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HomeMy WebLinkAbout4.13 5thAmend LegalSvcs CITY CLERK File# 600-30 AGENDA STATEMENT CITY COUNCIL MEETING DATE' JUNE 3, 2003 ' SUBJECT: Fifth Amendment to Agreement for Legal Services (Report prepared by Elizabeth H. Silver, City Attorney) ATTACHMENTS: 1. Agreement for Legal Services, dated July 1, 1998 2. First Amendment to Agreement for Legal Services, dated June 15, 1999 3.Second Amendment to Agreement for Legal Services, dated July 1, 2000 4.Third Amendment to Agreement for Legal Services, dated July 1, 2001 5.Fourth Amendment to Agreement for Legal Services, dated July 1, 2002 6.Proposed Fifth Amendment to Agreement for Legal Services, to be effective July 1, 2003 RECOMMENDATION:/~^~/Approve Fifth Amendment to Agreement for Legal /~ ~ '~ Services and authorize Mayor to execute same FINANCIAL STATEMENT: The proposed amendment to the agreement for legal services would increase the general rate charged for legal services commencing July 1, 2003 by 1.1% ($2 an hour). It would also increase the litigation rate and would establish a rate for work performed by the City Attorney for which the City is reimbursed by third parties by 2.4% ($5 an hour). DESCRIPTION: The City has contracted with Meyers, Nave, Riback, Silver & Wilson (or its predecessors) for legal services since incorporation. The current agreement for legal services is dated on July 1, 1998. (Exhibit 1_.) The agreement for legal services was amended effective June 15, 1999, July 1, 2000, July 1, 2001, and July 1, 2002 (Attachments 2, 3, 4 and 5). The City Attorney has requested that the Council consider changes to the agreement. The changes would be to (a) increase the hourly rate for general services from $178 an hour to $180 an hour; (b) increase the rate for litigation and for all work performed by the City Attorney for which a third party reimburses the City for legal services from $205 to $210 an hour. COPIES TO: , ITEM NO. The increase from $178 to $180 an hour is a 1.1% increase. The increase from $205 to $210 is a 2.4% increase. Approximately 31% of the City Attorney's work is billed at the lower rate and 69% is billed at the higher rate, so the overall effective increase is approximately 2.0%. Both increases are below the most recent increase in the Consumer Price Index for the last year (2.54% increase in the SF/Oakland/San Jose All Urban Consumers index from April 2002 to April 2003). Attachment 6 is a proposed Fifth Amendment to the Agreement for Legal Services. The only changes from the current agreement are as described above. The proposed amendment would be effective July 1, 2003. Recommendation: Staff recommends that by motion the City Council authorize the Mayor to execute the Fifth Amendment to Agreement for Legal Services (Attachment 6). 631907 AGREEMENT FOR LEGAL SERVICES This Agreement, made and entered into as of July 1, 1998, by and between the CITy OF DUBLIN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, R/BACK, SILVER & WILSON, a professional corporation, hereinafter referred to as "MNRSW". WITNESSETH WHEREAS, ELIZABETH H. SILVER is a member of the law firm of MNRSW; WHEREAS, CITY and MNRSW are parties to an agreement dated July 1, 1990, emitled "Agreement for Legal Services"; and WHEREAS, said "Agreement for Legal Services" has been amended three times on July 1, 1991, July 1, 1995 and July t, 1996, respectively; and WHEREAS, the parties desire to make certain amendments to the "Agreement for Legal Services," as amended, and WHEREAS, the purpose of this agreement is to restate the "Agreement for Legal Services" as ammaded and make certain changes; and WHEREAS, it is the desire of the parties here;to to enter this agreement and establish the terms and conditions for rendition of legal services to the CITY OF DUBLIN and the compensation therefore; NOW, THEREFORE, IT IS MUTUALLY AGREED as follows: I. ~pointmem of City Attorney. CITY hereby retains ELIZABETH H, SILVER, hereinafter referred to as "ATTORNEY" as City Attorney for the CITY OF DUBLIN and ATTORNEY agrees to faithfully represent the legal interests of CITY during the term of this agreement. 2. Attorney's Se. rvices. ATTORNEY shall provide, through her own services and those of such other attorneys of MNRSW, as she shall determine, all legal services usually and normally provided by City Attorneys, and specifically those duties and services described in Government Code Sections 41801, 41802, and 41803.5. Such services shall include, but not be limited to: ATTACHMENT 1 a. Attendance at City Council and Planning Commission meetings; b. Preparation of ordinances, resolutions, leases, contracts or other legal documents; c. Preparation of all findings, decisions or other documents pertaining to legislative or quasi-judicial actions or decisions made by the City Council, boards, commissions or officers; d. Rendering legal advice (both oral and written) to members of the City Council, commissions, boards, and to the City Manager, departmem heads and employees with respect to City matters; e. Negotiating and/or rendering advice with respect to negotiations pertaining to City's contracts, leases and memoranda of understanding; fi Representing City in litigation and/or arbitration or other judicial, administrative or quasi-judicial proceedings; g. Furnishing legal services for assessment district or bond proceedings; and h. Furnishing legal services for the Redevelopment Agency, Parking Authority or other agencies or entities which are not operated as an integral part of City, but which are or may be created by City as independent agencies. 3. Independent Contractor. ATTORNEY shall provide legal services to CITY as an independent contractor, with control over her offices, hours, support staffand other matters except as provided herein. 4. Compensation. CITY shall compensate ATTORNEY, through MNRSW, in the amount of $140 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW, with the exception of litigation, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $150 per hour for all litigation services rendered by an associate attorney and at the rate of $I75 per hour for all litigation services rendered by a shareholder. MNRSW will also be reimbursed for customary costs and disbursements, including deposition and witness fees, court costs, telephone, photocopying, facsimile charges, computer research on-tine fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bin or statement. 5. PERS. The parties recognize that ATTORNEY is eligible for and has elected membership in the Public Employee's Retirement System (PERS) as provided in Govemmem Code section 20322. CITY shall eontn'bute both the employer and employee share of required PERS contributions based on compensation for hours billed by ATTORNEY, except that said contn~butions shall not be made for any ATTORNEY compensation which exceeds $4,120 per month. The limitation of $4, I20 per month in the preceding sentence shall be increased or decreased as of July 1, !999 by the percentage change in the Consumer Price Index (Urban Wage Earners for San Francisco-Oakland-San Jose) for February of 1999 over the index for February of 1998 and similar adjustments shall be made each July 1 thereafter. As determined by CITY, the monthly limit may be accounted for on a bi-weekly or other basis for record keeping purposes. '6. No Assignment. This Agreement is entered into by CITY and MNRSW' a~, except as set forth herein, the rights and obligations of ATTORNEY may not be assigned for delegated to any other attorney of MNRSW without express written consent of the City Council. This Agreement is not 'assignable. 7. Municipal Professional Memberships, Meetings. It is understood and agreed that CITY and ATTORNEY mutually benefit from ATTORNEY's pm'ticipation in certain professional activities relating to municipal law. Therefore, ATTORNEY shall maintain active participating in the City Attorney's Department and activities of the League of California Cities. CITY shall advance or reimburse to ATTORNEY her costs and expenses incurred in attending the semi-annual City Attorney's Department meeting of said League. tn the event ATTORNEY shall represent another city or cities, ATTORNEY shall be reimbursed for her costs and expenses (or registration fee and lodging) for attending the annual City Attorney's Department meeting of said League only in proportion that he number of cities represented by ATTORNEY bears to one. Subject to prior authorization of City's City Council, ATTORNEY may enroll, attend, participate in conferences, courses, seminars, committee work, or other activities in addition to that hereinabove specified of the League of California Cities, or other organiTations related to the practice of Mtmicipal Law. Upon such authorization, ATTORNEY may incur costs and expenses in connection with the particular event or activity so authorized, which shall be advanced or reimbursed by City. In the event, however, that attendance at any event shall involve an expenditure of $200 or less, ATTORNEY may attend the event without prior authorization of the City Council and shall have her costs and expenses reimbursed by CITY. 8. Insurance. ATTORNEY agrees, through MNRSW, to carry malpractice insurance in full force and effect during the term of this agreemem in an mount not less than $200,000 per person and $600,000 per occurrence. 9. Anntlal Review. Annually, during the month of February, ATTORNEY and Council shall meet to review the performance of ATTORNEY and members or associates of her firm in furnishing the services provided hereunder, and to review the compensation provisions hereof. The parties may agree to changes or amendments hereto, including, but not limited to changes in compensation provisions, which changes or amendments shall be evidenced by written amendment hereto. 10. Term This Agreement shall be..t~inable by CITY at':~ and by ATTORNEY upon 30 days, written notice. 11. Effective Date. This Agreement shall be effective July 1, 1998. 12. Supersession of Prior. Agreements This Agreement shall supersede the Agreement for Legal Services, dated July 1, 1990, as amended. IN WITNESS WHEREOF, the parties have execmed this Agreement the day and year set forth below. Dated:'-~----n---- G~y g, JI~ouston, Mayor Kay K~C, ity Cl~k MEYERS, NAVE, RIBACK, SILVER & WILSON Elizabeth H. Silver I :\WlaDkMlqR~WXl 14501 \AGREES199 8~LGLSRVS.511 EHS:rja FIRST AMENDMENT TO AGREEMENT FOR LEGAL SERVICES This First Amendment to Agreement for Legal Services is made and entered into as of Suly 1, 1999, by and between the CITY OF DUBLIN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, RIBACK, SILVER & WILSON, hereinafter referred to as WITNESSETH WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are Parties to an Agreement for legal services, dated and entered into as of July 1, 1998; and WHEREAS, it is the desire of the parties hereto to amend the agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED that the Agreement for legal services is amended as follows: 1. Existing paragraph 4 is deleted and new paragraph 4 is added, to read as follows: "4. Compensation. City shall compensate ATTORNEY, through MNRSW, in the amount of $150 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW, with the exception of litigation, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $150 per hour for all litigation services rendered by an associate attorney and at the rate of $175 per hour for all litigation services rendered by a shareholder. MNRSW will also be reimbursed for customary costs and disbursements, including deposition and witness fees, court costs, telephone, photocopying, facsimile charges, computer research on-line fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bill or statement." IN WITNESS WHEREOF, the parties have executed this First Amendment to Agreement for Legal Services the day and year set forth below. CITY OF DUBLIN MEYERS, NAVE, RIBACK, SILVER & WILSON A Municipal Corporation Ja~ IJdckhart, l~layor Pro ~emp~e ATTEST: &\WPDLMiXrRs W~ 114\01 ~GREE~1999~LGLS RV$.AM 1 EH$:rja K2/G/6-IS-99/ctmendment-ca. do¢ First Amendment to Agreement for Legal Services (Between Dublin and MNRSW) ATTACHMENT 2 SECOND AMENDMENT TO AGREEMENT FOR LEGAL SERVICES This Second Amendment to Agreement for Legal Services is made and entered into as of JulY 1,2000, by and between the CITY OF DUBLIN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, R/BACK, SILVER & WILSON, hereinafter referred to as "MNRSW". W[TNESSETH WHEREAS, CITY and MEYERS, NAVE, RtBACK, SILVER & WILSON. are Parties.to an Agreement for legal services; dated and entered into as of July 1, 1998; and WHEREAS, CITY and MEYERS, NAVE, R/BACK, SILVER & WILSON are parties to the First'Amendment t° Agreement for Legal Services, dated June 15, 1999; and.. WHEREAS, it is the desire of the parties hereto to amend the agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED that the Agreement for legal services is amended as follows: 1. Existing paragraph 4 is deleted and new paragraph 4 is added, to read as follows: "4. Co. mpensation. City shall Compensate ATTORNEY, through MNRSW, in the amount of $155 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW, with the following exceptions: (a) litigation' for which ATTORNEY, through MNRSW, shall be compensated in the mount of $155 per hour for all litigation services rendered by an associate attorney and at the ·rate of $175 per hour for all litigatign services rendered Joy a shareholder; and Co) work for which the City is reimbursed by third parties, for which ATTORNEY, through MNRSW shall be compensated at the rate of $175 per hour. MNRSW will also be reimbursed for customary costs and disbursements, including deposition and witness fees, court costs, telephonel photocopying, facsimile charges, computer research on-line fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bill or statement." second Amendment to Agreement for Legal Services : Page 1 of 2 (Between Dublin and MNRSW) April 26, 2000 ATTACHMENT 3 IN WITNESS WHEREOF, the parties have executed this Second Amendment to Agreement for Legal Services the day and year set forth below. CITY OF DUBLIN A MunicipaI Corporation Dated: ~/~~/~ By: MEYERS, NAVE,I/dBACK7 SILVEi~ & WIL~00N Elizabeth H. Silver J:\wpd~mnrsw\l 14\001X2000~agre e~feeincre ase_426.do ¢ EHS:rja Second Amendment to Agreement for Legal Services Page 2 of 2 (Between Dublin and MNRSW) April 26, 2000 THIRD AMENDMENT TO AGREEMENT FOR LEGAL SERVICES This Third Amendment to Agreement for Legal Services is made and entered into as of July 1, 2001, by and between tho CITY OF DUBLIN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, RIBACK, SILVER & WILSON, hereinafter referred to as "MNRSW". WlTNESSETH WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to an Agreement for legal services, dated and entered into as of July 1, 1998; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the First Amendment to Agreement for Legal Services, dated June 15, 1999; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Second Amendment to Agreement for Legal Services, dated July 1, 2000; and WHEREAS, it is the desire of the parties hereto to amend the agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED that the Agreement for Legal Services is amended as follows: 1. Existing paragraph 4 is deleted and new paragraph 4 is added, to read as follows: "4. Compensation. City shall compensate ATTORNEY, through MNRSW, in the amount of $175 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MN-RSW, with the following exceptions: (a) litigation, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $200 per hour for all litigation services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW; and (b) work for which the City is reimbursed by third parties, for which ATTORNEY, through MNRSW shall be compensated at the rate of $200 per hour. MNKSW will also be reimbursed for customary costs and disbursements, including deposition and witness fees, court costs, telephone, photocopying, facsimile charges, computer research on-line fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bill or statement." Third Amendment to Agreement for Legal Services Page 1 of 2 (Between Dublin and MNRSW) May 8, 2001 ATTACHMENT4 IN WITNESS WHEREOF, the parties have executed this Third Amendment to Agreement for Legal Services the day and year set forth below. CITY OF DUBLIN A Mu~;orporation Dated: ~J Guy S.'~-I~ston, Mayor lerk MEYERS, NAVE, RIBACK, SILVER & WILSON Dated: 5~'?s~O/ By: Elizabeth H. Silver G:\CC-MTGSL2001QTR2,LMAY~5 - 154) l\att-legal services.doe Third Amendment to Agreement for Legal Services Page 2 of 2 (Between Dublin and MNRSW) May 8, 2001 FOURTH A_M-ENDMENT TO AGREEMENT FOR LEGAL SERVICES This Fourth Amendment to Agreement for Legal Services is made and entered into as of July 1, 2002, by the between the CITY OF DUBLIN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, RIBACK, SILVER & WILSON, hereinafter referred to as "MNRSW." WITNESSETH WI-IEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to · an Agreement for legal services, dated and entered into as of July 1, 1998; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties ~o the First Amendment to Agreement for Legal Services, dated June 14, 1999; and WHEREAS, CITY and MEYERS, NAVE, RIBACI(, SILVER & WILSON are parties to the Second Amendment to Agreement for Legal Services, dated July 1, 2000; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Third Amendment ~o Agreement for Legal Services, dated July 1, 2001; WHEREAS, it is the desire of the parties .hereto to amend the agreement;. NOW, THEREFORE, IT IS MUTUALLY AGREED that the Agreement for Legal Services is amended as follows: 1. Existing paragraph 4 is deleted and new Paragraph 4 is added, to read as follows: "4. Compensation City shall.compensate ATTORNEY, through MNRSW, in the amount of $'178 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW, with the following exceptions: (a) litigation for which ATTORNEY; through MNRSW, shall be compensated in the amount of $205 per hour for all litigation services rendered, whether By ATTORNEY or by other attorneys associated with MNRSW; and (b) work for which the City is reimbursed by third parties, for which ATTORNEY, through MNRSW shall be compensated at the rate of $205 per hour. MNRSW will be reimbursed for customary costs and disbursements, including deposition and witness fees, court cost, telephone, photocopying, facsimile charges, computer research on-line fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bill or statement." · Page Iof2 ATTACHMENT 5 · : IN wITNEss WHEREOF; the Parties have executed this Fourth Amendment to ·.Agreement for Legal Services the day and year set forth below. CITY OF DUBLIN A Municipal Corporation fl Janet LoclLhart, Mayor Attest: ~ /Ka~ek, City~ler MEYERS, NAVE, RIBAC~ SILVER & WILSON Elizabeth H. Silver Page 2of 2 FIFTH AMENDMENT TO AGREEMENT FOR LEGAL SERVICES This Fifth Amendment to Agreement for Legal Services is made and entered into as of July 1, 2003, by and between the CITY OF DUBLiN, a Municipal Corporation in the State of California, hereinafter referred to as "CITY" and MEYERS, NAVE, RIBACK, SILVER & WILSON, hereinafter referred to as "MNRSW". WITNESSETH WHEREAS, CITY and MEYERS, NAVE, R1BACK, SILVER & WILSON are parties to an Agreement for legal services, dated and entered into as of July 1, 1998; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the First Amendment to Agreement for Legal Services, dated June 15, 1999; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Second Amendment to Agreement for Legal Services, dated July 1, 2000; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Third Amendment to Agreement for Legal Services, dated July 1, 2001; and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Fourth Amendment to Agreement for Legal Services, dated July 1, 2002; and WHEREAS, it is the desire of the parties hereto to amend the agreement; NOW, THEREFORE, IT IS MUTUALLY AGREED that the Agreement for legal services is amended as follows: 1. Existing paragraph 4 is deleted and new paragraph 4 is added, to read as follows: "4. Compensation. City shall compensate ATTORNEY, through MNRSW, in the amount of $180 per hour for all services rendered, whether by ATTORNEY or by other attorneys associated with MNRSW, with the following exceptions: (a) litigation, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $210 per hour for all litigation services rendered by an associate attorney and at the rate of $210 per hour for all litigation services rendered by a shareholder; and (b) work for which the City is reimbursed by third parties, for which ATTORNEY, through MNRSW shall be compensated at the rate of $210 per Fifth Amendment to Agreement for Legal Services Page 1 of 2 (Between Dublin and MNRSW) ATTACHMENT 6 hour. MNRSW will also be reimbursed for customary costs and disbursements, including deposition and witness fees, court costs, telephone, photocopying, facsimile charges, computer research on-line fees and messenger services. ATTORNEY, through MNRSW, shall bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bill or statement." 1N WITNESS WHEREOF, the parties have executed this Second Amendment to Agreement for Legal Services the day and year set forth below. CITY OF DUBLIN A Municipal Corporation Dated: By: Janet Lockhart, Mayor MEYERS, NAVE, RIBACK, SILVER & WILSON Dated: By: Elizabeth H. Silver 631910 Fifth Amendment to Agreement for Legal Services Page 2 of 2 (Between Dublin and MNRSW)