Wolcott by the City, Wolcott shall complete and submit for approval to the City's Responsible Attorney (as defined in Section 5 below) the New Case Evaluation memorandum within seven (7) business days of the request. Additionally, on a quarterly basis, Wolcott shall provide quarterly status reports to the Responsible Attorney. As is further outlined in the Billing Guidelines, attached hereto as Exhibit B, and incorporated herein by reference. 4.3 Costs. City shall reimburse Wolcott only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Wolcott: reproduction costs, facsimile charges, long distance telephone charges, investigation costs, expert witness fees, process service fees, jury fees, certification expenses, court and deposition reporter and transcript expenses, document filing fees, messenger charges, overnight delivery charges and travel expenses. 4.3.1 All costs and expenses will be charged at Wolcott's actual cost, except for those items which Wolcott must, out of necessity, approximate, and those will be charged as near to their actual cost as possible. Wolcott is not obligated to pay or Page 2 advance any costs or expenses, and may, at her sole option, (1) advance the cost on behalf of City and seek reimbursement from City, (2) arrange to have the cost billed directly to City, or (3) require City advance payment for the cost items(s). However, Wolcott shall obtain City's prior consent before incurring any cost item in excess of Two Hundred and Fifty Dollars and no /100 ($250.00) and costs in excess of Two Hundred and Fifty Dollars and no /100 ($250.00) may be forwarded directly to the City for payment directly by the City. 4.4 Billing and Payments. Wolcott shall submit monthly invoices to. City describing the Legal Services performed the preceding month. Wolcott's bills shall include the name of the person who performed the Legal Services, a brief description of the Legal Services performed, the date the Legal Services were performed, the time spent on all Legal Services billed at 0.1 hour (6 minute) increments, and a description of any reimbursable expenditures. City shall pay Wolcott no later than thirty (30) days after approval of the monthly invoice by City staff. 4.5 Extra Work. Wolcott shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Legal Services that are determined by City to be necessary for the proper completion of the Legal Services assigned but which is not included within the Litigation Cost Plan Estimate, and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. City must approve in writing any billing rate changes during the term of this Agreement prior to their implementation. City shall be provided with ninety days (90) days notice of any proposed billing rate changes during the term of this Agreement. 4.6 Outside Counsel Billing Guidelines. All further Billing Guidelines are outlined in the guidelines set forth in Exhibit B, attached hereto and incorporated by reference. 5. ADMINISTRATION This Agreement will be administered by the City Attorney's Office. The City Attorney or his /her designee, shall be the Responsible Attorney and shall have the authority to act for City under this Agreement. The Responsible Attorney or his authorized representative shall represent City in all matters pertaining to the Legal Services to be rendered pursuant to this Agreement. 6. STANDARD OF CARE 6.1 All of the Services shall be performed by Wolcott or under Wolcott's supervision. Wolcott represents that she possesses the professional and technical skill required to perform the Legal Services under this Agreement, and that she will perform all Legal Services in a manner commensurate with community professional standards. All Legal Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Legal Services, in the form of pleadings, legal opinions, correspondence, etc., Wolcott certifies that the Legal Services conform to the Page 3 requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 6.2 Wolcott represents and warrants to City that she 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 Wolcott to practice her profession. Wolcott shall maintain a City of Newport Beach business license during the term of this Agreement. 7. HOLD HARMLESS 7.1 Wolcott 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 Legal Services provided under this Agreement (including the negligent and /or willful acts, errors and /or omissions of Wolcott, her agents, employees, or for whose acts they may be liable or any or all of them), when it has been established that Wolcott has breached any contractual obligation set forth herein, committed professional negligence or other professional misconduct. 7.2 Notwithstanding the foregoing, nothing herein shall be construed to require Wolcott 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. 8. INDEPENDENT CONTRACTOR It is understood that City retains Wolcott on an independent contractor basis and Wolcott is not an agent or employee of City. The manner and means of conducting the Legal Services are under the control of Wolcott, 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 Wolcott or any of Wolcott's employees or agents, to be the agents or employees of City. Wolcott shall have the responsibility for and control over the means of performing the Legal Services, provided that Wolcott is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Wolcott as to the details of the performance or to exercise a measure of control over Wolcott shall mean only that Wolcott shall follow the desires of City with respect to the results of the Services. Page 4 9. COOPERATION Wolcott agrees to work closely and cooperate fully with the City's designated Responsible Attorney. City agrees to cooperate with the Wolcott on the Legal Services. 10. CITY POLICY Wolcott shall discuss and review all matters relating to policy and Legal Services direction with City's Responsible Attorney in advance of all critical decision points in order to ensure the Legal Services proceeds in a manner consistent with City goals and policies. 11. PROGRESS Wolcott is responsible for keeping the Responsible Attorney and /or his /her duly authorized designee informed on a regular basis (not less than quarterly) regarding the status and progress of the Legal Services, activities performed and planned, and any meetings that have been scheduled or are desired. 12. INSURANCE 12.1 Without limiting Wolcott's indemnification of City, and prior to commencement of Legal Services, Wolcott shall obtain, provide and maintain at her 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. 12.2 Proof of Insurance. Wolcott shall provide certificates of insurance to City as evidence of the insurance coverage required herein. 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 12.2.1 Wolcott shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Legal Services hereunder by Wolcott, her agents, representatives, or employees. The cost of such insurance shall be included in Wolcott's proposal. 12.3 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. 12.3.1 Automobile Liability Coverage. Wolcott shall maintain automobile insurance covering bodily injury and property damage for all activities of Wolcott arising out of or in connection with Legal Services to be performed under this Agreement, Page 5 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. 12.4 Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 12.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall allow Wolcott or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Wolcott hereby waives her own right of recovery against City. 12.4.2 Enforcement of Agreement Provisions. Wolcott acknowledges and agrees that any actual or alleged failure on the part of the City to inform Wolcott of non- compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 12.4.3 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. 12.4.4 Notice of Cancellation. Wolcott agrees to provide City with notice in the event Wolcott receives notice of cancellation or nonrenewal of coverage for each required coverage. 12.4.5 Timely Notice of Claims. Wolcott shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Wolcott's performance under this Agreement. 12.4.6 Additional Insurance. Wolcott shall also procure and maintain, at her own cost and expense, any additional kinds of insurance, which in her own judgment may be necessary for her proper protection and prosecution of the Legal Services. With prior written approval of City, this Agreement, and the Legal Services to be provided under this Agreement may be assigned or transferred to another corporate entity owned or operated in whole or part by the Lead Attorney, so long as the Lead Attorney will continue to provide the Legal Services contracted for under this Agreement. City shall not unreasonably withhold approval if requested in writing by Wolcott. Page 6 14. ASSOCIATION OF COUNSEL Wolcott may associate additional counsel to assist with Legal Services under this Agreement if, in Wolcott's professional judgment, such association is necessary to adequately represent the City's interests and if City consents to the association. 15. OWNERSHIP OF DOCUMENTS 15.1 Each and every completed report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Wolcott, her officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City. Wolcott shall, at Wolcott's expense, provide such Documents to City upon prior written request. 15.2 Documents prepared by Wolcott pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others for any other Legal Services. Any use of completed Documents for other Legal Services and any use of incomplete Documents without specific written authorization from Wolcott will be at City's sole risk and without liability to Wolcott. Further, any and all liability arising out of changes made to Wolcott's deliverables under this Agreement by City or persons other than Wolcott is waived against Wolcott and City assumes full responsibility for such changes unless City has given Wolcott prior notice and has received from Wolcott written consent for such changes. 16. COMPUTER DELIVERABLES All electronically transmitted Documents shall be transmitted to City in Microsoft Word, Excel or Adobe portable document file (.pdf) format. 17. CONFIDENTIALITY All Documents, including drafts, notes and communications that result from the Legal Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 18. RECORDS Wolcott shall keep records and invoices in connection with the Legal Services to be performed under this Agreement. Wolcott shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Legal 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 Wolcott under this Agreement. All such records and invoices shall be clearly identifiable. Wolcott shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Wolcott shall allow inspection of all Legal Services, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Wolcott under this Agreement. Page 7 19. WITHHOLDINGS City may withhold payment to Wolcott 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. Wolcott shall not discontinue Legal Services as a result of such withholding. Wolcott shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Wolcott 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. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of the Wolcott which result in expenses to City greater than what would have resulted if there were not errors or omissions in the Legal Services accomplished by the Wolcott, the additional expense shall be borne by Wolcott. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 21. CITY'S RIGHT TO EMPLOY OTHER LAW FIRMS City reserves the right to employ other law firms and /or attorneys in connection with the Legal Services. 22. CONFLICTS OF INTEREST 22.1 Wolcott 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 Legal Services performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 22.2 If subject to the Act, Wolcott 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. Wolcott shall indemnify and hold harmless City for any and all claims for damages resulting from Wolcott's violation of this Section. 23. NOTICES 23.1 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 Wolcott to City shall be addressed to City at: Page 8 Attn: Aaron C. Harp, City Attorney City Attorney's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3131 23.2 All notices, demands, requests or approvals from City to Wolcott shall be addressed to Wolcott at: Catherine Wolcott, Esq. P.O. Box 3298 Newport Beach, CA 92659 Phone: Number on file with City E -mail: Email address on file with City 24. CLAIMS Wolcott and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Wolcott shall be required to file any claim Wolcott may have against the City in strict conformance with the Government Claims Act (Govt. Code §§ 900 et seq.). 25. TERMINATION 25.1 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 three (3) calendar days, or if more than three (3) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within three (3) 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. 25.2 Notwithstanding the above provisions, City and Wolcott shall have the right, in their sole discretion and without cause; of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to the other Party. In the event of termination under this Section, City shall pay Wolcott for Services satisfactorily performed and costs incurred up to the effective date of termination for which Wolcott has not been previously paid. On the effective date of termination, Wolcott 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. Page 9 26. STANDARD PROVISIONS 26.1 Compliance with all laws. Wolcott shall at her 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 Legal Services prepared by Wolcott shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Responsible Attorney and City. 26.2 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. 26.3 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. 26.4 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. 26.5 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. 26.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Wolcott and City and approved as to form by the City Attorney. 26.7 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. 26.8 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. 26.9 Equal Opportunity Employment. Wolcott represents that she is an equal opportunity employer and she shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Page 10 26.10 Counterparts. counterparts, each of which s constitute one and the same instrument. This Agreement may b hall be deemed an original e executed in two or more and all of which together shall IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: /D 1 By: Kyl . Rowen Deputy City Attorney ATTEST: Date: 02 1z Attachments A11- 01133/ LSA CITY OF NEWPORT BEACH, A California municipal corporation Date: 10 /Z I //I By: A .. — C� z— Aaron C. Harp City Attorney WOLCOTT: Catherine Wolcott, Esq., a California licensed attorney Date: //✓//ff/ I // By:__��(/ Catherine Wolcott Title: Exhibit A — List of Personnel and Billing Rates Exhibit B — Outside Counsel Billing Guidelines Page 11 EXHIBIT A Personnel Duties Rate Catherine Wolcott Advisory and other legal services related to group homes or First $225.00 / Hour Amendment/ speech matters Catherine Wolcott Advisory and legal $190.00 / Hour services on matters not related to group homes or First Amendment/ speech matters EXHIBIT B 1. Policy: Outside counsel services are to be provided to the City of Newport Beach effectively and efficiently. The City Attorney's Office ( "CAO ") 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 (90) days prior to the effective date of the rate increase. 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 shall 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. • 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 unless caused by the actions of City and approved by City in advance. Page 1 4. 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 (3) hours, however, is authorized absent previous approval by the CAO. Any billing for legal research beyond the three (3) hour maximum that has not been previously authorized by the CAO will be reduced to the three (3) 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 CAO. S. Conferences: It is generally not acceptable to bill multiple firm attorneys in meetings and conferring internally, whether face to face or through electronic means. If internal firm conferences occur, absent prior approval to the contrary, only the most senior attorney may bill his /her time. No junior attorney may bill the time for the conference. The City recognizes, however, that in complex matters conferences or team meetings may be necessary on a periodic basis to achieve the efficient handling of a matter. In those circumstances, if previously authorized, periodic conferences may be billed by all billing professionals in attendance. The conferences must be structured to be efficient, and provide significant benefit to the handling of the matter. Any billing of internal conferencing or communication must be broken out and fully itemized so that the amount of time spent on the communication can be identified with specificity. 6. 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, monthly legal research data base expense, clerical support and typing unless authorized per section 3 above, 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 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 $1,000.00 may be forwarded Page 2 directly to the City for payment directly by the City. Advance deposits may be provided by the City if necessary and if the City is provided sufficient time in advance in order to process the request. b. Internal Costs: Internal costs that are actually incurred are reimbursable at the best approximation of the expense. The following are acceptable approximations: • Standard duplication expense or photocopying at 15$ per page; • Color duplication or photocopying expense 50p 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. 7. 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. Page 3 d. Minimum Billing: 0.1 hour (6 minutes) shall be the minimum billing increment. The City does not accept higher minimum billing increments. 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. g. 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. 9. Litigation Matters: The City requires that a Litigation Plan and Cost Estimate ( "Plan ") 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, 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; either through demurrer or 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 inadequate 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. A09- 00224 10SCN billing guidelines Exhibit 8 for LSA Page 4 CITY OF �F'W Pp�t'T NEWPORT BEACH H9M381tlOdM3N d0/ 37LL A City Council Staff Report Agen iI�Nf10o AN o. October 25. 2011 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Attorney's Office Aaron Harp, City Attorney 949 - 644 -3131, aharp(a)newportbeachca.gov PREPARED BY: Aaron Harp, City Attorney APPROVED: TITLE: City Attorney's Office Staff Reorganization 034ky -IT0� The City Attorney is in the process of reorganizing the internal structure of the office to meet the changing legal demands of the City of Newport Beach in a cost efficient manner. To that end, the City Attorney is eliminating two vacant Department Assistant positions and one part-time Deputy City Attorney position. The funds saved from the elimination of these three positions will be retained by the City Attorney's Office and allocated to the creation of a new Legal Assistant position and outside counsel expenses. RECOMMENDATION: 1) Pursuant to Municipal Code Chapter 2.28, adopt Resolution No. 2011 -98, recommended by the City Manager, eliminating two vacant Department Assistant positions, one part-time Deputy City Attorney position and amending the Classification Plan to create, and recruit, a new Legal Assistant position. 2) Pursuant to City Council Policy F -20, authorize the City Attorney to enter into the attached agreement with former part-time Deputy City Attorney Cathy Wolcott for legal and professional services. FUNDING REQUIREMENTS: The combined salary and benefit savings for eliminating the two vacant Department Assistant positions and the one part-time Deputy City Attorney position is $262,831.82. The cost, including salary and benefits, for the new Legal Assistant position ranges from $71,785 to $94,727 per year. This results in a net savings of $168,104.82 to $191,046.82 per year that can be utilized for outside counsel services. A small portion of these savings would be used to fund a professional services agreement with former City Attorney's Office Staff Reorganization October 25, 2011 Page 2 part-time Deputy City Attorney Cathy Wolcott and the remainder would be used to fund additional services by other outside counsel. The attached professional services agreement with Mrs. Wolcott has a not to exceed cap of $25,000; however, pursuant to City Council Policy F -14, this amount may be increased by the City Attorney based upon workload and services provided. DISCUSSION: The City Attorney's Office is constantly evolving to meet the needs of the City of Newport Beach ( "City "). At present, the City Attorney's Office is rethinking its staffing needs and refocusing on its core functions. As with other City departments the City Attorney's Office is seeking to do more with less. The City Attorney's Office is eliminating two vacant Department Assistant positions and one part-time Deputy City Attorney position. The two vacant Department Assistant positions are in the City Employees Association bargaining unit ( "CEA "), and the part-time Deputy City Attorney position is in the Key and Management. Confidential group. The City consulted with the CEA prior to eliminating the two vacant Department Assistant positions, and was not required to consult with the Key and Management Confidential group for the part-time Deputy City Attorney position. The elimination of the three positions results in a combined savings of $262,831.82. The savings will be reallocated within the City Attorney's Office towards the creation of a new Legal Assistant position and outside counselexpenses. The proposed Legal Assistant position will fill the role normally associated with a legal secretary in a law firm, but to be consistent with the titles of other clerical positions in the City (e.g., Administrative Assistant to the City Attorney, Administrative Assistant, Department Assistant, and Office Assistant) it is referred to as a Legal Assistant position. The Legal Assistant position will ensure work in the City Attorney's Office is processed efficiently through an understanding of scheduling, oversight of legal filings, and confidential documents. The City's Human Resources Department reviewed the proposed Legal Assistant position and verified the proposed salary and classification are consistent with the City's classification and compensation practices. The position requires three years responsible secretarial support including one year of legal clerical and secretarial experience which is similar to other public agencies in Orange County and still fits into the City's classification structure. The position will be placed within the Key and Management Confidential group with a salary equal to 10% below the Administrative Assistant to the City Attorney position. This salary placement is comparable to other public agencies in Orange County. Pursuant to Newport Beach Municipal Code Chapter 2.28, upon the recommendation of the City Manager the City Council may adopt a resolution amending the City's Classification Plan to include the new Legal Assistant position. City Attorney's Office Staff Reorganization October 25, 2011 Page 3 City Council Policy F -20 requires the City Council approve any professional services agreement with a former employee that separated from the City within the past five years. The City Attorney's Office desires to enter into a professional services agreement with former part-time Deputy City Attorney Cathy Wolcott. The City Attorney's Office desires to retain Mrs. Wolcott to assist on select legal matters that were previously handled by Mrs. Wolcott when she worked in -house for the City and, potentially, other non -legal matters that are within the expertise of Mrs. Wolcott. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted by: Aaron Harp, City Attorney City Attorney's Office Attachments: (1) Resolution No. 2011 -_ (2) Professional Services Agreement RESOLUTION NO. 2011- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH ELIMINATING TWO VACANT DEPARTMENT ASSISTANT POSITIONS, ONE PART= TIME DEPUTY CITY ATTORNEY POSITION AND AMENDING THE CLASSIFICATION PLAN TO CREATE A NEW LEGAL ASSISTANT POSITION WHEREAS, the City Attorney's Office is currently reorganizing its internal office structure to provide more cost efficient and responsive services to the City of Newport Beach ( "City "); WHEREAS, the reorganization process involves the elimination of two vacant Department Assistant positions and one part-time Deputy City Attorney position; WHEREAS, the budgetary savings realized from the elimination of the three positions will stay within the City Attorney's Office and fund a new Legal Assistant position and outside counsel expenses; WHEREAS, Section 4.5 of the City's Employee Policy Manual requires new positions to be assigned to a classification in the City's Classification Plan; WHEREAS, Newport Beach Municipal Code Chapter 2.28 allows the City Council, upon the recommendation of the City Manager, to adopt a resolution authorizing the creation of the new Legal Assistant position via an amendment of the City's Classification Plan; and WHEREAS, the City Manager reviewed the proposed classification of the Legal Assistant position and recommends the City Council adopt this resolution amending the City's Classification Plan. NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City's Classification Plan shall be amended to include a Legal Assistant position within the City Attorney's Office. The Legal Assistant position will be placed within the Key & Management Confidential group with a salary equal to ten percent (10 %) below the Administrative Assistant to the City Attorney position. The Classification Specifications for the Legal Assistant position shall be developed by the City Attorney and shall require three (3) years responsible secretarial support including one (1) year of legal clerical and secretarial experience. -1- Section 2: Upon the amendment of the City's Classification Plan, the City Attorney is authorized to recruit and fill the Legal Assistant position with funds realized from the elimination of the two vacant Department Assistant positions and part-time Deputy City Attorney position. Section 3: The two vacant Department Assistant positions and one part-time Deputy City Attorney position are eliminated from the City Attorney's Office. Section 4: The City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 25 day of October, 2011. ATTEST: Leilani I. Brown, City Clerk Michael F. Henn, Mayor -2- LEGAL SERVICES AGREEMENT WITH CATHERINE WOLCOTT FOR SPECIAL COUNSEL SERVICES THIS AGREEMENT FOR LEGAL SERVICES ( "Agreement') is made and entered into as of this day of October, '2011 by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and CATHERINE WOLCOTT, a California licensed attorney ( "Wolcott"), whose address is P.O. Box 3298, Newport Beach, California 92659 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Wolcott to provide legal services relative to special advisory, investigation, administrative and litigation, matters ( "Legal Services "). C. Wolcott possesses the skill, experience, ability; background, certification and knowledge to provide the services described in this Agreement, and. is specially experienced and qualified to perform such services. D. City has solicited and received a proposal from Wolcott; has reviewed the previous experience and evaluated the expertise of Wolcott, and desires to retain Wolcott 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 The term of this Agreement shall commence on November 1, 2011, and shall terminate on October 31, 2013 unless terminated earlier as set forth herein. 2: SCOPE OF SERVICES Wolcott shall provide legal services related to special advisory, investigation, administrative and litigation matters ( "Legal Services'). 3. RESPONSIBILITIES OF WOLCOTT AND CITY 3.1 Responsibilities of Wolcott. Wolcott will perform the Legal Services called for under this Agreement, keep City informed of progress and developments in this matter, and respond promptly to City's inquiries and communications. If this Agreement is transferred to another legal entity at a subsequent date, as provided in Paragraph 13 of this Agreement, the services will continue to be performed by Catherine Wolcott, Esq. ( "Lead Attorney "). 3.1.1 Wolcott shall not remove or reassign the Lead Attorney or any personnel listed in Exhibit A or assign any new or replacement personnel for the Legal Services without the prior written consent of City. . City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 3.1.2 Wolcott, at her sole discretion, may decline specific assignments of Legal Services. • Wolcott warrants that she will continuously furnish the necessary personnel to complete Legal Services assignments she accepts in a timely manner as contemplated by this Agreement. 3.2 Responsibilities of City. City will be truthful and cooperative with Wolcott, keep Wolcott informed of developments and timely make any payments required by this Agreement. City shall provide access to, and upon request of Wolcott, 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 Wolcott's work schedule. 4. LEGAL FEES AND BILLING.PRACTICES 4.1 Time and Expense. City shall pay Wolcott for the Legal 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 ( "Billing Guidelines') attached hereto as Exhibit B and incorporated herein by reference. Wolcott's compensation for all Legal Services performed in accordance with this Agreement, including all reimbursable items and outside fees, shall not exceed Twenty -Five Thousand Dollars and no /100 ($25,000.00) without prior written authorization from City. 4.2 Case Evaluation. If requested of Wolcott by the City, Wolcott shall complete and submit for approval to the City's Responsible Attorney (as defined in Section 5 below) the New Case Evaluation memorandum within seven (7) business days of the request. Additionally, on a quarterly basis, Wolcott shall provide quarterly status reports to the Responsible Attorney. As is further outlined in the Billing Guidelines, attached hereto as Exhibit B, and incorporated herein by reference. 4.3 Costs. City shall reimburse Wolcott only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Wolcott: reproduction costs, facsimile charges, long distance telephone charges, investigation costs, expert witness fees, process service fees, jury fees, certification expenses, court and deposition reporter and transcript expenses, document filing fees, messenger charges, overnight delivery charges and travel expenses. 4.3.1 All costs and expenses will be charged at Wolcott's actual cost, except for those items which Wolcott must, out of necessity, approximate, and those will be charged as near to their actual cost as possible. Wolcott is not obligated to pay or Page 2 advance any costs or expenses, and may, at her sole option, (1) advance the cost on behalf of City and seek reimbursement from City, (2) arrange to have the cost billed directly to City, or (3) require City advance payment for the cost items(s). However, Wolcott shall obtain City's prior consent before incurring any cost item in excess of Two Hundred and Fifty Dollars and no /100 ($250.00) and costs in excess of Two Hundred and Fifty Dollars and no /100 ($250.00) may be forwarded directly to the City for payment directly by the City. 4.4 Billing and Payments. Wolcott shall submit monthly invoices to . City describing the Legal Services performed the preceding month. Wolcott's bills shall include the name of the person who performed the Legal Services, a brief description of the Legal Services performed, the date the Legal Services were performed, the time spent on all Legal Services billed at 0.1 hour (6 minute) increments, and a description of any reimbursable expenditures. City shall pay Wolcott no later than thirty (30) days after approval of the monthly invoice by City staff. 4.5 Extra Work. Wolcott shall not receive any compensation for'Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Legal Services that are determined by City to be necessary for the proper completion of the Legal Services assigned but which is not included within the Litigation Cost Plan Estimate, and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A. City must approve.in writing any billing rate changes during the term of this Agreement prior to their implementation. City shall be provided with ninety days (90) days notice of any proposed billing rate changes during the term of this Agreement. 4.6 Outside Counsel Billing Guidelines. All further Billing Guidelines are outlined in the guidelines set forth in Exhibit B, attached hereto and incorporated by reference. 5. ADMINISTRATION This Agreement will be administered by the City Attorney's Office. The City Attorney or his /her designee, shall be the Responsible Attorney and shall have the authority to act for City under this Agreement. The Responsible Attorney or his authorized representative shall represent City in all matters pertaining to the Legal Services to be rendered pursuant to this Agreement. 6. STANDARD OF CARE 6.1 All of the Services shall be performed by Wolcott or under Wolcott's supervision. Wolcott represents that she possesses the professional and technical skill required to perform the Legal Services under this Agreement, and that she will perform all Legal Services in a manner commensurate with community professional standards. All Legal Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Legal Services, in the form of pleadings, legal opinions, correspondence, etc., Wolcott certifies that the Legal Services conform to the Page 3 requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 6.2 Wolcott represents and warrants to City that she 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 Wolcott to practice her profession. Wolcott shall maintain a City of Newport Beach business license during the term of this Agreement. 7. HOLD HARMLESS 7.1 Wolcott 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. Legal Services provided under this Agreement (including the negligent and /or willful acts, errors and /or omissions of Wolcott, her agents, employees, or for whose acts they may be liable or any or all of them), when it has been established that Wolcott has breached any contractual obligation set forth herein, committed professional negligence or other professional misconduct. 7.2 Notwithstanding the foregoing, nothing herein shall be construed to require Wolcott 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. 8. INDEPENDENT CONTRACTOR It is understood that City retains Wolcott on an independent contractor basis and Wolcott is not an agent or employee of City. The manner and means of conducting the Legal Services are under the control of Wolcott, 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 Wolcott or any of Wolcott's employees or agents, to be the agents or employees of City. Wolcott shall have the responsibility for and control over the means of performing the Legal Services, provided that Wolcott is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Wolcott as to the details of the performance or to exercise a measure of control over Wolcott shall mean only that Wolcott shall follow the desires of City with respect to the results of the Services. Page 4 9. COOPERATION Wolcott agrees to work closely and cooperate fully with the City's designated Responsible Attorney. City agrees to cooperate with the Wolcott on the Legal Services. 10. CITY POLICY Wolcott shall discuss and review all matters relating to policy and Legal Services direction with City's Responsible Attorney in advance of all critical decision points in order to ensure the Legal Services proceeds in a manner consistent with City goals and policies. 11. PROGRESS Wolcott is responsible for keeping the Responsible Attorney and /or his /her duly authorized designee informed on a regular basis (not less than quarterly) regarding the status and progress of the Legal Services, activities performed and planned, and any meetings that have been scheduled or are desired. 12. INSURANCE 12.1 Without limiting Wolcott's indemnification of City, and prior to commencement of Legal Services, Wolcott shall obtain, provide and maintain at her 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. 12.2 Proof of Insurance. Wolcott shall provide certificates of insurance to City as evidence of the insurance coverage required herein. 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 12.2.1 Wolcott shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Legal Services hereunder by Wolcott, her agents, representatives, or employees. The cost of such insurance shall be included in Wolcott's proposal. 12.3 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. 12.3.1 Automobile Liability Coverage. Wolcott shall maintain automobile insurance covering bodily injury and property damage for all activities of Wolcott arising out of or in connection with Legal Services to be performed under this Agreement, Page 5 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. 12.4 Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 12.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall allow Wolcott or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Wolcott hereby waives her own right of recovery against City. 12.4.2 Enforcement of Agreement Provisions. Wolcott acknowledges and agrees that any actual or alleged failure on the part of the City to inform Wolcott of non- compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 12.4.3 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. 12.4.4 Notice of Cancellation. Wolcott agrees to provide City with notice in the event Wolcott receives notice of cancellation or nonrenewal of coverage for each required coverage. 12.4.5 Timely Notice of Claims. Wolcott shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Wolcott's performance under this Agreement. 12.4.6 Additional Insurance. Wolcott shall also procure and maintain, at her own cost and expense, any additional kinds of insurance, which in her own judgment may be necessary for her proper protection and prosecution of the Legal Services. 13. ASSIGNMENTS AND TRANSFERS With prior written approval of City, this Agreement, and the Legal Services to be provided under this Agreement may be assigned .or transferred to another corporate entity owned or operated in whole or part by the Lead Attorney, so long as the Lead Attorney will continue to provide the Legal Services contracted for under this Agreement. City shall not unreasonably withhold approval if requested in writing by Wolcott. Page 6 14. ASSOCIATION OF COUNSEL Wolcott may associate additional counsel to assist with Legal Services under this Agreement if, in Wolcott's professional judgment, such association is necessary to adequately represent the City's interests and if City consents to the association. 15. OWNERSHIP OF DOCUMENTS 15.1 Each and every completed report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Wolcott, her officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City. Wolcott shall; at Wolcott's expense, provide such Documents to City upon prior written request. 15.2 Documents .prepared by Wolcott pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others for any other Legal Services. Any use of completed Documents for other Legal Services and any use of incomplete Documents without specific written authorization from Wolcott will be at City's sole risk and without liability to Wolcott. Further, any and all liability arising out of changes made to Wolcott's deliverables under this Agreement by City or persons other than Wolcott is waived against Wolcott and City assumes full responsibility for such changes unless City has given Wolcott prior notice and has received from Wolcott written consent for such changes. 16. COMPUTER DELIVERABLES All electronically transmitted Documents shall be transmitted to City in Microsoft Word, Excel or Adobe portable document file (.pdf) format. 17. CONFIDENTIALITY All Documents, including drafts, notes and communications that result from the Legal Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 18. RECORDS Wolcott shall keep records and invoices in connection with the Legal Services to be performed under this Agreement. Wolcott shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Legal 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 Wolcott under this Agreement. All such records and invoices shall be clearly identifiable. Wolcott shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Wolcott shall allow inspection of all Legal Services, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Wolcott under this Agreement. Page 7 19. WITHHOLDINGS City may withhold payment to Wolcott 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. Wolcott shall not discontinue Legal Services as a result of such withholding. Wolcott shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Wolcott 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. 20. ERRORS AND OMISSIONS In the event of ertors.or omissions that are due to the negligence or professional inexperience of the Wolcott which result in expenses to City greater than what would have resulted if there were not errors or omissions in the Legal Services accomplished by the Wolcott, the additional expense shall be borne by Wolcott. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. . 21. CITY'S RIGHT TO EMPLOY OTHER LAW FIRMS City reserves the right to employ other law firms and /or attorneys in connection with the Legal Services. 22. CONFLICTS OF INTEREST 22.1 Wolcott 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 Legal Services performed, under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 22.2 If subject to the Act, Wolcott 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. Wolcott shall indemnify and hold harmless City for any and all claims for damages resulting from Wolcott's violation of this Section. 23. NOTICES 23.1 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 Wolcott to City shall be addressed to City at: Attn: Aaron C. Harp, City Attorney City Attorney's Office City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3131 23.2 All notices, demands, requests or approvals from City to Wolcott shall be addressed to Wolcott at: Catherine Wolcott, Esq. P.O. Box 3298 Newport Beach, CA 92659 Phone: Number on file with City E -mail: Email address on file with City 24. .CLAIMS Wolcott and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Wolcott shall be required to file any claim Wolcott may have against the City in strict conformance with the Government Claims Act (Govt. Code. §§ 900 et seq.). 25. TERMINATION 25.1 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 three (3) calendar days, or if more than three (3) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within three (3) 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. 25.2 Notwithstanding the above provisions, City and Wolcott shall have the right, in their sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to the other Party. In the event of termination under this Section, City shall pay Wolcott for Services satisfactorily performed and costs incurred. up to the effective date of termination for which Wolcott has not been previously paid. On the effective date of termination, Wolcott 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. Page 9 26. STANDARD PROVISIONS 26.1 Compliance with all laws. Wolcott shall at her 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 Legal Services prepared by Wolcott shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Responsible Attorney and City. 26.2 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. 26.3 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. 26.4 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. 26.5 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. 26.6 Amendments. This Agreement may be modified or amended only by a written document executed by both Wolcott and City and approved as to form by the City Attorney. 26.7 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. 26:8 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. 26.9 Equal Opportunity Employment. Wolcott represents that she is an equal opportunity employer and she shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Page 10 26.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all Of which together shall constitute one and the same instrument. IN WITNESS WHEREOF,, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: fI /}�/ // By: < KyleW. Rowen Deputy City Attorney ATTEST: Date: A Leilani I. Brown City Clerk Attachments: A11- 011331 LSA CITY OF NEWPORT BEACH, A California municipal corporation Date: Aaron C. Harp City Attorney WOLCOTT: Catherine Wolcott, Esq., a California licensed attorney Date: Catherine Wolcott Exhibit A — List of Personnel and Billing Rates Exhibit .B — Outside Counsel Billing Guidelines Page 11 EXHIBIT A Personnel Duties Rate Catherine Wolcott Advisory and other legal services related to group homes or First $225.00 / Hour Amendment/ speech matters Catherine Wolcott Advisory and legal $190.00 / Hour services on matters not related -to group homes or First Amendment/ speech matters EXHIBIT B 1. Policy: Outside counsel services are to be provided to the City of Newport Beach effectively and efficiently. The City Attorney's Office ( "CAO ") 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 (90) days prior to the effective date of the rate increase. .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 shall 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. • 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 unless caused by the actions of City and approved by City in advance. Page 1 4. 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 (3) hours, however, is authorized absent previous approval by the CAO. Any billing for legal research beyond the three (3) hour maximum that has not been previously authorized by the CAO will be reduced to the three (3) 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 CAO. 5. Conferences: It is generally not acceptable to bill multiple firm attorneys in meetings and conferring internally, whether face to face or through electronic means. If internal firm conferences occur, absent prior approval to the contrary, only the most senior attorney may bill his/her time. No junior attorney may bill the time for the conference. The City recognizes, however, that in complex matters conferences or team meetings may be necessary on a periodic basis to achieve the efficient handling of a matter. In those circumstances, if previously authorized, periodic conferences may be billed by all billing professionals in attendance. The conferences must be structured to be efficient, and provide significant benefit to the handling of the matter. Any billing of internal . conferencing or communication must be broken out and fully itemized so that the amount of time spent on the communication can be identified with specificity. 6. 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, monthly legal research data base expense, clerical support and typing unless authorized per section 3 above, 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: 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 $1,000.00 may be forwarded Page 2 directly to the City for payment directly by the City. Advance deposits may be provided by the City if necessary and if the City is provided sufficient time in advance in order to process the request. b. Internal Costs: Internal costs that are actually incurred are reimbursable at the best approximation of the expense. The following are acceptable approximations: • Standard duplication expense or photocopying at 15$ per page; • Color duplication or photocopying expense 50p 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. 7. 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. Page 3 d. Minimum Billing: 0.1 hour (6 minutes) shall be the minimum billing increment. The City does not accept higher minimum billing increments. 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. g. 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 billirig audit on any legal matter it refers to outside counsel. 9. Litigation Matters: The City requires that a Litigation Plan and Cost Estimate ('Plan ") 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, 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; either through demurrer or 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 inadequate 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. A09- 00224 10SCN billing guidelines Exhibit 8 for LSA Page 4