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Date: To: From: August 21, 2012 El Cerrito City Council ~ ~ Scott Hanin, City Managef1 AGENDA BILL Agenda Item No. 5(F) Subject: Amending Agreement wi h Meyers Nave related to City Attorney Services ACTION REQUESTED Adopt a resolution of the City Council of the City of El Cerrito authqrizing the City Manager to execute an amended and restated agreement with Meyers Nav.e for City Attorney services and appointing Jennifer Faught as Assistant City Attorney. BACKGROUND Pursuant to an agreement approved by the City Council on April 7, 2008, the City of El Cerrito, currently receives City Attorney services from the firm of Meyers, Nave, Riback, Silver & Wilson ("Meyers Nave") and they have proposed an amendment to the agreement and to appoint Jennifer Faught as Assistant City Attorney, in light of the departure of the previous Assistant City Attorney from the firm. This is the first time that the City Attorney has requested increases to hourly rates and these changes are modest, particularly since it has been four years since the initial rates were approved. General counsel services will now be billed at hourly rates ranging from $195 to $325 (compared with $195-$275), depending on the level of experience of the billing attorney. The hourly rate for Sky Woodruff will be increased from $250 to $260; the hourly rate for Jennifer Faught will be $220, up from $210. Non- routine general counsel work will now be billed hourly at a range of $205-$375 (up from $325) and, specialized attorney services will be billed at $200 to $400 (up from $350) per hour. A copy of the amended agreement is included as Attachment 2. FINANCIAL CONSIDERATIONS For FY 2012-13, there is no budget impact as the City Attorney shall work with staff to ensure that fees remain within the approved budget amount of $300,000 unless amended by Council. LEGAL CONSIDERATIONS Staff is requesting authority to execute the contract in substantially the form presented. Attachments: 1. Resolution 2. Proposed Amended Consulting Services Agreement with Meyers Nave ---PAGE BREAK--- RESOLUTION NO. 2012-:XX Agenda Item No. S(F) Attachment 1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDED AND RESTATED AGREEMENT WITH MEYERS NAVE FOR CITY ATTORNEY SERVICES AND APPOINTING JENNIFER FAUGHT AS ASSISTANT CITY ATTORNEY WHEREAS, pursuant to an agreement approved on April 7, 2008, the City ofEl Cerrito, currently receives City Attorney services from the firm of Meyers, Nave, Riback, Silver & Wilson ("Meyers Nave"); and WHEREAS, Meyers Nave has proposed an amendment to the agreement and to appoint Jennifer Faught as Assistant City Attorney, in light of the departure of the previous Assistant City Attorney from the firm; r h WHEREAS, the City Council has determined that the proposed amendment to the agreement is reasonable and wishes to approve the amended agreement. NOW THEREFORE, BE IT RESOLVED, that the City Council of the City ofEl Cerrito hereby authorizes and directs the City Manager to enter into an amended and restated agreement with Meyers Nave for City Attorney Services. BE IT FURTHER RESOLVED that the City Council appoints Jennifer Faught as Assistant City Attorney. I CERTIFY that at a regular meeting on June 19, 2012, the El Cerrito City Council passed this resolution by the following vote: A YES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: IN WITNESS of this action, I sign this document and affix the corporate seal of the City ofEl Cerrito on August XX, 2012. Cheryl Morse, City Clerk APPROVED: William C. Jones III, Mayor ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 AMENDED AND RESTATED AGREEMENT FOR CITY ATTORNEY SERVICES This Agreement is made and entered into on this day of August 2012, by and between the City ofEl Cerrito, hereinafter referred to as "City," and Meyers, Nave, Riback, Silver & Wilson, PLC, hereinafter referred to as "City Attorney." I. DESCRIPTION OF PROJECT Through this Agreement, City has retained City Attorney to provide services to the City in connection with legal assistance. II. SCOPE OF SERVICES BY CITY ATTORNEY Subject to the terms and conditions set forth in this Agreement, City Attorney shall provide the City with those services specified and City Attorney agrees to perform all necessary legal services as Contract City Attorney, and shall: 1. Attend all regularly scheduled and special City Council meetings and City Council study sessions. 2. Provide legal services on-site during office hours at City Hall at least four ( 4) hours per week or as otherwise mutually agreed. These hours of on-site service will be at regularly scheduled times made known to all members of the City Council and to all department heads so as to facilitate informal, direct access to legal counsel as necessary. 3. Attend other meetings at City Hall as required by the City Council or the City Manager. 4. Advise the City Council; appointed Commissions, Committees, and Boards; City staff; and other City officials on all legal matters pertaining to City business. 5. Prepare, review, and approve as to form, contracts, agreements, resolutions, ordinances, and all other standard City documents, as requested by the City Council or City Manager. 6. Prepare such written and oral legal opinions as shall, from time to time, be requested by the City Council or City Manager. 7. Perform such other routine legal services as are required, from time to time, by the City Council or the City Manager. 8. Provide in-house training to City staff on issues pertaining to civil liability, personnel and labor, and other issues as, from time to time, are identified by and requested by the City Council or the City Manager. 9. Review and approve as to form and content all proposed adverse personnel actions as, from time to time, are requested by City staff and directed by the City Manager. Page 1 ofll ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 10. Perform all work related to advising staff on, and prosecuting, all violations of City's municipal code. 11. Represent the City and the City's officials, officers, and employees in litigation and administrative proceedings as directed by the City Council or the City Manager. 12. Make recommendations concerning the selection of outside legal counsel on appropriate matters and supervise such outside legal counsel handling transactional or litigation matters on behalf of the City. The City specifically reserves the right to retain, at its sole option, other legal counsel for litigation and other specialized legal matters including, but not limited to, the activities of the Redevelopment Agency, cable television, solid and hazardous waste, and workers' compensation. This reservation of rights does not preclude the City or the Redevelopment Agency from assigning these matters to City Attorney as part of the scope of duties under this Section 2. ( , It is further understood and agreed by City Attorney and the City that there will be an initial, and as yet undetermined, period of time at the outset of this relationship during which City Attorney will be in transition. City Attorney shall establish and maintain necessary liaison and oversight of all pending matters and projects currently being handled by the existing contract City Attorney either by supervising such work to timely completion or by reassigning such work as deemed appropriate by City Attorney or as directed by the City Manager. City Attorney will make reasonable efforts to respond to all requests for services from the City Council, City Manager, and City staff within 24 hours. If City Attorney cannot provide a complete response at that time, City Attorney will ascertain the scope of the request and the desired form and timeframe for a complete response, as appropriate. City Attorney will assign the work to ensure timely and efficient completion, informing the City of the attorney performing the work. City Attorney and the City Manager will make reasonable efforts to have a weekly discussion of pending assignments and their respective priorities and budgets. III. COMPENSATION A. Compensation for all work performed by City Attorney pursuant to this Agreement, including the work listed in Section II, shall be calculated based upon City Attorney's standard rate for the attorney and type of work, as established and reasonably changed from time to time by City Attorney, not to exceed the maximum rates listed in Exhibit A, which is attached hereto and hereby incorporated by reference. B. City Attorney shall bill City for the work performed during the preceding month. Such bills shall itemize all charges in such detail as may reasonably be required by City in the usual course of City business. City shall pay City Attorney no later than thirty (30) days upon receipt of the invoice. In the event a dispute arises relating to the services performed, costs incurred, or any other item relating to compensation of City Attorney, such dispute will not delay compensation Page 2 of 11 ---PAGE BREAK--- Agenda Item No. 5(F) Attachment 2 for those services and costs not in dispute. Any such dispute will be resolved by the parties through negotiations. IV. RESPONSIBILITY OF CITY ATTORNEY City has relied upon the professional training and ability of City Attorney as a material inducement to enter into this Agreement. City Attorney agrees that it shall use its professional efforts and that its services shall be performed in accordance with that degree of care and skill ordinarily exercised by members of the same profession currently ,practicing under similar circumstances. V. INDEMNIFICATION To the extent provided by City Attorney's insurance, City Attorney shall indemnify, defend, and hold City, its officers, employees, agents, and volunteers harmless from and against any and all liability, loss, damage, causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or or4inance, expense, costs (including without limitation the costs and fees of litigation) of every nature arising out of or connected with the performance of work by City Attorney, its officers, employees, f>agents, volunteers, and subcontractors, under this Agreement, except for any such claim that is the result of the sole negligence or willful misconduct of City, its officers, employees, agents, or volunteers. It is understood that the duty of City Attorney to indemnify and hold harmless includes the duty to defend as set forth in California Civil Code §2778. VI. INSURANCE For the duration of this Agreement, City Attorney shall maintain, in full force and effect, insurance against claims for injury to persons or damage to property, which may arise from or in connection with the performance of the work to be performed by City Attorney, its officers, employees, agents, volunteers, and subcontractors under this Agreement. A. Minimum Scope of Insurance: Coverage shall be at least as broad as: 1. form CG 0001 Insurance Services Office Commercial General Liability coverage (occurrence 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covenng Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. 4. Professional Liability Insurance. B. Minimum Limits of Insurance: City Attorney shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury, and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project or the general aggregate limit shall be twice the required occurrence limit. Page 3 ofll ---PAGE BREAK--- damage. Agenda Item No. S(F) Attachment 2 2. Automobile Liability: $1,000,000 per accident for bodily injury and property 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. 4. Professional Liability: $1,000,000 per claim and in the aggregate. C. Deductibles and Self-Insured Retentions: Any deductible or self-insured retentions must be declared to and approved by City. D. Other Insurance Provisions: The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City of El Cerrito, its elected or appointed officials, and employees are covered as additional insureds with respect to liability arising out of automobiles owned, leased, hired, or borrowed by or on behalf of City Attorney; and with respect to liability adsing,put of work or operations performed by or on behalf of City Attorney. 2. For any claims related to this project, City Attorney's insurance coverage shall be primary insurance as respects the City, its officers, officials, and employees. Any insurance or self-insurance maintained by the City, its officers, officials, and employees shall be excess of City Attorney's insurance and shall not contribute to it. 3. The insurance provided by this policy shall not be reduced in coverage or limits, cancelled, or not renewed except after thirty (30) days written notice has been provided to City by mail, return receipt requested. City Attorney shall notify City thirty (30) days in advance of any anticipated change in the insurance. E. Acceptability of Insurers: Insurance is to be placed with insurers with a current Best's rating of A: VII or better at time the Agreement is executed. F. Verification of Coverage: City Attorney shall furnish City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by City or on other than City's forms or a separate owner's policy, provided those forms or policies are approved by City and amended to conform to City's requirements. All certificates and endorsements are to be received and approved by City before work commences. Failure to provide these forms within the time period specified by City may result in termination of this Agreement pursuant to Section X( below. G. Subcontractors as Insureds: If City has approved the use of subcontractors, City Attorney shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. H. Professional Liability Insurance: If City Attorney's professional liability coverage is written on a claims made form: Page 4 of 11 ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 1. The "Retro Date" must be shown, and must be before the date of the contract or the beginning of the contract work. 2. Errors and omissions insurance must be maintained, and evidence of insurance must be provided for at least five years after the completion of the Agreement. 3. A copy of the claims reporting requirements must be submitted to City for revtew. VII. INDEPENDENT CONTRACTOR It is expressly understood and agreed by both parties that City Attorney, while engaged in carrying out and complying with any of the terms and conditions of this Agreement, is an independent contractor and not an employee of City. City Attorney expressly warrants not to represent at any time or in any manner, that City Attorney is an employee of City. IIX. ASSIGNMENT OF STAFF City Attorney shall assign only competent personnel to perform services pursuant to this Agreement. City reserves the right to request temporary or permanent removal from City premises of any of City Attorney's employees, agents, or subcontractors at any time without cause, and City Attorney shall comply with City's request. IX. ASSIGNMENT AND SUBCONTRACTING It is recognized by the parties that a substantial inducement to City for entering into this Agreement was, and is, the professional reputation and competence of City Attorney. City Attorney may assign neither this Agreement nor any interest therein without the prior written approval of the City Manager. City Attorney shall not subcontract any portion of the performance contemplated and provided for herein without the prior written approval of the City Manager. XI. TERMINATION City Attorney shall at all times serve under the terms of this Agreement at the pleasure of the City Council, and the City Council and City Attorney each hereby reserves the right to terminate this Agreement at will, with or without cause, by providing fifteen (15) days written notice to the other. Upon receipt or provision of any notice of termination, City Attorney shall cease all services under this Agreement according to the notice, except as may be specifically approved by the City. At that time, all further obligations of the City to pay City Attorney for services rendered under this Agreement shall thereupon cease; provided, however, that the City shall be obliged to pay for all services, costs, and expenditures lawfully incurred by City Attorney prior to the effective date of such termination, or subsequent to the date of termination at the direction of City. XII. SUSPENSION OF WORK City may suspend, in writing, all or a portion of the work under this Agreement if unforeseen circumstances beyond City's control make normal progress of the work impossible. Page 5 ofll ---PAGE BREAK--- XIII. REPORTS, PLANS, AND DOCUMENTS Agenda Item No. 5{F) Attachment 2 City Attorney shall keep such books and records as shall be necessary to perform the services required by this Agreement and to enable the City to evaluate the performance of the required services. The City shall have full and free access to such books and records that deal specifically with the services performed by City Attorney for City at all reasonable times, including the right to inspect, copy, audit, and make summaries and transcripts from such records. All reports, records, documents, and other materials prepared by City Attorney, its employees and agents in the performance of this Agreement shall be the property of the City and shall be delivered to the City upon request by the City or upon termination of this Agreement. City Attorney shall have no claim for further or additional compensation as a result of the exercise by the City of its full rights of ownership of the documents and material hereunder. City Attorney may retain copies of such documents for its own use. No report, record, document, or other material prepared by City Attorney iri the p~rformance of services under this Agreement shall be released publicly without prior written approvaJ. of the City, except as may be required by law. XIV. COPYRIGHT AND PATENT City Attorney shall execute appropriate documents to assign to City the copyright and patent to works created pursuant to this Agreement. XV. CHANGESAND/OREXTRA WORK Only the City Council or the City Manager may authorize changed work, or modification of the time of completion, for the services to be provided as contained in Section IV of this Agreement. City Attorney expressly recognizes that other City personnel are without authorization to order changed work or to obligate the City to the payment of additional compensation in excess of the costs contained in Section III. In the event City Attorney and City agree that changed work is required, a change order shall be prepared and shall be executed by City Attorney and the City Manager. XVI. COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS City Attorney shall comply with all applicable Federal, State, and Local laws, statutes, ordinances, rules, and regulations affecting the performance of this Agreement, including without limitation laws requiring licensing and non-discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin, or other prohibited bases. Regarding performance of professional services, compliance shall mean compliance with current prevailing professional standard and practices. XVII. BUSINESS LICENSE City Attorney shall obtain at City Attorney's own expense a valid City business license. This license must remain valid and in effect during the duration of this Agreement. Page 6 of 11 ---PAGE BREAK--- XVIII. RETENTION OF RECORDS Agenda Item No. 5(F) Attachment 2 City Attorney shall keep and maintain full and complete documentation and accounting records, employees' time sheets, and correspondence pertaining to this Agreement, and City Attorney shall make such documents and records available for review and/or audit by the City and the City's representatives at all reasonable times during the contract period and for at least five ( 5) years from the date of the completion and/ or termination of this Agreement. XIX. NOTICES If either party shall desire or be required to give notice to the other, such notice shall be given in writing, via hand-delivery, facsimile, or prepaid U.S. certified or registered postage, addressed to recipient as follows: City: Scott Hanin City Manager City of El Cerrito 10890 San Pablo Avenue El Cerrito, CA 94530-2392 Phone: (510) 215-4301 Fax: (510) 215-4319 City Attorney: Sky Woodruff Meyers Nave 555 12th Street, Suite 1500 Oakland, CA 94607 Phone: (510) 808-2000 Fax (510) 444-1108 Any party to this Agreement may change the name or address of representatives for purpose of this Section by providing written notice to all other parties ten (10) business days before the change is effective. XX. CONFLICT OF INTEREST City Attorney's firm represents many public agencies in California. Since 1986, they have represented over five hundred public clients, including numerous cities, redevelopment agencies, special districts, counties and other public entities. The firm is continually growing and is accepting new engagements all the time. As such it is virtually inevi~able that they will work on projects from other clients having different governmental or political objectives, beliefs or views from those of the City. The services rendered to the City under this Agreement are limited in scope and for the benefit of the City only. In the course of providing a variety of professional services to the public sector, it is possible that City Attorney (firm) will represent public agency clients that are adverse to the City on other matters. In such an event either party may request a meeting to discuss the potential conflict and work out a mutually agreed upon solution. If no such solution is reached to the City's satisfaction, the City may seek outside counsel services for the specific item of conflict. XXI. INTEGRATION This Agreement constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto and Page 7 of 11 ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. XXII. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both City Attorney and the City Manager. Such document shall expressly state that it is intended by the parties to amend the terms and conditions of this Agreement. XXIII. WAIVER The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. XXIV. GOVERNING LAW AND VENUE This Agreement shall be governed under the laws of the State of California. The County of Contra Costa shall be the venue for any litigation between City and City Attorney arising out.ofthis Agreement. XXV. SEVERABILITY Should any part of this Agreement be declared by a final decision of a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the excised portion, can be reasonably interpreted to give effect to the intentions of the parties. IN WITNESS WHEREOF, the parties hereby have executed this Agreement on the day first above written: CITY CITY ATTORNEY Signature _ Printed Name Printed Name Title _ Title Date _ Dme _ ATTEST: City Clerk Page 8 of 11 ---PAGE BREAK--- EXHIBIT A COMPENSATION Agenda Item No. 5(F) Attachment 2 A. General Counsel Services: General counsel services will be billed at hourly rates ranging from $195 to $325, depending on the level of experience of the billing attorney. The hourly rate for Sky Woodruff will be $260; the hourly rate for Jennifer Faught will be $220. "General counsel" services shall include: 1. Attendance at regular and special meetings of the City Council, including study sessions and closed sessions. 11. Attendance at Planning Commission meetings or other City Commission or Board meetings upon request of the City Council or City Manager. 111. Review and/or prepare routine staff reports, ordinances, resolutions, orders, agreements, forms, notices, declarations, certificates, deeds, leases, and other documents :t:~quired by the City. . IV.. Consultation with the City Council and City staff as needed, including rendering'"of legal advice and opinions (oral and written) concerning legal matters that affect the City including new legislation and court decisions. v. Provide guidance and advice to the City Council and City Manager regarding what position the City (and associated bodies) and its advocate lobbyist) should take on matters pending before legislative bodies. vt. Handle routine real estate transaction and acquisition issues, including lease review and negotiations. v11. Research and interpret laws, court decisions and other legal authorities in order to prepare legal opinions and to advise the City Council and management staff on legal matters pertaining to City operations. VI11. Perform legal work pertaining to routine property acquisition, property disposal, public improvements, public rights of way and easements, and matters relating to public utilities. IX. Coordinate with in-house staff on risk management issues, include self-insurance authorities. x. Coordinate the work of outside counsel as needed and as directed by the City Council and/ or City Manager. B. Services Excluded from the "General Counsel" Category: City Attorney will provide general municipal services that are non-routine or complex at hourly rates ranging from $205 to $3 7 5 depending on the type of matter and expertise of the attorney performing the work. Examples of services excluded from "General Counsel" are as follows: 1. Non-routine or highly specialized real estate, affordable housing and land use matters including property acquisition, leasing and disposition. 11. Complex CEQA analyses, such as on EIR's, exemptions, and negative declarations. 111. Updates of City's general plan, specific plans, complex zoning ordinances; preparation of impact fee analyses. Page 9 of 11 ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 1v. Annexations or other changes of organizations. v. Payroll and income tax issues. v1. Signifi~ant bid disputes, change orders or other disputes relating to construction preparation, award or management. v11. Non-routine elections issues, such as preparation of or advice regarding complex ballot measures. v111. Such other issues as discussed and agreed upon by the City Attorney and City Manager. C. City Attorney will provide services outside the range of general municipal services at hourly rates ranging from, $200 to $400, depending on the type of matter and expertise of the attorney performing the work. Examples of such services are as follows: 1. Litigation, eminent domain, arbitration, mediation, administrative hearings and related matters leading to such proceedings. 11. Brownfields and other environmental and hazardous waste remediation 'and compliance. 111. 1V. v. Cable TV franchises and regulations, FCC appeals and related matters. Negotiation and preparation of franchise agreements and related legislation. Labor negotiations, Skelly hearings, disciplinary hearings, similar non-routine personnel matters, and matters leading to such proceedings. Vl. Redevelopment and inclusionary housing matters. D. City Attorney will provide services for which the City may recoup its expenses through cost recovery and similar mechanisms at hourly rates ranging from $200 to $400, depending on the type of matter and expertise of the attorney performing the work. Examples of services excluded are as follows: 1. Work related to bond issuance. 11. Redevelopment. 111. Code enforcement. 1v. Water rights. v. Land use and development issues, including development agreements. v1. Formation or modifications to assessment districts, community facilities districts, and related foreclosures. v11. Advice and other work related to adjustments to or preparation of development impact and similar fees, as well as taxes such as transient occupancy tax, transactions and use tax, business license tax, utility users tax and parcel tax. v111. Bankruptcy and foreclosures. 1x. Enterprise fund matters, such as modifications or increase to water, sewer, and transportation fees. x. Those other matters to which the City may pass payment on to third party. E. City Attorney will charge for travel time or mileage only for matters listed in Section 2(D) of this Exhibit A. For those matters, travel time may be charged at the billing attorney's hourly rate and mileage may be charged at the then-current Internal Revenue Service rate. City Page 10 of 11 ---PAGE BREAK--- Agenda Item No. S(F) Attachment 2 Attorney shall bill the City at its internal cost for the overhead costs incurred such as charges for normal duplicating, long distance telephone, express mail, postage, messenger services, computer research, and the like. However, the parties agree to discuss annually a fixed percentage overhead charge in lieu of itemized billing. 1950064.1 Page 11 of 11