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HomeMy WebLinkAbout04648 - ALESHIRE & WYNDER FEE Y tV.f' vC.-� ei� iTIW N^ 1l ^^1C i• 11 1C:i—. -- 1 {� , .. 'y File Edit Generate,Letters Transactions Reports Maintenance Quit Gen.Letters Transactions Reports INIMlttenance Help Exit Program Document#: A4648 Group: ry Active --- - . . pactuttent - _ - Description: Crty Ahorne_y Servicas _ - Financials 1. Approval Date: 02 ow — -Expire.Date: 02N1 rocs - Closed Dote: Fi 1 Owed: 0.00 Compat>hr 1 Aleshn a 8.Wyndel,L L P XRef: ICITY MANAGER Pail]: 0 00 Contact: Insurance Department ph: ( ) - En:F Address: Tower 17,18881 Von Karman A•ve Bat 00 Address2: i{ alc eMall:)Irvine) St: 77Zip: 92512 -- _ Count �� e: 11n File ' Insurance Status: 14 policy I{as Fxpil ed. Document Tracking Items (D61 click heading to Sort) y Uts Trl:inrtpte Cade ItemI Due By Gompleted �xntAdded ',AmtP '' =. © ) 1 103.12-03 Idlstrlbution made-req ins certfrom dawn ho i f If 1 0.00 0,00 . , i' , do�a 1 n i .1.111n1 Alshire & Wynder, LLP Fee Agreement AGREEMENT #4648 M07262, 2-19-03 PALM SPRINGS FEE AGREEMENT- This FEE AGREEMENT (the "Agreement") is entered into by and between the law firm of ALESHIRE & WYNDER, LLP ("A & W" or "Firm") 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, PALM SPRINGS FINANCING AUTHORITY, and all boards, commissions, and other bodies of City. 1. SCOPE OF WORK AND DUTIES. City Council hereby appoints David J. Aleshire as the City Attorney, and hires Aleshire & Wynder and its successors as its City Attorney, 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, Firm 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 Firm. It is farther agreed that to the extent due to efficiency or other reasons, the attorneys previously employed by the City continue to complete work assignments or undertake additional work, such work shall be performed under the direction of the City Attorney. Firm, 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, water, tort defense, personnel, labor representation, code enforcement, criminal prosecution, redevelopment, housing, cable television, finance, franchising, contracts, enterprise 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 any other provision contained herein, any legal services can only be authorized by the City Council or City Manager. IRV 428646 vI _1_ 2. CITY DUTIES. City agrees to provide such information, assistance, cooperation, and access to books, records, and other information, as is necessary for Firm 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 sufficient office space, furniture, telephones, computers, facsimile machines, and secretarial support, as approved by the City Manager, necessary therefor. City further agrees to abide by this Agreement, and to timely pay Firm'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 Finn. 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, at any time, to assign or reassign legal matters of City from or to Finn. 3. LEGAL FEES, BILLING PRACTICES,AND PERSONNEL Firm'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, Finn will provide the following additional attorneys to render the predominate legal services hereunder: Tiffany Israel: Assistant Eric Dunn: Assistant Fred Galante: Deputy for Airport, Special Services Bill Wynder: Chief Litigation Deputy Dawn Honeywell: Deputy for Redevelopment Other attorneys as needed. Firm 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 compensation schedules are set forth in Exhibits "A" and "B" attached hereto and incorporated herein by this reference. Blended rates are computed based upon the hours of service irrespective of the rate of the attorney. Blended rates are also shown for legal assistants. In general, the arrangement is that there is a base amormt of hours, which are significantly discounted and referred to as the general retainer. This includes general services, attending public meetings, preparing ordinances and resolutions, giving general advice to City departments. A higher blended rate is charged after the retainer hours are exceeded. Special services, including a broad range of categories (litigation, personnel, labor, redevelopment, housing, IRV#28646 vl _2_ toxics, refuse, cable, enterprise, etc.) are billed at a higher blended rate, Public finance matters are charged on a contingent basis based upon the size of the matter. The specific terns are set forth in the exhibits. The foregoing arrangement would remain in effect for at least Fiscal Years 2002- 2003 and 2003-2004. However, the hourly rates of the attorneys at Firm 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 begriming of each calendar year. While the hourly rates for services rendered by individual Film attorneys may be adjusted as set forth herein, the "blended rates" established in this Agreement shall not be adjusted except as provided here, and only upon the approval of the City Council. 4. COSTS AND OTHER CHARGES. Finn 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 Finn for these costs and expenses in addition to the hourly fees for legal services. Finn 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. Firm will not, however, retain the services of any outside investigators, consultants, or experts without the prior agreement of City. Firm will select any investigators, consultants, or experts to be hired only after consultation with City. 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, Finn personnel may be required to make local and long-distance telephone calls, or make photocopies, or incur other expenses on behalf of the City as well as other clients. Firm will not be charged for such expenses and, in exchange, will not charge the City for calls made from our office or other locations to the City. 5. STATEMENTS. Firm shall render to City a statement for fees, costs, and expenses incurred on a periodic basis (generally monthly). Such statements) 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 Finn, its partners, associates, and employees, was a substantial inducement for City to enter into this Agreement. Therefore, Finn 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, IRV#28646 vI -3- 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. Firm shall perform all legal services required under this Agreement as an independent contractor of City, and shall remain, at all tunes 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 maimer, mode, or means by which Firm, 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 Firm's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. 8. INSURANCE. Firm 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 Finn's negligent acts or omissions rising out of or related to Finn's performance under this Agreement. The minimum amount of such insurance shall be Three Million Dollars ($3,000,000.00) or such amount as the City may determine. Firm 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 commencement of the services hereunder. 9. COVENANT AGAINST DISCRIMINATION. Firm 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. Finn 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 Firm 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. Firm may withdraw from City's representation at any time, to the extent permitted by law, and the Rules of Professional Conduct, upon at least thirty (30) days' notice to City. IRV#28646 vI -4- In the event of such discharge or withdrawal, City shall pay Firm 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 form as to permit Firm to withdraw as City's attorneys of record in any legal action then pending. Firm 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. Finn has no present or contemplated employment which is adverse to the City. Finn agrees that it shall not represent clients in matters either litigation or non-litigation against the City. However, Firm may have past and present clients or may have future clients, which, from time to time, may have interests adverse to City, and Finn 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 Firm's representation of two clients, if such conflict is only speculative or minor, Firm shall seek waivers from each client with regards to such representation. However, if real conflicts exist, Finn would withdraw from representing either client in the matter, and assist them in obtaining outside special counsel. IRV#28646 vI -5- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date of execution by the City. Date: "CITY" CITY OF PALM SPRINGS, a municipal corporation By: j�w-. �4 William G. Kleindienst,Mayor �ATT City Clerk "FIRM" ALESHIRE & WYNDER, LLP By: David J. shire, Esq. [END OF SIGNATURES] r r IRV#28646 vl -6- EXHIBIT "A" FEE ARRANGEMENT 1. The retainer will be Ten Thousand Five Hundred Dollars ($10,500.00) per month ($105.00 per hour) for up to one hundred(100) hours of general legal services. This rate shall be increased by$5 per hour on the following dates: July 1, 2003 and January 1, 2004. 2. General legal services over one hundred (100) hours per month will be billed at the blended rate of One Hundred Sixty Dollars ($160.00) per hour. This rate shall be increased by$5 per hour on the following dates: July 1, 2003 and January 1, 2004. 3. Special legal services shall include litigation matters, public finance, disciplinary actions or hearings, labor negotiations, redevelopment, housing, cable television, water, mining, toxics, refuse, franchising, enterprise activities, any major contract negotiation and other similar special matters. Except for public finance, all such matters shall be billed at the blended billing rate of One Hundred Eighty-Five Dollars ($185.00) per hour. This rate shall be increased by $5 per hour on the following dates: July 1, 2003 and January 1, 2004. 4. For public finance the fee structure shall, at the option of the City, be contingent or non-contingent as follows: (i) Contingent - one percent of the first $1 million executed and delivered; one-half percent of the next $4 million executed and delivered; one-quarter percent of the next $10 million; one-eighth percent of the next $5 million; and one-tenth percent of any amount over $20 million; subject to a minimum fee of Twenty-Five Thousand Dollars ($25,000.00); or (ii) Non-Contingent - $300 per hour on a blended rate for all attorney time incurred. 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 $25,000.00 minimum fee. If Contingent, 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. For work done on behalf of developers and private parties for document preparation, litigation or other services, where a deposit is received against which the fees are charged or where the fees are otherwise reimbursable, the blended rate will be Two Hundred Dollars ($200.00)per hour. 6. 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 other than to the City; and other costs and expenses incurred on your behalf. 7. 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 until December 31, 2003, and shall be Ninety Dollars ($90.00) and Forty Dollars ($40.00) thereafter, respectively. 8. The other normal terms and conditions of our billing are set forth in the Statement of Billing Practices attached as Exhibit "B". 1 The next large financing will have a credit of$9,530 applied against bond fees. IRV#28646 v1 _7_ EXHIBIT "B" STATEMENT OF BILLING PRACTICES FOR EMPLOYMENT OF LEGAL SERVICES The Firm'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 $350.00 per hour depending upon the experience and background of the individual attorneys and between $45.00 and $135 for legal assistants. The current hourly design rate for the attorneys and staff working on this matter will be set forth in the billing statement. Annually, you will be provided with the prevailing hourly design rates for the attorneys who will spend the predominate amount of time on this matter. It should be understood that hourly rates are reviewed, and when appropriate, adjusted to reflect increases in seniority and experience as well as inflationary factors. These increases are generally made on an annual basis effective on the beginning of each calendar year. The Firm will incur various costs and expenses in performing legal services. These costs and expenses are separately billed to the client and include fees fixed by law or assessed by public agencies, long distance telephone calls, messenger and other delivery fees, postage, parking, and other local travel expenses, photocopying (charge of twenty cents ($.20) per page) and other reproduction costs, clerical, staff overtime, computer-assisted research fees, travel costs, including mileage at $.35 per mile, airfare, lodging, meals, and incidentals (but not travel costs to and from the City), 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 (mileage, reproduction and other costs are periodically adjusted in accordance with the Finn's actual costs). It is understood that Finn will generally not charge for actual travel time, local telephone calls or calls made to the City. In exchange, Finn shall not be charged for calls made or received at the City, whether local or long-distance, nor for copying charges since copying on- site will reduce the charge 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 annum shall be due and payable thereafter on the unpaid balance. It is expressly understood that the client may discharge Firm at any time. Finn 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 Finn fees and costs in accordance with this agreement for all work done (and costs incurred) through the termination of Firm representation of client. Upon such IRV 428646 v1 _8_ termination withdrawal, Firm shall deliver to client all of its files in this matter and any property in possession at Firm belonging to client. IRV#28646 vI -9- HOURLY RATES FOR ATTORNEYS ASSIGNED TO MATTER: David J. Aleshire $275.00 William W. Wynder $275.00 Colin J. Tanner $225.00 Eric L. Dunn $220.00 Fred Galante $220.00 Dawn Honeywell $200.00 Tiffany Israel $185.00 Aaron Harp $175.00 Doug Haubert $160.00 Sunny Soltani $150.00 BLENDED RATES PREVAIL OVER THE HOURLY RATES. IRV 428646 v1 -10-