HomeMy WebLinkAbout9/5/2018 - STAFF REPORTS - 1.K.CITY COUNCIL STAFF REPORT
DATE: SEPTEMBER 5 , 2018 CONSENT CALENDAR
SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO THE PROFESSIONAL
SERVICES AGREEMENT WITH MEYERS NAVE RIBACK SILVER &
WILSON
FROM: Marcus Fuller , Assistant City Manager
BY: David Freedman , City Council Liaison
SUMMARY:
The City Council will consider ratification of the professional services agreement with
Meyers Nave Riback Silver & Wilson ("Meyers Nave"), the special counsel law firm
retained to conduct an independent personnel investigation f or the City regarding the
installation by the Mayor of a motion-activated electronic came ra device in his office and
an intercom between his office and the office of the Executive Assistant for the Office of
the Mayor and City Council. The agreement was entered into by the Assistant City
Manager while Council was in its August recess , so it has a not-to-exceed amount of
$25 ,000 , consistent with the City Manager's expenditure authority. As the total cost of the
investigation to be conducted by Meyers Nave will be higher than this amount, an
amendment is proposed to increase the not-to-exceed amount by an additional $60,000 ,
for a total not-to-exceed amount of $85 ,000 .
RECOMMENDATION :
1 .. Approve Amendment No . 1 to the Professional Services Agreement No . A7 177 with
Meyers Nave Riback Silver & Wilson for specialized munic ipal legal services , in the
amount of $60 ,000 for a total maximum contract amount not to ex ceed $85 ,000 ; and
2. Authorize the Assistant City Manager to e xecute all ne cessary documents .
STAFF ANALYSIS :
At its meeting of July 11 , 2018 , Council unanimously agreed to an independent personnel
investigation regarding the installation by the Mayor of a motion -activated electronic
camera device in his office and an intercom between his office and the offi ce of the
Executive Assistant for the Office of the Mayor and City Council. Council also named
ITEM No._.i_._K_. _
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City Council Staff Report
September 5, 2018-Page 2
Approval of Amendment No. 1 to A 7177
David Freedman, a Palm Springs resident and retired attorney who served as Co-Chair
of the Transparency Working Committee of the City's Ethics, Transparency and
Governmental Reform Task Force, to serve as a liaison for the Council to select an
investigating firm and brief it on the scope of the investigation.
Mr. Freedman subsequently carried out a Request for Proposal (RFP) process to select
a qualified, cost-effective investigative firm, looking into both law firms and private
investigative firms with experience in conducting personnel investigations in California
public agencies. Following this research, Mr. Freedman contacted three law firms with
experience in this specialized practice area. One firm subsequently decided not to
respond to the RFP, and two firms submitted responses detailing their qualifications and
those of the forensic investigator they proposed to use.
Based on the responses received, Mr. Freedman selected the Meyers Nave firm to
conduct the investigation, with its team led by Ms. Camille Hamilton Pating, who chairs
the firm's Workplace Investigation Practice. Ms. Pating has conducted more than 150
investigations, including those involving public officials throughout the state. She has also
served as a Commissioner on the San Francisco Ethics Commission. Ms. Pating's online
biography is available at http://www.meyersnave.com/attorney/camille-hamilton-pating/.
Hourly rates for the Meyers Nave team on this matter are $375 for Ms. Pating, $335 for
Of Counsel Jenny Riggs and $175 for support staff. Forensic services will be provided by
Robert DeCicco, a Managing Director at Berkeley Research Group, whose hourly rate is
$450. Meyers Nave's estimate for the total budget to conduct the investigation, issue
Findings of Fact and report its findings to Council is $38,200, not including Mr. DeCicco•s
fees. Meyers Nave estimates he would require approximately 20 hours for his analysis
and report. Meyers Nave has in addition agreed to cap its disbursements at $7,500,
bringing its total estimated cost to approximately $55,000. The proposed total not-to-
exceed amount of $85,000 provides a margin for any contingencies that may arise.
Pursuant to the Council's direction on July 11, 2018, to proceed with the investigation by
the firm selected by the Council's Liaison, Mr. Freedman negotiated an agreement with
Meyers Nave in an amount not to exceed $25,000, based on the City's template for legal
professional service agreements. The agreement was executed on August 9, 2018; this
action will approve an amendment to the agreement to increase the total maximum
contract amount by $60,000 to $85,000.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
The Professional Services Agreement with Meyers Nave and its proposed Amendment
No. 1 are not .. projects .. for purposes of the California Environmental Quality Act (CEQA),
as that term is defined by CEQA guidelines (Guidelines) section 15378. Engagement of
this law firm is an organizational or administrative activity by the City of Palm Springs in
furtherance of its police power and will not result in a direct or indirect physical change in
the environment, per section 15378(b)(5) of the Guidelines.
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City Council Staff Rep ort
September 5, 20 18-Page 3
App rova l of Am endmen t No .1 to A7177
FISCAL IMPACT :
Sufficient funding is budgeted and ava ilable in contractual leg al services, Acco unt No.
001-1200-43220.
David Freedman
Council Liaison
Attachments:
1. Professional Services Agreement (A7177)
arcus Ful ler
Assistant City Manager
2 Amendment No. 1 to Profes siona l Services Agreemen t A7177
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ATTACHMENT 1
5
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (the 11 AgreerT~ent") Is made and entered Into
as of this 9th day of August, 2018, by and between the CITY OF PALM SPRINGS, a California
charter city and municipal law corporation ("City 11
), and MEYERS NAVE RIBACK SILVER & WILSON,
a California professional law corporation (hereinafter nflrm11
).
RECITALS
A. The City of Palm Springs, pursuant to Its auth(!rlty under the City Charter and all
applicable law, acting by and through the City Manager, desires to contract with Firm to provide
services that may be described as a confidential, attorney-client privileged Independent
personnel Investigation.
B. Firm Is qualified to, and desires to perform the foregoing professional services as
necessary for the support of the City Attorney and the City Council.
C. City and Firm wish to provide for the terms and conditions of City retaining and
employing Firm to provide legal services as set forth herein.
NOW, THEREFORE, In consideration of the mutual promises and covenants contained
herein, the parties agree as follows:
AGREEMENT
1. Retention of F1rm. Identification of Individual Legal Counsel.
City hereby retains and employs Firm to provide the legal services described as follows:
to conduct a confidential, attorney-client privileged Independent personnellnvestlgatlon for the
City regarding the installation by the Mayor of Palm Springs of a motlon·actlvated electronic
camera device In his office and an Intercom between his office and the office of the Executive
Assistant for the Office of the Mayor and City Council. The purpose and scope of work Is to
determine the facts surrounding the t.nstallatlon and use of the camera and Intercom, to issue
Findings of Fact as to whether or ·not any misconduct occurred, to report such Findings to the
Council, and such additional services as may be requested or required In relation thereto. Oty
and Firm understand and agree that David Freedman will serve as City's liaison to the Firm
regarding all services.
2. Independent Contractor.
Firm and any attorneys or other persons employed by Firm, shall at all times be
considered an Independent contractor and not an employee of the City and not entitled to any
benefits of the CJty•s employees. Except to the extent provided herein, the City and Its
employees shall not have any control over the conduct of Flrm.
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3. Fees. Costs. and Expenses.
3.1 Clty agrees to pay Firm at the rates set forth in Exhibit 11 A,11 which Is attached
hereto and Is Incorporated herein by reference.
3.2 Cty agrees to pay out-of-pocket costs and expenses associated with Firm's work
pursuant to Exhibit "A.n Firm's disbursements will be capped at $7,509.
3.3 Scope of work for this retention Includes two trips to Palm Springs, one to conduct
all witness Interviews within a two-day period and one to present findings to City
Council during closed session.
3.4 The Not-To-Exceed ("NTE'1
) amount for this contract Is $25,000. It Is understood
that a supplemental contract and request to adjust the NTE amount will be
presented to the City Council on or about September 5, 2018.
4: Statements/Task-BIIlln&.
Firm shall prepare and present to City detailed monthly statements for professional and
other services rendered to City for the month precedl11g the statement, indicating each task
performed by Firm. City shall pay the statements within thirty (30) days of receipt of the same.
Firm shall update City, upon request, regarding the status of Firm's billings.
5. Insurance and Indemnification. ·
5.1. Firm shall carry Professional Uablllty/Errors and Omissions Insurances In an
amount not less than one million dollars ($1,000,000.00) per occurrence and
($2,000,000.00) In aggregate. All Insurance coverage shall be provided by an
Insurance company with a rating of A-, VII or greater In the latest edition of Best•s
Insurance Guide and authorized to do business In the State of California. Such
policies shall not be canceled or materially changed absent thirty (30) days• prior
written notice to the City. With respect to Professional liability/Errors and
Omissions Insurance, Firm agrees to maintain such insurance for at least three (3)
years after termination of this Agreement as long as such Insurance Is reasonably
available on the market.
·5.2. Firm agrees to indemnify, defend and hold harmless, the City, Its City Council,
officers, agents and employees from and against and claim, demands, damages,
Injury or judgment which arises out the negligent performance or willful
misconduct of Firm In performing under this Agreement.
6. Term and Termination.
The term of this Agreement shall continue until terminated by either party. Firm shall
serve under the terms of this Agreement at the pleasure of ctty, and by a majority vote of the
City Council, City hereby reserves the right to terminate this Agreement upon ten (10) days
written notice to Firm for any reason or to require substitute attorney personnel. In the event
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that Firm's services are terminated, all unpaid charges shall be due and payable to Firm for work
actually performed up to the time of termination and for any other work Firm completes at the
direction of the City. Firm may terminate this Agreement with or without cause upon ninety (90)
days written notice to the City.
7. Notice.
Any notices required by this Agreement shall be given by personal service or by delivery
of such notice by first-class mall, postage prepaid. Such notices shall be addressed to each party
at the address listed below. Either party may change the information In such notice upon
written notice as provided herein.
City:
City of Palm Springs
3200 E. Tahqultz Canyon Way
Palm Springs, CA 92263-2743
Attn: Mr. Peter Klng
Phone: 760.323.8294
Firm:
Meyers Nave Riback Silver & Wilson
707 Wilshire Blvd., 24th Floor
Los Angeles, California 90017
Attn: Ms. Camille Patlng
Phone: 800.464.3559
8. City Officers and Employees; Non-Discrimination.
8.1 No officer or employee of the City shall be personally liable to the Firm, or any
successor-In-interest, In the event of any default or breach by the City or for any
amount which may become due to Firm or to its successor, or for breach of any
obligation of the terms of this Agreement.
8.2 Firm acknowledges that no officer or employee of the City has or shall have any
direct or Indirect financial Interest In this Agreement nor shall Firm enter Into any
agreement of any kind with any such officer or employee during the term of this
Agreement and for one year thereafter. Firm warrants that Firm has not paid or
given, and will not pay or give, any third party any money or other consideration
In exchange for obtaining this Agreement. ·
8.3 In connection with Its performance under this Agreement, Firm shall not
discriminate against any employee or applicant for employment because of actual
or perceived race, religion, color, sex, age, marital status, ancestry, national origin
(I.e., place of'orlgln, Immigration status, cultural or linguistic characteristics, or
ethnlclty), sexual orientation, gender Identity, gender expression, physical or
mental disability, or medical condition (each a "prohibited basis"). Firm shall
ensure that applicants are employed, and that employees are treated during their
employment, without regard to any prohibited basis. As a condition precedent to
City's lawful capacity to enter this Agreement, Firm shall certify that Its actions
and omissions hereunder shall not Incorporate any discrimination arising from or
related to any prohibited basis In any Firm activity, Including but not limited to
the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, Including apprenticeship; and further,
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that Firm Is in full compliance with the provisions of Palm Springs Municipal Code
Section 7.09.040, Including without limitation the provision of benefits, relating ~o
non-discrimination In city contracting.
9. Conflicts of Interest.
Firm represents that It presently has no Interest and shall not acquire any Interest, direct
or Indirect, In any legal representation which Is in conflict with the legal services to be provided
the City under this Agreement. Firm represents that no City employee or official has a material
flnandalinterest In Firm. Durlns the term of this Agreement and/or as a result of being awarded
this contract, Firm shall not offer, encourage or accept any financial interest In Firm's business
from any City employee or official.
10. Flies.
All legal flies of Firm pertaining to the City shall be and remain the property of City. Firm
shall control the physical location of such legal flies In a secure and accessible location during the
term of this Agreement and be entitled to retain copies of such flies, at Firm's expense, upon
termination of thl~ Agreement. City agree that t~e Firm may, in its discretion, maintain all or part
of the City's client flle In electronic format. The Firm may store part or all of City documents
using secure cloud storage services. If so, the Firm will apply all reasonable methods to maintain·
the confidentiality of City flies, just as It does for City's non-digital Information. City data will be
password protected and encrypted using currently available technology. The City may obtain
Information from Its flies by written request to the Firm.
11. Modifications to the Aveement.
Unless otherwise provided for In this Agreement, modifications relating to the nature,
extent or duration of Firm's professional services to be rendered hereunder shall require the
written approval of the parties. Any such written approval shall be deemed to be a supplement
to this Agreement and shall specify any cha~ges In the Scope of Services and the agreed-upon
billing rate to be charged by Firm and paid by the City.
12. Asslmment and Delegation.
This Agreement contemplates the personal professional services of Firm and It shall not
be assigned or delegated without the prior written consent of the City. Firm shall supervise
delesated work, except where precluded from doing so by virtue of a conflict of Interest and
where otherwise agreed to by the parties hereto.
13. Lepl Construction.
13.1 This Agreement Is made and entered Into In the State of california and shall, In all
respects, be interpreted, enforced and governed under the laws of the State of
california.
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13.2 This Agreement shall be construed without regard to the Identity of the persons
who drafted Its various provisions. Each and every provision of this Agreement
shall be construed as though each of the parties participated equally In the
drafting of same, and any rule of construction that a document Is to be construed
against the drafting party shall not be applicable to this Agreement.
13.3 The article and section, captions and headings herein have been Inserted for
convenience only, and shall not be considered or referred to ln resolving
questions of Interpretation or construction.
13.4 Whenever In this Agreement the context may so require, the masculine gender
shall be deemed to refer to an·d Include the feminine and neuter, and the singular
shall refer to and Include the plural.
14. Entire Agreement.
This Agreement contains the entire agreement and understanding of the parties with
respect to the subject matter hereof, and contains all covenants and agreements between the
parties wlth respect to such matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dat e
indicated In the preamble to this Agreement and represent that they are authorized to bind their
respective parties.
ATIEST :
APPROVED AS TO FORM :
Peter Nelson King,
Assistant City Attorney
AP?ROVED BY r,ny MANAGER
N R t2Si .rg:> .jt A11 n l\~r~z..c5 @a.~~~ •1\t l~co
':I:~ 'IN
CITY OF PALMS:~ ~
Marcus Fuller,
Assistant Ci ty Manager
MEYER NAVE RIBACK SILVER & WILSON
Principal
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EXHIBIT "A"
MEYERS NAVE RIBACK SILVER & WILSON
Rates and Billing Practices
1. Rates: Effective January 1, 2018, the hourly rates for legal personnel on this matter are as
follows:
Principal Camille Patlng
Of Counsel Jenny Riggs
Support Analyst
Paralegal
$
$ s·
$
375/ hour
335/hour
175/hour
175/hour
Billing Practices: Time Is charged In minimum units of one-tenth (. 1) of an hour.
The time charged will Include the time spent on telephone calls relating to City's matters,
Including calls with City, witnesses, opposing counsel, court personnel, state filing agencies, vendors,
and other necessary telephone calls. The legal personnel assigned to City's matters may confer among
themselves about the matter, as required and appropriate. When they do confer, each person will
charge for the time expended, as long as the work done is reasonably necessary and not duplicative.
Likewise, If more than one of the legal personnel assigned attends a meeting, court hearing, or other
proceeding, each will charge for the time spent, as long as the attendance is required and appropriate.
Firm will charge for waiting time In court and elsewhere and for travel time, both local and out of
town.
2. Costs and Other Char1es:
(a) Firm may Incur various costs and expenses In performing legal services under this
Agreement. City agrees to pay for all costs, disbursements, and expenses In addition to the hourly
fees. The costs and expenses commoniy include, service of process charges, filing fees, court and
deposition reporters• fees, jury fees, notary fees, deposition costs, long distance telephone charges,
messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs
Including parking, mileage, transportation, meals and hotel costs, Investigation expenses, consultants• .
fees, expert witness, professional, mediator, arbitrator and/or. special master fees, and other similar
items. Except for the Items listed below, all costs and expenses will be charged at Firm's cost.
In-office photocopying: $0.10/page
Mileage: Per IRS Mileage Rates, currently $0.545/mlle
(b) Out of town travel. Client agrees to pay transportation, meals, lodging and all other
costs of any necessary out-of-town travel by Firm's personnel.
(c) Experts, Consultants and Investigators. To aid In the preparation or presentation of
City's matter, It may become necessary to hire expert witnesses, consultants or Investigators. City
agrees to pay such fees and charges. Firm will select any expert witnesses, consultants or Investigators
to be hired, and Clty will be Informed of and have the opportunity to consent to persons chosen and
their charges.
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(d) Other Fees. City understands that If any matter proceeds to court action or arbitration,
City may be required to pay fees and/or costs to other parties In the action. Any such payment will be
entirely the responsibility of City.
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ATTACHMENT 2
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AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
MEYERS NAVE RIBACK SILVER & WILSON
(Agreement No. A7177)
THIS AMENDMENT NO. 1 to that certain "Professional Services Agreement" ("First
Amendment") is made and entered into to be effective on the _day of September 2018 by
and between the City of Palm Springs, a California charter city and municipal corporation
(hereinafter referred to as the City), and MEYERS NAVE RIBACK SILVER & WILSON, a
California professional law corporation (hereinafter "Firm") collectively the "Parties," and each
a "Party."
RECITALS
A. City and Firm previously entered into a professional services agreement for
legal representation in connection with an independent personnel investigation. The Assistant
City Manager approved and entered into this agreement, identified in the public records of
the City as Agreement No. A7177, on August 9, 2018 (the "Agreement"). Fees, costs and
expenses under the Agreement were not to exceed twenty-five thousand dollars ($25,000).
B. City and Firm desire to amend the Agreement to allow for the Firm's continued
services to the City, in an additional amount not to exceed sixty thousand dollars ($60,000).
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties agree as follows:
AGREEMENT
1. The true and correct recitals above are incorporated by this reference herein as the
basis for this First Amendment.
2. Section 3.4 of the Agreement is hereby amended in its entirety to read as follows:
Fees, costs and expenses paid pursuant to this Agreement shall have an aggregate value of
no more than eighty-five thousand dollars ($85,000), this amount reflecting an additional sixty
thousand dollars ($60,000) above and beyond the amount previously approved by the
Assistant City Manager on August 9, 2018.
3. Full Force and Effect. This First Amendment is supplemental to the Agreement and is
by reference made part of said Agreement. All of the terms, conditions, and provisions,
thereof, unless specifically modified herein, shall continue in full force and effect. In the event
of any conflict or inconsistency between the provisions of this First Amendment and any of
the provisions of the Agreement, the provisions of this First Amendment shall in all respects
govern and control.
4. Corporate Authority. Each of the persons executing this First Amendment on behalf of
a Party hereto warrants that (i) such Party is duly organized and in good standing, (ii) he/she
is duly authorized to execute and deliver this Amendment on behalf of said Party, (iii) by
Amendment No.1
Agreement No. A 7177
Meyers Nave Riback Silver & Wilson
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his/her execution of this First Amendment, such Party is formally bound to the provisions of
this First Amendment, and (iv) the entering into this First Amendment does not violate any
provision of any other agreement to which said Party is bound.
IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the
dates stated below.
ATTEST:
By:
Anthony J. Mejia, City Clerk
Date:
APPROVED AS TO FORM:
By:
Date:
Date:
Peter Nelson King,
Assistant City Attorney
Amendment No. 1
Agreement No. A 7177
Meyers Nave Riback Silver & Wilson
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"CITY"
CITY OF PALM SPRINGS
By:
Date:
Marcus Fuller,
Assistant City Manager
Meyers Nave Riback Silver & Wilson
a California professional corporation
By:
Camille Hamilton Pating,
Principal