HomeMy WebLinkAboutC28880 - Best, Best & Krieger, LLP - Attorney Counsel Svcs ���,� CITY OF PALM DESERT
� � OFFICE OF THE CITY MANAGER
} STAFF REPORT
REQUEST: APPROVAL OF CONTRACT NO. �28880 BETWEEN THE
CITY OF PALM DESERT AND BEST, BEST, AND KRIEGER FOR
CITY ATTORNEY COUNSEL SERVICES.
SUBMITTED BY: John M. Wohlmuth, City Manager
DATE: August 27, 2009
ATTACHMENT: Contract No. c2s88o
Recommendation
By Minute Motion:
1. APPROVE Contract No. c28sso between the City of Palm Desert and
Best, Best, and Krieger, an agreement for legal services, substantially as to form.
Funds are allocated in the FY 2009/2010 budget for City Attorney Services.;
2. AUTHORIZE the City Manager to finalize the Agreement with Best, Best, and
Krieger, substantially as to form; and
3. AUTHORIZE the Mayor to execute the finalized agreement.
Executive Summary
Approval of this contract is for the provision of general and special legal services to the
City of Palm Desert, by the law firm of Best, Best, and Krieger, effective September 1,
2009 through August 31, 2014.
Backqround
On May 7, 2009, the City Council approved the release of the Request for Proposal for
City Attorney and Redevelopment Agency (RDA) Counsel services. A Legal Services
Selection Committee was formed and reviewed a total of nine (9) proposals received for
consideration.
The Committee unanimously recommended Dave Erwin of Best, Best & Krieger (BB&K)
as City Attorney, and William Strausz of Richards, Watson & Gershon, as RDA
Counsel. On July 9, 2009, the City Council approved the Legal Selection Committee's
City Attorney Agreement
Page 3 of 3
August 27, 2009
recommendation and authorized the City Manager to negotiate contracts with the final
two selected firms.
BB&K's scope of service includes preparation for and attendance at all regular, special
and study session meetings of the City Council, the Planning Commission, Executive
Management meetings, and other boards, commissions, and committees established
by the City. BB&K staff will review and monitor all ordinances, resolutions,
agreements, deeds, agenda reports, daily police (SIR) reports, and other legal
documents requested by City staff.
David J. Erwin is designated as City Attorney and shall be responsible for the
performance of services by BB&K under this Agreement. Mr. Erwin shall attend and
conduct office hours for four (4) hours twice every week at Palm Desert City Hall
(Monday and Wednesday mornings). Mr. Erwin is also available to hold additional
office hours at Palm Desert City Hall on an as needed basis.
Fiscal Impact
Retainer Services
The cost for BB&K's retainer services BB&K is $18,500.00 per month, plus any
reimbursable expenses (e.g. printing, copying, and long distance phone charges).
The contract has a provision that the monthly compensation shall increase
(commencing July 1 , 2010) in an amount equal to the increase in the cost of living
for the most recently published twelve (12) month period as represented by the
U.S. Department of Labor, up to a maximum of five percent (5%).
Special Se►vices
BB&K can also provide special services for Code Enforcement, Mobile Home Rent
Control, Litigation, Administrative Hearing, environmental challenges, endangered
species, labor and employment matters, and other items specifically approved by
the City Council or City Manager.
For any and all such special legal services, the fees are as follows:
Personnel Previous Contract New Contract
Attorney Partners $250 p/hour $255 p/hour
Of Counsel Attorneys N/A $245 p/hour
Attorney Associates $225 p/hour $230 p/hour
Paralegals/Law Clerks $135 p/hour $150 p/hour
Please note that these hourly fees are also subject to the aforementioned cost of
living and reimbursable expenses contract provisions.
G.'ICITYCLRKILORI WIMBISHISTAFF REPORTS120091SR 7-27-09 ATTORNEY SERVICES B88K.DOC �
City Attorney Agreement
Page 3 of 3
August 27, 2009
The contract term is for five years, commencing on September 1 , 2009 through
August 31 , 2014. However, the agreement is subject to a thirty day termination
provision, with or without cause.
Staff respectfully recommends that the City Council approve the agreement with Best,
Best, and Krieger for the rendering of legal services to the City of Palm Desert.
Submitted By: Reviewed By:
�
� �
J n M. Wohlmuth Paul S. Gibson
' y Manager City Manager
��.
CITY COUNCILA�PION
APPROVED DE��
RECEIVED pTgER
MEETI G DATE � -
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ABSENT: '� ��
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VERIF(ED BY: � /)'1
Original on File with City lerk's Office
G:ICITYCLRKILORIWIMBISHISrAFFREPORTS120091SR7-27-09ATTORNEYSERVICESBB&K.DOC �
AGREEMENT
F O R CITY ATTORNEY SERVICES
CONTRACT N4. c28sso
This Agreement is made as of the day of August, 2009, by and between, on the one hand,
the CITY OF PALM DESERT ("CITY"), a California municipal corporation and charter 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
example, preparation for and attendance at all regular, special and study session meetings af the
City Council, the Planning Commission including study sessions, Executive Management
meetings, and other boards, commissions, and committees established by CITY, unless otherwise
directed by CITY; preparation or review and monitor of all CITY ordinances, resolutions,
agreements, deeds, agenda reports, daily police (SIR) 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 Cauncil, City Manager,
and City staff,
3 . BB&K PERSONNEI.
David J. Erwin {"Erwin") shall be the individual designated as City Attorney and shall be
responsible for the performance of services by BB&K under this Agreement and the supervision
of any and all other BB&K professional and support personnel who provide services to CITY.
Page 1 of 5
RMBUSID�R WTN�309238.]
Contract No. C28880
No change in this designation shall be made without the prior consent of CITY. CITY and
BB&K understand that Erwin may, on occasion, be temporarily unavailable to respond to
reguests by CITY for specific legal assistance. Thus, BB&K may from time to time assign other
attorneys and may use paralegals to assist in the provision of City Attorney services pursuant to
this Agreement; provided, however, that prior to use of any attorney other than Erwin, BB&K
shall seek and, wherever reasonably possibie, obtain the prior approval of CITY regarding any
attorney who may be asked to provide assistance to CITY. Attorneys and paralegals who receive
such approval from CITY shall hereinafter be referred to as "Approved Personnel".
4. OFFICE HOURS AND AVAILABILITY OF BB&K PERSONNEL
� Erwin shall attend and conduct office hours one half work day (four hours) twice every
week at Palm Deser# City Hall an Monday morning and Wednesday morning. In addition, if
and when requested by CITY, Errvvin shall attend and conduct additional office hours at Palm
Desert City Hail an 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($1$,500.00 per month) ("Monthly Compensation"), which
shall be payment of fees for the Retainer Services. BB&K LLP shall be reimbursed for
reasonable and necessary expenses incurred, subject to approval of City Manager including
but not limited to, printing, copying, long distance phone and fax charges, court fees,
computer research expenses, extraordinary mail or delivery costs and actual fees and
expenses for subconsultants retained by BB&K LI,P. CITY and BB&K agree that the
Monthly Compensation shall automatically increase effective for the Services provided by
BB&K on and after July 1 of each calendar year (commencing July 1, 2010) in an amount
equal to the increase in the cost of living for the most recently published twelve (12) month
period as shown by the U.S. Department af Labor in its All Urban Consumers Index set forth
in the Los Angeles-Anaheim-Riverside area up to a maximum of five percent (5%),
Page 2 of 5
RMBUS�DER W IN1309238.1
Contract No. C28880
Notwithstanding any provision herein to the contrary, BB&K may request on or before
March 31 of each year an increase in the Monthly Compensation over and above the CPI
adjustment upon a showing of good cause far such rncrease; provided that the approval or
disapproval of any such request shall be made by CITY in its sole and absolute discretion.
6. USE OF SPECIAL CDUNSEL
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 discretian shall select any and alt 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 appraved separately by the City Council or City
Manager. BB&K shall at the reyuest �f CITY, be available to supervise and coordinate the
provision of Special Services by special legal counsel.
7. SPECIAL SERVICES
BB&K through approved personnel shall provide special services far Code
Enforcement, Mobile Home Rent Control, Litigation, Administrative Hearing, environmental
challenges, endangerec3 species, labor and employrnent matters, and other items specifically
approved by the City Council or City Manager. Bond counsel matters are based upon
Sectian 11 hereof. For any and all such legal services, the fees shall be billed by BB&K and
payable by Palm Desert as follows: $255.00 per hour for attorney partners, $245.00 per hour
for Of Counsel attorneys, $230.00 per hour for attorney associates and $150.00 per hour for
paralegals and law clerks. Billing shall be in tenth's of an hour for each billing person. Such
hourly fees shall be subject to increase effective 7uly 1 of each calendar year(commencing
3uly 1, 2010) in the manner set forth in Section 5 hereo£ The casts associated with such
service, including without limitation, telephane 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 approval of City of
Palm Desert) and the like, shall be billed by BB&K and payable by Palm Desert monthly.
Page 3 of 5
RMBUS�DER W IN�309238.1
Contract No. C2880
8. BILLING
BB&K shall submit to CITY monthly an invoice in the amount of the Monthly
Compensatian, 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. 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&K during the first or last calendar month of the term of this Agreemant (as set forth in
Section 10 hereafter) do not cover an entire calendar month, then the Monthly Compensation due
and owing to BB&K shall be prorated for that month and shall be calculated by multiplying the
Monthly Compensation by a fraction wherein the numerator is the number of days during which
BB&K provided the services in the calendar month and the denominator is the number thirty(30).
9. STANDARD AND TIMELINESS OF SERVICES
BB&K sha11 adhere to all reasonable and lawful standards and procedures established by
CITY for the provision of the Services by BB&K under this Agreement and for the fulfillment by
BB&K of its duties as the City Attorney. BB&K shall work cooperatively at all times with the City
Council and the City Manager and shall keep them informed on all matters of importance. BB&K
shall perform the Services expeditiously and in a timely mar►ner in order to meet the needs and
requirements of CITY.
10. INSURANCE COVERAGE
BB&K currently maintains errors and omissions insurance with Lloyd's of London. After a
standard deductibility amount, this insurance provides caverage which exceeds the amount
required by the State of California.
ll. All Bond counsel and general financial counsel legal services would be rendered to
CITY at BB&K standard public finance rates set forth in Exhibit "A" attached hereto.
Appropriate adjustments may be made to the rates on file as recommended from time to time
by underwriters and/ar financial advisors to the CITY.
Page 4 of 5
RMBUSIDERWiN1309238.1
Contract No. C28880
12. AU legal services provided to CITY for which CITY receives reimbursement or
requires deposit in advance from developer or third party and for litigation paid by developer
with CITY represented by BB&K such as review of CC&R's, establishment of Community
Facilities District, Assessment Districts, Landscaping and Lights Districts and the like, land
use and/or environmental projects shall be billed at BB&K's then current standard private rate
minus ten percent (10%).
t 3. TERMS OF AGREEMENT
The provision of the Services under this Agreement shall commence on September l,
2009 and continue for a period of five years until August 31, 2014. BB&K understands and
agrees that BB&K serves at the �vill and pleasure of CITY. CITY retains BB&K to provide the
Services under this Agreement, and BB&K shall continue to provide the Services under this
Agreement until such time as either CITY or BB&K provides thirty(30)days written notice to the
other of termination of this Agreement, either with or without cause. In the event of termination of
this Agreement, CITY shall pay BB&K for all of the Services rendered by BB&K through and
including the effective date of termination.
IN WITNESS WHEREOF, CITY and BB&K have executed this Agreement as of the
date first set forth hereinabove.
CITY OF PALM DESERT
By: Mayor
ATTEST:
City Clerk
BEST BEST &KRIEGER LLP
By: David J. Erwin, Partner
Page 5 of 5
RMB US\DERWIN�309238.1
Contract No. C2��80
EXHIBIT"A"
TO
LEGAL SERVICES AGREEMENT
(SCHEDULE OF BOND COUNSEL FEES)
1_ Certificates of Participation and Revenue Bonds. For services in
connection with the issuance and sale of certificates of participation and revenue bonds, BB&K
shall be paid a fee which will be the greater of(i) $30,000 or (ii) an amount based on the total
principal amount of the certificates of participation or bonds to be sold, computed as follows:
.50%of the First$10 million of the amount
of the certificates or bands issued,plus
.25%of the next$10 million of the amount
thereof,plus
.125%of the amount thereof, if any, over
$20 million.
2. Communitv Facilities Districts. For services in connection with the
issuance and sale of bonds of community facilities districts, BB&K shall be paid its hourly rates
for conducting t�ze formation proceedings of the Community Facilities District, and negotiation
of funding agreements and other agreements relating to the CFD, payable from the landowner's
initial deposit. Additionally, upon issuance of bonds, BB&K will charge a fee which will be the
greater of(i) $30,000 ar (ii) an amount based on the total principal amount of the bonds to be
sold, computed as follaws:
.50%of the first$10 million of the
amount of the bonds issued,plus
25%of the next$10 million of the amount
thereof,plus
.125%of the amount thereof,if any,over
$20 million.
3. Assessment Districts. For services in connection with the issuance and
sale of bonds of assessment districts, BB&K shail be paid its hourly rates for conducting the
formation proceedings of the Community Facilities District, and negotiation of funding
agreements and other agreements relating to the assessment district, payable from the
landowner's initial deposit. Additionally, upon issuance of bonds, BB&K will charge a fee
which will be the greater af(i) $25,000 or(ii) an amount based on the total principal amount of
the bonds to be sold, computed as follows:
.50%of the first$10 million of the
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Contract No. C28880
amount of the bonds issued,plus
.25%of the next$1 Q million of the amount
thereof,pius
.125%of the amount thereof, if any, over
$16 million.
4. Tax Allocation Bonds. For services in connection with the issuance and
sale of tax allocation bonds. BB&K shall be paid a fee which will be the greater of(i) $30,000,
or (ii) an amount based on the total principal amount of the bonds to be sold, computed as
follows:
.50%of the first$10 million of the amount
of bonds issued,plus
.25%of the next$10 million of the amount
of bonds issued,plus
.20%of the next$1 U million of the amount
of bonds issued,plus
.15%of the next$10 million of the amount
of bonds issued,plus
.125%of the amount thereof, if any, over
$40 million.
5. General Obligation Bonds and Tax and Revenue Anticipation Notes. For
services in connection with the issuance and sale of general obligation bonds and taac and
revenue anticipation notes of the City, BB&K shall be paid a fee which shall be determined
based on the time expended by the attorneys and attorney assistants who perform services in
connection with the issuance and sale of such bonds or notes at the following houriy rates:
Attarneys (including partners and associates): $350; Paralegals and Clerks: $I ld.
6. Conduit Borrowin�s. For services in connectian with the issuance of bonds for
and on behalf of conduit borrowers to finance industrial development facilities, multifamily
housing projects and other projects qualifying for tax-exempt financing, BB&K shall be paid a
fee which will be $30,000 for any bond issuance of$3,000,000 or less. Because bond counsel
fees for conduit bonds are paid by the conduit borrower, we would expect to negotiate the fee for
any transaction over$3,000,000 with the conduit borrower, subject to approval by the City.
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