EXHIBIT A PROFESSIONAL LEGAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAUSALITO AND BROWN & WINTERS

Transcription

1 EXHIBIT A PROFESSIONAL LEGAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF SAUSALITO AND BROWN & WINTERS Page 1 of 6

2 PROFESSIONAL LEGAL SERVI CES AGREEMENT This PROFESSIONAL LEGAL SERVICES AGREEMENT (Agreement) is the written fee contract required by California law between the CITY OF SAUSALITO (City) and BROWN & WINTERS (Special Counsel). Unless a di:fferent Agreement is made in writing, this Agreement alone shall govern Special Counsel's and City's respective rights and responsibilities. l. SCOPE OF SERVICES: City retains Special Counsel to represent City in connection with a claim or claims against various historie liability carriers (Insurance Carriers) pertaining to the investigation and/or remediation of contaminated sites as discussed in more detail below. Special Counsel agrees to: a. Meet with City staff as City requires; b. Provide reports on the status of pending claims and litigation as requested by the City Attorney; c. Obtain the City Attorney's written consent before retaining any consultant or expert; and d. Maintain all backup documentation to support all entries included in its billings. 2. SERVICES TO BE PERFORMED BY SPECIAL COUNSEL: Special Counsel agrees to perform the following legal services, if necessary, with respect to the claim(s) described above: a. Investigate, research and discover the existence and terms of historie insurance policies that may cover environmental liabilities of the City; b. Work with City staff to identify potential insurance claims for environmental liabilities; c. Work with City staff to identify and summarize costs and expenses, and prepare claims for environmental liabilities; d. Tender claim(s) to Insurance Carriers; e. Communicate and negotiate with Insurance Carriers re claim(s); f. Prosecution (with City's prior approval, if need be) of disputed claim(s) by arbitration or legal action until settlement, award or judgment is obtained; g. Oppose any motions for new trial in cases where a judgment was rendered in favor of the City; and h. Pursue collection/enforcement of any arbitration awards or judgments favorable to the City. 3. SERVICES NOT COVERED BY THIS AGREEMENT: If additional legal services are necessary in connection with City's claim(s), and City requests Special Counsel to perform such services, additional fee arrangements must be made between Special Counsel and City. For Page1of5 Page 2 of 6

3 example, such additional services may be required: a. If the judgment obtained as described under Section 2f is not in City's favor, or the amo unt thereof is unsatisfactory to City; b. If the judgment obtained as described under Section 2f is in City's favor and an opposing party appeals from the judgment; or c. If a retrial is ordered after a motion for new trial or mistrial, or after reversal of the judgment on appeal as described under Section 2f. 4. POWER TO CONTROL AND SUPERVISE LITIGATION UNDER PARAGRAPH 2f: Pursuant to County of Santa Clara v. Superior Court (Atlantic Richfield) (20 l O) 50 Cal.4th 35, Special Counsel and City specifically agree that City or the City Attomey will retain and exercise absolute and total control over both the conduct of Special Counsel and the overall prosecution of the case. The City Attomey possesses the requisi te supervisory authority and will be personally involved in overseeing the claim. In particular, the control the City Attomey maintains includes, but is not limited to, the following: complete control over the course and conduct of the case; decisions relating the ultimate disposition of the case and any potential settlement; and, the ultimate power to veto any decisions made by Special Counsel. Any opposing party's attomey may contact the City Attomey directly without having to confer with Special Counsel. The City Attomey shall be associated as counsel in any litigation initiated by Special Counsel. Special Counsel shall not associate or employ other counsel to assist in performing the services required by this Agreement or to appear on City's behalf in any proceeding or lawsuit conceming claims covered by this Agreement without the City Attomey's written approval. 5. NO GUARANTEES AS TO RESULT: City acknowledges that Special Counsel has made no guarantees as to the outcome or the amounts recoverable in connection with City's claim(s). 6. CONTINGENCY FEE TO SPECIAL COUNSEL: City acknowledges it has been advised by Special Counsel and is aware that any contingency fee arrangements are not set by law and that a contingency fee between Special Counsel and City is negotiable. Bearing in mind that the contingency fee is negotiable, City agrees to pay Special Counsel a fee of one-third (1/3) of any recovery, whether such recovery is by way of settlement, judgment, compromise or otherwise; and City agrees this arrangement is fair and reasonable. a. Except as set forth in Section 7 of this Agreement Special Counsel that it will not charge City for any administrative fees, expenses or overhead including without limitation travel, postage, telephone and mileage. Page 2 of 5 Page 3 of 6

4 b. If the recovery consists of payments to be made over a period of time, or other property not entirely cash or cash-equivalent, the contingency fee shall be based on the present cash value of the recovery as determined by generally recognized accounting and appraisal standards. (For example, if the recovery of $1,000 is payable at $100/per year over ten years, its present value may be approximately $380, depending on prevailing interest rates.) The contingency fee shall be paid out of the :first funds or property received by City. c. Monetary sanctions awarded to Special Counsel during the course of this litigation shall not be considered part of the City's recovery in this action. Such sanctions shall be deemed compensation to Special Counsel for extraordinary time and eff ort expended as a result of an opposing party's bad faith conduct or failure to comply with discovery demands, court orders or similar obligations. But if the sanctions award includes a cost item (such as the filing fee for making a motion), the amount thereof shall be credited to City's costs account when received by Special Counsel. 7. LITIGATION COSTS AND EXPENSES a. City agrees to reimburse Special Counsel for costs and expenses directly related to the provision of litigation services described in Section 2 f that have been pre-approved by the City. Such costs and expenses may include but are not limited to any or all of the following items: court filing fees process serving fees private investigator fees photographer/graphic artist fees fees to experts for consultation and/or appearance at deposition or trial jury fees mail, messenger and other delivery charges parking and other local travel b. Special Counsel may advance such pre-approved costs and expenses on City's behalf, but is not obligated to do so. City agrees to reimburse Special Counsel upon demand for any such advances. City is responsible for such reimbursement regardless of the status or outcome of the litigation, or the amount of any recovery. c. City further agrees that if monies are maintained in Special Counsel's trust account for the purpose of paying fees and costs as incurred, Special Counsel is authorized without the prior consent of City to transfer sufficient funds from trust to pay current as well as past due fees and costs upon mailing of bills for fees and costs in the ordinary course ofbusiness. 8. EFFECT OF DISCHARGE BY CITY: City shall have the right to discharge Special Counsel at any time upon written notice to Special Counsel. Such discharge shall not affect Page 3 of 5 Page 4 of 6

5 City's obligation to reimburse Special Counsel for costs incurred prior to such discharge. In addition, Special Counsel shall be entitled to the reasonable value of legal services performed prior to such discharge, to be paid by City from any subsequent recovery on the claim(s) covered by this Agreement. 9. SPECIAL COUNSEL'S LIEN: To secure payment to Special Counsel of all sums due under this Agreement for legal services rendered arni/or costs advanced, City hereby grants Special Counsel a lien on City's claim(s) and any cause of action or lawsuit filed thereon, and on any recovery City may obtain, whether by settlement, judgment, compromise, or otherwise. 10. DISCLOSURE RE: ERRORS AND OMISSIONS INSURANCE: Special Counsel does maintain errors and omissions insurance covering the services to be rendered under this Agreement and agrees to maintain such insurance in the amount of not less than One Million Dollars ($1,000,000.00) at all times during the performance of this Agreement and until two (2) years following completion of the work hereunder. Insurance required under this Agreement shall be placed with a carrier authorized to do business in the State of Califomia with a rating of A- or better. 11. OWNERSHIP OF DOCUMENTS. Special Counsel agrees that all documents produced in the performance of this Agreement shall be the sole property of the City including all rights therein of whatever kind and whether arising from common or civil law or equity. 12. CONSULTANT CONFLICT OF INTEREST. Special Counsel covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. Special Counsel further covenants that in the performance of this Agreement, no persons having any such interest shall be employed. 13. HOLD HARMLESS AND INDEMNIFICATION. Special Counsel shall indemnify, defend and save City, its officers, elected and appointed officials, employees, contractors and agents harmless from and against any and all liability, claims, suits, actions, damages and/or causes of action of any kind arising out of any bodily injury, personal injury, property damage or in violation of any federal, state or municipal law or ordinance or other cause in connection with the activities of Special Counsel, or on account of or otherwise related to its performance of this Agreement to the extent that any such liability, claims, suits, actions, damages and/or causes of action arises out of the intentional, negligent or willful misconduct of the Special Counsel. 14. INDEPENDENT CONTRACTOR - SUBCONTRACTORS. It is specifically understood and agreed that in the making and performance of this Agreement, Special Counsel is an independent contractor and is not and shall not be construed to be an em.ployee, common law employee, agent or servant of City. Special Counsel shall be solely liable and responsible to pay all required taxes and other obligations, including, but not limited to, withholding and Social Security. Special Counsel acknowledges and agrees that he/she is not entitled to the benefits of Page 4 of 5 Page 5 of 6

6 civil service status and/or the rights and privileges enjoyed by civil service employees and Special Counsel hereby waives any and all claims to such rights and/or privileges. 15, GOVERNING LAW. The parties agree that this Agreement shall be governed and construed in accordance with the laws of the State of California and any action brought by either party on this Agreement shall be brought in Marin County Superior Court. 16. ASSIGNMENT. Special Counsel shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation) without the prior written consent of City. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective, duly authorized representatives. SPECIAL COUNSEL: BROWN & WINTERS CITY: CITY OF SAUSALITO BY: BY: Birmingham Drive, Suite 11 O Cardiffby the Sea, CA TEL: (760) FAX: (760) Litho Street Sausalito, CA Page 5 of 5 Page 6 of 6