HomeMy WebLinkAboutC-4928 - Legal Services Agreement for Tidelands Lease Negotiations Special Counsel ServicesLEGAL SERVICES AGREEMENT WITH
CUMMINS & WHITE, LLP
FOR TIDELANDS LEASE NEGOTIATIONS SPECIAL COUNSEL SERVICES
THIS AGREEMENT 2R LEGAL SERVICES ( "Agreement ") is made and
entered into as of this c13 day of August, 2011 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and CUMMINS &
WHITE, LLP, a California Limited Liability Partnership ( "Law Firm "), whose address is
2424 S.E. Bristol Street, Suite 300, Newport Beach, CA 92660 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 Law Firm to negotiate real property commercial leases for
City managed tidelands property ( "Legal Services ").
C. Law Firm possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. City has solicited and received a proposal from Law Firm, has reviewed the
previous experience and evaluated the expertise of Law Firm, and desires to
retain Law Firm 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 the commencement date, and shall
terminate by December 31, 2012, unless terminated earlier as set forth herein.
2. SCOPE OF SERVICES
Law Firm shall provide advisement and representation to the City for the negotiation of
real property commercial leases on City managed tidelands property ( "Legal Services ").
3. RESPONSIBILITIES OF LAW FIRM AND CITY
3.1 Responsibilities of Law Firm. Law Firm 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. City is retaining a
Law Firm, not any particular attorney, and the Legal Services to be provided will not
necessarily be performed by any particular attorney, but the services will be supervised
principally by Michael R. W. Houston, Esq. ( "Lead Attorney ").
3.1.1 Law Firm 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 Law Firm, at the sole discretion of City, shall remove from the Legal
Services any of its personnel assigned to the performance of the Legal Services upon
written request of City. Law Firm warrants that it will continuously furnish the necessary
personnel to complete the Legal Services in a timely manner as contemplated by this
Agreement.
3.2 Responsibilities of Citv. City will be truthful and cooperative with Law Firm,
keep Law Firm informed of developments and timely make any payments required by this
Agreement. City shall provide access to, and upon request of Law Firm, 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 Law Firm's work schedule.
4. LEGAL FEES AND BILLING PRACTICES
4.1 Time and Expense. City shall pay Law Firm 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 attached hereto as Exhibit B and
incorporated herein by reference. Law Firm's compensation for all Legal Services
performed in accordance with this Agreement, including all reimbursable items and outside
Law Firm fees, shall not exceed Seventy Five Thousand Dollars and no /100 ($75,000.00)
without prior written authorization from City.
4.2 Case Evaluation. Upon assignment of a new matter to the Law Firm by the
City Law Firm 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 a new assignment. Additionally, on a quarterly basis, the Law Firm 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 Law Firm 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 Law Firm: 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 the Law Firm's actual
cost, except for those items which the Law Firm must, out of necessity, approximate,
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and those will be charged as near to their actual cost as possible. Law Firm is not
obligated to pay or advance any costs or expenses, and may, at its 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, the Law Firm 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. L aw Firm shall submit monthly invoices to City
describing the Legal Services performed the preceding month. Law Firm'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 Law Firm no later than thirty (30) days after
approval of the monthly invoice by City staff.
4.5 Extra Work. Law Firm 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.
Billing rates may only be changed once per calendar year and only after the first year of
this Agreement. 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 Office of the City Attorney. 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 Law Firm or under Law Firm's
supervision. Law Firm represents that it possesses the professional and technical
personnel required to perform the Legal Services required by this Agreement, and that it
will perform all Legal Services in a manner commensurate with community professional
standards. All Legal Services shall be performed by qualified and experienced personnel
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who are not employed by City, nor have any independent contractual relationship with
City. By delivery of completed Legal Services, in the form of pleadings, legal opinions,
correspondence, etc., Law Firm certifies that the Legal Services conform to the
requirements of this Agreement and all applicable federal, state and local laws and the
professional standard of care.
6.2 Law Firm 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 Law Firm to practice its profession. Law Firm shall maintain a City of Newport
Beach business license during the term of this Agreement.
7. HOLD HARMLESS
7.1 To the fullest extent permitted by law, Law Firm 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, without limitation, defects in
workmanship or materials or Law Firm's presence or activities conducted on the Legal
Services (including the negligent and /or willful acts, errors and /or omissions of Law Firm,
its principals, officers, agents, employees, vendors, suppliers, Law Firms, subcontractors,
anyone employed directly or indirectly by any of them or for whose acts they may be liable
or any or all of them), when it has been established that Law Firm 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
Law Firm 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 Law Firm.
8. INDEPENDENT CONTRACTOR
It is understood that City retains Law Firm on an independent contractor basis and Law
Firm is not an agent or employee of City. The manner and means of conducting the
Legal Services are under the control of Law Firm, 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 Law Firm or any of Law Firm's
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employees or agents, to be the agents or employees of City. Law Firm shall have the
responsibility for and control over the means of performing the Legal Services, provided
that Law Firm is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Law Firm as to the details of
the performance or to exercise a measure of control over Law Firm shall mean only that
Law Firm shall follow the desires of City with respect to the results of the Services.
9. COOPERATION
Law Firm agrees to work closely and cooperate fully with the City's designated
Responsible Attorney. City agrees to cooperate with the Law Firm on the Legal
Services.
10. CITY POLICY
Law Firm 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
Law Firm 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 Law Firm's indemnification of City, and prior to
commencement of Legal Services, Law Firm 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.
12.2 Proof of Insurance. Law Firm 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
Agreement. City reserves the right to require complete, certified copies of all required
insurance policies, at any time.
12.2.1 Law Firm 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 Law Firm, its agents, representatives, employees or Law Firms. The cost
of such insurance shall be included in Law Firm's proposal.
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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.
12.4 Coverage Requirements.
12.4.1 Workers' Compensation Coverage. Law Firm shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Law Firm's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Law Firm shall require each Law Firm 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 Law Firm's employees.
12.4.1.1 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.
12.4.1.2 Law Firm 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.
12.4.2 General Liability Coveraqe. Law Firm 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.
12.4.3 Automobile Liability Coverage. Law Firm shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Law Firm
arising out of or in connection with Legal Services 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.
12.4.4 Professional Liability (Errors & Omissions) Coverage. Law Firm
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.
12.5 Other Insurance Provisions or Requirements. The policies are to contain, or
be endorsed to contain, the following provisions:
12.5.1 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
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shall specifically allow Law Firm or others providing insurance evidence in compliance
with these requirements to waive their right of recovery prior to a loss. Law Firm hereby
waives its own right of recovery against City, and shall require similar written express
waivers and insurance clauses from each of its Law Firms.
12.5.2 Enforcement of Agreement Provisions. Law Firm acknowledges
and agrees that any actual or alleged failure on the part of the City to inform Law Firm of
non - compliance with any requirement imposes no additional obligations on the City nor
does it waive any rights hereunder.
12.5.3 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.
12.5.4 Notice of Cancellation. Law Firm agrees to provide City with notice
in the event Law Firm receives notice of cancellation or nonrenewal of coverage for
each required coverage.
12.6 Timely Notice of Claims. Law Firm shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Law Firm's performance
under this Agreement.
12.7 Additional Insurance. Law Firm 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 Legal Services.
13. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Legal 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 Law Firm, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Law Firm is a
partnership or joint- venture or syndicate or cotenancy, which shall result in changing the
control of Law Firm. 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.
14. ASSOCIATION OF COUNSEL
Law Firm may associate additional counsel to assist with Legal Services under this
Agreement if, in Law Firm's professional judgment, such association is necessary to
adequately represent the City's interests and if City consents to the association.
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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
Law Firm, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City. Law Firm shall,
at Law Firm's expense, provide such Documents to City upon prior written request.
15.2 Documents prepared by Law Firm 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 Law Firm will be at City's
sole risk and without liability to Law Firm. Further, any and all liability arising out of
changes made to Law Firm's deliverables under this Agreement by City or persons other
than Law Firm is waived against Law Firm and City assumes full responsibility for such
changes unless City has given Law Firm prior notice and has received from Law Firm
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
18.1 Law Firm shall keep records and invoices in connection with the Legal
Services to be performed under this Agreement. Law Firm 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 Law
Firm under this Agreement. All such records and invoices shall be clearly identifiable.
Law Firm shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Law Firm 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 Law Firm under
this Agreement.
19. WITHHOLDINGS
City may withhold payment to Law Firm 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. Law Firm shall not
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discontinue Legal Services as a result of such withholding. Law Firm shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
disputed sums. Law Firm 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 Law Firm 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 Law Firm, the additional expense shall be borne by the Law Firm. 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 in connection with the Legal Services
22. CONFLICTS OF INTEREST
22.1 The Law Firm 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 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, Law Firm 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. Law Firm shall indemnify and hold harmless City for any and all
claims for damages resulting from Law Firm'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 Law Firm to City shall be addressed to City
at:
Attn: City Attorney
Office of the City Attorney
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3131
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23.2 All notices, demands, requests or approvals from City to Law Firm shall be
addressed to Law Firm at:
Attention: Michael R. W. Houston
Cummins & White, LLP
2424 S.E. Bristol Street, Suite 300
Newport Beach, CA 92660
Phone: 949 - 852 -1800
E -mail: mhouston @cwlawyers.com
24. CLAIMS
The Law Firm and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, the Law Firm shall be required to file any claim
the Law Firm 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
ten (10) calendar days, or if more than ten (10) calendar days are reasonably required to
cure the default and the defaulting party fails to give adequate assurance of due
performance within ten (10) 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.
25.1.1 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 Law Firm. In the event of
termination under this Section, City shall pay Law Firm for Services satisfactorily
performed and costs incurred up to the effective date of termination for which Law Firm
has not been previously paid. On the effective date of termination, Law Firm 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.
25.1.2 Law Firm shall have the right to terminate this Agreement at any
time upon giving City seven (7) calendar days prior written notice. After delivering such
termination notice, Law Firm shall immediately cease to render additional services,
except for such services as Law Firm may be required to provide under applicable law
or as Law Firm deems reasonably necessary to transfer a matter to City or to successor
legal counsel. Upon such termination, City shall cooperate to free Law Firm of any
obligation to perform further legal services, including without limitation, the execution of
any documents necessary to complete Law Firm's discharge or withdrawal. The rights
Page 10
of Law Firm hereunder are in addition to those created by statute or recognized by rules
of professional conduct. On the effective date of termination, Law Firm 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. STANDARD PROVISIONS
26.1 Compliance with all laws. Law Firm 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 that are applicable to its provision of Legal Services as provided in this
Agreement. In addition, all Legal Services prepared by Law Firm 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 parry 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 Law Firm 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.
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26.9 Equal Opportunity Employment. Law Firm 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.
26.10 C ounterparts. 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:
OFFICE OFD THE (CITY ATTORNEY
Date: xl
Bv-
L'onie Mulvihill
Assistant City Attorney �\5
ATTEST:
Date:
By: -
�eilani/l!Brown
City Clerk
� m
0
C�CI RORN�t
CITY OF NEWPORT BEACH,
A Californi .mu 'cipal corporation
Date: B %
By: L
David R. Hunt
City Attorney
LAW FIRM: Cummins & White, LLP, a
California Limited Liability Partnership
Date: E /it /7,
By: '2--� /l /' �sZ-6Z
Name:
Title: T-�- --L P r
Attachments: Exhibit A - List of Personnel and Billing Rates
Exhibit B - Outside Counsel Billing Guidelines
A 11- 00851 / L SA
-- - -- - - -- — Page 12
EXHIBIT A
Personnel
Title
Rate
Michael R.W. Houston
Partner
$250
Lynn Lee
Associate
$205
Fred M. Whitaker
Senior Partner
$275
Computer Research
Senior Associate
$225
At Actual Cost
Paralegal
$125
Schedule of Client Expenses
Messenger & Deliver Fees
At Actual Cost
Postage
USPS Standard Rate
Copies
$0.25/page
Color Copies
$0.50/page
Copies Outside Service
At Actual Cost
In -House CD Production
$10.00 /CD
Computer Research
At Actual Cost
Outside Assisted Legal Research
At Actual Cost
Mileage Rate
Per Mile Charge at IRS Current
Parking
At Actual Cost
Airfare
At Actual Cost
Meals
At Actual Cost
Hotel Accommodations
At Actual Cost
Process Server's Fees/Filing Fees
At Actual Cost
Court Reporter's Fees
At Actual Cost
Jury Fees
At Actual Cost
Witness Fees
At Actual Cost
Expert's Fees
At Actual Cost
Consultant's Fees
At Actual Cost
EXHIBIT B
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
DATE: December 23, 2009
TO:
Outside Counsel
FROM:
David R. Hunt, City Attorney
Matter:
Outside Counsel Management Matters;
[A09 -002241
RE:
Outside Counsel Billing Guidelines
t. POLICY:
Outside counsel services are to be provided to the City of Newport Beach effectively and
effic!eriby. The Office of the City Attorney ( "OCA °) retains outside counsel on an as
needed basis to address the legal needs of the City. We seek practical solution- oriented
services. Services are to be realistically tailored to the task assigned and performed in an
efficient, capable manner. The goal of these guidelines is to set out staffing and billing
requirements to effectuate this policy. All billings must be consistent with these guidelines.
2. BILLING RATES:
Acceptable rates shall be established and confirmed prior to commencement of work on
arty 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 TEAId AND PROFESSIONAL STAFFING:
Each subject of outside counsel service must have an approved legal team. No billing Ail!
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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Cirtside Counsel Bi0aig Guidelines
December 23, 2(309
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No more than one legal professional may make an appearance of attend an
event, absent prior approval by the W,
Replacement billing professionals must familiarize themselves with the assigned
matter at outside counsel °s expense. The City will riot pay for new legal team
members "getting up to speed' in an assigned matter.
Legal professional shall not big 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 "I
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 v411 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 intemal firm conferences
occur, absent prior approval to the contrary, only the most senior attorney may bill hislher
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 he efficient, and provide significant
benefit to the handling of the matter. Any billing of internal conferenrarg 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. AccEPTASL£ 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
hourty 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
3250.
The fogowing are costs acceptable for billing
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Outside Counsel eifing Guidelines
December 23, 2009
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a. External our 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 tine in advance in order to process the request
b. Internal Costs: Internal costs that are actually incurred are reinbursable at
the best approximation of the expense. The following are acceptable approximations:
• Standard duplication expense or photocopying at 15¢ per page;
• Colordupitcation 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 defivering materials as
necessary within the handing 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 co unsefs failure to handle a matter in a more timely fashion.
Copies of invoices for ail costs in excess of $750 shag 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.
5. Billing Format:
The following billing foment features are required:
a. Billing Period: Bills shall be generated no more often than monthly.
b. Summary Slatemenr. 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 tilled 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.
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Outside counsel Billing Guidelines
December 23. 2006
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e. Biller Idendfrred: 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 dearly identified and the reasons for their
being incurred" given_
8. Audit:
The C'liy reserves the right to conduct a file and billing audit on any legal matter it refers to
outside counsel.
9. L"rtivation Matters:
The City requires that a Litigation Plan and Cost Estimate ('Plan) be prepared and
updated in all fi igation 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 to the Plan once it is approved by the City.
Outside counsel must obtain prior auttrnity from the City before engaging in any activity
Mat 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 demurer or motion;
• Filing any cross - complaint or crom- slain;
• initialing any law and motion proceeding;
• Engaging in affirmative discovery, or
• Proceeding with anywrit 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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