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HomeMy WebLinkAboutContracts & Agreements_117A-2021AGREEMENT BETWEEN DISENHOUSE LAW AFC AND THE CITY OF REDLANDS FOR SPECIAL COUNSEL SERVICES This agreement for special counsel services ("Agreement") is made and entered in this Ist day ofJuly, 2021 ("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and Disenhouse Law APC ("Disenhouse Law") City and Disenhouse Law are sometimes individually referred to herein as a 'Party" and, together, as the "Parties." In eonsideration of the mutual promises contained herein, City and Disenhouselaw agree as follows, RECITALS WHEREAS, from time to time, City receives claims pursuant to the Government Claims Act alleging liability on City's part, and is subsequently served with actions to enforce such alleged liability; and WHEREAS, Disenhouse Law is familiar with and competent in defending public agencies against government claims., and Disenhouse Law represents to City that Disenhouse Law attorneys are approved to represent and to defend City as required by law for actions filed against City, NOW, THEREFORE, in consideration of the remuneration hereinafter set forth in Exhibit "A," Disenhouse Law agrees to defend all claims or actions referred by Q ity, arising from alleged liability of City, on the following terms arid conditions. AOREEME-NiT Section 1, Disenhouse Law shall have the right to decline any action referred by City Disenhouse Law shall determine that it has no conflict of interest prior to accepting any action assigned by City Disenhouse Law shall not accept actions that may include causes of action against City It is understood that the contractual relationship of Disenhouse Law to City is that of an independent defense attorney Section 2. Each action referred to Disenhouse Law by City shall be submitted with the understanding that professional fees and costs shall be paid at the hourly rate of payment and reimbursement of costs shown on Exhibit "A" to this Agreement, Disenhouse LaW will prepare and submit an invoice for professional services to City on a monthly cycle with a separate invoice being prepared for each individual matter Section 3. Disenhouse Law will provide to City, upon request, copies of all receipts for all out of pocket expenses detailed on any invoice Section 4. Disenhouse Law shall work cooperatively with City to resolve, in the best interests of City, all claims and lawsuits filed against City Disenhouse Law shall initiate contact with the City Attorney, or the City Attorney's authorized designee, for the authority to recommend the settlement of any claim or any lawsuit assigned to it by City to the Redlands City Council Disenhouse Law shall make available, upon request by City, the attorney handling the action for Which a settlement is proposed for the purpose of appearing at the City Council Closed session to answer questions pertaining thereto, thus facilitating the City Council's decision on the matter 1 CAUsers\bruce\AppDatalLocaMlicrosoft \Windows INetCache\Content.Outiook186GPIAY6Misenhouse Law Special Counsel Services Agreenient,docx. Section 5. Disenhouse Law is subject to all relevant requirements contained in the Health Insurance Poi/ability and Accountability Act of 1996, ("HIPAA"), Public Law 104-91, enacted August 21, 1996, (the "Law"), and the law and regulations promulgated subsequent thereto Disenhouse Law shall cooperate with City in implementation of all relevant regulations promulgated under the Law Section 6. The term of this Agreement shall commence on its Effective Date and shall continue until terminated as set forth herein, Any Party to this Agreement shall have the right to terminate this Agreement at any time by giving thirty (30) daysprior written notice to the other Party Should any Party to this Agreement choose to terminate this Agreement, Disenhouse Law shall continue to provide legal serviees if so agreed to in writing by City, and Disenhouse Law shall be compensated therefore on the same terms and conditions as hereinbefore set forth, until the conclusion of such action for any matters previously referred to Disenhouse Law (prior to the notice of termination) Section 7, Without limiting or diminishing Disenhouse Law's obligation to indemnify or hold City harmless, Disenhouse Law shall procure and maintain or cause to be maintained at its sole cost and expenses, the .following insurance coverage's during the term of this Agreement. A. Workers' Compensation. If Disenhouse Law has employees as defined by the State of California, Disenhouse Law shall maintain' statutory Workers' Compensation Insurance as prescribed by the laws of the State of California. The policy shall include Employers' Liability, including- Occupational Disease, with limits not less than OieMi11ion Dollars ($1,000,000) per person per accident. The policy shall be endorsed to waive subrogation in favor of City B Commercial General Liability: Commercial General Liability insurance coverage, including but not limited to, premises liability, contractual liability, products and completed operations liability, personal and advertising injury., and cross liability coverage and employment practices liability, covering claims which may arise from or out of Disenhouse Law 's performance of its obligations hereunder The policy shall name City and its .elected and appointed officials, officers, employees, agents, and representatives as additional insured's. The policy's limit of liability shall not be less than One Million Dollars ($1,000,000) per occurrence combined single limit. If such insurance contains a general aggregate limit, it shall apply separately to this agreement or be no less than two (2) times the occurrence limit, C Vehicle Liability. If vehicles or mobile equipment are used in the performance of Disenhouse Law's obligations under this Agreement, Disenhouse Law shall maintain liability insurance for all owned, non -owned or hired vehicles so used in an amount not less than One Million Dollars ($1,000,000) per occurrence combined single limit, If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two (2) times the occurrence limit. The Policy shall name City, and its elected and appointed officials, officers, employees, agents, and representatives as additional insureds, D Professional Liability Insurance. Disenhouse Law shall maintain Professional Liability Insurance providing coverage for Disenhouse Law's performance of work included 2 CaisersIbrueelAppDatii\LocalliAierosoft\Windows\INetCachetCententOutiook1860l)13Y6U1Disenliousc Law Special Counsel Services Agreement.doex, within this Agreement, with a limit of liability of not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) annual aggregate. If Disenhouse Law's Professional Liability Insurance is written on a claims made basis rather than an occurrence basis, such insurance shall continue through the term of this Agreement and Disenhouse Law shall purchase at its sole expense either (i) an Extended Reporting Endorsement (also known as Tail Coverage), or (ii,) Prior Dates Coverage from new insurer with a retroactive date back to the date of, or prior to, the inception of this Agreement, or (iii) demonstrate through Certificates of Insurance that Disenhouse Law has maintained continuous coverage with the same or original insurer Coverage provided under the above -referenced items will continue for a period of five (5) years beyond the termination of this Agreement, E. General Insurance Provisions -All Lines, i Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of California and have an AM Best rating of not less than A. VIII (A.8) unless such requirements are waived, in writing, by City If City waives a requirement for a particular insurer, such waiver is only valid for that specific insurer and only for one policy term, ii Disenhouse Law's insurance carriers must declare their insurance deductibles or self -insured retentions If such deductibles or self -insured retentions exceed five hundred thousand dollars ($500,000) per occurrence, such deductibles and/or retentions shall have the prior written consent of City before the commencement of operation under this Agreement. Upon notifications of deductibles or self -insured retention's unacceptable to City, and at the election of City, Disenhouse Law carriers shall .either (i) reduce or eliminate such deductibles or self -insured retention's as respects this Agreement with City, or (ii) procure a bond which guarantees payment of losses and related investigations, claims administration and defense costs and expenses. Disenhouse Law shall cause Disenhouse Law's insurance carriers to furnish City with either (i) a properly executed original Certificates of Insurance and certified original copies of Endorsements effecting coverage as required herein, and (ii) if requested to do so orally or in writing by City, provide original Certified copies of policies including all Endorsements and all attachments thereto, showing such insurance is in full force and effect. Further, said Certificates and policies of insurance shall contain the covenant of the insurance carriers that thirty (30) days prior written notice shall be given to City prior to any material modification, cancellation, expiration or reduction in coverage of such insurance. In the event of a material modification, cancellation, expiration or reduction in coverage, this Agreement shall terminate forthwith, unless City receives, prior to such effective date, another properly executed original Certificate of Insurance and original copies of endorsements or certified original policies, including all endorsements and attachments thereto evidencing coverages set forth herein and the insurance required herein is in full force and effect, iv It is understood and agreed to by the Parties and the insurance company, that the Certificates of Insurance and policies shall so covenant and shall be construed as primary insurance, and City's insurance and/or deductibles and/or self -insured retention's or self -insured programs shall not be construed as contributory 3 CAUsers\bruce\AppDataocallMicrosoliMindows\ INctCathe‘ContenLOutiook186GPBY6LADisenhouse Law Special Counsel Services Agreement,clocx, v If this Agreement, including any extensions thereof, exceeds five (5) years, City reserves the right to adjust the types of insurance required under this Agreement and the monetary limits of liability for the insurance coverage's currently required herein, if; in City's reasonable judgment, the amount or type of insurance carried by Disenhouse Law has become inadequate. vi Disenhouse Law shall pass down the insurance obligations contained herein to all tiers of subcontractors working tinder this Agreement. vii, The insurance requirements contained in this Agreement may be met with programs of self-insurance acceptable to City viii. Disenhouse Law agrees to notify City of any claim by a third party or any incident or event that may give rise to a claim arising from the performance of this Agreement. Section 8, Disenhouse Law shall defend, indemnity and hold harmless City, and its elected and appointed officials, officers, employees., agents and representatives from any liability whatsoever, based or asserted upon any services of .Disenhouse Law , its officers, employees, subcontractors, agents or representatives arising out of or in any way relating to this Agreement, including but not limited to the property damage, bodily injury, or death, or any other element of any kind or nature whatsoever, arising from the p'erfonnance of Disenhouse Law , its officers, agents, employees, subcontractors, agents or representatives under this Agreement. With respect to any action or claim subject to indemnification herein by Disenhouse Law, Disenhouse Law shall, at its sole cost, have the right to use counsel of its own choice and shall have the right to adjust, settle or compromise any such action or claim without the prior eonsent of City, provided, however, that any such adjustment, settlement or compromise in no manner whatsoever limits or circumscribes Disenhouse Law's indemnification to City as set forth herein. Disenhouse Law's obligation hereunder shall be satisfied when Disenhouse Law has provided to City, the appropriate form of dismissal relieving City from any liability for the action or claim involved. The specified insurance limits required in this Agreement shall iti no way limited or circumscribe Disenhouse Law's obligations to indemnity and hold harmless City herein from third party claims. 'lithe event there is conflict between this Section 8 and California Civil Code Section 2782, this Section 8 shall be interpreted to comply with Civil Code 2782. Such interpretation shall not relieve Disenhouse Law from indemnifying City to the fullest extent allowed by law Section 9. Any notice or other communication required, or which may be given, pursuant to this Agreement, shall be in writing, Any such notice shall be deemed delivered (1) on the date of delivery in person, (Li) five (5) days after deposit in first class registered mail, with return receipt requested, (iii) on the actual delivery date if deposited with an overnight courier, or (iv) on the date sent by .facsimile or electronic mail transmission (including PDF), if confirmed with a copy sent contemporaneously by first class, certified, registered or express mail, in each case properly posted and fully prepaid to the appropriate address set forth below, or such other address as a Party may provide notice in accordance with this section. 4 Ci\Userartice\AppDatalocal\MicrosoftViNindows\INetCtiche\ContculOuilookt86GPBY6U1Disenhouse Law Special Counsel Services Agreement,doex. CITY City Clerk City of Redlands 35 Cajon Street P.O. Box 3005 (mailing) Redlands, CA 92373 jdonadlson@cityofredlands org (909) 798-7531 DISENHOUSE LAW Bruce E. Disenhouse Disenhouse Law APC 3833 Tenth Street Riverside, CA 92501 bruce@disenhouselaw net (951) 530-4117 Section 10. This Agreement, including the Exhibit incorporated herein by reference, represents the entire agreement and understanding between the Parties as to the matters contained herein, and any prior negotiations, written proposals or verbal agreements relating to such matters are superseded by this Agreement Any arnendment to this Agreement shall be in writing, approved by City and signed by City and Disenhouse Law Section 11 In the event any action is commenced to enforce or interpret any of the terms or conditions of this Agreement the prevailing Party shall, m addition to any costs and other relief, be entitled to the recovery of its reasonable attorneys' fees, including fees for use of in-house counsel by a Party IN WITNESS WHEREOF, duly authorized representatives of City and Disenhouse Law have signed in confirmation of this Agreement CITY OF REDLANDS Paul T Barich, Mayor ATTEST. ne Donaldson, City Clerk DISENH P USE LAW APC By Bruce E Disenhouse Yelei 64W-e 5 C:\Users\bruce\AppData\Local\Microsoft\Windows\INetCache\Content.outlook\86GPBY6U\Disenhouse Law Special Counsel Services Agreement.docx EXHIBIT "A" For use with the Agreement for Professional Services 1 Professional Services 2, Hourly Rate 3 Billing Cycle 4 Effective Date 5 Contact is for 6 Firni Name [X] Oeneral_Liability $180 Hourly for Partner $170 Hourly for Associates $110 Hourly for Paralegals [ Quarterly [X] Monthly July 1, 2021 [X] Single case assignments DISENHOUSE LAW APC 383.3 Tenth Street Riverside, California 92501 7 Costs and Reimbursable Expenses A. Costs incurred by Disenhouse Law in connection with its representation of the City will be billed to the City on its Monthly statement at the standard rates in effect at the time the expenSe is incurred. As of the date of this Agreement, Disenhouse Law's standard rates are as 'follows Mileage Paper Fax Compact Disc DVD Postage $0 56 per tnile, round trip $0.20 per page including original, file copy and all required copies per Local Rules or California Code of Civil Procedure $1 per (send and receive) $10 per disc $25 per disc By weight per LISPS rates B Out-of-pocket expenses will be billed at the actual cost incurred by DISENHOUSE LAW Examples of such expenses are Overnight Shipment Parking Court copy Jury fees Transportation/ Travel By weight per carrier rates (Fed Ex, UPS etc,) Per facility charge Per court rates $150 deposit and additional fees as calculated by Court at trial of matter Per carrier charge (bus, Metrolink, rental car, hotel etc.) 6 CALlser.slbruce\ AppDatalLocal \Microsoll1 Windows \ INciCaelle1ContenLOutlook 1860PBY6U Disenhousc Law Special Counsel Services Agrecineadocx. Filing fees CourtCall Meals Per statute Per facility rates per appearance Per establishment charges for Disenhouse Law attorneys and clients and only during trial of a 'matter Disenhouse Law will submit any invoices it receives from vendors for services performed on behalf of the City and at the request of Disenhouse Law in its representation of the City, to the City and will be promptly paid directly to the vendor by the City Disenhouse Law will review the invoice for accuracy and will contact the Vendor and request corrections to any invoice Disenhouse Law believes to be incorrect. Time spent reviewing and contacting the vendor, if necessary, will be provided to the City free of charge. Costs associated with forwarding the vendor invoices (See 7(A) above) to the City for payment will be detailed in Disenhouse Law's monthly statements and will be paid by the City Examples of such vendors include but are not limited to Expert fees Attorney Services Court Reporters Investigators Per expert's established fee schedule Per their 'established rates Per their established rates Per their established rates 7 CAUsers\brucelAppDalalLocalVviicrosoll\Windows\INetCaclic\Content.Otalook\860PBYGUIDiscallotise Law Special Counsel Services Agrecraent.clocx. SPECIAL COUNSEL GUIDELINES T INTRODUCTION The City of Redlands has established the following Guidelines for .Defense Counsel representing the City and/or its employees in claims and lawsuits asserted against the City and/or its employees, The City has a self -insured retention, which can vary in amount from year to year The City also purchases excess insurance above the self -insured retention from CSAC-EIA. The amount ofthe excess limits also varies from year to year Representatives of the City and Defense Counsel function as a team. The City understands that as the attorney of record, Defense Counsel has a duty to provide the City and any assigned individually named defendants with appropriate representation. Defense Counsel should work directly with the assigned claims adjuster to obtain appropriate approvals and authority throughout the matter It is critical that the claims adjuster be kept informed of all developments in the matter All significant legal strategy and other important decisions must be raised with appropriate advance notice and discussed with the assigned claims adjuster before any substantive decision is made Please note that the City may decide to waive or modify some or all of the below Guidelines as the situation requires. However, Defense Counsel is expected to adhere to the Guidelines as written; unless specifically exempted from any of them in writing. 11 GENERAI EXPECTATIONS OF DEFENSE COUNSEL Defense Counsel hourly rates are approved by the City Questions regarding rates or rate adjustments should he raised directly with the City Attorney The Defense Counsel who is assigned to the case is responsible for the supervision of all partners, associates, and paralegals on their litigation team. To ensure efficient case handling, no more than two (2) attorneys and one (1) paralegal may be assigned to work on any one file absent unusual circumstances. Any requests to use additional staffing must be approved in writing by the City Attorney or his designee prior to adding or changing personnel on a particular case. The City should not be billed for costs and fees associated with new personnel learning about a particular case (see Section XILF., Disallowed Charges) The City will typically only pay for one (1) attorney from a firm to attend trials, try a case, court appearances, depositions, interviews, conferences, and meetings. If Defense Counsel believes additional attorneys are needed to attend an event, then :Defense Counsel must obtain written authorization from the City Attorney in advance of such an event occurring, Law firms selected to represent the City's interests must comply with the terms and conditions set forth in the Agreement for Professional Services -Legal Services and maintain insurance standards with reputable insurance carriers who are in good standing and licensed to do business in the State of California and other states which may be applicable Certificates of Insurance must be provided to City of Redlands on an annual basis. 8 CAUsers\brocelAppData\Local\MierosoMindows\INetCache\Content.Oullook1860PBY6U\DiscalIouse Law Special counsel services Agreementslocx. III. CASE ASSIGNMENT AND DEFENSE STRATEGY A. Case Assignment. Cases are assigned to specific attorneys in the Defense Counsel firm and shall not be reassigned to others within the firin without the prior written approval of the City Attorney Upon receipt of a new case assignment, Defense Counsel must send an aeknowledgernent of the assignment to the City Attorney and the City's third party claims administrator The City's litigation philosophy is to defend against non -meritorious claims and lawsuits, and to resolve as- soon as is practical claims and lawsuits where liability is reasonably clear The City wants its attorneys to take a proactive approach to defending cases, meaning that once an assignment is received, Defense Counsel should direct their efforts towards collecting and analyzing necessary information about the case so as to assess and resolve cases at the earliest possible stage Defense Counsel is then expected to provide the City with a realistic evaluation of the case and an appropriate litigation plan and budget, Defense Counsel should not simply be reactionary to the opposing side or to case developments but should instead actively gather the information necessary to evaluate the case. To provide the best defense strategy possible, the City expects Defense Counsel to master the facts, circumstances, and legal issues as soon as possible and to prepare a litigation plan that details the specific objectives Defense Counsel intends to achieve, The litigation plan. should take into consideration the fact that in some cases a more streamlined approach to discovery and investigation may be appropriate to help achieve an early resolution, whereas other cases require a more in-depth approach. As the case progresses, Defense Counsel is expected to reevaluate the defense position, particularly as new facts, legal issues, or other -matters are discovered, Tenders of Defense. Throughout the life of a ase, Defense Counsel must determine whether there are responsible parties in the case, other than the City, or whether City was named as an additional insured on any applicable insurance policy by any entity, in order to make appropriate and timely tenders of defense. Defense Counsel should 'identify other responsible parties, including insurance companies, as soon as is practicable The possible tender of defense to that party should be discussed with the Risk Management Division Tender letters should demand a written response within twenty (20) days and Defense Counsel is expected to follow up on all tenders. C. City of Redlands Employees as Defendants. It is expected that upon receipt of the defense assignment in a case where Defense Counsel is assigned to represent the City and a City employee, Defense Counsel will immediately ascertain facts necessary to determine if there is a conflict, or potential conflict, which may preclude Defense Counsel from jointly representing all City of Redlands related 9 CAUsers\bruce\AppData\LocallMicrosoftlWindows\INetCeelic\ConteriLOutlook186GPBYGLADisenhouse Law Special Counsel Services Agreement,doex. defendants, The City Will assign separate Defense Counsel to those individual defendants for whom separate counsel is deemed appropriate Defense Counsel is expected, consistent with the Rules of Professional Conduct, to facilitate cooperation with separate counsel for :individual defendants wherever possible, SO as to maximize success for all defendants and avoid unnecessary duplication of work, If at any time during the litigation a conflict of interest develops between or among any of the City's jointly represented defendants, the.conflict must be immediately disclosed to the City Attorney Defense Counsel is required to develop a plan to obtain dismissal of individually named City employees, Such strategy should be discussed with the City It is not appropriate to secure dismissal of an individual defendant through an agreement to substitute the City as a named defendant. If a dismissal of an individually named defendant is obtained, Defense Counsel must obtain in writing the individual's agreement to continue to cooperate with the defense of the case after his or her dismissal. A copy of the written agreement must be provided to City Miscellaneous,D Defense Counsel may not accept set -vice on behalf of the City or its employees, absent prior express approval. Defense counsel may not agree to waive a jury or participate in a bench trial without consent ofthe Redlands City Council. IV DEFENSE REPORTING REQUIREMENTS Reporting by Defense Counsel is an extremely important part of the litigation management process. Defense Counsel needs to report on all significant developtnents as they occur, including newly discovered information. When reporting, correspondence (either letters or entails) should be directed to the City Attorney and the City's third party claims administrator, with copies to the entity's excess insurer, CSAC-EIA. Reports should be concise and analyze the relevant facts and law Each report in which factual development is being summarized should also contain an updated analysis of the case explaining how the newly learned information impacts the legal assessment. If the report contains a summary of information pertaining to damages, then_ the report should contain an updated assessment of the damages exposure in the case. The updates should also briefly summarize the strengths and Weaknesses of the plaintiffs case. A. Specific Reports. Defense Counsel is required to provide the following reports either via correspondence or email, All such reports should be marked "Attorney -Client Privileged Communication." Immediately upon receipt of defense assignment, a written acknowledgment of receipt of the assignment of the case for defense handling I 0 CAUsers\brucciAppData\LocallMicrosoll\Windows\INetCachelContent,Oullook\860PBY6U1Disenhouse Law Special Counsel Services Agreemeadocx. o A written initial case_ evaluation and litigation budget within sixty (60) days of receipt of the assignment. O A written status report every sixty (60) days during the litigation or as warranted by new case developments. A written Defense Evaluation summarizing the facts, the liability aspects ofthe case, the claimed damages, and Defense Counsel's thoughts regarding the settlement value of the case at least sixty (60) days before a mediation, settlement conference, or any other event during which potential settlement of the case will be discussed. A written Defense Evaluation (pretrial report) at least sixty (60) days prior to the first day of trial B Topics to Include in Initial Case Evaluation The following topics should be included, under separate headings, in the initial case evaluation, Pleadings — identify the court and filing date, all parties and their attorneys, provide a brief evaluation of the opposing attorney, and list the causes of action alleged against each City defendant. Factual Background — Briefly summarize all file materials reviewed, relevant history, and any other pertinent documents used by Defense Counsel to develop the factual background of the case. This should inelude. but is not limited to, the following — Information about actual or potential co-defendants and their counsel — Age, education, employment status, and marital/family status of the plaintiff(s) — Age, education, employment status, and marital/family status of all individual defendants — A summary of all witness interviews conducted — A summary of all relevant documents reviewed Liability Analysis — Provide an opinion on potential liability including a review of any statute of limitations issues, an analysis of the likelihood of success as to each of the causes of action alleged, and a description of applicable affirinative defenses. • Strength and Weakness Analysis -- summarize the strengths and weaknesses of the plaintiffs case. • Discovery Plan — Provide a summary ofthe discovery Defense Counsel you anticipate conducting in the case and the reason for it. o Motion .Practice — describe any motion practice you anticipate. • Damages — provide any known information on potential general and special damages. • Settlement_ History and Potential for Early Resolution — provide a summary of any prior settlement discussions and/or discuss any thoughts regarding early settlement including the use of statutory offers to compromise 11 CAUsersIbruce\AppData\Local\Microsoft\Windows\INetCache\ContenLOutlook1860PBY6U1Disenhouse Law Special Counsel Services AgreementAioex, Likelihood of Success — Provide a low, medium, and high range of expected verdicts if the plaintiff(s) were to prevail and the percentage likelihood that the verdict ends up in each range, Attorneys' Fees — if the plaintiffs can recover fees, provide an estimate of the fees you expect the plaintiffs has incurred to date, as well as what you expect them to -incur through trial. Also provide an estimate of ftiture defense attorneysfees and costs Litigation Timeline - Describe the anticipated litigation timeline for the matter Experts and Consultants — identify the types of experts and/or consultants needed and the name and expertise of any experts and/or consultants Defense Counsel suggests retaining. C. Budget Report. A Budget Report is required for each case on which Defense Counsel is retained. Although budgets are intended to be estimates of the scope, cost, and duration of a matter, the City will rely on these reports in setting adequate reserves An initial budget report must be submitted to the City Attorney within. sixty (60) days of assignment of the ease. If Defense Counsel becomes aware of any changes to the budget estimate, an Updated Budget Report should be provided immediately The Budget Report should -include attorneys' fees and cost estimates for the following areas I.) Initial Pleadings; 2) Factual Investigation (including discovery, review of subpoenaed records, witness interviews, and depositions); 3) Law and Motion, 4) Alternative Dispute Resolution, 5) Experts (includes expert fees for record review, deposition, and trial, and fees and costs incurred by Defense Counsel in taking and defending expert depositions), 6) Pre -Trial Preparation, and 7) Trial, D Defense Evaluation Report, The Defense Evaluation Report is designed to provide the reader the best and most current information on a litigated matter prior to any mediation, settlement conference, arbitration, or trial. The report must be provided to the City Attorney at least sixty (60) days before the mediation, settlement conference, arbitration, or start of trial or, in any event, promptly upon request by City 12 cAuserstbniemppoaialocamierosonVindows\INetCachelContent,Outlook186GPBY6U1Disenhouse Law Special Counsel Services Agreernent.docx. The following headings should be used in the Defense Evaluation Report. A brief description of what is expected under each heading is set forth after the name of the heading below • Plaintiffs and Defendants — Identify each plaintiff -and defendant by name Describe the age, education, relevant employment history, and the role in the case of each individual. Also, describe the witness potential of each Plaintiff and each individual Defendant, including your opinion as to how each will be viewed by a jury • Claims -- provide a summary of all claims asserted by each Plaintiff against each Defendant, • Actual or Potential Co -Defendants and Cross -Defendants — identify each co- defendant/cross-defendant and the causes of action asserted against each of them, Also identify any other potential parties and the causes of action that could be asserted and explain why contribution has not been pursued, • Factual Background — Provide a summary of facts pertinent to the case. • Percipient Witnesses — identify each percipient witness to be called by each party, their affiliation (if any) with the City, and your opinion regarding how they will be viewed by a juiy • Expert Witnesses — describe the expected testimony and opinions of the experts for all 'parties If Plaintiffs have not yet disclosed experts, describe their anticipated testimony and opinions. Liability — Provide a thorough discussion of the critical liability issues, including the Plaintiffs theories and the City's defenses, whether the Plaintiff was comparatively negligent and the liability of alt actual and potential Defendants. If applicable, this section should include discussion about the likelihood of success of affirmative defenses, statutes of limitations issues, mitigation, and immunities to be raised through summary judgment or trial. Also, include a reasonable prediction Of which parties are likely to prevail on which claims at trial and a probability of an overall defense verdict. • Special Damages — provide a summary of the critical damages issues including an analysis of the amount and type of special damages the Plaintiffs will claim and an analysis of whether these damages are appropriate. This analysis should .reflect what you expect the Plaintiffs will attempt to "blackboard" and provide a likelihood of success on each item of special damages you expect to be claimed. If there is a claiin for past or future lost earnings, please include dates of birth, life and work life expectancies, mitigation and off -set issues, and analysis regarding lost retirement benefits. • General Damages — Discuss the Plaintiff's general damages claim including an analysis of what facts support or detract from a general damages award. Provide your estimate of a likely general damages award. • Punitive Dainages Identify who a punitive damages claim is alleged against, analyze the Plaintiffs likelihood of success in obtaining such an award, and provide an estimate of what you expect such an award might be The City is immune from punitive damages under California Government Code Section 818 8, but individually named Defendants 13 CAUserAbruce\ AppDatalocallMierosoft\WIndows\ INetCache\ContentOutlook186GPBY6111Disenhouse Law Special Counsel Services Agreementdocx, are not immune Discuss your plan for handling the punitive damages aspect of the case Injunctive/Equitable Relief and Non -Monetary Damages — if the Plaintiff is seeking such relief, provide your analysis regarding their likelihood of success on such a claim, AttorneysFees and Costs — in cases involving claims based upon statutes authorizing fees, such as employment and civil rights cases, provide an estimated calculation of the Plaintiffs' attorneys' fees and costs to date, as well as your anticipated amount through trial Settlement Discussions/Demand — Report on any settlement discussions with opposing parties including any CCP Section 998 or Rule 68 Offers to Compromise, When presented with a CCP Section 998 offer you are required to send immediate notification to the assigned adjuster including your analysis of the offer and recommendation of why we should consider accepting the offer or allowing the offer to lapse. Additionally when served with a written settlement demand from plaintiffs counsel in excess of $50,000, we require that you provide immediate notification of such demand to the assigned adjuster with your analysis and recommendations, A copy of the written settlement demand should accompany the email notification to the assigned -adjuster The City Attorney will carefully consider each written demand to determine if the demand should be presented to the City Council. Trial/Settlement Conference/Mediation. Information — provide the dates, times, and locations for any scheduled trial. settlement conference and/or mediation, Please also provide the estimated length of trial and a brief outline of expected defense fees and costs through the conclusion of trial. Case Evaluation — summarize the overall position of the case (strengths and weaknesses of the Plaintiff's case) and make recommendations regarding a resolution or continued defense of the case. Provide a low, medium, and high range of expected verdicts if the Plaintiff(s) were to prevail and the percentage likelihood that the verdict ends up in each range. Provide your recommendations regarding an appropriate settlement range. Conclusion — Provide any additional thoughts not expressed above and identify additional work that needs to be completed, V PLEADINGS A. Responsive Pleadings. Defense Counsel should review the Complaint for possible' Demurrer/Motion to Dismiss or Motion to Strike based on governmental or other statutory immunities and make recommendations to the City Attorney Defense Counsel must obtain authority from the City Attorney before filing any motion including, but not limited to a Demurrer, Motion to Dismiss, Motion for Judgment on the Pleadings, or Motion to Strike, Defense Counsel must provide to the City, if requested, a final copy of the points and authorities in support of, in opposition to, or in reply to any motion filed in the case. 14 CALlsersIbrocc\AppData\Looal\MierosofilWiralows\INelCaclieleontentOutleok1860PBY6U1Disentiouse Law Special Counsel Services AgreerneaLdocx, 13 Cross -Complaints. Consider in every case whether a Cross -Complaint is necessary or appropriate. Defense Counsel must obtain approval from the City Attorney prior to filing a Cross -Complaint and a copy of the Cross -Complaint must be provided to the City Attorney after filing, C. Law and Motion/Research. Appropriate pre-trial motions are encouraged when they can result in the early conclusion of the case or reduce triable issues, Defense Counsel is selected for their expertise in their particular areas of practice, therefore, the City Attorney does not expect to be billed for basic research in the practice area. All attorney or paralegal research time in excess of five (5) hours per motion, excluding motions for summary judgment, must be preapproved by tho City Attorney VI DISCOVERY -Defense Counsel should refrain from conducting discovery that amounts to abuse. It is critical that Defense Counsel be aware of the facts concerning relevant documents and their availability, including electronically stored information, and to properly preserve and assert appropriate privileges. In addition, Defense Counsel shall conduct a thorough investigation, working with City's City Attorney and Risk Management staff, to ensure that all persons with relevant information are identified and contacted, and shall conduct a thorough search for all relevant documents, ensuring that all reasonable leads are followed. Defense Counsel shall also determine what electronically stored information has been preserved, if any, where it is located, whether the information is securely stored, and confirm the chain of custody Defense Counsel needs to understand the basics of the information systems where relevant electronically stored information resides. It is important to resolve any issues regarding production of electronically stored information early in discovery, including forms of production and what is not reasonably accessible. When providing discovery responses, Defense Counsel should consider potential evidentiary issues at trial, including the possibility of limiting instructions based upon the failure to produce requested documents, Potential discovery problems should be raised with the City Attorney itrunediately Counsel must notify the City of any motion to compel and/or request for sanctions against the City and/or Defense Counsel, and provide a copy of any such motion, request, or order A. Interrogatories and Requests for Admission, and Documents. At the beginning of each case, Defense Counsel should send form discovery requests and, if appropriate, special interrogatories and requests for admission to the Plaintiff Upon 15 C•11Users\bruce1AppData\Local\Nlicrosoft\Windows\INetCache\Content.Outlook\86GPL3MADisenhousc Law Special Counsel Services Agreement.doex. receiving responses, Defense Counsel should provide a written suinmary of the relevant responses, Upon receiving discovery requests in a ease, Defense Counsel should immediately provide the requests to the City Attorney or his designee, Defense Counsel should then. 1) identify appropriate objections, 2) review all documents requested. to determine if any privileges are applicable, 3) prepare draft responses with the information available to Defense Counsel at that time; 4) identify requests that require additional information from City employees; 5) meet with City employees, as needed, to assist in formulating responses or gathering and reviewing documents; and 6) prepare the responses in final form and forward to the City Attorney or his designee for approval and verification, It is important to finalize discovery responses sufficiently in advance of the due date to allow time to obtain the necessary verifications, B Deoosftions, Mediations and MandatorSettlement Corifeiences, The City Attorney and Risk Management staff must be given advance notice of all depositions, mediations and Mandatory Settlement Conferences that occur in a case. Generally, the approved trial attorney is encouraged to take or defend the depositions of the Plaintiff, any individually named City Defendants, critical witnesses, and experts. It is expected that Defense Counsel will thoroughly prepare City's Defendants and witnesses, This includes providing them with general background relating to the deposition process, information regarding the significance of their testimony and demeanor, and prepare them for questions regarding the facts of the case. It is not appropriate to wait until the day of the deposition to prepare the witness to testify If Defense Counsel believes that a deposition should be video-taped, Counsel must obtain authorization from the City Attorney before scheduling a video-taped deposition, Selection of a mediator should be discussed with the City Attorney The City Attorney will authorize the retention of the mediator Defense counsel is required to consult with the City Attorney to select a mutually agreed upon date/time for the mediation, Defense counsel is required to timely notify the assigned Risk Management staff of any changes to a Mandatory Settlement Conference. Where possible, effort should be made to utilize free of charge court sponsored settlement conferences or mediations. Permission to attend private mediation must be sought in advance of Defense Counsel agreeing to attend same. Damages Defense. Defense Counsel should use any forms of discovery to fully develop and verify all claimed economic damages, including a review of all available collateral sources such as 1) private health insurariee, 2) workerscompensation, 3) Medicare/Medi-Cal (even if inadmissible), 16 CAUsersThruee\AppData\LocallMicrosofIlWindows\INoCache\Content.Oullook186GPBYRAnisenhousc LW' Special Counsel Services Agreement.docx. zi) income replacement sources, 5) Social Security and Supplemental Social Security, and 6) other available jobs the Plaintiff could have pursued. (for mitigation), In litigated cases involving complex economic damages, assistance of economic experts may be appropriate. Prior to trial, a decision to not present a damage defense must be discussed with and approved by the Redlands City Council VII. EXPERT REVIEWS AND WITNESSES At the outset of each case, Defense Counsel should evaluate what areas of expert testimony may be needed to assist in the defense of the case and should, at the earliest possible time, determine whether expert witnesses need to be retained and advise City regarding same. Evaluations conducted by defense experts should be completed early enough in the case where they can assist Defense Counsel in evaluating the liability and damages issues in. the case. Requests to consult with or retain expert witnesses and/or conduct Independent Medical/Psychological Examinations should be discussed with the City Attorney and authorization obtained before retention. Hat all possible, if there is more than one defendant in a case, the sharing of experts should be explored wherever practical and in the best interests of the City A decision to share experts should be made in writing to ensure the availability of such experts in the event a Co -Defendant is dismissed or settles. • Once it has been decided to use an outside expert, Defense Counsel is expected to • Contact the proposed expert to determine the expert's willingness to conduct the review or examination. • Obtain an estimate regarding the amount of time that will be required for the review or examination. If time is subsequently expected to exceed the initial estimate, then Defense Counsel must obtain an updated estimate, • Obtain the hourly rate and obtain approval from the City Attorney regarding the rate requested. • Confirm the agreement on fees and costs with the expert in writing. • Provide all relevant records to the expert, • Instruct the expert not to prepare a written report before discussion with Defense Counsel At that time, counsel should determine if a written_ report is necessary After receiving billing from an expert, Defense Counsel shall review the bill Any inconsistencies should be discussed with the expert. Defense Counsel is not authorized to advance expert fees unless prior approval has been obtained from the City Attorney When formal disclosure of expert witnesses is required, Defense Counsel should provide the Risk Management Division with a copy of the disclosure, as well as any disclosures 17 CALlserstbruce\AppDatalLocalVvficrosoftWsfindows\INetCache\ContenLOutlook186Gp1,3Y6LADisenhouse Law Special Counsel Services Aueerneadocx, provided by other parties in the case. Any retention and disclosure of supplemental witnesses must be discussed with the Risk Management Division before the .supplemental disclosure occurs, VIII TRIAL PREPARATION As soon as a trial date is assigned, Defense Counsel should no in writing all witnesses and the City Attorney of the date, time, and location of the trial, dense Counsel should advise the witnesses whether their attendance is necessary on the first day of trial and coordinate the scheduling of testimony with the witnesses. Defense Counsel should timely provide information on the judge assigned for trial The decision to challenge a judge can only be made by the City Attorney or his designee and will require an analysis of other potential judges that could be assigned, Any request to waive a jury must also be discussed with and approved by the City Attorney and/or the Redlands City Council. In advance of trial, City witnesses should be well prepared by Defense Counsel to testify, including familiarity with any prior statements of testimony made by them or others pertaining to thetn. Witnesses should also be prepared, regarding likely cross-examination, personal demeanor, how to "connect" with the jury, and appropriate dress. If witnesses are being asked about documents, they should be instructed on the foundation for the admissibility of documents, so they can understand why they are being asked certain questions, Questions about important objections or issues to be raised in 'notions in limine, trial briefs, or other pleadings, should be discussed with the City before trial. IX. TRIALS Unless previously approved by the City Attorney, only one attorney may try a case on behalf of the City Attendance at trial by the proper representative from City is critical to the successful defense of cases. It is important to identify and propose to the City of Redlands well in advance of trial an appropriate trial representative. During trial, Defense Counsel is expected to provide brief daily email updates, including an assessment of the jury, the Court, and the testimony of witnesses and experts. As significant developments occur, more detailed updates should be provided. Any settlement offers must be conveyed immediately Defense Counsel shall provide a post -trial report. After the trial has concluded, Defense Counsel is expected to make recommendations to the City Attorney on appropriate post - trial motions or appeals Any agreement to waive costs in exchange for an agreement not to appeal must be authorized by the City The City's policy is to pursue costs and attorneys' 18 CAUsers\bruce\AppDatalocal\lvlicrosoMlindows\INcteaclic\Contenl.Outlook\86GPBY6U1Diseilltouse Law Special Counsel Services Agreement,docx, fees when awarded. Defense Counsel shall report on the amount of costs and fees awarded and provide an assessment of the financial resources and ability of the Plaintiff to pay the award X. WRITS AND APPEALS Following trial, Defense Counsel shall consult with the City Attorney regarding appropriate post -trial motions and appeals. All petitions for writs of mandate must be authorized by the City Attorney or his designee, XL SETTLEMENTS Defense Counsel is encouraged to explore the settlement et:Ceases informally with opposing counsel early in the litigation after obtaining the appropriate authorization. The City also encourages mediations and participation in voluntary settlement. Approval to mediate a case must be given by the City Attorney A representative from City Risk Management will attend mediations and mandatory settlement conferences on behalf of the City of Redlands. Defense Counsel may not enter into negotiation, agreement, or binding settlement without, first obtaining the appropriate authorization from the Redlands City Council. Settlements over a certain amount are contingent upon approval by the City, reinsurance pools, and/or reinsurers, In cases in which the potential settlement will exceed the entity's self -insured retention, the entity will need to obtain authority from its excess carriers/reinsurers in advance olany settlement discussions. The need to obtain approvals from an entity's Board should be communicated to -the Plaintiffs counsel during any settlement negotiations. In cases involving claims for statutory attorneysfees, all settlement offers, including statutory offers to compromise, should be structured to resolve all claims including attorneys' fees, Alt potential causes of action should be included in the settlement and release, All settlements must consider the existence of any potential liens or right of recovery by Medicare,, BRISA plans, Medi-Cal, workers' compensation insurers, etc, Defense Counsel is expected to determine who paid for any medical treatment provided to the Plaintiff in the case and how much was actually paid. Upon reaching an oral settlement, Defense Counsel should immediately prepare a written settlement agreement. Defense Counsel is responsible for assuring that the settlement agreement is accurate and legally enforceable. If a case is resolved at mediation, it is important to have the parties and their attorneys sign, at the least, a written document that contains the material terms and conditions, Plaintiffs counsel should be advised that it usually takes approximately thirty (30) days for the City to issue a settlement check after the final agreement has been signed by all parties and their attorneys and then transmitted to the City After a dismissal is obtained, Defense Counsel must forward a copy of the filed dismissal to the City Attorney and each named Defendant. 19 CAUSerartICe\AppData\LOCal\MICr05011\WindOWS\INMCaChe\COntent.01,11100k\860PBY6UNDiSCIth011Se LW Special Counsel Services Agreernent,docx, XII BILLING PROCEDURES All invoices are to be submitted to the City Attorney Billings that do not comply with the billing guidelines will not be paid Payment of any bill by the City does not constitute a waiver of the City's right to question, dispute, Obtain reimbursement, compromise, or request repayment or future credit, for any bill or invoice previously paid. Defense Counsel is responsible for obtaining all outstanding invoices from outside vendors, including experts, before submitting the final bill Receipts must be submitted for all travel and other expenses. Firm Staffing on all cases should be as limited as possible, Absent prior approval, the City's will not pay for more than one (1) attorney performing the same task, For example, the City's will not pay for two (2) or more attorneys to attend the same deposition. Work should be assigned to those individuals who are most appropriate for the task in terms of their competency and experience. There should be no more than two (2) attorneys and one (1) paralegal performing work on a case at any given time Other firm personnel may occasionally have to work on a case due to job departures, vacations, illnesses, schedule conflicts, etc„ but this is the exception, not the rule. City will not pay for "training" time for new attorneys or "learning" ,time or "orientation" time as new bitters become involved in a matter and are learning the facts and issues. If a firm has summer associates, their time should not be billed to a case without first being approved by the City Attorney A. Invoices, Invoices should accurately itemize, in detail, all work performed on a.matter Each invoice must include the following. • Law firm name and address • Date of the bill • Law firm tax identification number • The TPA and/or entity claim number • Plaintiff(s) name(s) • Each billing, entry must state the name or initials of the timekeeper who performed the work, the date the work was performed, the .hours billed, a detailed description of the services performed, and the total amount billed for that entry Attorneys and paralegals should bill actual time spent in increments, no greater than UlOth of an hour for each entry • Summarize at the end of the bill, the number of hours for each specific biller 20 CAUsers\bruce1AppDatalLocalNicrosoll\Windows\INetCache\ConteithOullook186GPBYRADisenliouse Law Special Counsel Services AgreemenLdocx, • Summarize at the end of the bill the totals for fees, costs, aid experts • Narrative or block/bundled billing is not permitted • Final bills should be clearly marked • Invoices must reflect activity for only one (1) case Billing entries should be listed chronologically in order of occurrence and not sub- divided by individual or task • If a number of different tasks are undertaken in one day, each task must be separately identified with a specified time for performing that task, e.g., "telephone conference with John Doc (30), Attend conference with Jane Doe (1.20), etc." • Entries regarding telephone conferences mustspecify the participants and the subject matter discussed Vague descriptions such as "work on file," "telephone call," "conference," and "research," without further explanation, are not acceptable, • Vendor invoices (e,g,_ experts, mediators, photocopy services, court reporters, and others) per case should he forwarded to the assigned claim adjuster as soon as possible for review and approval. The Risk Management Division must review and approve all vendor invoices. B Maximum Allowable Charges and Travel. • The following guidelines are ,providcd regarding maximum allowable charges • The City will only pay the actual cost incurred for reasonable expenses without any markups. • A firm may conduct necessary and appropriate research up to five (5) hours per case issue without prior approval by the City • .Photocopy costs should not exceed ten cents ($0 10) per page. Firms are expected to limit the making of photocopies and, wherever cost effective, to use the resources of designated copy services Billing entries for photocopies must provide the number of copies made, the per page rate, and the total amount billed, • Mileage should be billed at the applicable Federal rate at the time of travel The invoice should state the number of miles actually driven. • Telephone and Fax, Actual long-distance charges only No charges for an incoming fax and no per -page fax charge. • Air travel is limited to coach or economy rate. Receipts for airfare should allow a reviewer to identify the fare as economy/coach class. • Rental cars are acceptable only if such vehicles are the most economical means of accomplishing necessary business. Reimbursement is limited to the mid -size class, • Incidentals, such as movies, alcohol, and entertainment are not allowed. Travel time shall be pro -rated if the travel includes time spent on non -City business. 21 CAlisers\bnicelAppData\Local\MierosollAWintlowsliNetCaelie\ContenLOutlook186GPBY6U1Disenhouse Law Special Counsel Services Agreementslocx. C. Disallowed Charges., In addition to items listed above in sections A and B, the City will not reimburse for the following • Local telephone calls and all cellular phone charges, • File opening, file organization, or other administrative charges. • Interoffice conferences .between members of the film, including assigning files or tasks to members of the firtn. • Case administration (e.g. reviewing status of assignments given to associates and paralegals, directing associates, paralegals, or secretaries, preparing or reviewing bills) • Clerical tasks (e.g, transcription, pulling files, photocopying documents, arranging for copying, labeling documents for production, communication with court clerks, updating master case caption, preparing proofs of service, indexing pleadings, faxing) • Meals, except in conjunction with out-of-town travel (alcohol will not be reimbursed in conjunction with any travel) • Routine legal research of issues considered to be conirnon knowledge among reasonably experienced counsel in the local jurisdiction, All work customarily performed by secretaries and other administrative personnel including but not limited to, photocopying/bates stamping documents, scanning documents, transcription, retrieving files, indexing pleadings, updating case captions, making travel arrangements, calendaring, and preparing bills/invoices. • Subscription services (e.g. Westiaw, Lexis-Nexis, or other legal database charge). • Responding to requests from City and/or their auditors relating to case file management and/or billing issues. 22 CAUsers\bruce\ AppData\LocalltyllerosolMindows\INctCacheleontent.Outiook18GGPBM\Disenliotise Law Special Counsel Services Agreemcntdocx,