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HomeMy WebLinkAbout06 - NB-1 - Appointment of Tom Duarte of Law Offices - 3/1/2011CITY COUNCIL AGENDA REPORT MEETING DATE: March 1, 2011 ITEM NUMBER: SUBJECT: AMENDMENT TO CITY ATTORNEY CONTRACT DATE: February 24, 2011 FROM: City Attorney's Office PRESENTATION Kimberly Hall Barlow, City Attorney BY: FOR FURTHER INFORMATION CONTACT: Kimberly Hall Barlow, 714-754-5399 RECOMMENDATION: Authorize the Mayor and City Clerk to execute the attached amended agreement with Jones & Mayer for City Attorney services. BACKGROUND: Kimberly Hall Barlow of Jones & Mayer has been serving as City Attorney since 2004. Due to business and personal commitments, Ms. Barlow has submitted her resignation as City Attorney. Ms. Barlow will continue as a partner at Jones & Mayer and serve as special counsel to the city. She will remain involved in the legal representation of the city. Ms. Barlow has recommended Tom Duarte to serve as City Attorney. Mr. Duarte has been with Jones & Mayer for 15 years and has served as counsel to the planning commission since 2004. Council approval is required for the amendment to the agreement for City Attorney services. ANALYSIS: The agreement for City Attorney services between the city and Jones & Mayer remains unchanged. The amendment to the agreement simply addresses the change in the attorney identified as City Attorney. As the firm has done since 2004, Jones & Mayer will continue to diligently represent the city as city attorney. ALTERNATIVES CONSIDERED: The Council could choose not to approve the amendment to the agreement, in which case, Kimberly Hall Barlow would remain City Attorney. FISCAL REVIEW: There will be no fiscal impact as a result of the amendment to the contract. LEGAL REVIEW: 1 The City Attorney has reviewed and approved the agreement as to form. CONCLUSION: Council is requested to approve the agreement. ALLAN ROEDER City Manager ATTACHEMENT: 9111031 V1:10 1150010 1 Amended Agreement City Manager City Attorney City Clerk Staff File Name Jones & Mayer Retainer KIMBERLY HALL BARLOW City Attorney Date 3-1-11 Time 10:17 AM 011 AMENDED RETAINER AGREEMENT FOR CITY ATTORNEY SERVICES This Retainer Agreement for City Attorney Services ("Agreement") is made and entered in to by and between the LAW OFFICES OF JONES & MAYER ("Jones & Mayer) and the CITY OF COSTA MESA (the "City"), a municipal corporation of the State of California. RECITALS A. Jones & Mayer is a firm in the general practice of law with extensive municipal experience, and is fully able to carry out the duties described in this Agreement. B. The City desires to contract with Jones & Mayer to provide contract legal services to the City. AGREEMENT NOW, THEREFORE, in consideration of the mutual terms and conditions set forth in this Agreement, Jones & Mayer and the City agree as follows: APPOINTMENT OF CONTRACT CITY ATTORNEY A. Thomas P. Duarte ("Duarte") of Jones & Mayer, is hereby designated and appointed as Contract City Attorney of the City and shall serve and be compensated as provided by this Agreement. As the Contract City Attorney, Duarte shall process, coordinate, and direct, as necessary, all legal services provided under this Agreement in order to maximize the timeliness and usefulness of the delivery of such services. Duarte shall attend all City Council meetings and other meetings, as required, and be available at all reasonable times to the Mayor and City Council, the City Manager, and persons designated by the City Manager, in relationship to all legal services to be furnished by Jones & Mayer under this Agreement. Duarte shall also direct and coordinate all internal activities so that all services provided by Jones & Mayer under this Agreement to the City shall be fully competent, professional, consistent, timely, and in accordance with the standards prevalent in the industry. It is expressly understood that the experience, knowledge, capability, and reputation of Duarte are a substantial inducement for the City to enter into this Agreement. Duarte shall be responsible during the term of this Agreement for directing all activities of Jones & Mayer on behalf of the City and devoting such time as necessary to personally supervise such services. The primary assignment of Duarte shall not be changed by Jones & Mayer without the express approval of the City. B. Harold W. Potter, also of Jones & Mayer, is designated and appointed as Contract Assistant City Attorney and shall serve in Duarte's absence. C. Duarte and any other attorneys of Jones & Mayer assigned to perform approved City business shall, at all times while this Agreement is in effect and at their sole cost and expense, be fully qualified and licensed to practice law in the State of California and before all appropriate federal courts and other bodies and tribunals. D. The term of this Amended Agreement shall commence on March 1, 20011 and shall continue thereafter unless and until it is terminated or amended. 2. SCOPE OF WORK A. Jones & Mayer agrees to perform all necessary legal services as Contract City Attorney, and shall: 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 CEO/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. 6. Prepare such written and oral legal opinions as shall, from time to time, be requested by the City. Perform such other routine legal services as are required, from time to time, by the City Council or the CEO/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 Councilor the CEO/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 CEO/City Manager. 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 CEO/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. B. 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 Jones & Mayer as part of the scope of duties under this Section 2. 3. COMPENSATION Jones and Mayer shall be compensated under the terms of this Agreement as follows: A. A. Basic Services All legal services provided by Jones & Mayer shall be billed to the City at the rate of $177 per hour. Paralegal services shall be billed at the rate of $100 per hour. All costs and expenses, except for those as set forth in Section 3.13 below shall be deemed included in the foregoing hourly billing rates. Fees associated with litigation shall be billed separately and at the rate of $177 per hour for attorney time and $100 per hour for paralegal time. The foregoing billing rates shall be adjusted annually (effective as of November 1 of each year commencing in 2011) to reflect the lesser of: (1) any increase in the cost of living based on the Consumer Price Index increase for the prior year utilizing the standard as established by the Bureau of Labor Statistics of the U.S. Department of Labor for all urban consumers in the Los Angeles - Anaheim - Riverside area, or another mutually agreed upon index based on comparable data should the Consumer Price Index established by the Bureau of Labor Statistics be unavailable; or (2) the percentage increase in actual labor costs of Jones & Mayer for the prior year. B. Litigation Expenses Jones & Mayer shall be reimbursed for direct out-of-pocket expenses actually and necessarily incurred in the course of providing legal services under this Agreement in preparation for and maintaining the prosecution or defense of litigation, including without limitation: court costs, jury fees, service costs, witness fees, deposition costs, reporters' fees, title reports, photographs, diagrams, maps, and similar expenses. C. Monthly Statements Jones & Mayer shall submit itemized statements of all payments due under this Agreement on a monthly basis to the City Manager. All work performed by Jones & Mayer shall be billed in increments of tenths of an hour. The statement shall be in a form approved by the City, and shall set forth a description of all work performed, the hours worked, the identity of each person performing the work, the rate charged, and any litigation costs or expenses eligible for reimbursement. D. Payment All hours shall be billed by the 15th day of each month following the close of the month for which hours are being billed. Payment for hours shall be due and payable after review and approval by the City Manager. 4. PROHIBITION AGAINST SUBCONTRACTING DELEGATING OR ASSIGNMENT Jones & Mayer shall not contract with or delegate to any individual or other entity to perform on the City's behalf, in whole or in part, any of the services required under this Agreement without the prior express approval of the City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior express approval of the City. 5. CONFLICT OF INTEREST Jones & Mayer shall at all times avoid conflicts of interest in the performance of this Agreement. In the event that a conflict arises, Jones & Mayer shall immediately notify City. Within thirty (30).days following execution of this Agreement, Jones & Mayer shall file a conflict of interest disclosure statement setting forth any information related to potential conflicts of interest to the extent such disclosure is required by law. 6. INDEPENDENT CONTRACTOR Jones & Mayer shall perform all services required under this Agreement as an independent contractor of the City, and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Jones & Mayer shall not at any time or in any manner represent that it or any of its employees or agents are City employees. PERFORMANCE REVIEW The City and Jones & Mayer agree that, the City shall formally review the performance of services by Jones & Mayer under this Agreement on an annual basis. The form and content of such evaluation shall be as determined by the parties. The City and Jones & Mayer agree that additional performance reviews may be conducted from time -to -time upon the request of either ply. 8. DISPUTE RESOLUTION If any dispute or disagreement arises between the City and Jones & Mayer as to any matter relating to this Agreement, including but not limited to the scope of services, the performance of the respective responsibilities of the City and Jones & Mayer, the quality of the services rendered, and the billing of such services, the City and Jones & Mayer agree to confer and attempt to resolve the matter informally. If the parties cannot agree, they agree that they will refer the dispute or resolution to mediation to the fullest extent permitted by law. The parties are aware that mediation is a voluntary process and pledge to cooperate fully and fairly with the mediator in an attempt to reach a mutually satisfactory compromise of any dispute or disagreement. The mediator shall be chosen by mutual agreement of the parties, and mediation shall commence within thirty (30) days of either party's written request to the other for mediation. Any agreement reached by the mediation shall be reduced to writing, be signed by the parties, and be binding on them. This provision for mediation is an effort to protect, preserve, and respect the requisites of a productive attorney-client relationship, but shall be without prejudice to either party pursuing its other lawful remedies. 9. INSURANCE AND INDEMNIFICATION A. Insurance Jones & Mayer shall procure and maintain, at its cost, general liability, automobile, worker's compensation, and errors and omissions/professional liability insurance coverage in the amount of not less than $1,000,000 per occurrence. Such insurance shall be kept in effect during the term of this Agreement and shall not be canceled without thirty (30) days' advance written notice of proposed cancellation to the City. The insurance policy shall contain a severability of interest clause providing that the coverage shall be primary for losses arising out of Jones & Mayer's performance under this Agreement, and neither the City nor its insurers shall be required to contribute to any such losses. Jones & Mayer shall provide certificates evidencing such insurance as may be requested by the City. B. Indemnification Jones & Mayer shall defend, indemnify, and hold harmless the City, and its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys' fees, for injury to person(s) or damages to property (including property owned by the City), and for errors and omissions committed by Jones & Mayer, its officers, employees, and agents, arising out of or relating to Jones & Mayer's performance under this Agreement, except to the extent that such injury, damage, error(s) or omission(s) may be caused by City's own negligence or that of its officers or employees. 10. RECORDS AND REPORTS A. Records Jones & Mayer 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 Jones & Mayer for City at all reasonable times, including the right to inspect, copy, audit, and make summaries and transcripts from such records. B. Ownership of Documents All reports, records, documents, and other materials prepared by Jones & Mayer, 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. Jones & Mayer 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. Jones & Mayer may retain copies of such documents for its own use. C. Release of Documents No report, record, document, or other material prepared by Jones & Mayer in the performance of services under this Agreement shall be released publicly without prior written approval of the City, except as may be required by law. 11. NONDISCRIMINATION Jones & Mayer pledges 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, sexual orientation, national origin, or ancestry in the performance of services under this Agreement. 12. TERMINATION A. Termination By City Jones & Mayer shall at all times serve under the terms of this Agreement at the pleasure of the City Council, and the City Council hereby reserves the right to terminate this Agreement at will, with or without cause, by providing written notice to Jones & Mayer. Upon receipt of any notice of termination, Jones & Mayer shall cease all services under this Agreement except as may be specifically approved by the City. At that time, all further obligations of the City to pay Jones & Mayer for services rendered under this Agreement shall thereupon cease, except as set forth in Section 12.0 below; provided, however, that the City shall be obliged to pay for all services, costs, and expenditures lawfully incurred by Jones & Mayer prior to the effective date of such termination, or subsequent to the date of termination at the direction of City. B. Termination By Jones & Mayer Jones & Mayer reserves the right to terminate this Agreement by giving ninety (90) days' advance written notice to City. C. Mutual Obligations Upon Termination By Either Party In the event of termination of this Agreement by either party, Jones & Mayer shall cooperate with the City in transferring the files and assignments to the City Clerk or other person designated by City pending the hiring of another City Attorney. Jones & Mayer shall be compensated at the hourly rates set forth in Section 3.A of this Agreement should Jones & Mayer be called upon to perform any services after the effective date of termination, including the transfer of files and assignments. 13. NOTICES Notices regarding this Agreement shall be given in writing to the parties at the following addresses: CITY: CITY OF COSTA MESA Attention: CEO/City Manager 77 Fair Drive Costa Mesa, California 92626-6520 ATTORNEY: JONES & MAYER Attention: Thomas P. Duarte 3777 N. Harbor Blvd. Fullerton, CA 92835 14. AMENDMENT OF AGREEMENT This Agreement contains all of the agreements of Jones & Mayer and the City. This Agreement may be amended at any time by mutual consent of the parties by an instrument in writing. IN WITNESS WHEREOF, the duly authorized representatives of the parties have executed this Amended Agreement in duplicate the day of ATTEST: JULIE FOLCIK CITY CLERK GARY MONAHAN MAYOR THOMAS DUARTE CITY ATTORNEY