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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 - 1 - 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 - 2 - 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). - 3 - (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 - 4 - 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 ; - 5 - Date: 1�� � Date: Approved as to form: ATTEST: sl-�� A i- t ') " Richard . Jones, Cit Attorney Luem a Williams, City Clerk - 6 - , 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.