HomeMy Public PortalAbout2012-09-04 Agmt for Provision of Legal Svcs - Pearlman, Borska & Wax AGREEMENT FOR PROVISION OF LEGAL SERVICES
This AGREEMENT FOR PROVISION OF LEGAL SERVICES ("Agreement") is
entered into as of September 4, 2012, by and between PEARLMAN, BORSKA & WAX, a
professional corporation, ("Attorney") and CITY OF FULLERTON, a public agency ("Client").
1. Scope of Agreement
Client retains Attorney to provide limited legal services with respect to the defense of
workers' compensation claims for Client as requested by Client. Client designates Steven H.
Wax, a partner of Attorney, 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
Attorney upon Client approval in connection with services to be undertaken pursuant to this
Agreement. In no event, however, shall Attorney subcontract with any other firm, entity, or
person to perform any of Attorney's services required hereunder without Client's express written
consent, nor shall Attorney assign or transfer any interest in this Agreement to any such firm,
entity, or person without Client's prior written consent.
Attorney 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. Attorney recognizes that the City of Fullerton has a
contract with other attorneys, who for the convenience of the Client provide counsel and services
to Client as requested. Attorney 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.
2. Duties of Attorney and Client
Attorney shall provide those legal services required to represent Client in the matters
described in Paragraph l of this Agreement, including but not limited to preparation of court
documents, review of Client documents, legal research, attendance at court conferences and
hearings, depositions, Client conferences or City Council meetings as needed, and meetings
when requested by Client, as well as other activities necessary to the litigation process. Attorney
understands and acknowledges that Client may communicate with Attorney through its third
party administrator (TPA). Attorney will respond to and communicate with TPA as an agent of
Client. Attorney shall take reasonable steps to keep Client and TPA informed of significant
developments and to respond to Client and or TPA's inquiries. Attorney agrees to abide by the
City of Fullerton Litigation Management Guidelines attached hereto as Attachment 1.
Client and TPA shall cooperate with Attorney, keep Attorney informed of all
developments, documents, or facts that may affect the provision of Attorney's services described
in Paragraph l of this Agreement, perform all obligations Client has agreed to perform pursuant
to this Agreement, and pay in a timely manner all of Attorney's statements for services
performed and costs incurred.
3. Terms and Conditions
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A. Client will compensate Attorney for the performance of legal services under this
Agreement at the following rates: $150 per hour for attorneys. Attorney will charge for
services performed in increments of one-tenth of an hour.
Q. Attorney shall not be obligated to advance costs on behalf of Client; however, for the
purposes of convenience and in order to expedite matters, Attorney reserves the right to
advance costs on behalf of Client with Client's prior approval in the event a particular
cost item exceeds $200.00 in amount, and without the prior approval of Client in the
event a particular cost item totals $200.00 or less.
C. Attorney shall not bill Client for travel, meal or lodging expenses for travel to or within
Orange County or Los Angeles County. Other travel expenses shall be excluded unless
pre-approved by Client.
D. A detailed description of the attorney work performed and the costs advanced by
Attorney will be prepared on a monthly basis as of the last day of the month and will be
mailed to TPA on or about the 10°i day of the following month. Payment of the full
amount due, as reflected on the monthly statements, will be due to Attorney from TPA by
the 28`h day of each month, unless other arrangements are made. In the event of a billing
dispute, TPA shall notify Attorney within 15 days of receipt of an invoice.
E. Client agrees to fully cooperate with Attorney in connection with Attorney's
representation of Client, including but not limited to attending mandatory court hearings
and other appearances and providing necessary information and documentation to enable
Attorney to adequately represent Client.
F. Client has the right, at any time, and either with or without good cause, to discharge
Attorney as Client's attorneys. Attorney and Client shall each execute any documents
reasonably necessary to complete Attorney's discharge or withdrawal. Attorney shall,
upon demand therefor by Client, deliver Client's file to Client at or after the termination
or conclusion of Attorney's services. In the event of such a discharge of Attorney by
Client, however, any and all unpaid attorneys' fees and costs owing to Attorney from
Client shall be immediately due and payable.
C. Attorney reserves the right to discontinue the performance of legal services on behalf of
Client upon the occurrence of any one or more of the following events:
i. Upon order of Court requiring Attorney to discontinue the performance of
said legal services;
ii. Upon a determination by Attorney in the exercise of its reasonable and sole
discretion, that state or federal legal ethical principles require it to discontinue
legal services for Client;
iii. Upon the failure of Client to perform any of Client's obligations hereunder as
respects the payment of Attorney's fees and costs advanced; or
iv. Upon the failure of Client to perform any of Client's obligations hereunder as
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respects cooperation with Attorney in connection with Attorney's
representation of Client.
H. In the event that Attorney ceases to perform legal services for Client, as herein above
provided, Client agrees that Client will promptly pay to Attorney any and all unpaid fees
or costs advanced, and retrieve all of Client's files, signing a receipt therefore. Further,
Client agrees that, with respect to any litigation where Attorney has made an appearance
in Court on his behalf, Client will promptly execute an appropriate Substitution of
Attorney form.
I. Attorney shall abide by any and all Client policies concerning authorized
communications with the media or to the public on behalf of the Client and its
employees. Attorney acknowledges and agrees that any form of communication with the
media or to the public regarding legal matters handled on behalf of the Client or its
employees that are not specifically covered by a Client policy is unauthorized unless
specifically approved by Client's City Council.
4. Business License
A business license is required of every person or firm located outside the City who
conducts business on more than an occasional or incidental basis (three days or less in any year)
in the City (FMC Sec. 4.06.030). Attorney shall obtain a City of Fullerton business license
within three months of the inception of this Agreement and shall maintain a current license
throughout the term of the agreement.
5. Disclaimer of Guarantee
Attorney has made no representations, promises, warranties or guarantees to Client,
express or implied, regarding the outcome of any Client matter, and nothing in this Agreement
shall be construed as such a representation, promise, warranty, or guarantee.
6. Insurance and Indemnification
Attorney shall procure and maintain throughout the duration of this Agreement insurance
against claims for injuries to persons or damages to property which may arise from or in
connection with the performance of the work hereunder by the Attorney, its agents,
representatives, or employees. Attorney shall provide current evidence of the required insurance
in a form acceptable to Client and shall provide replacement evidence for any required insurance
which expires prior to the expiration or termination of this Agreement.
Nothing in this section shall be construed as limiting in any way the Indemnification and
Hold Harmless clause contained herein or the extent to which Attorney may be held responsible
for payments of damages to persons or property.
A. Minimum Scope and Limits of Insurance
(1) Professional Liability Insurance. Attorney shall maintain professional
liability insurance appropriate to Attorney's profession with a limit of not less than one million
dollars ($1,000,000).
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(2) Commercial General Liability Insurance. Attorney shall maintain
commercial general liability insurance coverage in a form at least as broad as ISO Form #CG
001 ED. 11/88, with a limit of not less than one million dollars ($1,000,000) each occurrence. If
such insurance contains a general aggregate limit, it shall apply separately to the Agreement or
shall be twice the required occurrence limit.
(3) Workers' Compensation and Employers' Liability Insurance. Attorney
shall maintain workers' compensation insurance as required by the State of California and
employers' liability insurance with limits of not less than one million dollars ($1,000,000) each
accident.
B. Deductibles and Self-Insured Retentions
Any deductible or self-insured retention must be declared to and approved by
Client. .
C. Other Insurance Provisions
The required insurance policies shall contain or be endorsed to contain the
following provisions:
(1) Commercial General Liability and Professional Liabilitv
This insurance shall be primary insurance as respects Client, its officers,
employees, and volunteers and shall apply separately to each insured against whom a suit is
brought or a claim is made. Any insurance or self-insurance maintained by Client, its officers,
employees, and volunteers shall be excess of this insurance and shall not contribute with it.
(2) Professional Liability
If the Professional Liability policy is written on a "claims made" form,
Attorney shall maintain similar coverage for one year following expiration or termination of
Agreement and shall thereafter submit annual evidence of coverage. Additionally, Attorney shall
provide certified copies of the claims reporting requirements contained within the policies.
(3) Workers' Compensation and Employers' Liability Insurance
Insurer shall waive their right of subrogation against Client, its officers,
employees, and volunteers for work done on behalf of Client.
(4) All Coverages
Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be cancelled, except after thirty (30) days' prior written notice by certified
mail, return receipt requested, has been given to Client.
D. Acceptability of Insurers
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All required insurance shall be placed with insurers acceptable to Client with
current Best's ratings of no less than B+, Class X. Workers' compensation insurance may be
placed with the California State Compensation Insurance Fund. All insurers shall be licensed by
or hold admitted status in the State of California. At the sole discretion of Client, insurance
provided by nonadmitted or surplus carriers with a minimum Best's rating of no less than A-,
Class X, may be accepted if Attorney evidences the requisite need to the sole satisfaction of
Client.
E. Verification of Coverage
Attorney shall furnish Client with certificates of insurance which bear original
signatures of authorized agents and which reflect insurers names and addresses, policy numbers,
coverage, limits, deductibles and self-insured retentions. Additionally, Attorney shall furnish
certified copies of all policy endorsements required herein. All certificates and endorsements
must be received and approved by Client before work commences. Client reserves the right to
require at any time complete, certified copies of any or all required insurance policies and
endorsements.
F. Indemnification
Attorney shall defend, indemnify, and hold harmless Client, its elected officials,
officers and employees from and against any and all actions, suits, proceedings, claims,
demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to
person(s) for damages to property (including property owned by Client), arising out of the
intentional misconduct or negligent errors and omission committed by Attorney, its officers,
employees, and agents, in its performance under this Agreement, except to the extent of such loss
as may be caused by Client's own negligence or that of its officers or employees.
7. Integration
This Agreement and the Litigation Management Guidelines referenced herein and
included as Attachment 1 represent the entire understanding of Attorney and Client as to those
matters contained herein. No prior oral or written understanding shall be of any farce or effect
with respect to those matters covered by this Agreement. This agreement may not be modified,
altered, or amended except in writing by Attorney and Client.
PEARLMAN, BORSKA & WAX CITY OF FULLERTON
By: By:
Steven L Wax Joseph el
Attorney City ;
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Date: 1�� � Date:
Approved as to form: ATTEST:
sl-�� A i- t ') "
Richard . Jones, Cit Attorney Luem a Williams, City Clerk
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,
Attachment 1
,Ir o CITY OF FULLERTON
U "Air
clq`'F°Re. LITIGATION MANAGEMENT GUIDELINES
The City of Fullerton has established the following guidelines to ensure appropriate handling, good
communication and proper control of costs in matters handled by private legal counsel. Counsel
retained by the City to handle tort liability cases must agree to abide by these guidelines.
I. DEFENSE COUNSEL
Prior to appointment in any litigation, potential defense counsel shall provide the following
to the Human Resources Department/Risk Management Division (hereinafter Risk
Management):
A. The names of any professional (partner, associate, law clerk, paralegal, etc.) who
will assist in the defense of the case and the hourly rate and functions to be
performed by each identified professional.
B. Written verification within five (5) days of receipt of the assignment, and after
review of the file:
1. That he/she will have the time available to properly represent the City;
2. That he/she will comply with the City's policies and procedures relating to
litigation (including billing procedures and other provision contained within
the written agreement between City and defense counsel); and
3. That the attorney and law firm have no ethical or legal conflicts that would
disqualify them from representing the City.
II. INITIAL REPORT
Within thirty (30) days following receipt of a case, counsel shall provide to Risk
Management the following:
A. Analysis. A written report containing a comprehensive written analysis of the case.
This analysis shall provide the initial evaluation of the case, including a brief
synopsis of the facts of the case, an analysis of plaintiffs injuries and damages, and
identification of the strengths and weaknesses of the case. Counsel shall also
provide an initial impression of liability and potential settlement and verdict value
and shall identify the pertinent statutes and/or case law that may affect the outcome
of the litigation.
B. Investigation. Counsel shall identify any additional information or documentation
that is needed to prepare the defense of the case. (No investigation shall be done
without prior approval by Risk Management.)
C. Strategy. Counsel shall define the strategy to be used in defending the lawsuit,
including:
1. The anticipated course of action to be taken and prospect for success (i.e.:
demurrer, motion for summary judgment,negotiated settlement,trial, etc.).
2. The facts or elements which must be proved or disproved and the discovery
necessary to establish defenses.
3. The timing of the discovery, filing of motions, negotiations or other
objectives.
4. A description of how the work will be distributed among those who will be
working on the case.
5. The tactics to be used in defending the case and the advantages to be gained
by use of these tactics.
D. Budget. Counsel will also provide an estimate of the anticipated cost of each
significant aspect of the litigation, including:
1. Discovery and litigation expenses up to trial.
2. Outside expert expenses through trial.
3. Trial expenses.
III. FILE HANDLING
A. Correspondence and pleadings. Copies of correspondence and pleadings shall be
promptly provided to Risk Management and, if appropriate, to the City's insurers or
to the Independent Cities Risk Management Authority (ICRMA) and their claims
administrator or to the Workers' Compensation third party administrator. Counsel
will promptly respond to all letters and phone calls and will keep Risk Management
fully advised of the progress in each case. Counsel will forward discovery requests
to Risk Management immediately upon receipt to allow ample time to prepare
responses. Counsel will endeavor to avoid using any express mail or overnight mail
service or personal delivery when possible.
B. Meetings. Meetings will be scheduled by counsel to permit the attendance of a Risk
Management representative. Communication with City employees and departments
will not be initiated without prior approval of Risk Management.
C. Depositions. Depositions of the plaintiffs, expert witnesses and other key witnesses
will be taken by the lead attorney in the case. Deposition summaries shall be
provided to Risk Management within thirty days of the depositions. Immediately
upon receipt, notice of all depositions of City employees shall be sent to Risk
Management.
D. Evaluations/reporting. Counsel shall provide Risk Management written case
evaluation reports at thirty (30) day intervals through completion of discovery and
no less frequently than quarterly thereafter. These evaluations shall disclose any
weaknesses or strengths that have been discovered, any changes in applicable
statutes or case law, any increase or decrease in anticipated costs, summaries of
findings by our experts, any significant developments and changes in the evaluation
of the potential liability and settlement value of the case. These evaluations shall be
as straight-forward and objective as possible to allow the City to meaningfully
analyze the case and to determine the course of action to be taken.
IV. AUTHORITY
Counsel shall not initiate investigation, prepare motions, retain experts, or purchase trial
exhibits without prior authorization of Risk Management. Likewise, counsel will not make
any offer of settlement without prior authorization of the City.
V. LEGAL BILLINGS
All bills for legal services and costs shall be submitted at least quarterly. Fees and costs
shall be billed at the rates previously agreed upon. All bills shall state with particularity the
legal work performed, the hours expended to perform the work and the costs incurred.
Attorneys submitting the bills for payment are responsible for the content of the bills and
will work with the City to resolve problems or questions.
Legal fees shall be submitted in the following format:
A. Each activity will be dated and itemized (multiple daily descriptive explanations of
activities with a single time entry are not acceptable.)
B. The initials of the professional who completed the itemized tasks must be included
with the entry.
C. The amount of time to complete the task must be broken down into tenths of hours.
D. The rates charged by each professional working on the case must be summarized
with the amount of hours to depict a cost per professional.
VI. TRIAL/ARBITRATION/HEARING REPORT
At the conclusion of all trials, arbitrations and hearings, a brief summary report shall be
directed to Risk Management outlining the results.
VII. FINAL REPORTS
At the conclusion of the case, a short summary report shall be directed to Risk Management.
Original closing papers shall be attached.