HomeMy WebLinkAboutC28881 Ext 1 - Cty Atty Svcs - Best, Best & Krieger LLP CITY OF PALM DESERT
CITY MANAGER'S OFFICE
STAFF REPORT
REQUEST: CITY ATTORNEY CONTRACT EXTENSION
SUBMITTED BY: John M. Wohlmuth, City Manager
DATE: August 28, 2014
CONTENTS: Letter from David J. Erwin dated July 8, 2014
Contract No. C28880 from Best, Best and Krieger LLC
Letter from Best, Best and Krieger dated June 20, 2014
Recommendation
Extend the City Attorney contract with Best, Best and Krieger LLP for five years
under the same terms and conditions as the existing contract.
Backqround
In 2009, the City of Palm Desert released a Request for Proposal for City Attorney
Services. The City received nine proposals and interviewed the three top firms with a
committee comprised of:
1. Mr. Bob Spiegel, Mayor
2. Mr. Jim Ferguson, Councilmember
3. Mr. John M. Wohlmuth, City Manager
4. Judge Rob Taylor; and
5. Mr. Larry Parrish, retired Riverside County CEO
The three firms that were interviewed by the Selection Committee were:
1. Best, Best and Krieger
2. Richard Watson and Gershon
3. Aleshire and Wynder
The committee chose Best, Best and Krieger as the top proposal and interview. During
the month of July 2009, a contract was negotiated culminating in a five-year contract
awarded by the City Council on August 27, 2009. The contract terminates on August 27,
2014.
Staff Report
City Attorney Contract Extension
Page 2
August 28, 2014
Please find attached a letter from Dave Erwin dated July 8, 2014 requesting a five-year
extension.
If approved by Council the contract would consist of the same terms and conditions as
the August 27, 2009 contract. The only modifications to the contract is the retainer
amount and Special Services billing rate. The contract allows for Cost of Living
Adjustments once per year. Best, Best and Krieger voluntarily waved two COLA's in
2011 and 2012; therefore, the price in the original contract reflects an increase equal to
finro out of four COLA adjustments. Other than the two 2% COLA adjustments the price,
terms and conditions are all the same as the 2009 contract.
Submitted BylApproval: Reviewed:
�
hn M. Wohlmuth, City Manager Paul S. Gibson, Director of Finance
�. CITY COUNCIL�TION
APPROVED DENiED
RECEIVED OTHER
ME�T G DATE � �` ���
Al'ES: � '�'�S11Y1 l�1 � f'QC `Gt�n eI'
NOES:
ABSENT: ��{'-
ABSTAIN: ���-
VERIFIED BY: m S
Original on File with City CI k's Oftice
Contract No. C28881
I���
Irvine Sacramento
(949)263-2600 (916)325-4000
Los Angeles BiEST BEST &KRIEGER� • San Diego
(213)617-8100 A T T O R N E Y S A T L A W (619)525-1300
Ontario Walnut Creek
(909)989-8584 Post Office Box 13650, Palm Desert,CA 92255-3650 (925)977-3300
Riverside 74-760 Highway 111,Suite 200, Indian Wells, CA 92210 washington,DC
(s51)sas-�aso Phone: (760)568-2611 � Fax: (760)340-6698 � www.bbklaw.com (zo2)7a5-osoo
David J.Erwin
(760)837-1607
david.erwin@bbklaw.com
July 8, 2014
John Wohlmuth
City Manager
City of Palm Desert
73-5 i 0 Fred Waring Brive
Palm Desert, CA 92260
Re: City Attorney Contract
Dear John:
The Contract with Best Best & Krieger currently has an expiration date of August 27,
2014. The provisions for a five (5) year Contract were placed in the Contract for the Council to
review and determine whether to send out a request for proposals.
I would specifically request that the Contract be extended for an additional five (5) year
period. It is my considered opinion that we at BB&K have provided an excellent service to the
Ciry for many years and wish to continue to do so into the future. As a matter of information, the
Contract allows the City to terminate the Contract on 30 days' notice without a reason stated.
Your affirmative action to assist in the extension is appreciated and hopefully the Council
will agree.
Sinc�fel}>,
� .
� �—
avid J rwin
of BEST BEST & KRIEGER LLP
DJE:aIr
72500.00001\9081505.1
Contract No. C28881
AGREEMENT �
F O R CYTY A'i'TORNEY SER'VIC�S
. CUNTRACT N4. c2ssao
This Agreement is made as of the z7tt'day of August, 2009, by and between, on the one hand,
the CITY OF PALM DESERT("CITY"), a California municipai corporation anci charter city,
acting on behalf of itself, and BEST BEST&KRIEGER �Ll'("BB&K"),a limited liability
partnership engaged in the practice of(aw.
CITY and BB&K AGREE AS FOLL�WS:
1 RECITALS
A. CITY has heretofore retained BB&K to perfonn 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 perfarm the Services to include, by way of
example, preparation for and attendance at all regular, special and study session meetings of 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 lega! advice and
opinions concerning all matters affecting CITY, as directed by the City Council, City Manager,
and City staff.
� 3 . BB&K PERSONNEL
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
RMBUS\D�RWIM309235.1
� Contract No. C28880-1
No change in this designation shall be made without the prior consent of CITY. CITY and
BB&K understand that Erwin may, on occasi�n, be temporarily unavailable to respond to
requests by CITY for specific legal assistance. Thus, BB&K may fram time to time assign other
attorneys and may use paralegals to assist in the provision of City Attorney services pursuant ta
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 CTTY 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 Personne!".
4. OFFICE HOURS AND AVAILABILITY OF BB&K PERSONNEL
� Erwin shall attend and canduct office hours one half work day (four hours) twice every
week at Palm Desert City I-�all on Monday morning and Wednesday morning. 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,SQ0.00 per month) ("Monthly Compensation"), which
shall be payrnent 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 limitecf to, printing, copying, long distance phone and fax charges, court fees,
computer research expenses, extraordinary mail or delivery casts and actual fees and
expenses for subconsultants retained by BB&K LLP. CITY and BB&K agree that the
Monthly Compensation sha11 automatically increase effective for the Services provided by
BB&K on and after July 1 af each calendar year (commencing July 1, 2Q10) in an amount
equal to the increase in the cost of living for the mast recently published twelve (12) month
period as shown by the U.S. Department of 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
RMSU3\DERW RJ1309238.1
. Cor�Tact No. C2888o-1
Notwithstanding any provision herein to the contrary, BB&K may request on ar 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 increase; provided that the approval or
disapproval of any such request shall be made by CITY in its sole and absolute discretion.
6, USE OF SPECtAL COUNSEL
CITY and BB&K recognize and agree that Special Services will be required by CITY fram
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 attarncys from BB&K unless appraved separately by the City Council or City
Manager. BB&K shall at the request of 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, environmenta)
chatlenges, endangered species, labor and employment matters, and other items specifically
approved by the City Council or City Manager. Bond counsel matters are based upon
Section 11 hereof. For any and all such legal services, the fees shall be biiled 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 $15Q.00 per hour for
paralegals and law clerks. Billing sha]1 be in tenth's of an hour for each billing person. Such
hourly fees shall be subject to increase effective Juty 1 of each calendar year(commencing
July 1, 2010} in the manner set forth in Section 5 hereof. The casts associated with such
service, including without limitation, telephone expense, document reproduction expense,
mileage expense, computer research, Court and Administrative fi]ing 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[Nl3l}9238.I
� - Cor�ract No. C2880-1
8. BILLING
BB&K shal] submit to CITY monthly an invoice in the amount af the Monthly
Compensatian, covering the preceding calendar month. The invoice shall contain a written
description af all legal matters for which BB&K performed legai services during the preceding
calendar month. CTTY 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 pravided
by BB&K during the first or last calendar month of the term of this Agreement (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 fractian wherein the numerator is the number af days during which
BB&K provided the services in the calendaz month and the denominator is the number thirty(30).
9. STANDARD AND TIMELTNESS OF SEKVICES
BB&K sha11 adhere to all reasonable and ]awful standards and procedures established by
CITY for the provision of the Services by BB&K under this Agreement and far 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 manner 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 coverage which exceeds the amount
required by the State of California.
11. A11 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/or financiai advisors to the CITY.
Page 4 of 5
RM�us��wn,ruosa3s.r
' ' C�-}ract No. C28880-1
12. All 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 shal] be billed at BB&K's then current standard private rate
minus ten percent (10%).
13. 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 will 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 pro�vides thirty{30)days written notice to the
other of termination of this Agreement,either with or without cause. In the event vf 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 DE5ERT
.6 �
By: Mayor .
ATTEST:
City Clerk �
BEST BES -�c KRIEGER LLP
� �
�
;�
By: David . Erwin, Partner
Page 5 of 5
RMBU 51DERW iM3p9238.1
' �, Co•��Tact No. C28�880-1
EXHIBIT"A"
TO
LEGAL SERVICES AGREEMENT
(SCHEDULE OF BUND 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 bonds issued,plus
.25%of the next$10 million of the amount
thereaf,plus
.125%of the amount thereof,if any, over
$20 million.
2. Community. Pacilities Districts. For services in connection with the
issuance and sale of honds of community facilities districts, BB&K shall be paid its hourly rates
for conduc�ing the 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 witl be the
greater of{i) $30,(}00 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 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 shall 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, upan issuance of bonds, BB&K will charge a fee
which will be the greater of(i) $25,000 or(ii) an amount based on ihe total principal amount of
the bonds to be sold, computetl as follows:
.50%of the first$10 million of the
A-1
. Contr �t No. C28880-1
amount of the bonds issued,plus .
.25%of the next$10 million of the amount
thereof,pius
.125%of the amount thereof,if any,over
$16 million.
4. Tax Aliocation 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 amaunt 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$10 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 tax 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 attarneys and attorney assistants who perform services in
connection with the issuance and sale of such bonds or notes at the following houriy rates:
Attorneys (including partners and associates): $350; Paralegals and Clerks: $110.
6. Conduit Borrowings. For services in connection 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 barrower, we would expect to negotiate the fee for
any transaction over$3,000,000 with the conduit borrower, subject ta approval by the City.
A-2
Contract No. C28881
.
Indian Wells �•�•� Sacramento
(760)568-2611 BEST BEST&KRIEGER� c91s�szs-a000
irvine San Diego
(949)263-2600 A T T O R N E Y S A T L A W (619)525-1300
Los Angeles Walnut Creek
(213)617-8100 (925)977-3300
Ontario 3750 University Avenue,Suite 125,P.O.Box 1028,Riverside,CA 92502 Washington,DC
(sos)sas-a5sa Phone:(951)686-1450 � Fax:(951)686-3083 � www.bbklaw.com (202)785-osoo
Debbie Vivian
(951)826-8348
debbie.vivian@bbklaw.com
June 20, 2014
City Of Palm Desert—RDA Successor Agency
Attn: Paul Gibson, Finance
73-510 Fred Waring Drive
P�l�: nesert, Ca 92260
Re: Annual Notice of Automatic Increase in Legal Services Rates based upon CPI
Dear Valued Best Best& Krieger LLP Client,
In accordance with our current agreement, the hourly rates are to adjust on July lst of
each year, in accordance with the All Urban Consumer Price Index. The Index has increased by
1.7%, therefore,the hourly rates will be:
Special Services
Partner $276
Of Counsel $264
Senior Associate $247
Junior Associate $247
Paralegal $163
Clerk $163
Research Analyst $163
Admin. Asst. $59
These rates will automatically be adjusted on July ist.
Best Best & Krieger sincerely appreciates your continuing loyalty and the choice of our
firm for your legal services.
If you have any questions about this or any of our billing policies, please contact your
BB&K attorney.
Sincerely,
Debbie Vivian
Sr. Mgr., Billing & Client Information
for BEST BEST& KRIEGER LLP