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HomeMy Public PortalAbout2012-05-15 Provision of Legal Services Agmt - Irell & Manella LLP g f Office of the City Clerk May 21, 2012 Irell & Manella LLP Attn: Marc Maister 840 Newport Center Dr., Suite 400 Newport Beach, CA 92660-6324 Enclosed is a fully executed Agreement for Provision of Legal Services between the City of Fullerton and Irell & Manella LLP that was approved by the Fullerton City Council on May 15, 2012. Sincerely, Mea Klein Assistant City Clerk Enclosures THE EDUCATION COMMUNITY 303 West Commonwealth Avenue, Fullerton,California 92832-1775 (714) 738-6350 • Fax (714) 525-8071 • Web Site:www.ci.fullerton.ca.us a. 4: AGREEMENT FOR PROVISION OF LEGAL SERVICES This AGREEMENT FOR PROVISION OF LEGAL SERVICES ("Agreement") is entered into as of May 1, 2012 by and between IRELL & MANELLA LLP ("Firm") and CITY OF FULLERTON, a public agency ("Client"). 1. Scope of Agreement Client retains Firm to provide specialized legal services with respect to the evaluation of insurance coverage for a specific matter for Client and related issues as requested by Client. Client designates Marc S. Maister, a partner of Firm, as Client's Counsel to provide legal services under this Agreement, and he shall have the discretion to utilize the services of other partners, associates, or staff of Firm upon Client approval in connection with services to be undertaken pursuant to this Agreement. In no event,. however, shall Firm subcontract with any other firm, entity, or person to perform any of Firm's services required hereunder without Client's express written consent, nor shall Firm assign or.transfer any interest in this Agreement to any such firm, entity, or person without Client's prior written consent. Firm recognizes that the City of Fullerton has a contract with its City Attorney and other attorneys, who for the convenience of the Client, provide counsel and services to Client as requested. Firm shall perform all services required hereunder as an independent contractor of Client, and shall remain at all.times as to Client a wholly-independent contractor with only such obligations as are consistent with that role. Firm acknowledges and agrees that this agreement does not.represent an exclusive agreement with Client to provide legal services and that Client does currently and shall continue to utilize the services of other firms to provide similar services. Those matters for which Firm is retained by Client to provide legal representation shall be subject to individual mutual agreement by Firm and Client. 2. Terms and Conditions A. Client will compensate Firm for the performance of negotiation or legal services at the following rates: $710 to $1050 per hour for partners, $350 to $755 for associates; and $190 to $425 for litigation support and legal assistants. Client agrees that Marc S. Maister's billing rate shall be $965 per hour, Brian Z. Bark's billing rate shall be $750 per hour and Joshua Lee's billing rate shall be $575 per hour. B. .Firm agrees that all fees will be discounted 10% if invoices,are paid within 30 days of receipt by Client. C. Firm agrees that any future increases to billing rates shall not become effect until this agreement is amended with the increased billing rates and approved by Client's City Council. D. All other Terms and Conditions are set forth in the Letter of Engagement and Standard Terms of Retention of Irell &Manella LLP included herewith. IRELL & MAN ELLA LLP CITY OF FULLERTON By: By: MaW S. Maister Jos e Partner Ci M a r Date: (D OZ (2 Date: 5 Approved o form: ATTEST: Richard . Jones, 'ty Attorney ucm a illiams, City Clerk IRELL & MANELLA LLP A REGISTERED uM.LIG."lAW PPAlaERSHIP INCLUDING PROFE5510N4 CORPoRATONS 1800 A F UE OF THE STARS, SURE 900. TELEPHONE'(949) 760-0991 LOS ANGELES. CA 90069-4z>6 840 NEWPORT CENTER DRIVE, SUITE 400 FACSIMILE (949) 760-5200 TELE PMOrvE 1:1101 2>J-1010 - FACSIMILE rn o1 zoa-ns9 NEWPORT BEACH, CALIFORNIA 92660-6324 wE©SrtE: www.irell.com WRITER'S DIRECT TELEPHONE(949)760 5283 ' MM Ob1e,0LelLCem May 2, 2012 CONFIDENTIAL: ATTORNEY-CLIENT PRIVILEGED COMMUNICATION VIA E-MAIL AND U.S. MAIL Gretchen R. Beatty Director of Human Resources City of Fullerton 303 W. Commonwealth Avenue Fullerton, CA 92832 Re: Enaaaement of Irell &Manella LLP Dear Ms. Beatty: We are pleased that you have asked Irell & Manella LLP (the "Firm")to represent The City of Fullerton (the "Client") in connection with an evaluation of insurance coverage under a policy of insurance issued by the Insurance Company of the State of Pennsylvania ("ICSOP11) for the underlying matter called Dawn Hanson, et al. v. City of Fullerton, Orange County Superior Court Case No. 00102055. We have not been retained to litigate against the carrier. This letter and the attached Standard Terms of Retention, together with the attached Agreement for Provision of Legal Services, shall govern the present representation and, unless superseded in a signed writing, any other matter the Firm may agree to undertake on the Client's behalf. The Firm will render to the Client periodic billings, typically monthly, for fees and costs. The Finn also separately charges for expenses and other costs incurred in connection with rendering its services, as described more fully in the Standard Terms of Retention. The amounts reflected on the Firm's invoices are due within 30 days of the date of each statement: In the event of a failure to pay any of the Firm's invoices on a timely basis,the , Firm may deduct from the Client's advance,held in the Firm's trust account,the full amount due. The Client shall promptly replenish the amount withdrawn from the advance. . Please note that the Standard Terms of Retention include an agreement to arbitrate certain matters. The Client should note that discovery rules, standards of evidence, rights to appeal, and procedural rules, among other things, differ in arbitration from the rules applicable in a civil trial: By agreeing to arbitration, the Client also will be agreeing to waive any right to a jury or court trial. 2632166 I R E L L & M A N E L L A L L P A REGISTERED OMOEO UV UPO l W RA NEREHIR MELOOING PROfE55ONP1 CORPOMTOraS - Gretchen R. Beatty City of Fullerton May 2, 2012 Page 2 The occasion might arise for the.Firm to consult with our own counsel—our General Counsel (or other Firm lawyers working with our General Counsel who do not render legal services for the Client) or with our own outside counsel (at our expense, of course). To the extent that we are addressing our own rights or responsibilities in connection with our engagement for the Client, a conflict of interest might be deemed to exist between the Firm and the Client as to such consultation or resulting communications, particularly if a dispute were to arise between the Firm and the Client arising from our engagement. As a condition of this engagement, the Client hereby consents to such consultation occurring, and waives any claim of conflict of interest based on such consultation or resulting communications that could otherwise disqualify the Firm from continuing to represent the Client or from acting in our own behalf, even if doing so might be deemed adverse to the interests of the Client. The Client acknowledges that such communications are protected by our own attomey-client privilege from disclosure to the Client. The Firm represents many other entities and individuals. It is possible that, during the course of our engagement, an existing or future client may seek to hire the Firm in connection with an actual or potential transaction or pending or potential litigation or other dispute resolution proceeding in which such other client's interests are or potentially may become adverse to the Client's interests. Because the duty of loyalty would otherwise prevent the Firm from being adverse to a current client, the California Rules of Professional Conduct prevent the Firm from accepting such engagements during the Firm's representation of the Client absent informed written consent by the Client and the waiver of the duty of loyalty. The Client hereby waives the duty of loyalty insofar as it would be applicable and agrees that, even while the Firm is representing the Client, and at all times thereafter, the Firm may represent existing or new clients in any matter that is not substantially related to our work for the Client, even if the interests of such clients are directly adverse to the Client (whether or not the Client is then represented by the Firm), or any of its affiliates, including litigation in which the Client or any of its affiliates are parties. This waiver shall also allow the Firm to examine or cross- examine the Client (and the Client's employees and agents) on behalf of existing or new clients in other proceedings (including but not limited to proceedings to which the Client is not a party) provided the other matter is not substantially related to our representation of the Client. Notwithstanding this consent and waiver, the Firm shall hold confidential all information provided to it by the Client in the course of the Firm's engagement on behalf of the Client, and will not use such information for any purpose except for the benefit of, and on behalf of, the Client. The Client recognizes the potential adverse consequences that may result from the Finn's representing parties that are adverse to the Client. These include the perception, which may undermine the Client's trust in the Firm,that the Firm's loyalty and independence 2632166 I R E L L & M A N E L L A LLP A REGIS REo uunco u Blv a W vmmNca HPP wcwowc vaorESSio+u co voaonovs Gretchen R. Beatty. City of Fullerton May 2, 2012 Page 3 of judgment with respect to the Client are impaired. The Firm's representation of parties adverse to the Client may come at a time when it would harm the Client's interests to terminate the services of the Firm, or after expenditures of fees and costs to the Firm that might need to be replicated by new counsel. The Firm encourages the Client to have this waiver reviewed by independent counsel acting on the Client's behalf before executing this engagement agreement. We appreciate the confidence you have placed in us and we look forward to working with you. If this letter and the attached Standard Terms of Retention accurately set forth our mutual understanding, please sign and date the enclosed copy and return it to me. Sincerel , arc S. Maister for IRELL & MANELLA LLP THE CLIENT HEREBY AGREES THAT THE TERMS AND CONDITIONS IN THIS LETTER AND THE ACCOMPANYING STANDARD TERMS OF RETENTION SHALL APPLY TO SERVICES RENDERED BY IRELL & MANELLA LLP ON THE , CLIENT'S BEHALF. THIS AGREEMENT INCLUDES THE CONFLICT WAIVERS SET. FORTH ABOVE. BY SIGNING THIS AGREEMENT, AND AS FURTHER SET FORTH IN THE. ATTACHED-TERMS OF RETENTION, THE CLIENT AGREES TO BINDING ARBITRATION OF DISPUTES, WHETHER AS TO QUALITY OF SERVICES RENDERED, THE ARBITRABILITY OF THE DISPUTE, OR OTHERWISE, AND THE CLIENT IS GIVING UP THE RIGHT TO A JURY OR COURT TRIAL. THE FIRM ENCOURAGES THE CLIENT TO HAVE THIS AGREEMENT REVIEWED BEFORE EXECUTION BY INDEPENDENT COUNSEL ACTING ON THE CLIENT'S BEHALF. Dated: S / B . Its: 2632166 I R E L L & M A N E L L A L L P A"c ISTEnco u o warm uW Pw NV HtP wavoiNC v OFMSIOry L CCRPO TION STANDARD TERMS OF RETENTION OF IRELL & MANELLA LLP Except as modified in writing by the accompanying engagement agreement or in another writing signed by the Firm and the Client,the following provisions shall apply to the relationship between the Firm and the Client. These provisions are important, and should be reviewed carefully by the Client prior to executing the accompanying engagement agreement. I. Fees. Fees for the Firm's services shall be based on time spent and the hourly billing rates in effect at the time that the services are performed. By retaining the Firm, the Client is agreeing to each of the following billing practices: (a) Minimum Time Increments. Unless otherwise specifically agreed in writing, the Firm's attorneys, legal assistants, clerks, and other timekeepers shall bill their time in tenths of an hour, with all time.entries rounded up to the nearest tenth of an hour(for example, if a timekeeper spent 15 minutes working for a client on a particular date, that " client would customarily be billed for 0.3 hours of time). (b) Annual Billing Rate Increases. The billing rates of the Firm's attorneys, legal assistants, clerks, and other timekeepers vary, depending generally on the experience and capabilities of the persons involved, and the Firm adjusts these rates from time to time. Typically, billing rates for all timekeepers are increased in each new calendar year, and the Client specifically agrees that the Firm shall not be required to provide the Client with any additional or separate notice of such annual increases beyond setting forth the applicable hourly rates in the monthly invoices that are provided to the Client. (c) Tasks That Will Be Billed to the Client. The time for which the Client will be charged includes all time spent by Firm personnel on behalf of the Client including, but not limited to, time spent in telephone and office conferences with the Client and with other counsel, witnesses, consultants, court personnel and others; conferences among the.Firm's legal personnel; factual investigation; legal research; responding to the Client's requests for the Firm to prepare estimates or budgets or to provide information to auditors in connection with reviews or audits of financial statements; drafting of letters, e- mails, agreements, pleadings, briefs and other documents; traveling; waiting in court; and depositions and other discovery proceedings. Moreover, the Firm may, in its good faith discretion, (I) consistent with a "team approach," use multiple personnel, including multiple attorneys, on the same or similar activities and may charge for each individual involved in such activities, including but not limited to . (i)preparing for and attending depositions, (ii) preparing for and attending court hearings, (iii)preparing for and attending meetings with the Client or others, or in conversations with the Client or others, and (iv) engaging in intra-office conferences among lawyers, paralegals, and others, IRELL S MAN ELLA LLP P REGISTERED 11HRE0 W18LL1iV lP GNtINERSWV ' WC WOING PPOiE551ON4 COPFORPTIONS - (II) perform and.charge for legal research, as well as for subsequently performed legal research on the same topic, (111) engage in and charge for summarization of transcripts of depositions and court appearances by personnel or lawyers of the Firm's choice, (IV) engage in and charge for time expended on administrative and clerical activities (including but not limited to time expended on copying and duplicating services, filing documents, proofreading, retrieving documents from files, and organizing documents); even when legal knowledge is not required) in accordance with the Firm's standard practices. 2. Costs and In-House Services. In addition to fees, the Firm will bill for costs and expenses incurred and ancillary services provided such as photocopying, messenger and delivery service, computerized research,travel (including mileage, parking, airfare, lodging, meals, and ground transportation), long-distance telephone, telecopying, word processing, secretarial overtime, court costs, and filing fees. Certain of such items may be charged at more than the Finn's direct cost to cover its estimated associated overhead. Unless special arrangements are made, the Firm does not take responsibility for paying fees and expenses of third parties (such as, for example, court reporters and videographers), which will be the Client's responsibility and may be billed directly to the Client. 3. Advances. In addition to any advance to which we have currently agreed, the Finn reserves the right, as a condition to the provision of further services, to require an increase in the advance in the event that the amount of work which the Finn is called upon to perform, or expenses the Finn is required to incur or advance exceeds the Finn's current expectation, or in the event of any failure to make timely payment of the Firm's invoices. The Firm reserves the right to apply any advance held by the Firm on the Client's behalf to satisfy any unpaid invoice for fees or expenses owed to the Firm, even if that advance was initially provided for a different matter than the one for which the advance is applied. As set forth more fully in Section 20, the Client grants the Firm a security interest in all advances paid to the Firm to secure payment of the Firm's invoices for fees and expenses. 4. Estimates Not Binding. Although the Finn may furnish estimates of fees or costs that are anticipated will be incurred, these estimates are not binding, are subject to unforeseen circumstances, and are by their nature inexact. Accordingly,the Client shall remain obligated to pay the Firm's fees and costs irrespective of whether they exceed any estimates or budgets that the Finn may provide,unless otherwise agreed in a signed writing. 5. Billing and Payment. Fees and expenses are generally billed monthly and are due and payable within 30 days of the date of our statement. The Firm expects prompt payment. The Firm reserves the right to postpone or defer providing additional services or to discontinue the representation if billed amounts are not paid when due. In addition, the Finn reserves the right to charge simple interest at 10%per annum on all sums,whether for fees or costs, not.paid within 30 days of the date of our statement. The Firm's failure to impose this interest charge on any particular occasion, or on multiple occasions, is not a, waiver of the Firm's right to thereafter impose this charge on any other occasion. I R E L L & M A N E L L A L L P REGISTEREp LIMIIEO WBNM WW PMiNEIf HIi . INCLVpING PRCfE5510N01 CORPOMl10N5 6. Insurance. Unless otherwise agreed in a signed writing,the Firm shall have no responsibility to investigate or evaluate whether insurance is available for any matter covered by this engagement or to tender any matter covered by this engagement to any insurance carrier. 7. Cooperation. The Client will cooperate fully in the Firm's efforts on the Client's behalf. 8. Termination By The Client. The Client has the right at any time, in the Client's sole discretion,to terminate the Firm's services and representation. Upon termination, the Client will remain obligated to pay for all services rendered and costs or expenses paid or incurred on the Client's behalf prior to the date of such termination or which are reasonably necessary thereafter. 9. Termination By The Firm. The Firm reserves the right to withdraw from representing the Client if, among other things, the Client fails to honor the terms of this engagement agreement, the Client fails to make timely payment of any invoice, the Client Mails to cooperate or follow the Firm's advice on a material matter;or any fact or circumstance arises that, in the Firth's view, renders our continuing representation unlawful or unethical. if the Firm elects to withdraw,the Client will take all steps necessary to free the Firm of any obligation to perform further services, including the execution of any documents necessary to complete the Firm's withdrawal, and the Firm will be entitled to be paid at the time of withdrawal for all services rendered and costs and expenses paid or incurred on the Client's behalf. 10. Date of Termination. The Firm's representation of the Client will be considered terminated at the earlier of(i) the Client's termination of the representation, (ii)the Firm's withdrawal from the representation, or(iii) the substantial completion of the Firm's substantive work for the Client. 11. Related Activities. If any claim or action is brought against the Firm or any of its personnel based on the Client's negligence or misconduct, or if any employee or member of the Firm's professional staff is asked or required to testify or produce documents as a result of the Firm's representation of the Client or must defend the confidentiality of the Client's communications in any proceeding, the Client agrees to pay the Firm for any resulting attorney's fees, costs or damages, including the hourly charges of the Firm's professional staff, even if the Firm's representation of the Client has ended. 12. No Guarantee of Outcome. The Firm does not and cannot guarantee any outcome in a matter. 13. Client. The Firm's client for the purpose of its representation is only the person or entity identified as the Client in the engagement agreement accompanying these Standard Terms of Retention. Unless expressly agreed in a signed writing, the Firm is not undertaking the representation of any related or affiliated person or entity, nor any parent, brother-sister, subsidiary, or affiliated corporation or entity, nor any of their or the Client's officers, directors, agents, partners, or employees (except that the Firm may elect to represent, at the Client's request, certain of the Client's officers, directors, or employees IRELL & MANELLA LLP a NCLUD1"cEO un"co w vaameus� wauowc vworessiorvx corxaow..wrvs solely in their representative capacities as constituents of the Client, and not in their individual capacities,without a further signed writing). 14. Cooperation Relating to the Firm's Professional Responsibilities; Notice of Material Client Events. The Client will cooperate with the Firm in efforts to comply with the Firm's professional responsibilities relating to the representation, including responsibilities relating to conflicts of interest as well as other matters. Without limiting the foregoing, the Client(i)acknowledges that any change of control, merger, consolidation, recapitalization, insolvency, bankruptcy, reorganization, acquisition or sale of material assets or equity interests,or similar transaction or event involving the Client (any such transaction or event, a "Material Client Event") may have conflict-of-interest and other implications for the Firm's representation of Client, and (ii) in order to provide the Firm with a reasonable opportunity to evaluate and address any such implications adequately, the Client agrees to notify the Firm promptly in writing of any such Material Client Event and to provide the Firm such information as it may reasonably request relating to such Material Client Event. 15. Payment Notwithstanding Dispute. In the event of any dispute that relates' to the Firm's entitlement to any payment, all amounts billed by the Firm shall be paid by the Client, which may thereafter,dispute the propriety of the billing and seek a refund. Unless otherwise agreed in a signed writing, the Firm shall not apply any retainer held by the Firm to pay any disputed amount billed by the Firm until the final disposition of-the dispute. 16. Document Retention and Destruction. In the course of the Firm's representation, the Firm is likely to come into possession of copies or originals of documents or other materials belonging to the Client or others (collectively, "materials"). Once the particular matter to which those materials relate has been concluded, the Firm will have no further responsibility to maintain such materials. If the Client has not sought the return of such materials within one year of the closing of the matter to which such materials relate, the Firm will have the right to destroy those materials. 17. Patents and Trademarks. Unless otherwise agreed in a signed writing, the Firm does not undertake to advise or to provide reminders to the Client with respect to the due date of maintenance fees for any patent or trademark or to pay such fees on the Client's behalf. 18. Disqualification of Other Counsel. It is a serious matter to seek to disqualify a lawyer or law firm from representing another party in a legal proceeding or transaction. The Client agrees that the Firm shall have the discretion to decide, in its sole judgment; whether to seek to disqualify a lawyer or law firm from representing another party in a legal proceeding or transaction, irrespective of the basis on which disqualification could be sought. If the Firm declines to seek to disqualify a lawyer or law firm from representing another party in a legal proceeding or transaction, the Client shall remain entitled to engage alternative counsel to undertake such work. 19. Claims Against Other Attorneys. Unless otherwise specifically agreed in writing, the Firm does not, and will not, undertake to advise the Client with respect to any claims or potential claims that the Client may have against other law firms or attorneys who IRELL b MANELLA. LLP a accCLUE co ur O 510 ry vw v.arrvcvswv - wauwrvo vAOVCSSior..,u corxaovnno.s either currently represent, or have previously represented, the Client. The Client hereby agrees and acknowledges that unless the Firm specifically agrees in writing to undertake such a duty, the Firm shall have no duty to advise the Client concerning claims or potential claims the Client has or may have against other law firms or attorneys who either currently represent, or have previously represented, the Client, even if the Firm actually knows or should know of the existence of such claims or potential claims. The Client further agrees that unless otherwise specifically agreed in writing, to the extent the Client wishes to consider any claims or potential claims against any other law firms or attorneys who either currently represent, or have previously represented, the Client, the Client shall consult with other counsel of its own choosing concerning such claims or potential claims. Further, the Client acknowledges that the statute of limitations in Califomi&for bringing claims against attorneys is generally one year from the date the Client suffers any injury, though that period may be tolled or extended under certain circumstances as set forth in California Code of Civil Procedure Section 340.6. 20. Attorneys' Lien; Security Interest. The Client hereby grants to the Firm (i) a contractual lien pursuant to California Civil Code Section 2881 on any and all claims or causes of action(and all proceeds thereof) that are the subject of the Firm's representation of the Client; and (ii) a security interest in any advance paid to the Firm in connection with the Firm's representation of the Client (and all interest thereon and other proceeds thereof). This attomeys' lien, as well as this security interest in any such advance, each will be for any sums due and owing to the Firm for its services and any amounts advanced by the Firm on the Client's behalf. This attorneys' lien will attach to any recovery that the Client may obtain,whether by arbitration, mediation,judgment, settlement or otherwise. If requested by the Firm, the Client agrees to execute a financing statement (UCC-1) and/or an appropriate deposit account or securities account control agreement in connection with the attorneys' lien and/or the security interest granted to us hereby. . 21. Scope of Representation; Application To Subsequent Matters. The scope of the Firm's representation of the Client is limited to the specific matter or matters identified in the accompanying engagement agreement, and such additional matters as the Client and the Firm may in their mutual discretion agree from time to time. In each case, the Firm's agreement to any expansion of the scope of its representation of the Client will be subject, among other things, to such additional conflict checks, waivers, retainers, approvals, and other arrangements as the Firm may in its professional judgment deem necessary or appropriate'in the circumstances. Except as otherwise expressly provided in any written engagement agreement (or a written amendment of a prior engagement agreement)between the Firm and Client entered into in connection with such expansion of the scope of the Firm's representation, the agreement reflected in these Standard Terms of Retention,.and in the accompanying engagement agreement, applies to the Firm's current representatin of the Client and to any subsequent matters that the Firm agrees to undertake on the Client's behalf. 22. No Third-Party Beneficiaries. The Client acknowledges and agrees that there are no third-party beneficiaries of any kind to the Firm's engagement. 23'. No Modification Except By Signed Writing. No provision of the engagement agreement or the Standard Terms of Retention can be waived, modified, I R E L L S M A N E L L A L L P P PEGGTEREO VMREO LL49LIry 4 W P NERSRiP - INCLVOWG Ri0E6510NiL CORGOMTIONS amended, or supplemented except in a writing that is signed by an authorized representative of the Firm and the Client. 24. Integrated Agreement. The engagement agreement and the Standard Terms of Retention constitute the entire understanding and contract between the Client and the Firm with respect to the subject matter referred to herein. Any and all other representations, understandings, or agreements, whether oral, written, or implied, are merged into and superseded by the terms of the engagement letter and the Standard Terms of Retention.' 25. Headings. The subject headings used in the Standard Terms of Retention are included for purposes of convenience only, and shall not affect the construction or interpretation of any provisions of this document. 26. Dispute Resolution. THE FIRM AND THE CLIENT AGREE THAT ANY DISPUTE BETWEEN THEM REGARDING.ANY MATTER RELATED TO OR ARISING OUT OF THE FIRM'S ENGAGEMENT BY THE CLIENT, OR ANY PARTY'S PERFORMANCE OF THE AGREEMENT GOVERNING THE FIRM'S SERVICES, INCLUDING BUT NOT LIMITED TO THE QUALITY OF THE SERVICES THAT THE FIRM RENDERS, SHALL BE RESOLVED BY CONFIDENTIAL ARBITRATION IN LOS ANGELES, CALIFORNIA. BOTH THE FIRM AND THE CLIENT HEREBY WAIVE ANY CLAIM THAT LOS ANGELES, CALIFORNIA IS AN INCONVENIENT FORUM, OR THAT EITHER PERSONAL OR SUBJECT MATTER JURISDICTION IS LACKING IN LOS ANGELES, CALIFORNIA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FIRM AND THE CLIENT AGREE THAT ALL QUESTIONS AS TO WHETHER OR NOT AN ISSUE CONSTITUTES A DISPUTE SUBJECT TO ARBITRATION UNDER THIS SECTION SHALL THEMSELVES BE RESOLVED BY ARBITRATION IN ACCORDANCE WITH THIS SECTION 26?6. ALL . DISPUTES SHALL BE RESOLVED IN ACCORDANCE WITH THE SUBSTANTIVE LAW OF THE STATE OF CALIFORNIA (INCLUDING BUT NOT LIMITED TO ALL STATUTES OF LIMITATION APPLICABLE TO ANY CLAIM ASSERTED IN THE ARBITRATION), WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES. ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE PREVAILING'PARTY IN ANY ARBITRATION, OR IN ANY LITIGATION BETWEEN THE PARTIES, SHALL BE AWARDED REASONABLE ATTORNEYS'FEES AND COSTS FROM THE NON- PREVAILING PARTY, INCLUDING, WITHOUT LIMITATION, THE VALUE OF THE TIME SPENT BY THE FIRM'S ATTORNEYS TO PROSECUTE OR DEFEND SUCH AN ARBITRATION OR LITIGATION (CALCULATED AT THE HOURLY RATE(S) THEN NORMALLY CHARGED BY THE FIRM TO CLIENTS WHICH THE FIRM .REPRESENTS ON AN HOURLY BASIS), REASONABLE EXPERT AND CONSULTANT FEES INCURRED BY THE PREVAILING PARTY, AND ALL ARBITRATOR FEES AND COSTS. THE CLIENT IS ADVISED THAT, BY AGREEING TO THIS PROVISION, THE CLIENT IS GIVING UP THE RIGHT TO A JURY OR COURT TRIAL AND THE RIGHT TO APPEAL, NOTWITHSTANDING THE ABOVE, IN A DISPUTE SUBJECT TO THE JURISDICTION OF THE STATE OF CALIFORNIA OVER FEES, CHARGES, COSTS I R E L L S M A N E L L A L L P P FEG5TEFEO UMrt W94RY L W GNRINE Hpp , wELVdMG GYOf6G10NK CORVOPM1iONG OR EXPENSES, THE CLIENT HAS THE RIGHT TO ELECT NON-BINDING ARBITRATION PURSUANT TO THE FEE ARBITRATION PROCEDURES OF THE STATE BAR OF CALIFORNIA, AS SET FORTH IN CALIFORNIA BUSINESS & PROFESSIONS CODE §§ 6200 ET SEQ. THOSE PROCEDURES PERMIT A TRIAL AFTER ARBITRATION, UNLESS THE PARTIES AGREE IN WRITING, AFTER THE DISPUTE HAS ARISEN, TO BE BOUND BY THE ARBITRATION AWARD. IF THE CLIENT DOES NOT ELECT TO PROCEED UNDER THE STATE BAR FEE ARBITRATION PROCEDURES, ANY DISPUTE OVER FEES, CHARGES, COSTS OR EXPENSES WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE STANDARD TERMS OF RETENTION. IF THE CLIENT DOES ELECT TO PROCEED UNDER THE STATE BAR FEE ARBITRATION PROCEDURES, THE PARTIES HEREBY AGREE THAT IF THE NON-BINDING ARBITRATION FAILS TO FULLY RESOLVE THE PARTIES' DISPUTE,THAT EITHER PARTY MAY THEN DEMAND BINDING ARBITRATION IN LOS ANGELES, CALIFORNIA PURSUANT TO THE TERMS OF THIS PARAGRAPH 26 WITHIN 90 DAYS AFTER RECEIVING THE AWARD IN THE NON-BINDING ARBITRATION. Arbitration may be demanded by the sending of written notice to the other party. If arbitration is demanded, within 20 days of the demand the Client shall present a list of 5 qualified individuals who would be willing, and who the Client would find acceptable, to serve as arbitrator. To serve as arbitrator, the individual must be a retired judge having served on any federal court or the California Superior Court or higher court in the State of California. Within 20 days of receiving the Client's list, the Firm may at its sole discretion (i) select any individual from that list and that individual shall serve as the arbitrator, or (ii) propose the Finn's own list of 5 individuals for arbitrator. If the Firm chooses to present a separate list, the Client may within 20 days select any individual from that,list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end of this process, each party shall select one individual from such party's own respective list and those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to the procedures set forth in the California Code of Civil Procedure §§ 1280, et seq., and in that connection the Firm and the Client agree that Section 1283.05 thereof is applicable to any such arbitration. In the event of any failure to select an arbitrator pursuant to the process described in the preceding paragraph (including,but not limited to any failure to participate in that process),the Firm and the Client reserve the right either(i) to enforce the arbitration agreement in any court having jurisdiction or (ii) submit the dispute to either the American Arbitration Association ("AAA") or JAMS ("JAMS") for resolution in accordance with their applicable rules, to the extent that those rules are not inconsistent with the procedures set forth in the California Code of Civil Procedure §§ 1280, et seq., and in that connection the Finn and the Client agree that Section 1283.05 thereof is applicable to any such arbitration. In addition,the arbitrator in any proceeding submitted to the AAA or JAMS must be a retired judge having served on any federal court or the California Superior Court or higher court in the State of California.