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 $60,000 per month, all-inclusive, up to 343 hours per
month. Additional hours above and beyond that amount are billed separately.
Staff recommends that the City Council, by Minute Motion, approve the contract as
presented in Exhibit "A".
Please let me know if you have any questions.
CARLOS L. ' TEGA
CITY MANAGER
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Exhibit "A"
Proposed Agreement
Submitted by BB&K
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t�r�tw�en, oi1 th� on�e hand, th� CITS� OF PALM ]�E�E1ZT ("CITY"j, � ��$�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��-.
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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=,
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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),
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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
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�"I`Y'Y �F �'ALI��E�EI�.'T
By: Mayor
ATTEST:
City Clerk
BEST BEST&KRIEGER LLP
By: David J. Ei�win, Partner
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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