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HomeMy WebLinkAbout2/14/2001 - STAFF REPORTS (3) PALM SPRINGS LEGAL SERVICES CONTRACT This LEGAL SERVICES CONTRACT (the "Agreement") is entered into by and between the law firm of BURKE WILLIAMS and SORENSEN, LLP, ("BWS") and the CITY OF PALM SPRINGS,a Municipal Corporation("City"). The term"City" shall also include the PALM SPRINGS COMMUNITY REDEVELOPMENT AGENCY, the PALM SPRINGS HOUSING AUTHORITY,and all boards,commissions,and other bodies of City. This Legal Services Contract shall be effective and supersede the prior Legal Services Contract with Rutan&Tucker as of the date City Attorney David J. Aleshire relocates his practice to BWS, except to the extent Rutan&Tucker performs special legal services under the direction of the City Attorney. 1. SCOPE OF WORK AND DUTIES. City Council hereby appoints David J.Aleshire as the City Attorney,and hires BWS to render such legal services as are customarily rendered by a City Attorney, including attending meetings of the City Council,Redevelopment Agency,Housing Authority, Planning Commission, and other boards and bodies of City, and its affiliated agencies, as directed by the City. Representation shall include,but not necessarily be limited to,reviewing ordinances and resolutions, reviewing city contracts,recommending,reviewing and overseeing the hiring and supervising of any and all other attorneys employed by City to perform legal work on any litigation or other matter, consulting with or advising City staff on legal issues which arise within their areas of operation,and generally advising the City Council and City staff concerning all legal affairs of City. With respect to pending matters handled by attorneys previously or otherwise employed by City, BWS shall become responsible for and proceed to represent City in such matters once the same are identified by the City Council or City Manager and all files have been transferred to BWS. BWS, as a full-service law firm, is prepared to, and will, provide representation to City in all of its legal affairs, including,but not limited to,municipal law, land use, environmental, toxics,mining,tort defense,personnel,labor representation,code enforcement,criminal prosecution, redevelopment, housing, cable television, finance, franchising, contracts, enterprise matters, and other matters,except where conflicts exist or where the City Council may otherwise direct. The City Attorney shall represent City in initiating and defending all litigation unless otherwise directed by the City Council. All of these duties shall be performed, as directed by the City Council, and the City Attorney will keep City informed as to the progress and status of all pending matters. Finally,the City Attorney is expected to manage, control and oversee the delivery of legal services in a competent,professional,and cost-effective manner. Notwithstanding the foregoing, it is expressly understood that BWS shall not be responsible for any pending litigation matter(s) until BWS has specifically appeared in the matter(s)as attorneys of record on behalf of City. Notwithstanding any other provision contained herein, any legal services can only be authorized by the City Council or City Manager. 2. CITY DUTIES. City agrees to provide such information,assistance,cooperation,and access to books, records,and other information,as is necessary for BWS to effectively render its professional services under this Agreement. To the extent City desires services to be rendered on site, City, at City's expense, will make available suffici6m office space, furniture, telephones, computers, facsimile n machines, and secretarial support, as approved by the City Manager, necessary /therefor. City of Palm Springs 1, City Attorney Contract 2101 —1— City further agrees to abide by this Agreement, and to timely pay BWS's bills for fees, costs, and expenses. In addition, City understands that the fee structure herein represents a blending of rates,with certain services offered at discounted rates,on the assumption that,due to the volume of work, other services will be rendered at higher rates. Therefore, insofar as possible, it is the intent of the parties hereto that all matters of City requiring the rendition of legal services be performed by BWS. However, nothing in this Section, or any other part of this Agreement, shall be construed in any manner as limiting the ultimate and absolute discretion of the City Council, and the City Council solely, at any time, to assign or reassign legal matters of City from or to BWS. 3. LEGAL FEES, BILLING PRACTICES, AND PERSONNEL. BWS's fees will be charged on an hourly basis for all time actually expended, and such fees are generally billed monthly with payment due within thirty(30)days after the date of the bill. In addition to David J. Aleshire acting as City Attorney, BWS will provide the following additional attorneys to render the predominate legal services hereunder: William W. Wynder: Chief Litigation Deputy/Labor, Personnel Fred Galante: Assistant City Attorney/Planning, Land Use, General BWS will exercise its discretion to utilize whichever attorney(s) (and staff) it determines to be best suited to its rendition of legal services under this Agreement, consistent with the competent and efficient rendering of legal services, and with a view toward rendering such services in an economically efficient manner. The fee arrangement is set forth in Exhibits "A" and "B" attached hereto and incorporated herein by this reference. In the event of any conflict in the provisions,the terms of base document shall control over the exhibits. Blended rates(See Exhibit"A")are computed based upon the hours of service irrespective of the rate of the attorney. Blended rates are also shown for legal assistants. The foregoing arrangement would remain in effect for at least the remainder of Fiscal Year 2000-2001 and 2001-2002 . However,the hourly rates of the attorneys at BWS are reviewed annually and,when appropriate,adjusted to reflect increases in expertise as well as other appropriate factors. Such increases are made on an annual basis, effective as of the beginning of each calendar year. While the hourly rates for services rendered by individual BWS attorneys may be adjusted as set forth herein,the"blended rates" established in Exhibit"A"shall not be adjusted except upon the approval of the City Council. 4. COSTS AND OTHER CHARGES. BWS may incur various costs and expenses in rendering the legal services required by this Agreement. These costs and expenses are set forth in more detail in Exhibit "B" attached hereto,and incorporated herein by this reference. City agrees to reimburse BWS for these costs and expenses in addition to the hourly fees for legal services. BWS may determine it necessary or appropriate to use one or more outside investigators,consultants,or experts in rendering the legal services required(particularly if a matter goes into litigation). City will be responsible for paying such fees and charges. BWS will not, however, retain the services of any outside investigators, consultants, or experts without the prior agreement of City. BWS will select any investigators, consultants,or experts to be hired only after consultation with City. City of Palm Springs City Attorney Contract 2/01 —2— The cost and expenses referred to herein include certain travel expenses; transportation,meals,and lodging;when incurred on behalf of the client. Generally,these will only be charged when outside of the area, and only with the prior agreement of City. Finally, periodically, when on-site, BWS personnel may be required to make local and long-distance telephone calls,ormake photocopies,or incur other expenses on behalf of the City as well as other clients. BWS will not be charged for such expenses and, in exchange, will not charge the City for calls made from BWS's offices to the City. 5. STATEMENTS. BWS shall render to City a statement for fees, costs, and expenses incurred on a periodic basis(generally monthly). Such statement(s) shall indicate the basis of the fees, including the hours worked, the hourly rate(s), and a brief description of the work performed. 6. PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT. The experience, knowledge, capability and reputation of BWS, its partners, associates, and employees, were a substantial inducement for City to enter into this Agreement. Therefore, BWS shall not contract with any other person or entity to perform, in whole or in part, the legal services required under this Agreement without the written approval of City. In addition, neither this Agreement, nor any interest herein, may be transferred, assigned, conveyed, hypothecated,or encumbered voluntarily,or by operation of law,whether for the benefit of creditors, or otherwise, without the prior written approval of City. 7. INDEPENDENT CONTRACTOR. BWS shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all times as to City, a wholly independent contractor with only such obligations as are required under this Agreement. Neither City, nor any of its employees,shall have any control over the manner,mode,or means by which BWS,its agents or employees,render the legal services required under this Agreement,except as otherwise set forth. City shall have no voice in the selection, discharge, supervision or control of BSW's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. 8. INSURANCE. BWS shall procure and maintain,at its sole cost and expense,comprehensive general liability and property damage insurance, including automobile and excess liability insurance, and professional liability insurance against all claims for injuries against persons or damages to property resulting from BWS's negligent acts or omissions rising out of or related to BWS's performance under this Agreement. The minimum amount of such insurance shall be Fifteen Million Dollars ($15,000,000.00) or such amount as the City may determine. BWS shall also carry Workers' Compensation Insurance in accordance with applicable workers'compensation laws. The insurance required hereunder shall be kept in effect during the term of this Agreement,and shall not be subject to reduction in coverage below the limits established herein, nor cancellation, nor termination without thirty(30)days'prior written notice by registered letter to City. A certificate evidencing the foregoing,and naming City as an additional insured,shall be delivered to and approved by City prior to cormnencement of the services hereunder. City of Palm Springs City Attorney Contract 2/01 —3— 9. COVENANT AGAINST DISCRIMINATION. BWS covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them,that there shall be no discrimination against,or segregation of,any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the performance of this Agreement. BWS shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, religion, sex, marital status, national origin, or ancestry. 10. TERM, DISCHARGE AND WITHDRAWAL. This Agreement shall continue in effect, subject to modification of fees as provided in Section 4,until terminated by either party hereto. City may discharge BWS at any time. The City Attorney shall not be deemed an employee of City,and shall have no right to hearing or notice, and may be discharged with or without notice. BWS may withdraw from City's representation at any time,to the extent permitted by law,and the Rules of Professional Conduct,upon at least sixty(60) days' notice to City. In the event of such discharge or withdrawal,City shall pay B WS's professional fees and costs,in accordance with this Agreement,for all work done(and costs incurred)through the date of cessation of legal representation. City agrees to execute,upon request,a stipulation in such forni as to permit BWS to withdraw as City's attorneys of record in any legal action then pending. BWS shall deliver all documents and records of City to City, or to counsel designated by City, and assist to the fullest extent possible in the orderly transition of all pending matters to City's new counsel. 11. CONFLICTS. BWS has no present or contemplated employment which is adverse to the City. BWS agrees that it shall not represent clients in matters either in litigation or non-litigation against the City. However,BWS may have past and present clients or may have future clients,which,from time to time,may have interests adverse to City, and BWS reserves the right to represent such clients in matters not connected with its representation of the City. If a potential conflict of interest arises in B WS's representation of two clients,if such conflict is only speculative or minor,BWS shall seek waivers from each client with regards to such representation. However, if real conflicts exist, BWS would withdraw from representing either client in the matter, and assist them in obtaining outside special counsel. [SIGNATURES oN NEXT PAGE] City of Palm Springs City Attorney Contract 2101 —4— IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of execution by the City. "CITY" CITY OF PALM SPRINGS,a Municipal Corporation Date William G. Kleindienst, Mayor ATTEST: City Clerk "BURKE, WILLIAMS & SORENSEN" BURKE, WILLIAMS & SORENSEN, LLP Date David J. Aleshire, Esq. [END OF SIGNATURES] City of Palm Springs City Attorney Contract 2/01 —5— EXHIBIT "A" FEE ARRANGEMENT (1) The retainer will be Ten Thousand Dollars ($10,000.00) per month ($100.00 per hour) for up to One Hundred(100) hours of general legal service. (2) General legal services over one hundred(100)hours per month will be billed at the blended rate One Hundred Fifty-Five Dollars ($155.00). (3) Special legal services shall include litigation matters, public finance, disciplinary actions or hearings, labor negotiations, redevelopment, housing, cable television, mining, toxics, refuse, franchising, enterprise activities, and any major contract negotiation. Except for public finance,all such matters shall be billed at the blended billing rate of One Hundred Eighty Dollars ($180.00) per hour. (4) For public finance the fee structure is one percent of the first$1 million executed and delivered; one-half percent of the next$4 million executed and delivered; and one- quarter percent of the balance in excess of$5 million subject to a minimum fee of Twenty Thousand Dollars ($20,000.00). In the event that multiple series of bonds or notes are issued,the foregoing fee schedule would be applied to each issue,subject to the$20,000.00 minimum fee. Payment of the fees are entirely contingent upon the successful execution and delivery of the bonds or notes to be payable on or after delivery except for out-of-pocket expenses. (5) In addition to the foregoing, we would be reimbursed for out-of-pocket expenses including telephones,telecopier,messenger,courier,and other communication costs; reproduction expense; computer research facilities; court reporters; travel expense outside of Southern California (and not to Palm Springs); and other costs and expenses incurred on your behalf. (6) The blended rate for legal assistants, irrespective of matter, shall be Eighty Dollars ($80.00)per hour,and for document clerks shall be Thirty-Five Dollars($35.00)per hour. (7) The other normal terms and conditions of our billing are set forth in the Statement of Billing Practices attached as Exhibit "B". Exhibit "A" City of Palm Springs City Attorney Contract 2/01 —6— EXHIBIT "B" STATEMENT OF BILLING PRACTICES FOR EMPLOYMENT OF LEGAL SERVICES BWS's fees are charged on an hourly basis for all time actually expended and are generally billed monthly with payment due within thirty (30) days after the date of the bill. Our presently prevailing hourly design rates vary between$135.00 per hour and$375.00 per hour depending upon the experience and background of the individual attorneys and between$45.00 and $135 for legal assistants. The current hourly design rate for the attorneys and staff working on this matter will be set forth in the billing statement. It should be understood that hourly rates are reviewed, and when appropriate, adjusted to reflect increases in seniority and experience as well as inflationary factors. These increases are generally made on an annual basis effective on the beginning of each calendar year. However, notwithstanding the hourly rate of the attorney, the blended rate shall be used. BWS will incur various costs and expenses in performing legal services. These costs and expenses are separately billed to the client and include fees fixed by law or assessed by public agencies, long distance telephone calls, messenger and other delivery fees, postage, parking, and other local travel expenses, photocopying (charge of twenty cents ($.20) per page) and other reproduction costs, clerical, staff overtime, computer-assisted research fees, travel costs beyond Southern California (including lodging, meals, and incidentals), and other similar items including deposition, reporter fees, and transcript fees. In addition, the client will be responsible for paying the fees of consultants and other outside experts who are retained after consultation with the client. It is understood that BWS will not charge for actual travel time,local telephone calls or calls made to the City. In exchange, BWS shall not be charged for calls made or received at the City, whether local or long-distance, nor for copying charges on-site, since copying on-site will reduce the charges to the client. The monthly billing statements for fees and costs shall indicate the basis of the fees, including the hours worked,the billable rates charged, and description of the work performed. All bills are expected to be paid within thirty(30)days of the date of the billing statement. in the event any statement remains unpaid for more than thirty(30) days after the date of the statement, interest thereon at the rate of ten percent(10%)per arinum shall be due and payable thereafter on the unpaid balance. It is expressly understood that the client may discharge BWS at any time. BWS may withdraw from representation at any time to the extent permitted by law under the Rules of Professional Conduct, upon reasonable notice to the client. In the event of such discharge or withdrawal,client shall pay BWS fees and costs in accordance with this agreement for all work done (and costs incurred) through the termination of BWS's representation of client. Upon such termination withdrawal,BWS shall deliver to client all of its files in this matter and any property in possession at BWS belonging to client. Exhibit `B" City of Palm Springs City Attorney Contract 2101 —7— MINUTE ORDER NO. 6798 MODIFYING AGREEMENT NO. 4125 WITH RUTAN & TUCKER, AND APPROVING AN AGREEMENT WITH BURKE, WILLIAMS & SORNENSEN FOR A TERM TO EXPIRE JUNE 30, 2002, IN THE AMOUNT OF A BLENDED FEE FOR SERVICE. ----------------- I HEREBY CERTIFY that this Minute Order, modifying Agreement No. 4125 with Rutan & Tucker, and approving an agreement with Burke, Williams & Sornensen for a term to expire June 30, 2002, in the amount of a blended fee for service, was adopted by the City Council of the City of Palm Springs, California, in a meeting thereof held on the 14th day of February, 2001. PATRICIA A. SANDERS City Clerk