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HomeMy WebLinkAboutC00-008A - City Attorney Legal ServicesMemorandum City of Palm Desert Office of the City Manager To: Honorable Mayor and City Council From: Carlos L. Ortega, City Manager Subject: Proposed City Attorney Agreement Date: February 8, 2007 MEET DATE U CONTINUEDTO -- a C% ❑ PASSED TO 2ND READING The City prepared a new draft agreement with Best Best & Krieger (BB&K), which was presented to City Attorney David J. Erwin late last year. Since then, staff has met and negotiated the terms and conditions of the proposed agreement, and Mr. Erwin has submitted a contract in that final negotiated form (attached as Exhibit "A"). As proposed, the City will pay BB&K, specifically David J. Erwin, a flat fee of $18,000 per month for legal services. The retainer is inclusive of all legal services for the City of Palm Desert, with certain exceptions; code enforcement, mobile home rent control, and other specific assignments as defined in Section 10 shall be specifically approved by the City Council or City Manager at a negotiated rate as set forth in Section 10. Also attached to this memorandum as Exhibit "B" is a list prepared by Dave Erwin which outlines the differences between the City's proposed new contract and the contract submitted by him. In addition, attached as Exhibit "C" is the survey that was presented to the City Council as part of the April 17, 2006, legal services review. We have added to that survey the City of Indio, which did not respond to the original survey and was not, therefore, included in that report. Since then, we have received a copy of the new City of Indio contract, which sets a flat fee of $60,000 per month, all-inclusive, up to 343 hours per month. Additional hours above and beyond that amount are billed separately. Staff recommends that the City Council, by Minute Motion, approve the contract as presented in Exhibit "A". Please let me know if you have any questions. CARLOS L. ' TEGA CITY MANAGER CLO:srg:mpg Exhibit "A" Proposed Agreement Submitted by BB&K � �.., �� �, ��� l� �; f��� '��' �� ���� �".�'�'��' I�_�,:��,���.[���i�' ���_�''��.".�j;�; ��;��I��'�° -, �,`�' I��o �'h15 A�1°��111�;11�:15 111�.CI� c�5 0���1� ci�y c�f' ,, '���[��9 1��, ���c� t�r�tw�en, oi1 th� on�e hand, th� CITS� OF PALM ]�E�E1ZT ("CITY"j, � ��$�1�02'I11�1 111LIIlfl�1�3c�a coi�oration and charter city, acting on behalf of itself, and BEST BEST & KRIEGER I,LP ("BB&K"), a limited liability partnership engaged in the practice of law. CITY and BB&K AGREE AS FOLLOWS: 1 RECITALS A. CITY has heretofore retained BB&K to perform legal services as City Attorney. B• CITY and BB&K desire and intend that BB&K shall continue to provide CITY legal services as city Attorney on the terms set forth hereinafter. 2. SCOPE OF SERVICES BB&K shall serve as City Attorney and shall perform the Services to include, by way of example, preparation for and attendance at all regular and special meetings of the City Council, the Redevelopment Agency Boaxd, the Planning Commission, and other boards, commissions, and committees established by CITY, unless otherwise directed by CITY; preparation or review of all CITY ordinances, resolutions, agreements, deeds, agenda reports, and other legal documents requested by CITY; provision to all officials, officers, and staff of CITY of legal advice and opinions concerning all matters affecting CITY, as directed by the City Council, City Managei•q and City staff. j . BB&I�PERSONNEL ��,����� .�. �'rivin �"E�°��ifll°') �hall b� �lic ir�di�j��1i��1 +���i�nat�� a� �'it�< <^�t��j�,n��r �����:� v;��E�ll ��� responsible for the pe�•formance of services b,y BBB�K t�nder�his Agreement and the supeY�isios� c�f ai�y and all other BB�I� �rof��sio��a�l anri s��l�port pPx•�nnn�l ��rl�o p�•o�=i�l�� ,,�,l-��-��;���: t� p�T��-. ��r�A �'�1�I1Q� 7�1 ��i� ���°�3�1"A��di%I"A u�i���� �ps �`Y9�f�.t� i�Ild.���:edi"� ��1�- �4i'�r�bfl' �a_ill.�s�ll� as3 � "�q ;�o "a'u B , -� g �aa�� ��»�rT' �liia�c=1°5����f� �A��! ��'�+�lji 8i3.'�k,'S f'sl� �'�11°6? �`3n�`��iiCillS�. '�`ar" !r'1%1�;rC➢!'�i'3��y' Zlll�.���l���tl� �sa N'�:�'pp�rb�d"�. "au� �_F�.S,"C _N p_s_A�. �'I;i�'I.J�=�tZ��_E'�,�/1f�1L7 7:�.1E.9 ,. I � '`.�a���= '�:.� u�,= � II ��� R��g s Pi,d 8@.��i:�- �� :�4�r�.� ���aii'altla_'ti� � �` � . `� a� �6Ntl��,, �y��.r �',.. p€9 �?� Ri"fF�S ��9�lis— tl�;¢ ��94&r� �_ pa�ay ; �Ilar;i� ast,�r4s :iw�f� ak9=";-a i� :r �� a� ��c�f� al_� �q:� ��L,�`�"L �gA 9".$��� �u� ea, d°�,Z�'d�'� a�*� �.'b�"�,.' ;aa���>g'j�€ , ..;w'� �. �'. s � a,_��,.,� ae _ ���a�; ,��.b��a�141��a��9 �ii"i��Tl���., �1a�F���a��u'q �llc`�:i �k'�C�Y ��r Ll��: a�l�i11ay �G�ii4'i1�� s3�llt;! i�?�Il �a�vlA�, ��6�r�=-�`- ,���.�� €���, ;�N�C�. ��J�1�R'�'V��t t���3Ce�1����{�- poC�l�d�r.��<, �a�el�lY� ��ie_. �1'l��t" ��_Y��°�l�j�l t�A �u����,� at-F�=i,ga�3le�^ �Y4, i���;�Ji11��i7vhCr lllc���� aSIC�C� t0 �71°a�id� assis�aY1�� �c� t;�T�'. Attor�ie�ys �.nd parale��1� �rvh� �°���i�j� sucl��.pprov�.l from i;ITI� shall hereinafter be iefer�•e�l�o as L6A��1'OV�C� Pe2"59111�1"e 4. OFFICE HOURS AND AVAILABILITY OF BB&K PERSONNEL Erwin shall attend and conduct office hours one half work day (four hours) af every week at Palm Desert City Hall. In addition, if and when requested by CITY, Erwin shall attend and conduct additional of�ce hours at Palm Desert City Hall on any additional day or days of any week, as needed in the determination of CITY. On any and all days when Erwin is not present at Palm Desert City Hall, Erwin and/or other Approved Personnel of BB&K shall remain available at all times to provide City Attorney legal services to CITY from BB&K offices. 5. COMPENSATION In consideration for the performance of the Services by BB&K, CITY shall pay BB&K a flat-rate, all-inclusive sum of ($18,000.00 per month) ("Monthly Compensation"), which shall not only include payment of fees for the Services but also payment of all costs associated with the provision of the Services, including, without limitation, telephone � expenses, document reproduction expenses, automobile mileage expenses, computer research expenses, and the like (but excluding any court or administrative agency filing fees in the event CITY requests that BB&K file documents with a court or administrative agency, and excluding fe�s vvhich GITY rriight request that BB&I� pay on its behalf to third parties, SL1CI7 �S ���11a1SeI•s or consultants). There shall be no additional sums billed CITY by BB&II� �I1�1 ��� �rl�il.io�l�l �ui�� �u� az1� �ay�ble tc� BBc�I� by �IT�' fr_►i° the ��rvic-�;; �uith �1ie� exception of special services set forth in Section 10 which shall be billed sepai•ately �� a ���gn�i�g�� �1��ig•ly i°��t�. �.'IT�T an� BB&Ii agre� tliat ili� Monthlv ���I11p�11Sc'�.��1017 sh�li <�»I�����aia��7�1�� �a�r,,�°e��� �ia"P�.�itj� i��a• th� �,��°�Ti�,�� �i�•���:Ta�1e� �+�' ���.�I=' $_��� �1��� �a.ft�N° i��� �d <�k=, ����1� �.�al����i�.� �v��z� (����Zan��a�.zi�� em��l�� 1G "?OO7�� �s� ��� �i�2c�,�az�� ������i t� �t�s� i�1������. ��� ���� T�:=���� _� �-�,�'_�. d�".Iv1PliG1�>L'PF�"�Jil�l�tti"I r;-�s�."t � � 'a�k�; adYza%;as � p u�.��— �a�a�c•s �� �,'�� �.�..dE� m�a� � . . tl i � �._� �� fl�4e a , g' ' _ ' -- , ' . �.19_t ei�C§9�: '��i,��.`-'�d{Na''�L , 9 � 2Y i�, � .. ' . N.�dk i�G',�d9 � hf'u�,.r- NH���n.— > A � �`aa '',�� � �;'�B'i�k c `:—�ga ,d�.��'lr # , ?�'a ��'s_f= @ �ipi�€`��J°; rj'at�a:?��y1YSfl�°�`.�e �-f'�ila��, i�ik � �`�a'pa� Ba_��.c-� @c,p;+:w tl�� a�'�� E�,r�j�.�vtiY��i3c :�1ia11 l�� �•�r�Y��:���� ��q� ��v� �la� ���.v=��•��t r��l� ct�i�lar�q ��i�� ����il���• �Ji�c�v�c��,�.3 �.��<�.r:: �:���'�. ��'.��'� ia���l_i�l����.q�i �;,1��I YlC►( sd��.�F°��. fii��ta. �ia�.w°�'��� (�°�ia� ��1° c?��r �%�r�.&'� �:.��a�iT�Ja$:��:C,�.I���1�1"� �iN�,% j�1'l�VT5101"i 11�T'Gli� t0 $I1� GO21�1'�.1'�19 B��Y,l� 13»y �•�;ql,�st on or b�f�r� ���•cli 31 �f���h ���,�• �4� in�i°eas� ifli the IVlontlily Compensatiozi ovei° aiid above the CPI aciju�tni���t �.gpo1� � s12u�iI�� of good cause for such increase; pi•ovided that the approval or disapproval of any such request shall be made by CITY in its sole and absolute discretion. 6. USE OF SPECIAL COUl`�TSEL CITY and BB&K recognize and agree that Special Services will be required by CITY from time to time. CITY in its sole and absolute discretion shall select any and all special legal counsel to provide such Special Services. CITY and BB&K understand and intend that such special legal counsel shall not be attorneys from BB&K unless approved separately by the City Council or Cit� Manager. BB&K shall at the request of CITY, t o supervise and coordinate the provision of Special Seivices by special legal counsel. � 7. BILLING BB&K shall submit to CITY monthly an invoice in the amount of the Monthly Compensation, covering the preceding calendar month. The invoice shall conta.in a written description of all legal matters for which BB&K performed legal services during the preceding calendar month. CITY shall make every reasonable effort to pay BB&K for each monthly invoice within twenty-one (21) calendar days following receipt of each invoice. If the Services provided by BB&I� during the first or last calendar month of the term of this Agreement (as set foi�th in S�ctiog� 10 hereafter•) do not cover an entire calendar montll, then the Monthly Compensati�i� d�e and owing to BB&I� shall be prorated for that month and shall be calculated by multiplying the l�✓Ic��itlil�% C'�nip�si�atior� l�� � Ei•�ct�.c►n wher�in the i�un�er�to�� is th� ���m�e� ��'��y�; r��ri�� �v17��.1� BB&K prcavi�led the seivices in the ca�"endar month and th� c�enominator is the number. thirty(30), `", �`I_�I=,��.�.�� _�C�tL� lII�ZELII��E�� �F �;EI��TI�C'E� �����,�_��. �l��il ��il��r� �r� �1� r�aSb�i��.L�l� ����� ���R�fi�l ;,t:��7��q�ri� ��ac1 �,������cii�i•cs ����.i��ii�1��a� ��.; .�—n,'r��£i�—' .i 6_Y"g'�-�. I'_ftif'Il�\i_�Lt \'�'31•I\�77��-l.r;.1 ..�_ �il ' . p . _� _ r�a4� R�� �sa {,dau;'�i + ki�_aE' r v�a���; �_+:� � E `�'`,U a96�a�r'�� ��e��t �s - a � �� d � - -- — 3� 9 .c,:P�� 4��� �i��gb a awaa' R&s ; �ou���ael�Pc-dk�'@9C 4_e-� � S is'".� a39 d'B 1d�N'8r� i '. "q.��p �I �'�4.� � �9t��'�_i �'�'�,a'r�.� ��'R4,�19A @ — ..,.�k � . _ . ' _ �� . _ _ � F.�_ .. � �._- — — .._ ,. a a �'1 e i.�k.�.��d 1��'y� ,�i� �-�d �,.�fiBk_ " '� g� _ raU � �� ,'�aA$��� 1� �a���� i�'M�: �`gl`��' I�'z��i�ll�,,����_, � �� _ ` Y - � �i�� � ��-�.1� ���y�,�� a�i�;;i�� �ii#'u�'iii�;�l_ a:�ia �11 �i��tt��'� �r.���_tta�ra_�g�e���� �;, �������- �lp���.� �)4'x9"f'tl`A�� d�9e; t�t'¢'4T3t'°t"_ f_;�i€'f�il,77�e6.�'w�,� fiN�a� 9F"4 :k tl1i"411y��� k'd1`3Alfl7�i' iFl a9F"&���.! �c't, �`s_g� r l P�$R- Al°"�sa"�;_ '1p'N_�C� l�,q«i�°�i�7�ilc� o���`T�r. 9. II�SUl�ANCE COVERAGE BB&K currently mainta,ins eirors and omissions insurance with Lloyd's of London. After � standard deductibility amount, this insurance provides coverage which e�ceeds the amount required by the State of California. 10. SPECIAL SERVICES BB&K through approved personnel shall provide special services for Code Enforcement,Mobile Home Rent Control, Third Party Reimbursable Services(negotiation and preparation of Development Agreements,review of CC&Rs,negotiation and preparation of franchise agreements review of EIRs, or other items relating to developments) and other items specifically approved by the City Council or City Manager. For any and all such legal services, the fees shall be billed by BB&K and payable by Palm Desert as follows: $250.00 per hour for attorney partners, $225.00 per liour for attorney associates and $135.00 per hour for paralegals and law clerks. Billing shall be in tenths of an hour for each billing person. Such hourly fees shall be subject to increase effective July 1 of each calendar year(commencing July l, 2007) in the manner set forth in Section 5 hereof. The costs associated with such service, incluciing without limitation, telephone expense, document reproduction expense, mileage expense, computer research, Court and Administrative filing fees, messenger service fees, fees for expert appraisers and other consultants( subject to prior• �.Uproval of Citv of�alin Desert) and the like, shall be billed by BB�I� and payable by P�1n1 Desei°t inontlily. ��. TEI��I� OT AGREEMEr�TT The provision of the Sei°vices under t11is l�greeinent shall coinm�nce crn J�nua�sy �,"'Ot17. BF�t��. �alderstailds anc� agt•�es tl7at F3B��I� s��°v�s �t �t�� w�ll an�l �l��s���•P ����'�T'��� d�'I N ��ye�tai�a� �1��'•�.:_�n�S�•nvi�P �1�� 6����,i�r.P� A����€��°tR1��„ �mr�'�n�����< ;?�Zc�T33��o�'= �i�`�11 a=��i�ia��a�� w,=6 �qdA�'J3(�c,9�`l� i3e;I�1�'�s �l41C�F',�'��11��.?°13-, �'llr, _! i�� � � Pl�'� ^ `�-' 4'* _ z as��������_����.t�i � h a_�__ �� � le�•�"� �r c��°�3L��uwI����r��r����� ��za�����, B�'=�r�P � _„:" �p s 1:��I�UE�11�i��_�b'IC il3%�l_���:;.1 � .d'an aa -,�?9Pe=a�i kd��tlB�t-�i_�. �e �B-da='�v�.@qn�5'i_u9 4�-'i�iuttdag'aR�'tt�i , u4dd �',r`�k ea�9J1'��.P r'u§�X�� ��e�i'_ an ,.s.d-(v .P�'n . . -. Nw� ,_��<� �=�a�p.�A9 ��4�.ea�iar`�:s:��F�� n`y� C��i <�°,af �-�ey���� �_'�p h �'N,�II �a�:9�?r �:�-�">R '_�a'_���� . i o?9 _ . c :�dC��a`c��d� �3�3' ����'1`�.��ll'�Cn�,?�����1"1C��`1:4�'�8.1��11A��"�;��R t;i��€��E���k� ���$�; @�)� �;s"��:3i11Y����4,��i11. �� T - �'�r, �� 1 - - � —� ' , — e �. (',���,ro,;, l��,�Ji�,��r'�_tl�'_ C 'q I p �i��d.� �R-���j��:_ �"�rl�'� F'�_b �l�[+=£� "i��l� F- � w�,��.t�'�'wh m„.�.�as= c�ai� �`ir°�� ��i fc��°t1� ���i°�i����o�v�, �"I`Y'Y �F �'ALI��E�EI�.'T By: Mayor ATTEST: City Clerk BEST BEST&KRIEGER LLP By: David J. Ei�win, Partner �-°-av�� =s �_an"iq i1,i�UL\L3t_t'.+".�ii1\'7"l��-3i;.E - - v - -- . Exh i b it "B" Memorandum from David J. Erwin Outlining Differences Between City's Proposed New Contract and the Contract Submifited by BB&K 1VI � � �. A � �► iT1Vl: . °��m Mayor and Council February 5, 2Q0`7 FROM: David J. Erwin �'y6i'' REs City Attomey Agreement . , � Differences between existing and proposed: Existins: provides for retainer of$12,OOU per month which has not been changed in 10 years. The retainer includes attendance at Council,Planning Commissian, Executive Management,Audit, Investment and Finance and one meeting a week together with other rautine matters. Special projects have included Code Enforcement,Mobile Home Rent Control, Development Agreements, property negotiation,personnel matters, and enviromnental issues. Special projects are currently billed at hourly rates with partners at�t95 per hour, associates at $150 per hour and paralegals at$100. Costs are separateiy billed and each month is billed with time at .1 of hour basis. Primary attorney is myself;this is not specifically required. Best Best& Krieger is designated to perform all duties as City Attorney. ' Proposed: provides a retainer of$18,000 per month for generally all services except as specificatly set forth and approved by the City Council and/or City Manager. I am specifically designated as the City Attorney. Any other attorneys providing services to the City would have to be approved by the Council or Gity Manager. Office hours would be maintained by myself for one-half workday (4 hours)each week. Various costs,telephone and copy etc. would be included in tii�retainer. T'he retaix�er vvould automatically increase July 1 of each year�e�ual t� RMBU5IDERWIN1280110.1 th� ir►�r�as� in C'I��. A11;y crth�z increase requires appr�val c�f��uncil, T"l1e �ity ���1� ��1����!� Special C�unsel subject t� coordination and/or communicatian with myself. Specia�l S�rr�i��s �i�� �,�rrnitted by myself and Best Best 8�Kri��e�in c�de�nforcement, rent control,third paxty reimbursable services (such as Development Agreements,review of CC&R's, franchis� agreernents, EIR review or other development items). Such services are at the rates for partners of$250 per hour,$225 for associates a.nd$135 for paxalegals. Fees and costs involved with special services would be included�with the billing. Agreement may be terminated by City at any time on 30 days notice. � I am prepared to answer any questions Council may have. DJE RMB U51DER W IN�280110.I Exh i bit "C" Survey Presented to City Councii as part of April 17, 2006, Legal Services Review Survey Results California Society of Municipal Finance Officers City Population General Fund City Attorney Contract or Litigation Cost per Bud et Bud et In-house Resident Alameda 74,581 $73 million $884,852 In-house' Contract� $11.86 Colton 52,OQ0 $31 million $650,000 Contract N/A $12.50 �ontana 165,000 $53,584,600 $670,300 Contract N/A $4.06 Indian Wells 4,781 $9.3 million $313,778 Contract included $65.63 Indio $60,000 Contract� La Quinta 36,145 $31,621,648 $400,000^ Contract $150,000 $1522 Orinda 17,500 $9 million $210,0005 Contract $35,000 $12.00 Rancho Mirage 16,416 $20,342,389 $495,0008 Contract included $30.15 San Clemente 65,380 y'►42.5 million �103,000 Contract Contract $1.58 Tustin 70,871 $43 million $500,000 Contract N/A $7.06 Walnut Creek 66,000 $50 millian $1 million In-house Contract $15.15 Palm Desert 48 000 $42 640 694 �500 000 Cvntract included �10.42 'Alameda: In-house with assistance from outside counsel on selected issues and/or transactions. 2Alameda: Contracts out for litigation services at an additional cost of$465,000. 3lndio: The City of Indio did not respond to the original survey and was, therefore, not included in the report dated Apri! 17, 2006; since then, we have received a copy of the new contract, which sets a flat fee of$60,000 per month, all-inclusive, up to 343 hours per month. Additional hours above and beyond that amount are billed separately. 4La Quinta: Gontracts out for RDA at a cost of an additional $419,750 50rinda: Also has an additional cost of$140,000 for City Attomey staff sRancho Mirage: Contracts out for Housing Authority and RDA at an additional cost of$405,000