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HomeMy WebLinkAboutC00008A Legal Services - City AttorneyContract No. C00-008A Memorandum 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 CONTINUED TO .9-- —02 ❑ 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 $60,000 per month, all-inclusive, up to 343 hours per month. Additional hours above and beyond that amount are billed separately. Staff recommends that the City Council, by Minute Motion, approve the contract as presented in Exhibit "A". Please let me know if you have any questions. CARLOS L. TEGA CITY MANAGER CLO:srg:mpg MEETING DATF c. off c - (� t3 CONTINUED TO - 09 © PASSED TO 2ND READING Exhibit "A" Proposed Agreement Submitted by BB&K ;� "�: .��' pl'� � 1'�N .�.!', f`°I '�' k� ��� .�a ct.�.'�'�,.� �;�„���.����"��.�.k �``i�,�'�'$�.��_:�!��i�, E1--��-�T����'I� '�x�.."�� l��.�e....�00--008A �..._._..._�.,_ 7�l,is Agreejlient is m�de r�s of tiie d��r of� ,. '>>0(►c;, 1,;- ari�i between, on the one hand, the CITY OF PALM �iESERT ("CITY"j, a Californi�i rrli►uici��l corporation aud chai�ler city, acting on behalf of itself, and BEST BEST & KRIEGER LLP ("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 exaniple, preparation for and attendance at all regular and special meetings of the City Council, the Redevelopment Agency Board, 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 aiid opinions concerning all matters affecting CITY, as directed by the City Council, Cit,y Manager, and Cit,y staff. 3 . BB&I� PERSONNEL i��l��ci r. Erwi�-� ��°Ec�uin"► shall l,e #iie individu�l �1?si��iated as Cit�- lttoe�il�:y �xticl �:l���ill ��c responsible for the performance of services bv BB&K under this Agreement and the supervisioii of antij and all othei• BB&I� p�•nfFssi�na.l a�i� s��ppoa•t p?,�snnnel =.�lic pt'oz�idc:� ser-�i�c�; ic� ��I t�s. r'T�:� �.'�l.`ill?r 1.li ��ii. �:�c'�i�?Il_.��l+:i� �Il�?�l '��r i"tlii(.�:- 1t'll'llpl�i i:�lr j_�t.'!O➢' C'i�Jl.;�?ili �+'I' �_�!! '.. , _f I }. i,�1C� �T-��'�T _ iill���!•gi�Rl�l. �ll��i F�;53ii��� p'��., +.�li :'�1'C +:.�'.^.±�.1V11�. ��c iclii�rvii�i'1�1 i111c�V�+l���il�; i,-= at:�;�-''-'a�,�l �`-, 1':;�crr j -,i ::I. ! il'!�13`.L�i:t tj'!i!l.%1_�!0.! , �ta, ,t: i, . �.� .. c >� i -'��.�i��, g,���1�� . . �:;I:��I7'�. � {�i�... �P. C.. � . a�,: r�::it►� l.ill�l+` l-. it.fifi-� -"i�:_�� ,.��t�. , .:i�. ,1�.— . '.i�1z_'_ i�)'� it' _ �i.(F,:��_0;:�`. 1�.. 1_�I`�� ij'j I�IP i,e�1>;�1;'if!�! "� 4. l�1�,� ���.�If1�'11�;:� . .ri'i�.. �� 7:�,_:r�:,: ?t : l��11_t: _=,b1�C"��'1!1l:IlC; ]Il'111�1�1'C�. �llt\1'E'�,�Gx�. tll�il �11'lO1' lU Li;i� �ri� t?ll3' i![I.lflll�j� l�tlll;� l�lilll �_:l�J1�1. I_v��,i�';� . =;lii:fi ...: ;�. ���l��. \;;�ir'i�;,��P� �'�>;�;i�il�!���; �ji+;C��i�l. Obr:��it� r1►�' p��i���� ;;���13'OyYl� [l�i.�_,�,�-,-1 1'�?:'�i'i�li�4" ��i�` �ltorne�� ���ho ma,y r�e asked t� �3�ovide �ssistance to C'lT1T. Attorneys �nd paralegals ��vha i•eceiv�� SLIC�l 1�]�Poval fi•om CITY shall hereinafter be referred to as "Approved Persotaiiel". 4. OFFICE HOURS AND AVAILABILITY OF BB&K PERSONNEL Erwin shall attend and conduct office hours one half work day (four hours) of every week at Palm Desert City Hall. In addition, if and when requested by CITY, Erwin shall attend and conduct additional office 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 Ciiy 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 eacluding fees which CITY might request that BB&K pay on its behalf to third parties, such �s appraisers or cousultantsl. There shall be iio additional sums billed CITY by BB&.K �nd ia� 1d�lit�o��al SL1111C c�l�,; anc� p���able Co BB&�. b}� CIT�' f��• che Servic�s with iii� exception of special sei�vices set forth in Section 10 which shall be billed sepai•ately at � �i�gc�tiat�cl houi�ly ra�;e. �'ITIr znd BB&IL agree ��l�at th� Monthl}� Con�nensa.tio�� [hall �i�_�it�tllc�i'j(•����,� itlrpr-?�cP P1iPr.tjF'� fi!n2' t�lf' �+et'��1C�� I?1'O':'1C��'�1 ��'1' g�R:i� i�li -�liil :?t�:�:l .Tli��� .i i�:i ���,:1�. �.�1P�•�r��r �'�'-i�i' (�:n?11111�I1Gllla �ll,l��' �, ��(.lil`]1 iil ?tl '-1}j1�11111.i r,�l»1 tc: i1.?� iZ�cr��^;: inl �ill�. 7�'.=ta�= _! �f�.r? Ir i�.1 PUL�C�f fct;�11!�'_1:%:•-#�i.i �� �.�ri..:,i,r�:._, �..��(,�, � E����a—. (.�� ��� 1 !.�..�! s.�i> r.r��-�;.•��ii.i ��.Vi:-j��,�.;�� ,•—.�ii y.i:�{�171:7� ��z 1 !�l�i����i�:��� ir., . �+:;. . � . r le.. �E �_)''f'dS1t9 �?`�l1.1.��ti.'��.. !�3+. � .,. ��._ZI�3 �'_.� `i�11::113F:lfli '�..! `C'l,.ilC�+:. i.11�:.:i. �ti . l�.q4. + e . .i ll���� �_'I°1 �,t�jztst;i;�:ilc si<<�11 1�c, ��o��t��lec� ���, c,_, �li� �i�:.��i•eat I-'�tll ctolla�, ��;,�i ruj-cl�u,• �:,�c,��ica�,�� �i,<�i i.�l'-- 4_��,�� ���f��11,S�Ei1�,'l�ll ��.11��_� liOf c`.'-_Ci=•r/l �ll'�' �.IYI�CF'11( ���P� 1t11' r1IlV)� 5�-r..��� 1�1c�i�F�.':rl�`:(i111��1l1� _�!�-;' ��ri�visioi� liereii� to the caiiti•ary. BB8_'.I�.. 1112�� i•eqi�est on or before M�1•c11 31 oT eacl� ye?�• �+ii incre�se in the n�lonthly Compensatiou ovei• and above the CPI adjustilient upoi� a showii�g of good cause for such increase; provided that the approval or disapproval of any sucli request sliall Ue n�ade by CITY in its sole and absolute discretion. 6. USE OF SPECIAL COUNSEL 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 City Manager. BB&K shall at the request of CITY, t o supervise and coordinate the pi•ovision of Special Seivices by special legal cotulsel. 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 contain a written description of all legal matters for which BB&K performed legal services during the preceding calendar month. CITI� 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&K during the first or last calendar month of the term of this Agreemeni (as set fo►rth in �ection 10 hereafter) do not cover an entire ealendar month, then the Monthly Compensati�n clue and owing to BB&K shall be prorated for that month and shall be calculated by ulultiplying the M��itlily C'ui�ipensatioii by a fi•action wherein tl�e nt►m�r�tnr is the number of days �uring �vliicl� BB&K provided the seivices in the cafendar month and the denominator is the nui�lber thirty (30). "� f_gl'•�IJAk�� �riL! TII�jIELII�IE�`�� �F �'ERVIC'E� i,i-:.e-.1: s1�?iI =�clhr.�•�� to �ll r�rysa,n�.ble :�ii�_l i?���ii.al �i;�tut.^,.i'ri<; ai�c? ��i��cedi+r�s establish�cl L��; !��ss�= ._, ,�,i: i i'.S.IF ih��1:�t:�'.1,li��'.7?.�-?c•.( � ' � . , ei , .- E.» � -�. . �, . t` .. -• .�ir. �! f,•��_.� �.. f.h�i�(: t .1i�.:. . rl'._,"ctl`:�p.s1 .:t�l,�; it��� i�Y� ,!�11��:,.�. �, . . � �� '�{ '���F fi' r�lii�l7i- ;'J:-. 1{1- p �f�! ' .e"(f1�'1'Ir., R's����'�� '.Fl:,l�l .,`ii�i `��t t��il�d r'o!' c.e .+t 11j_i,—, -�l{, ��i .. . . . . . . .._ . . .. . . . .}, . _j _ .. .. . ._. . . ',v::l.l!1�_•il .�s��:� 'riic �:'lt� 1�,��illl'clh`��1 �111CS ol!<�ll 1.�.�7�� l�l�-111 1[!1Vlilli.l, ��Il! iJI.� lllillL�;l;� l�l i.11l��f�ilislL[":�;. E���e:'�._ ;?i'�`��� �j(;i'i111t1i ll��; _;ri'�i3�lC':: ":':'�1,'.f�irlf�llS�;;' illJ�� i11 :� llilil:�.S' 1111t11a��1' i.i'1 !jl"f��i' 'iC; j}i+':��j l�'1''- 1p'..�?�"��.: •Ijf�-/ ��quirei�i�;nis of�IT1'. 9. INSURANCE COVERAGE BB&K cunently maintains errors and omissions insurance with Lloyd's of London. After a standard deductibility amount, this insurance provides coverage which exceeds the aniount 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.Q0 per hour for attorney partners, $225.00 per hour 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. SLIGII hourly fees shall be subject to increase effective July 1 of each calendar year(commencing July 1, 2007) in the manner set forth in Section 5 hereof. The costs associated with such service, including without limitation, telephone expense, document reproduction eapense, mileage expense, computer research, Court and Adininistrative filing fees, messenger service fees, fees for eapert appraisers and other consultants( subject to prior �pproval of City of Palm Desert) and the like, shall be billeci by BB&K and payable b�� P�lul Deserl monthly. t 1 . TCR1��5 OF AGREEMErJT The pz•ovision of the Services under this Agreemeut shall commence on January 1,='Oi1�. Bbck:IL u�lderstancis and aa��ees tlia� BB�I� serves ai 11�e ��vil] �nd I,l�ast,r•P nt��,'��"'1, � I 1�� E•��.taii��. F;k.r4�I�_. ��n ��t'n<<lf_1.P t�1P ��,R�i�.e�� „n�i�r t!lis ^oreeizl�j.ii. �nc� I3E�'a.�__sli�ll cot��ii������ i.�, j.�li,i\��f,�= l�lf� �:i�',j�i��t�:FG I.ISIC�f_'•t' t�lZC t-�..�I��'?i11r'll,���i1���lI �71f�4i ii111� :�� PII��let'�_`�! �� i�l�i�►1JG�'=�I�T- �POt�lC���; �ll�l�Z�}' ��.�„F, i - i ;j il'LIE,L:�L('.�"i�l,_',7'!;-i�:.t .. ..•. •i.� ' . �.� :ftl�':� tl;.ilt`. i. 1{l.�� '7!{]:-..., !,1 I�"Ifr.lii;.ii�i�!: 'ei :�I(1�: '.••I� �t�1�..111. t��3�lt'.: �7li;. ��ee ,;�116�.'.' :-i . ., . . �i� �F�, �.-iit ��1 l�=,�fi�is�:i1'i ri( �'ti lli1, �—c:i'�-�-i�i�-i�i G.�� P I'1.''ll� ��`��� E'!'i�-� —;i r—i!f .�� : ' : f'•=FE�:�Pr'C;�.1 ���' ���e:I=t1�i•c�i�bli itlll� 111��1LlC�LI1� {,ili� :�fttJG"E,11,�C: S_��II,C �f� �.�:;i11ilY1Zllllll. E.7. � �w�;j�i.1 7�t�.� �� r�,�-t tt' � �,`;,�. �lT= - cl.l �)ic <�,Ui'�����ti-=s�� . . ' C;,.: ���:, l C�f ��E-hl'. i``E I' , -i i kl {1> � , .'�_. � i .r'rl i - cla�e fii�s� sei fo�th Ilereir�aLov4. CI7 Y OF PALM L�ESERT By: Mayor ATTEST: City Clerk BEST BEST &KRIEGER LLP By: David J. Erwin, Partner (a�;11Je= —. "��i' �t ;� ;r u��.c,rt�.���i.-i',—�7'l.��:�,.i Exh i bit "B" Memorandum from David J. Erwin Outlining Differences Between City's Proposed New Contract and the Contract Submitted by BB&K ME1V.tORANDUM TO: Mayor and Cauncil February S, 20Q7 FROM: David J. Erwin �y� RE: City Attomey Agreement , � Dit�erences between existing and proposed: Exis�ing: provides for reta.iner of$12,000 per month which has not been changed in 10 years. The retainer includes attendance at Council, Planning Commission, Executive Management,Audit, Investment and Finance and one meeting a week together with other routine matters. Special projects have included Code Enforcement,Mobile Home Rent Control, Development Agreements, property negotiation,personnel matters, and environmental issues. Special projects are currently billed at hourly rates with partners at 5195 per how,associates at $150 per hour and paralegals at$100. Costs are separaxely billed and each month is billed with time at .1 of hour basis. Primary attomey is myself;this is not specifically required. Best Best& Krieger is designated to perform all duties as City Attomey. ' Pro,posed: provides a retainer of$18,000 per month for generally all services except as specifically 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 City Manager. Office hours would be maintained by myself for one-half workday (4 hours)each week. Vaxious costs,telephone and copy etc. would be included in the retainer. The retainer would automatieally increase July 1 of eacl�year equal tG RMBUSIDERW1N1280110.t the increase in CPT. Any other increase requires approval of Council. The �ity would select ala Special Counsel subject to coordination and/or communication with myself. Special Services arc permitted by myself and Best Best& Krieger in code enforcement,rent control,third party reimbursable services (such as Development Agreements,review of CC&R's, franchise agreements, EIR review or other development items). Such services are at the rates for partners of$250 per hour, $225 for associates and$135 for paralegals. 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 nodce. � I am prepared to answer any questions Council may have. DJE RMBUS�DERW IIJ1280110.I Exhibit "C" Survey Presented to City Council as part of April 17, 2006, Legal Services Review Survey Resutts Catifornia Society of Municipaf Finance Officers City Population Generat Fund City Attomey Contract or Li6gation Cost per Bud et Bud et In-house Resident Alameda 74,581 $73 million $884,852 In-house' Contract2 $11.86 Colton 52,000 $31 million $fi50,000 Contract N/A $12.50 Fontana 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 Contract3 La Quinta 36,145 $31,621,648 $400,000° Contract $150,000 $15.22 Orinda 17,500 $9 million $21Q,0005 Contract $35,000 $12.00 Rancho Mirage 16,416 $20,342,389 $495,0008 Contract included $30.15 San Clemente 65,380 $42.5 million $103,000 Contract Contract $1.58 Tustin 70,871 $43 million $500,000 Contract N/A $7.06 Walnut Creek 6fi,000 $50 miNion $1 million In-house Contract $15.15 Pa/m DesQrt 48 000 S4 640 694 s500 000 Contract included a10.42 'Alameda: In-house with assistance from outside counsel on selected issues and/or transactio�s. 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 April 17, 2006; since then, we have received a copy of the new contract, which sets a flat fee of$60,004 per month, aN-inctusive, up to 343 hours per month. Additional hours above and beyond that amount are billed separately. `La Quinta: Contracts 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