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HomeMy WebLinkAboutMINUTES - 10071997 - C69 c6� TO: BOARD OF SUPERVISORS q FROM: VICTOR J. WESTMAN, COUNTY COUNSEL DATE: October 7, 1997 SUBJECT: Legal Services Cost Sharing Agreement with City of Concord, Legal Services Agreement with McDonough Holland and Allen SPECIFIC REQUEST(S)OR RECOMMENDATION(S) &BACKGROUND AND JUSTIFICATION RECOMMENDATIONS Approve Legal Services Cost Sharing Agreement with City of Concord and Legal Services Agreement with City of Concord and Law Firm of McDonough Holland and Allen BACKGROUND/REASONS FOR RECOMMENDATIONS The agreement with the City of Concord provides for the City and the County to jointly file suit against the Department of Energy to oppose the Department's planned shipment of foreign spent nuclear fuel.to the Concord Naval Weapons Station. The agreement with McDonough Holland and Allen engages the law firms services. McDonough Holland and Allen is experienced in federal litigation, including federal environmental litigation. CONTINUED ON ATTACHMENT: _YES SIGNATURE _Recommendation of County Administrator _Recommendation of Board Committee x APPROVE x OTHER SIGNATURE(S): ACTION OF BOARD ON i0-07-/997 APPROVED AS RECOMMENDED_OTHER VOTE OF SUPERVISORS hereby certify that this is a _UNANIMOUS(ABSENT ) true and correct copy of an AYES: NOES: action taken and entered on ABSENT: ABSTAIN: the Minutes of the Board of Supervisors on the date shown. i0 -07-/997 Orig: County Counsel ATTESTED: Phil Batchelor cc: Clerk of the Board of Supervisors and County Administrator 1 BY DEPUTY CONTACT: cc: HALFUJ I\DOCS\93097bo.wpd Request to Speak Formo ( THREE (3) MINUTE LIMIT) Complete this form and place It In the box near the speakers' rostrum before addressing the Board. / 0f 6VU^ �St�Gll Name: h "ww. l da..T)'1 21 t 1 am speaking for myself_ or - *mom of CIO CH ONE 1 wish to speak on Agenda Item #SJ- 4— Date: �0 • ,l_ My comments will be: general _for_"Wnst - . _ I wish to speak on the subject of _ 1 do not wish to speak but leave these comnwents for the Board to consider: io - 7- `l 7 LEGAL SERVICES COST SHARING AND COOPERATION AGREEMENT (U.S. Department of Energy's Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel) 1. PARTIES. This Legal Services Cost Sharing Agreement("Agreement") is entered into upon the advice of counsel, effective this I"' day ofCgJaJo&r, 1997 by and among the signatories hereto (hereinafter collectively referred to as the"Participants"). 2. PURPOSE. The Participants desire to collaborate and cooperate among themselves to explore common issues of law or fact in opposing the United States Department of Energy's Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuels ("Policy"). The Participants recognize that their common interests can most effectively be protected or advanced by such collaboration and cooperation, and by sharing legal and other costs. The Participants hereby enter into this Agreement in order to promote a cooperative and efficient approach to opposing the U.S. Department of Energy's shipment of Foreign Research Reactor Spent Nuclear Fuels through the Concord Naval Weapons Station in Contra Costa County. 3. COOPERATION, COSTS. A. The Participants, in furtherance of their mutual best interests, hereby agree to engage in a cooperative effort to: 1. Establish joint privilege and protection of work product regarding litigation regarding the Policy and the Environmental Impact Statement ("EIS")regarding the Policy; 2. Utilize the coordinated efforts of inside and outside resources, including the experience and expertise of counsel; and 3. Otherwise share resources with respect to common issues. B. In order to carry out the purpose of this Agreement, the Participants may retain common counsel or technical consultants or otherwise share expenditures relating to their mutual concerns. Pursuant to this Agreement, the Participants shall retain the Law Office of McDonough, Holland and Allen to initiate and prosecute litigation against the Department of Energy. In furtherance of this covenant, the Participants have entered into a Legal Services Agreement with McDonough, Holland& Allen, a copy of which is attached hereto as Exhibit "A". Each participant agrees to bear 50% of the cost of said Legal Services Agreement, through the conclusion of proceedings before the U.S. District Courts (trial court). The Participants agree that the nature, scope, and allocation of any other costs to be shared will be the subject of future agreements. 1 C. Protected Material (Section 4, below) disclosed by the Participants pursuant to this Agreement shall be disclosed to any other Participant and each Participant hereby expressly consents to such disclosure for the sole purpose of asserting or exploring any joint claims or pursuing a settlement. Such disclosure shall not be deemed a waiver of the attorney-client, attorney-work product or other privilege. 4 PROTECTED MATERIAL. Collaboration and cooperation in exploring common issues of law or fact may continue to require open and frank communication and exchanges of mental impressions, the confidences of each client, expert opinions, information,memoranda, reports and other documents which are believed to be confidential and/or privileged(all of which will be referred to as "Protected Materials"). The Participants desire that the Protected Materials that have been shared, exchanged and disclosed to date remain protected at all times from disclosure to any third parry. The Participants and their counsel believe.that the disclosure of Protected Materials to each other is reasonably necessary for the purpose for which the Participants have consulted their counsel and is consistent with the purpose and intent of this Agreement. In furtherance thereof: A. Each Participant agrees that this Agreement and all Protected Materials received from any other Participant or its counsel pursuant to this Agreement, or in anticipation of this Agreement, to the maximum extent allowed by law, shall be held in strict confidence by the receiving Participant(s), and that such Protected Materials shall be used only in connection with litigation against the Department of Energy. B. If such Protected Materials become the subject of an administrative or judicial order requiring disclosure by a Participant, the Participant may satisfy its confidentiality obligations hereunder by asserting the privileged and/or confidential nature of such information and notifying the Participant that generated the Protected Materials and giving such Participant an opportunity to protect the confidentiality. C. The Participants intend to protect from disclosure all Protected Materials exchanged among any Participants to the greatest extent permitted by law regardless of whether the exchange occurred before execution of this Agreement and regardless of whether the Protected Materials are marked "Confidential." D. The confidentiality provisions of this Agreement shall not apply to information which is now or hereafter becomes public knowledge without violation of this Agreement or which is obtainable from a Participant pursuant to discovery procedures and not otherwise protected from disclosure. E. In the event a Participant withdraws from or fails to comply with this Agreement, the withdrawing or breaching Participant shall remain obligated to preserve the confidentiality of all 2 Protected Materials received or disclosed pursuant to this Agreement, except to the extent that said withdrawing Participant was the person originally generating the subject documents or information. This confidentiality restriction shall not cease upon termination of the within Agreement. F. If a Participant withdraws from the group, is expelled or is for some other reason, no longer a Participant in the group, the Participant shall keep confidential all information, reports, documents and other communications concerning any information received from any joint consultants retained by the Participants prior to withdrawal; the withdrawing Participant shall not disclose to any non-Participant any of said information that the Participant may have obtained as a result of the retaining of the joint consultant; and the withdrawing Participant shall not disclose as an expert any joint consultant so retained by the group, without the prior written consent of the group. G. The attorney-client privilege and related attorney work product privilege remain the privilege of the Participant who generated the documents and information disclosed to the remaining Participants or joint counsel pursuant to the terms of this Agreement. It is not intended that the provision of Protected Materials or the execution of this Agreement shall deprive a Participant of the right to assert or waive said privilege in this or any other action or proceeding. Documents exchanged or disclosed remain the property of the Participant who provided them. This section in not intended to expand or decrease any protection afforded to any of the parties in anticipation of litigation, or to provide for the waiver of existing rights or creation of additional rights. This section is intended to allow for Participants' sharing of information, including Protected Material, in furtherance of the joint interests of the Participants. 5. FUTURE PARTICIPATION, CONFLICTS. In accordance with the Code of Professional Responsibility, counsel for the Participants have determined in their professional judgment that at this time and at this stage of the proceedings they can adequately represent their respective clients concurrently with effectuating the principles of this Agreement. The Participants and their counsel further conclude that the common issues of the Participants substantially prevail over any separate issues which, to the extent the separate issues exist, can be deferred at this time. Counsel have disclosed to their respective clients-Participants that counsels' actions under this Agreement may constitute joint representation of the Participants. Participants, after disclosure of this, understand and consent to such joint representation and understand and agree that this disclosure is based on the facts currently available. Counsel and Participants further understand and agree that, as the case proceeds, there may be additional matters discovered that, in the judgment of counsel, may affect the ability of counsel to adequately represent his/her respective client while participating under this Agreement and that further amendments to this Agreement may prove necessary or that said Participant and its respective counsel may need to withdraw from this Agreement. 3 It is the professional judgment of counsel for the Participants and the informed judgment of the Participants based on information currently available that to the extent that any adverse interests remain or may arise among the Participants, such conflicts can be addressed through processes defined herein without undue interference or adverse effect upon the joint efforts to pursue common issues. 6. WITHDRAWAL OR TERMINATION OF PARTICIPANT. A. Any Participant may withdraw from this Agreement by giving written notice by U.S. mail to every other Participant both of its intent to withdraw and the date by which said Participant deems its withdrawal effective. B. Any Participant withdrawing from this Agreement shall not claim or assert that counsel representing the remaining Participants to this Agreement, or any counsel jointly retained, have a conflict of interest in their continued representation of the remaining Participants of this Agreement. Further, said withdrawing Participant shall not assert any work product privilege against any remaining Participants regarding any materials developed while a party to this Agreement which were developed pursuant to this Agreement for joint use. C. Any Participant withdrawing from this Agreement shall remain obligated to pay its respective share of all costs incurred to the effective date of the withdrawal of the Participant. Said cost shall be paid by the withdrawing Participant within thirty (30) days after the effective date of said withdrawal. 7. NO 121SCREMNATION IN EMPLOYMENT. In connection with performance of any work pursuant to this Agreement, the Participants agree not to refuse,to hire, discharge, promote or demote, or to discriminate in matters of compensation against any person otherwise qualified, solely because of race, creed, color, religion, sex, national origin or ancestry. 8. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which, taken together, shall constitute one and the same Agreement. COUNTY OF CONTRA COSTA CITY OF CONCORD By: By: Date: -7Date: HAUUJM0CS\D0E\concrdk2.wpd 4 LEGAL SERVICES AGREEMENT 1. Parties and Effective Date. Effective , 1997, the County of Contra Costa, a political subdivision of the State of California, and the City of Concord (collectively "Clients"), and McDonough, Holland &Allen, a Professional Corporation ("Attorney"), mutually agree as follows. 2. Purpose. Clients are in need of special legal services in opposing the U. S. Department of Energy's Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel. Attorney is a law firm competent and experienced in civil litigation and environmental law. 3. Term. The term of this Agreement shall be from the effective date through the completion of litigation against the U.S. Department of Energy, unless terminated or renewed before then. 4 Attorney's Obligations. Attorney shall provide legal services including representation, consultation, research, opinions, and advice relating to the subject litigation and as requested by Clients through their attorneys (County Counsel on behalf of the County and City Attorney on behalf of the City of Concord, hereafter referred to as "Clients' Attorneys). Attorney may assign to such matters members or associates who are qualified and competent to provide professional legal service and legal representation. Clients reserve the right to designate a particular member or associate to handle any aspect of this matter requiring specialized knowledge and experience. No major decision concerning the handling of any matter, commitment for a substantial expenditure, the hiring of any expert consultant, or the response to any settlement offer is to be made without prior approval of Clients or Clients' Attorneys. a. Attorney shall promptly furnish a photocopy of all correspondence (except routine transmittal correspondence) sent and received in connection with its services hereunder, and all papers filed in court in connection with the Lawsuit, to the Clients' Attorneys. Attorney shall list Clients'Attorneys co-counsel on all papers filed court in connection with the litigation services provided hereunder. Attorney shall regularly consult with the Clients' Attorneys and shall submit a written status report on the Lawsuit, at mutually agreeable time intervals depending on litigation activity. b. Attorney shall prepare and submit to Clients' Attorneys a proposed budget for services to be performed under this Agreement. The budget shall set forth proposed activities (e.g., negotiations, motions, etc.), the estimated costs of such activities, and the time estimated to perform such activities. Attorney shall consult with the Clients' Attorneys and obtain approval of the budget. Attorney and the Clients' Attorneys shall review the budget and actual expenditures at mutually agreed upon intervals. EXHIBIT 5. Compensation. In consideration of Attorney's provision of services, Clients shall pay Attorney as follows: For legal services of Richard.E. Brandt, $195.00 per hour, and for the services of other attorneys of the firm, their standard billing rate, not to exceed $195.00 per hour, plus costs as set forth in Paragraph 4 of Attorney's StandardTerms;l(attached,hereto as Exhibit 1), total costs and fees not to exceed $100,000.00 unless prior written agreement of both the County Counsel and the City Attorney is first obtained. 6. Billing and Payment. Attorney shall submit to the Clients,.through the County Counsel, a properly documented demand for payment monthly, in the form and manner prescribed by the County. 7. Legal Services Cost Sharing Agreement. This Agreement is entered in accordance with and subject to the Legal Services Cost Sharing and Cooperation Agreement between the County and the City of Concord. 8. Independent Contractor Status. This Agreement is by and between independent contractors and is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership,joint venture, or association. 9. Subcontract and Assignment. Attorney shall not-subcontract any of the legal work or assign any of its rights or obligations under this contract without the prior written consent of Clients. 10. Records. Attorney shall at all times keep a complete and thorough record of the time expended and services performed on behalf of the Clients and shall also make available to Clients for audit all such records maintained. 11: Indemnification. Attorney shall defend, indemnify, save and hold harmless Clients and their officers and employees from any and all claims, costs, and liability for any damages, injury, or death arising directly or indirectly from or connected with the services provided hereunder due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of Attorney or any person under its control, save and except claims or litigation arising through the sole negligence or willful misconduct of Clients, and will make good to and reimburse Clients for any expenditures, including reasonable attomeys' fees, that Clients may make by reason of such matters. 12. Insurance. During the entire term of this Agreement and any extension or modification thereof, Attorney shall keep in effect insurance policies providing commercial general liability coverage, including automobiles, at limits deemed acceptable by Clients. Said policies shall not lapse or be canceled except by at least 30-days' advance written notice to Clients. In addition, Attorney shall keep in effect insurance policies providing coverage for lawyers' professional liability and workers' compensation exposures at limits acceptable to Clients. Attorney shall provide workers' compensation and insurance coverage for its employees. 2 13. Termination. This Agreement may be terminated by either party, at its sole discretion, upon 30-days' written notice to the other party. 14. Counterparts. This Agreement may be executed in Counterparts, each of which shall be deemed an original but all of which, taken together, shall constitute one and the same Agreement. COUNTY OF CONTRA COSTA McDONOUGH, HOLLAND &ALLEN a Professional Corporation By: By: Date: Taxpayer 1D No. APPROVED AS TO FORM: VICTOR J. WESTMAN, County Counsel Date: By: CITY OF CONCORD By: Date: APPROVED AS TO FORM: RICHARD DOYLE, City Attorney HALFUJ1\D0CS\D0E\Kbrandtf.wpd 3 STANDARD TERMS MCDONOUGH HoLLAND & ALLEN Attorneys at Law From time to time, those assigned to work on This statement of standard terms, along your matter may need to confer among themselves with the terms stated in the accompanying letter, concerning your representation.When that occurs, constitutes the Agreement for Legal Services each person will charge for the time expended in ("Agreement") between you and McDonough, conference. It may on occasion be necessary or Holland &Allen ("MH&A"). advisable for more than one person to attend a 1. EFFECTIVE DATE meeting, court hearing or other proceeding and each will charge for the time that he or she spends The Agreement becomes effective after you in making those appearances. We also will charge sign it and return it to us and pay any required ad- for waiting time in court and elsewhere and for all vance fee. When signed and returned, the Agree- travel time both out of town and locally. ment will be retroactive to the date we first per- Time spent on the telephone discussing your formed services on your behalf. If we have matter,including telephone calls with you,also will performed legal services at your request while wait- be billed, as will conferences with certain others ing for you to sign and return this Agreement,you will still be required to pay for those services even such as investigators, consultants, or experts. if you decide not to sign and return this Agreement. 3. ADVANCE.AGAINST FEES 2. FEES FOR LEGAL SERVICES Before undertaking your representation, we Our fees for legal services are based on the may request the payment of an advance against fees total amount of time expended on all work neces- and we may request the payment of additional ad- sary to your representation,multiplied by the hourly vances from time to time thereafter.The initial Be- rate then in effect for the person performing the posit, as well as any future deposits, will be held in work. We charge for our time in minimum units of our trust account.You authorize us to use that fund 0.1 hours. Our current hourly rates for attorneys to pay the fees and costs that you incur. and other personnel are reflected in the attached Any fee deposits remaining at the conclusion billing rate schedule. These rates are reviewed and of this representation after payment of all fees and adjusted periodically. If MH&A revises its rates costs will be returned to you. whip this Agreement is in effect, the revised rates Our billings will be made against this advance, will be applied to the services rendered thereafter which we expect to be replenished in the amount under this Agreement and the applicable rates will of the monthly billing, within thirty (30) days of be reflected in each subsequent bill that you re- the date of that billing. Failure to replenish the ad- ceive. vance against fees as required will be sufficient cause Your principal attorney may be assisted by at- for MH&A to terminate this Agreement and with- torneys or paralegals whose time is billed at hourly draw from your representation. rates different from that rate charged by your prin- cipal attorney. The work of those attorneys and 4. COSTS paralegals will be under the supervision of the prin- We will incur on your behalf various costs and cipal attorney responsible for your representation. expenses in performing legal services under this EXHIBIT 1 CuENr INrALs: Agreement.Miscellaneous expenses will be covered monthly. You agree to pay a late charge of 5% of by an administrative charge, currently set at 4%, the fees and costs incurred during the billing pe- which compensates the cost of normal photocopy- riod covered by the billing statement to MH&A if ing,long distance telephone calls,regular mail post- payment is not received within 30 days of its date. age, telecopy charges and other expenses as to which individual itemization is impractical. Costs 7. CLIENT'S DUTIES specific to your matter such as investigation and You agree to be truthful with us,to cooperate, filing fees, process server fees, required costs of to keep us informed of developments that relate to travel, out-of-town lodging and meals, courier and our services, to abide by this Agreement, to pay express delivery and mail services, deposition and our bills on time, and to keep us advised of your court reporter fees, computerized legal research, current address, telephone number and your place major photocopying, conference calls and staff of employment and telephone number. overtime, if and to the extent required, are item- You also agree to respond promptly, fully and ized and will appear on your monthly statement as accurately to requests for information or documents separate items. and to other requests for assistance made by MH&A. All costs and expenses are billed at our cost. In some instances,invoices for outside services will 8. EXPERTS be sent directly to you for payment. You agree to To aid in the preparation or presentation of pay the administrative charge and the costs item- your case or legal position, it may become neces- ized on your statements in addition to the hourly sary to hire expert witnesses, consultants, or inves- fees. tigators. We will select and engage (or request you 5. BILLING STATEMENTS to engage) any expert witnesses, consultants or in- vestigators. However, when feasible we will con- We will send you statements on a regular ba- sult with you before completing the engagement. sis for fees and costs incurred.In the usual case those statements are sent to you once a month and they 9. SETTLEMENT reflect the work performed, the date of the work, If this matter involves litigation or some other the amount of time spent, and the identity of the proceeding used to pursue or defend a claim on your person performing the work along with a detail of behalf, MH&A will not settle your claim without the costs the firm has incurred on your behalf.Pay- your approval and you have the absolute right to ment of each statement will be due within 30 days accept or reject any offer of settlement. We will of the statement's date. notify you promptly of the terms of any settlement Your failure to pay the full amount of the state- offer that we receive on your behalf. ment within 30 days of our billing will constitute good cause for our withdrawal from your represen- 10.LIENS tation and we will then pursue collection of your You grant to MH&A a lien on any and all claims account. In that event, you agree to pay the costs or causes of action that are the subject of our repre- of collecting the debt, including court costs,filings sentation under this Agreement and on any advance fees and reasonable attorneys' fees. against fees. Our lien will be for any sums owing to us for any unpaid costs or attorneys'fees at the con- clusion of our services. The lien will attach to any In fairness to the majority of our clients who recovery you may obtain, whether by arbitration pay their bills promptly, we have established late- award,judgment, settlement or otherwise. payment procedures designed to charge to the late payors the costs of carrying their overdue accounts. 11.DISCLAIMER OF GUARANTY Payment of our bills is due within 30 days after the Nothing in this Agreement and nothing in our date on the billing statement that you will receive communications with you may be construed as a Page 2 of 3 CLIENT INITIALS! promise or guarantee of the outcome of this repre- tire Agreement will be severable and will remain in sentation. MH&A can make no such promises or effect. guarantees. Our comments about the outcome of your matter are expressions of opinion only. These 15.MODIFICATION opinions are limited by our knowledge of the facts This Agreement may be modified by subse- and are based on the state of the law at the time quent agreement between you and MH&A only by that they are made. a writing signed by both parties. 12.TERMINATION 16.ARBITRATION OF FEE DISPUTE You may discharge us at any time. We may If a dispute arises between you and MH&A withdraw with your consent or for good cause,sub- regarding attorneys'fees or costs under this Agree- ject to an obligation to give you reasonable notice ment and if MH&A files suit in any court because to arrange alternate representation. Good cause of that dispute, you have the right to stay the suit includes your breach of this Agreement, refusal to by timely electing to arbitrate the dispute under cooperate with us or follow our advice on a mate- Business and Professions Code §§6200-6206, in rial matter, or any fact or circumstance that would which event MH&A must submit the matter to ar- render our continuing representation unlawful or bitration. unethical. We will notify you in writing when our ser- 17. CALIFORNIA LAW vices are concluded. After our services are con- This Agreement is deemed to be entered into cluded,we will,upon your request,deliver your file at our principal office in Sacramento,California and to you, along with any funds or property of yours shall be interpreted according to California law, in our possession. excluding its conflict of laws provisions. 13.ENTIRE AGREEMENT 18.NEGOTIATED AGREEMENT This statement of standard terms and the This is a negotiated agreement which can be letter to which it is attached constitutes the entire accepted or rejected by the parties. The terms of agreement between you and MH&A. No other the Agreement are not set by law. You may consult agreement, statement, or promise made on or independent counsel before entering into this before the effective date of this Agreement will be Agreement. binding on the parties. 19.ADDITIONAL TERMS 14.SEVERABILITY The scope of MH&As representation in this If any provision of this Agreement is held in matter is fully set forth in the letter which accom- whole or in part to be unenforceable for any rea- panies this Agreement as are any additional terms son, the remainder of that provision and of the en- relating to this representation. 062797 Page 3 of 3 CLIENT INITIALS: 97 0 . & 17 LEGAL SERVICES AGREEMENT 1. Parties and Effective Date. EffectiveC)e:�,6-r :1, 1997, the County of Contra Costa, a political subdivision of the State of California, and the City of Concord (collectively "Clients"), and McDonough, Holland &Allen, a Professional Corporation ("Attorney"), mutually agree as follows. 2. Purpose. Clients are in need of special legal services in opposing the U. S. Department of Energy's Nuclear Weapons Nonproliferation Policy Concerning Foreign Research Reactor Spent Nuclear Fuel. Attorney is a law firm competent and experienced in civil litigation and environmental law. 3. Term. The term of this Agreement shall be from the effective date through the completion of litigation against the U.S. Department of Energy, unless terminated or renewed before then. 4 Attorney's Obligations. Attorney shall provide legal services including representation, consultation, research, opinions, and advice relating to the subject litigation and as requested by Clients through their attorneys (County Counsel on behalf of the County and City Attorney on behalf of the City of Concord, hereafter referred to as "Clients' Attorneys). Attorney may assign to such matters members or associates who are qualified and competent to provide professional legal service and legal representation. Clients reserve the right to designate a particular member or associate to handle any aspect of this matter requiring specialized knowledge and experience. No major decision concerning the handling of any matter, commitment for a substantial expenditure, the hiring of any expert consultant, or the response to any settlement offer is to be made without prior approval of Clients or Clients' Attorneys. a. Attorney shall promptly furnish a photocopy of all correspondence (except routine transmittal correspondence) sent and received in connection with its services . hereunder, and all papers filed in court in connection with the Lawsuit, to the Clients' Attorneys. Attorney shall list Clients' Attorneys co-counsel on all papers filed court in connection with the litigation services provided hereunder. Attorney shall regularly consult with the Clients' Attorneys and shall submit a written status report on the Lawsuit, at mutually agreeable time intervals depending on litigation activity. b. Attorney shall prepare and submit to Clients' Attorneys a proposed budget for services to be performed under this Agreement. The budget shall set forth proposed activities (e.g., negotiations, motions, etc.), the estimated costs of such activities, and the time estimated to perform such activities. Attorney shall consult with the Clients' Attorneys and obtain approval of the budget. Attorney and the Clients' Attorneys shall review the budget and actual expenditures at mutually agreed upon intervals. 5. Compensation. In consideration of Attorney's provision of services, Clients shall pay Attorney as follows: For legal services of Richard E. Brandt, $195.00 per hour, and for the services of other attorneys of the firm, their standard billing rate, not to exceed $195.00 per hour, plus costs as set forth in Paragraph 4 of Attorney's Standard Terms (attached hereto as Exhibit 1), total costs and fees not to exceed $100,000.00 unless prior written agreement of both the County Counsel and the City Attorney is first obtained. 6. Billing and Payment. Attorney shall submit to the Clients, through the County Counsel, a properly documented demand for payment monthly, in the form and manner prescribed by the County. 7. Legal Services Cost Sharing Agreement. This Agreement is entered in accordance with and subject to the Legal Services Cost Sharing and Cooperation Agreement between the County and the City of Concord. 8. Independent Contractor Status. This Agreement is by and between independent contractors and is not intended and shall not be construed to create the relationship of agent, servant, employee, partnership,joint venture, or association. 9. Subcontract and Assignment. Attorney shall not subcontract any of the legal work or assign any of its rights or obligations under this contract without the prior written consent of Clients. 10. Records. Attorney shall at all times keep a complete and thorough record of the time expended and services performed on behalf of the Clients and shall also make available to Clients for audit all such records maintained. 11. .Indemnification. Attorney shall defend, indemnify, save and hold harmless Clients and their officers and employees from any and all claims, costs, and liability for any damages, injury, or death arising directly or indirectly from or connected with the services provided hereunder due to or claimed or alleged to be due to negligent or wrongful acts, errors, or omissions of Attorney or any person under its control, save and except claims or litigation arising through the sole negligence or willful misconduct of Clients, and will make good to and reimburse Clients for any expenditures, including reasonable attorneys' fees, that Clients may make by reason of such matters. 12. In urance. During the entire term of this Agreement and any extension or modification thereof, Attorney shall keep in effect insurance policies providing commercial general liability coverage, including automobiles, at limits deemed acceptable by Clients. Said policies shall not lapse or be canceled except by at least 30-days' advance written notice to Clients. In addition, Attorney shall keep in effect insurance policies providing coverage for lawyers' professional liability and workers' compensation exposures at limits acceptable to Clients. Attorney shall provide workers' compensation and insurance coverage for its employees. 2 13. Termination. This Agreement may be terminated by either party, at its sole discretion, upon 30-days' written notice to the other party. e 14. Counterparts. This Agreement may be executed in Counterparts, each of which shall be deemed an original but all of which, taken together, shall constitute one and the same Agreement. COUNTY OF CONTRA COSTA McDONOUGH, HOLLAND &ALLEN a Professional Corporation By: WA%2( C- By: Date: /0—6, �'7 Taxpayer I D No. APPROVED AS TO FORM: VICTOR J. WESTMAN, County Counsel Date: By: CITY OF CONCORD By: Date: APPROVED AS TO FORM: RICHARD DOYLE, City Attorney H ALFUJI\DOCS\DOE\Kbrandtf.wpd 3 STANDARD TERMS WDONOUGH HOLLAND & ALLEN Attorneys at Law From time to time, those assigned to work on This statement of standard terms, along your matter may need to confer among themselves with the terms stated in the accompanying letter, concerning your representation.When that occurs, constitutes the Agreement for Legal Services each person will charge for the time expended in ("Agreement") between you and McDonough, conference. It may on occasion be necessary or Holland &Allen CMH&A"). advisable for more than one person to attend a 1. EFFECTIVE DATE meeting, court hearing or other proceeding and each will charge for the time that he or she spends The Agreement becomes effective after you in making those appearances. We also will charge sign it and return it to us and pay any required ad- for waiting time in court and elsewhere and for all vance fee. When signed and returned, the Agree- travel time both out of town and locally. ment will be retroactive to the date we first per- Time spent on the telephone discussing your formed services on your behalf. If We have pmatter,including telephone calls with you,also will performed legal services at your request while wait- ing for you to sign and return this Agreement,you be billed, as will conferences with certain others such as investigators, consultants, or experts. will still be required to pay for those services even if you decide not to sign and return this Agreement. 3. ADVANCE.AGAINST FEES 2. FEES FOR LEGAL SERVICES Before undertaking your representation, we Our fees for legal services are based on the may request the payment of an advance against fees total amount of time expended on all work neces- and we may request the payment of additional ad- vances from time to time thereafter.The initial Be- sary to your representation,multiplied by the hourly rate then in effect for the person performing the posit, as well as any future deposits,will be held in work. We charge for our time in minimum units of our trust account.You authorize us to use that fund 0.1 hours. Our current hourly rates for attorneys to pay the fees and costs that you incur. and other personnel are reflected in the attached Any fee deposits remaining at the conclusion billing rate schedule. These rates are reviewed and of this representation after payment of all fees and adjusted periodically. If MH&A revises its rates costs will be returned to you. whiI6 this Agreement is in effect, the revised rates Our billings will be made against this advance, will be applied to the services rendered thereafter which we expect to be replenished in the amount under this Agreement and the applicable rates will of the monthly billing, within thirty (30) days of be reflected in each subsequent bill that you re- the date of that billing. Failure to replenish the ad- ceive. vance against fees as required will be sufficient cause Your principal attorney may be assisted by at- for MH&A to terminate this Agreement and with- torneys or paralegals whose time is billed at hourly draw from your representation. rates different from that rate charged by your prin- cipal attorney. The work of those attorneys and 4. COSTS paralegals will be under the supervision of the prin- We will incur on your behalf various costs and cipal attorney responsible for your representation. expenses in performing legal services under this EXHIBIT 1 CUENT INMALS: Agreement.Miscellaneous expenses will be covered monthly. You agree to pay a late charge of 5% of by an administrative charge, currently set at 4%, the fees and costs incurred during the billing pe- which compensates the cost of normal photocopy- riod covered by the billing statement to MH&A if ing,long distance telephone calls,regular mail post- payment is not received within 30 days of its date. age, telecopy charges and other expenses as to which individual itemization is impractical. Costs 7. CLIENT'S DUTIES specific to your matter such as investigation and You agree to be truthful with us, to cooperate, filing fees, process server fees, required costs of to keep us informed of developments that relate to travel, out-of-town lodging and meals, courier and our services, to abide by this Agreement, to pay express delivery and mail services, deposition and our bills on time, and to keep us advised of your court reporter fees, computerized legal research, current address, telephone number and your place major photocopying, conference calls and staff of employment and telephone number. overtime, if and to the extent required, are item- You also agree to respond promptly, fully and ized and will appear on your monthly statement as accurately to requests for information or documents separate items. and to other requests for assistance made by MH&A. All costs and expenses are billed at our cost. In some instances,invoices for outside services will 8. EXPERTS be sent directly to you for payment. You agree to To aid in the preparation or presentation of pay the administrative charge and the costs item- your case or legal position, it may become neces- ized on your statements in addition to the hourly sary to hire expert witnesses, consultants, or inves- fees. tigators. We will select and engage (or request you 5. BILLING STATEMENTS to engage) any expert witnesses, consultants or in- vestigators. However, when feasible we will con- We will send you statements on a regular ba- sult with you before completing the engagement. sis for fees and costs incurred.In the usual case those statements are sent to you once a month and they 9. SETTLEMENT reflect the work performed, the date of the work, If this matter involves litigation or some other the amount of time spent, and the identity of the proceeding used to pursue or defend a claim on your person performing the work along with a detail of behalf, MH&A will not settle your claim without the costs the firm has incurred on your behalf. Pay- your approval and you have the absolute right to ment of each statement will be due within 30 days accept or reject any offer of settlement. We will of the statement's date. notify you promptly of the terms of any settlement Your failure to pay the full amount of the state- offer that we receive on your behalf. ment within 30 days of our billing will constitute good cause for our withdrawal from your represen- 10.LIENS tation and we will then pursue collection of your You grant to MH&A a lien on any and all claims account. In that event, you agree to pay the costs or causes of action that are the subject of our repre- of collecting the debt, including court costs,filings sentation under this Agreement and on any advance fees and reasonable attorneys' fees. against fees. Our lien will be for any sums owing to us for any unpaid costs or attorneys'fees at the con- 6. LATE PAYMENT - clusion of our services. The lien will attach to any In fairness to the majority of our clients who recovery you may obtain, whether by arbitration pay their bills promptly, we have established late- award,judgment, settlement or otherwise. payment procedures designed to charge to the late payors the costs of carrying their overdue accounts. 11.DISCLAIMER OF GUARANTY Payment of our bills is due within 30 days after the Nothing in this Agreement and nothing in our date on the billing statement that you will receive communications with you may be construed as a Page 2 of 3 CLIENT INITIALS: i promise or guarantee of the outcome of this repre- tire Agreement will be severable and will remain in sentation. MH&A can make no such promises or effect. guarantees. Our comments about the outcome of your matter are expressions of opinion only. These 15.MODIFICATION opinions are limited by our knowledge of the facts This Agreement may be modified by subse- and are based on the state of the law at the time quent agreement between you and MH&A only by that they are made. a writing signed by both parties. 12.TERMINATION 16.ARBITRATION OF FEE DISPUTE You may discharge us at any time. We may If a dispute arises between you and MH&A withdraw with your consent or for good cause,sub- regarding attorneys'fees or costs under this Agree- ject to an obligation to give you reasonable notice ment and if MH&A files suit in any court because to arrange alternate representation. Good cause of that dispute, you have the right to stay the suit includes your breach of this Agreement, refusal to by timely electing to arbitrate the dispute under cooperate with us or follow our advice on a mate- Business and Professions Code §§6200-6206, in rial matter, or any fact or circumstance that would which event MH&A must submit the matter to ar- render our continuing representation unlawful or bitration. unethical. We will notify you in writing when our ser- 17. CALIFORNIA LAW vices are concluded. After our services are con- This Agreement is deemed to be entered into cluded,we will,upon your request,deliver your file at our principal office in Sacramento,California and to you, along with any funds or property of yours shall be interpreted according to California law, in our possession. excluding its conflict of laws provisions. 13.ENTIRE AGREEMENT 18.NEGOTIATED AGREEMENT This statement of standard terms and the This is a negotiated agreement which can be letter to which it is attached constitutes the entire accepted or rejected by the parties. The terms of agreement between you and MH&A. No other the Agreement are not set by law. You may consult agreement, statement, or promise made on or independent counsel before entering into this before the effective date of this Agreement will be Agreement. binding on the parties. 19.ADDITIONAL TERMS 14.SEVERABILITY The scope of MH&As representation in this If any provision of this Agreement is held in matter is fully set forth in the letter which accom- whole or in part to be unenforceable for any rea- panies this Agreement as are any additional terms son, the remainder of that provision and of the en- relating to this representation. 062797 Page 3 of 3 CLIENT INITIALS: