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HomeMy WebLinkAboutItem 4.17 Appoint Asst City AttyG~~.~ OF ~U~~ti /// ~ '`~S~~jz ~ l ~~~4LIFOR~ I STAFF REPORT C I T Y C L E R K DUBLIN CITY COUNCIL File # ^~~^0 -~0 DATE: July 19, 2011 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattillo, City Manager SUBJEC : Second Amendment to Agreement for Stephen Muzio as Assistant City Attorney Prepared By: John Bakker, City Attorney EXECUTIVE SUMMARY: Legal Services and Appointment of Meyers Nave, the law firm that has served as Dublin's City Attorney since its incorporation, has requested that the City Council consider amending its legal services agreement with the City to increase the hourly rates to $209 for general legal services and to $252 for litigation and for work for which the City is reimbursed by third parties. The City Attorney is also requesting that the City Council accept the resignation of Libby Silver, the current Assistant City Attorney and former City Attorney, and appoint Stephen Muzio as the Assistant City Attorney. FINANCIAL IMPACT: The proposed amendment to the agreement for legal services would increase the hourly rate from $205 to $209 (a 1.95% increase) and would increase the rate charged for litigation and work performed by the City Attorney for which the City is reimbursed by third parties from $247 to $252 an hour (a 2.02% increase) commencing July 1, 2011. Funding in the adopted Fiscal Year 2011-2012 Budget for Legal Services was based on an estimated increase in the hourly rates and no change in the amount budgeted is recommended at this time. RECOMMENDATION: Staff recommends that the City Council approve: 1) Second Amendment to Agreement for Legal Services, and 2) adopt the Resolution accepting the resignation of Elizabeth H. Silver as Assistant City Attorney and appointing Stephen Muzio as Assistant City Attorney. ~~ ' i~/J "~ ~~ ' Submitted By viewed By Revie ed y City Attorney Administrative Services Director Assistant City Manager Page 1 of 2 ITEM NO. ~~ ~• I ~ G:\Chris\Staff Reports 2011 Wmendment No 2 to Legal Services Agreement_ Appointment of Assist City Attorney (Muzio).doc ~v ~ DESCRIPTION: Amendment to Legal Services Agreement 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 January 15, 2008 (Attachment 1), as amended on July 1, 2008 (Attachment 2). The City Attorney has requested that the City Council consider the following changes to the agreement: (1) increase the hourly rate for all general work from $205 to $209 and (2) increase the hourly rate for litigation and for all work performed by the City Attorney for which a third party reimburses the City for legal services from $247 to $252. The increase from $205 to $209 is a 1.95% increase and the increase from $247 to $252 is a 2.02% increase. The last increase to the Meyers Nave contract was effective July 1, 2008. Attachment 3 is a proposed Second 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, 2011. Appointment of Assistant City Attorney Effective February 29, 2008, the City Council accepted the resignation of Elizabeth "Libby" Silver from her position as City Attorney. At that time, John Bakker was appointed as City Attorney, and Ms. Silver was appointed as the Assistant City Attorney. Since her appointment, Ms. Silver has further scaled back her workload in anticipation of her eventual retirement. She has asked the City Council to accept her resignation as of July 19, 2011. Since 2007, Stephen Muzio, an associate at Meyers Nave, has assisted Mr. Bakker and Ms. Silver in providing legal advice to the City. The City Attorney is requesting that Mr. Muzio be appointed Assistant City Attorney (Attachment 4). NOTICING REQUIREMENTS/PUBLIC OUTREACH: No public notification required. ATTACHMENTS: 1. Legal Services Agreement, dated January 15, 2008 2. First Amendment to Legal Services Agreement, dated July 1, 2008 3. Proposed Second Amendment to Legal Services Agreement 4. Resolution Accepting the Resignation of Elizabeth H. Silver As Assistant City Attorney and Appointing Stephen Muzio as Assistant City Attorney 1672687.2 Page 2 of 2 ~~ o~' ~UBIf~ ~ U ~ ~f ~ (~e[~ U~ I~ ~ ~~~ 1~~9e # ^000 OLUJ ~° ~'°~ V~+ I(a14~t~ ° ~~ ~ ~~~A%~ ~ N9 U ~~ .C',. > _ __,1~ - -- ~ ~~I~~~A ~~A~E6~E~I~ C~~V C~9.l1~~8~ I~l~f~~9~1~ DA~'E ~Da~~a~a~y '85, z~o~ S~J~J~~'~' Acceptance of Resignat~on of C~ty Attorney, Appomtment of New City Attorney and Assistant C~ty Attorney, Correspondzng Amendment to Agreement for Legal Services Report prepared by Elrzabeth H Silver, City AttOrney A'~'~A~IIEgM[]E1~1'~'~ 1 2 3 4, 5 R~COlVg1V~~ElV]DA'~'A~IV i ~ Agreement for Legal Serv~ces, as amended by nxnth amendment Letter to Counczl from El~zabeth H Silver, dated January 8, ?008 Proposed Agreemen# for Lega~ Services, dated 7anuary 15, 2Q08 Copy af G~vernment Code sections 4l SO1, 4l 802, 41$03 ancE4~$0~ 5 Resolutron acceptmg reslg.nat~on of Eirzabeth H Sxlver as C~ty Attorney, appomting John D Bakker as C~ty Attorney, appotnt~ng El~zabeth H Sil~er as Assistant City Attomey, and appravmg the Agreement for Legal Services, dated January 15, 2008 Adopt Resolut~on accepting resignation of Elizabeth H Silver as City Attorney, appointzng Jahn D Bakker as City Attorney, appointcng Elizabeth H Silver as Assistant City Attorney, and approving the Agreement for Legal Servtces ~'~1VA1V~][Ad~ S']['A'll'~NIlE1V~' None There is no change in the pr~posed Agreement for Legal Serv~ces (Attachment 3} to the City Attorney's rates ~]E~C'RIP'-'gO1V Ehzabeth H Stlver worked wcth M~chael Nave, the City's ftrst CiTy Attorney, ~n prov~ding legal services to the C~ty from shortly after the Ctty's incorporahon in 1982, and shc was Acting C~ty Attorney from September l l, 1989 until she was appointed C~iy Attorney on luly 1, I99fl The City's legal issues have tncreased both m volume and ~n complex~ty ~ver the years as the City ---------------------------------------------------------------------------- ----- - ,= ~~~~r ~~ ~~e~,~' ~f, /7 ~7~i9 0~ Pa e I of ~ ~ g ATTACHM~El~~ ,~ has grown S~nce January, Z001, John Bakker has assisted Ms Silver ~n providing legal advice to the City and, in July 2044, the Counc~l appointed Mr Bakker as the Ass~stant City Attorney Mr Bakker has worked closely with Staff, commissrons and the Council s~nce then ~ The City c~ntracts with Ms Silver and Mr Bakker's law firm - Meyers, I~ave, R~back, Silver & Wilsan - for legal services The AgreemenE for Legal Servi~es was ]ast arrtended by the eighth amendment, effective July 1, 2007 (Attachment 1) The Agreement for Legal Serv~ces spe~ifies that Ms 5il~er will be the City Attorney Ms Stlver has decided to scale back her work and has asked the Council to accept her resignat~an as the Crty Attorney, effective February 29, 2008, and to appamfi Mr Bakker as the City Attorney, effechve March 1, 2008 (Attachment 2) She also suggests that the Council designate h~r as the Asszstant C~ty Attomey tv ensure cont~nuity She will cant~nne ta work part-time through the end of 2009 and will be able to assist the Council and the C~ty staff dunng that time on a regular basis as the Assistant City AEtorney She mtends to be avatlab~e ta t~e City after #hat on an as-needed basis Mr Bakker ~s a pnncipal with Meyers, Nave, Riback, Silver & Wilson He has been practicmg law since i 998 He has worked wrth cities and special distncts hts en#rre legal career He has advised the Planning Commission, City staffand the Council, in Ms Sllver's absence, since 2004 He has worked extensi~ely with the Commumty Develapment Department and Public Works Department Staff on most of the development pro~ects He has extensive expenence with land use law, Proposihon 2l $ and telecomrnunlcat~ons and cable issues If the Council adopts the attached resolutlon (Attachrnent 5), Ms Siiver's resignation wiIl be effective on February 29, 2008, and Mr Bakker's appointment as City Attflrney and Ms Silver's appointrnent as Assistant Crty Attorney would be effecrive on March t, 2ao8 Staff proposes that a reaised ~egai serv~ces ageement he approved, rather than amend~ng the existmg Agreement for Legai Servtces, wh~ch has already bcen amended nine t~mes Thus, the propased resolution would approve a restatec~ Agreement for Legal Serv~ces to name Mr Bakker as the City Attonney There are a few other minar changes from the exfstmg legal serv~ces ageement (A#tach;ment ~) Paragraph 5 ts deleted, rt pro~ides for Ms Silver's participa~ion in the Publ~c Employees' Rettrement System The PERS taw has changed since Ms Silver's appointment, and it is no longer possible for a contract city attorney to become a rnember af PERS Paragraph 7 is alsa deleted, it provides far reim6ursement ~f the City Attarney part~c~pates in professional act~v~t~es, such as meet~ngs of the City Attorneys' Departrnent of the League of Ca~ifarnia Cities Although Ms Sitver does attend such meetings, her law firm has ne~er asked the City to reimburse it for such costs Finally, paragraph 8 is rev~sed to require increased malpract~ce ~nsurance coverage, the agreement currently requrres $200,000 per person and $600,000 per o~~urrence These amounts are revised to $1,OQO,Q00 per person and $2,QQO,DOD per occurrence, wluch are more ~n ime with current practice Attachrnent 4 includes the Government Cade sections referenced in the a~reement 1k~E~~.DI1~M[~N~DA'~'~~llT The City Attorney recommends that the Council adopt the resolut~on accept~ng the resignation af Elizabeth H Sxlver as City Attorney, appomhng ~ohn D Bakker as C~ty Attorney, appoinfing Elizabeth H Sil~er as Ass~stant City Artorney, and approving the Agreement for Legal ServF~es, dated January 15 {Attachment 5), 1044843 1 114 1001 MNTH AMENDMENT T~ AGREEMENT,FOR LEGAL SERVICES ~ a3 Tlus Ninth Amendment to Agreement for Lega1 Sernces ~s made and entered zntv as of Ju~y 1, 2047, by and between the CITY ~F DLTBLIN, a Muiucipat Corpora#ton in the State of Cahfornia, hereinai~er referred ta as "CITY" and MEYERS, NAVE, RIBACK, SII,VE12 & WIL.SQN, hereinafter referred to as "1VINRSW" VVITNESSETH WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are part~es to an Agreement for lega~ services, dated and enteretl ~nto as of luly 1, 1998, and WI-IEREAS, CITY and MEYERS, NAVE, RIBACK, SII.VER & WII,S4N are partaes to the F~rst Amendment to Agreement for Legal Services, dated June 15, 1999, and WHEREAS, CITY and MEYERS, NAVE, RISACK, SILVER & WILSON are partaes to the Second Amendment to Agreement for Legal Services, dated Jt~ly 1, 2000, and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are parties to the Third Amendment ta Agreement for Legal Services, dated Ju~y 1, 2i301, and W~iEREAS, CITY and MEYEIZS, NAVE, RiBACK, SILVER & WB..SON are parties ta the Fourth Amendment to Agreement for Legal Services, dated July 1, 2002, and WHEREAS, CIT'Y~ and ME'YERS, NAVE, RIBACK, SILVER & Vt~,SQN are parties to the Fifth Amendment to Agreement for Legal Services, dated July l, 2003, and WHEREAS, CTTY and NiEYERS, NAVE, RIBACK, SII.VER & WII,SON are pazties to the Sixth Amendment to Agreement for Legal Services, dated July l., 2Q04, and WHEREAS, CITY and M~YERS, NAVE, RIBACK, SILVER & WQJSON are paxties to the Seventh Amendrne~t to .A.gireement for I.ega1 Serv~ces, dated September l, 2005, and WHEREAS, CITY artd MEYERS, NAVE, RIBACK, SILVER ~c WILSON are parhes to the Eaghth Amendment to Agreement far Legal Sern.ces, dated ~uly 1, 2005, and WHEREAS, rt is the desire of the part~es hereto to amend the agreement, NOW, THEREF4RE, IT IS NiUTUALLY AGREED that the Agreement far Lega1 Services zs amended as follaws N~nth Amendment ro Agreefnent for Legal Services Page 1 0€ 2 {8etween Du~Fin and MNRSV(n ~ a3 Existing paragraph 4 is deleted and new paragraph 4 is aclded, to read as follaws "4 Com,pensat~vn Cxty shall compensate ATTORNEY, through M1VRS W, m the amount of $240 per hour for a11 services rendered, whether by ATT~RNEY or by other attomeys assoc~ated wrth 1V~NRSW, r~n~h the fallowing except~ans (a) lttrgat~on, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $240 per hour far all iit~gat~on services rendered whether by ATTORNEY oz othez' attorneys m her firm, and (b} work for which the City Zs reunbursec3 by third part~es, for whxch A'~'TOR,N~Y, through MNRSW, shall be compensated at the rate of $240 per ~our for~ all serv~ces renderec3 whether by ATTQRNEY or Qther atEorneys in her firm MNRSW will also be reimbursed for customaxy costs and disbursements, xncluding depasition and wimess fees, court costs, telephane, ~ photocopymg, facsimite charges, computer research on-line fees and messenger , services ATTOFtNEY, through MNRSW, shali bill CTI"Y at least an a rnonth~y basis and CITY agrees to pay ATT~RNEY vv~thin 30 days of such bill ar statement " IN WITNESS WHERE~F, the part~es have execnted this Ninth Amendment to Agreement for Legai Sernces the day and year set forth below CITY dF DUBLIN A Municzpal Corporation ,,, Date~ 7 0~ Q By J et Lackhart, Mayor Attest / ~ - ~ - ~~~v~•/ Crty Clerk~ ~~cl~~ NLEYERS, NAVE, RIBACK, SILVER & WII.,S~N Dated •~~' ~7 gy ~ zabeth H Silver 979889_~ DOG 1141001 Ninth Amendment to Agreement fox Legal Sen~,ces Page 2 af 2 (Between -ublin and MNR$W) ~u ~ ~ ~ ~ I ~a ~ d ~ rihack sslver ~ w~~so~ ~ ~ ` ~ ~~3 prafess~onni law carporatEOn ElizabethH S~Iver Aft~rteey at !aW 51a 808 2004 January 8, 200$ F~onorabfe Mayor and Councdmembers City of Dublin 100 C~v~c Plaza Dublm, CA 34568 ~ear Mayar and Councdmem~~rs I began praciicing law m 1974 and gat my firsf tast~ af rnunicipa( iaw m 1975 when f was hrred as an ass~stant cEty attomey far a c~ty in fhe central valley That began my ~ve of municrpal law J have felt very forlunate ta have foun~ an area af the law that I lr~,ly en~oy and find rewacding My mvalvernent with Dublin began shortly after the City's mcorparat~an ~n i 98~ when ! began ass~st~ng the City's fir~t C~ty Attorney, Michael ~lave, on a part-time basis i became mare invofvetl w~th Dublin and was appomted Acting City Attomey on Septernb~f 1 ~,1989 and Ckty Attom~y on Ju[y 1, ~990 As yau weil knQw, the City's fega~ tssues have mcr~ased botfi m volume and c~mptexity aver the years as t~e Cit}+ has grown Althaugh other attameys itvm my !aw firm have always assisted me, sF~ce January, 20a1, Jonn 8akker has played a key ro!e ~r~ helpmg me provide Dub1m wtth sound lega! advice antl, ~n J~ly 2p04, the Council appoinf~d Mr Bakker as the Assistant C~ty Attomey John has worked clasely with Slaff, commissions and the Cauncd smc~e fhen 1 have decided to reduce my legal pract~ce and work only hal~ fEme, be~~nning this mon#h I antiapate workmg half-fime though the end of 2Q09 I plan to spend more Gme with my famlfy, which mcludes my frs# grandci~ild, and to travel I do not 6eiieve I can be the City Attomey while practici~g law part time and wauld, tt~us, ask t~e Counc~f to accept my ~esignatian as the Cfry Aftomey, ef~eet~ve February 29 20~8 ! have the utmast c~#idenoe m John Bakker and bel~eve the C~#y Councd has an em~nently qualified successor who wEll cantinue to provide the same kmd af legal adv~ce that I have provided I belreve the C~ry has been weEl senred by #he c~ntinuity and stab~E~ty ~t has had w~th ~ts long time City ~9a~ager and with the lengthy servic~ that I and my !aw firm have provrdetl #a the C~ty It is rtat anly for triis reason but because he is so well quaEffied that ! recommend that the Councd appoint 3ohn Bakker as the C~ty Attorney, effect~ve March 1 2008 I wauld also suggest that the Cour~c~l designate me as t~e Assistant Ciry A~fomey to ensure cvnbnuiEy for the iwo years t~at 1 plan fo work on a part bme basis Followmg my retirement at the end of 2009, I mtend to be avadable to the Gry on an as-needed ~asss 555'f21h StreeL Su~ts 150D ( Oakiand CaE~fom~a 94fiff1 ~ te1510 80B 2UU0 I!ax 510.444 it08 ~ www meyersrtavc aom OA~LAN~ ~ SAN LEANORO ~ SAflCTA R03A ~ SACRRMENTO ~ SRN FAANC Nonorable Mayor and Councilmembers January 8 2007 Page 2 ~ ~~ ~ John rs a pnnc~pai w~th Meyers, hlave, Riback Sdver & Vlldson He has been ~rac~cing law s~nce 1998 He has wo~ced with c~ties and specia~ d~stncts h~s ent~re legal career He ~as adv~sed the Plann~ng Commission, ~~ty staff antl the CauncEf He has wo~ked exter~sively with the Cvmmunity Developrnent Deparfinent and Puhi~c Works Department Staff ort a4most all of the apphcal~ans for land use enti#lements He f~as extensive expener~ce not onfy with land use law bu# wj#h PropoSit~on 218 and with telecammurncahons and cable ~ssues - I have greaUy appreciated the opportunity to serve as QubE~n's City Attorney~ I have en~oyed working wi~h [he Councd ar~d wi~h all ofthe City Staff, ir~clud~ng Richard Ambrose, wt~o has been the City Nlanager for my ent~re tenure w~t#~ Dublm I thank fhe Councrl for giv~ng me tn~s opporEunity ~~ Very tru~y yours, ~ ~~~'~'~ ~ Elizabeth N Silver EH5 rkb 1043W3_i DpC 714 1401 __s j AGREENiENT FOR LEGAL SERVICES ~ ~ 3 ~ T#~is Agreement, made and entered mto as of January 15, 2008, by antl between the CITY OF ntJBLIN, a Mun~c~pa! Carporation in the State of Californ~a, heremafter referred to as "CITY" and M~YERS, NAVE, RIBACK, SILVER & WILSON, a professianal law corporation hereina#ter referred to as "MNRSW" iNE~NESSETH WHEREAS, JOHN ~ BAKKER is a member of the law f~rm ~f MNRSIN WH~REAS, CITY and MNRSVII are part~es to an agreement dated July 1, 1998, ent~tled "Agreement for Legal Services", and WH~REAS, said "Agreement for Legal Services" has been amended nine t~mes on June 15, 1999, July 1, 2000, Juiy 1, 20Q1, July 1, 2Q02, ,~uly 1, 2D03 July 1, 2004 September ~, 2005, July 1, 2Q06 and July 2, 20Q7, respectively, and WHEREAS, t~e parhes des~re to make certain amendments to the "Agreement for Legal Services " as amendetl, and UVHEREAS, the p~rpose of this agreement is to restate the "Agreemen# far Legal ServECes" as amended and make certain changes, and WHEREAS ~t is the desire of the part~es hereto to enter th~s agreement antl estabhsh the terms and candit~ans for rendition of legal services to the CITY OF DUBLIN and the compensation therefore, NQW, TNEREFQRE, IT 15 MUTUALLY AGREED as follows Appamtment of C~ty~Attorney CITY hereby retains JOHN D BAKKER hereinafter referred to as °ATTORN~Y," as City Attorney for #he C1TY p~ DUBL.IN and ATl'ORNEY agrees to fa~thfully represent the lega! interests of C1TY durmg tt~e term of th~s agreemenf 2 ATTCIRNEY's ServECes ATTORNEY shalE provide through his awn services and those of such other attnmsys of MNRSW, as he shall determine, all legal services usually and normaIly provided by city attorneys, and specifically those duties and services descr~bed m Government Cade Sections 41$01 41802, 418D3 and 41803 5 Such serv~ces shali mclude, but not be I~mited to Legal Sero~ces Agreement Page 1 of 4 {Between Dubim and MNRSW) a Attendance at City Council and Planning Commission meetings, ~ a 3 b Prepara#ion of ordinances, resolufiorts, leases, contracts or other legaf documents, c Preparaban af all findings decisior~s or other documents pertaining to legislative ar quasi ~udicial actions ar dec~sions matle by the City Counc~l, boards, commissions or officers, d Rendenng legal advice {both aral and written) tQ members of the C~ty CauncEl, comm~ssions, boartls, and to t~e C~ty Manager, deparfinent heads and employees w~t~ respect to City matters, e Negotiating andlor rendenng advice with respect to negotiat~ons pertaining to C~#y's contracts, leases and memoranda of understanding, Represent~ng City in litigat~on andlor arbitration or other ~udicial, admimstrative ar quas~-~udicial praceedings, g Furnis~mg legal services for assessrnent d~sirict or bond proceedings aRd h Furnishing legal servi~es for the redevelopment agency park~ng aut#~ority or other agenc~es or ent~t~es wh~ch are not operated as an mtegral part of C~ty, but wh~ch are or may be created by City as ~ndepe~dent agenc~es 3 ~ndependent Caniractor ATTORNEY shall provide legal services to CiTY as an ~ndependent cantractor, with controk over his affices, hours, support staff and other matters except as provided herem 4 Com~ensation C~ty shal~ compensate ATT~RNEY, through MiVRSV11, in the amount of $2Q4 per hour for all services rendered whet~er by ATTORNEY or by other attorneys assaciated with MNRSW with the follawmg exceptions {a) litigation, for which ATT~RNEY thraugh MNRSIN, shall be compensated in the amount of $240 per ~our for all IitEgation servi~es rendered whether by ATTORN EY or other attorneys in her firm and (h) work for which the Csty is reimbursed by third parties, for wh~h ATT~RNEY, through MNR51N, shall be compensated at the rate af $24Q per hour for al~ services rendered whether by ATTQRNEY or ather attorneys in her firm MNRSUV wili alsa be reimbursed for custamary costs and drsbursements, includmg deposition and witness fees> court c~sts telephone, photocopying facsimde charges, computer researc~ or~-line fees and mess~nger services ATT~RNEY, through MNRSW, shall b~l! CITY at least on a mor~thly basis and CITY agrees to pay ATT~RNEY within 30 days of such bill or statement . Legal Services Agreement Page 2 of 4 {Between Dubbn and MNRSWj Na Assiqnment 9 ~a3 This Ag~eement is entered mto by CITY and MNRSW and, exc~pt as set forth herein the rights and ~blrgat~Qns af ATTORNEY may not he assigned or delegated to any other attorney of MNRSIN without express written consent of the City Councd This Agreement ~s not assEgnable 6 lnsurance ATTOR~lEY agrees, thro~agh MNRSUU, to carry ma2practlce insurance in fuli forc~ and e~ect dunng the term o~ this agreement m an amaunt not less than $200 000 per person and $6a0,000 per occur~ence 7 Insurance ATTORNEY agrees, through MNRSW, to carry malpractice insurance Gn full force and effect durmg the term of th~s agreement m an amount not less tha~ $~,OOa,000 (one milicon dallars) per person and $2 000 D00 ~two million dollars~ per occurre~ce 8 Annual Review Annuaily, dunng the manth af ~ebnaary, AT~ORNEY and Cvunci~ shal~ meet to review the performance of ATT~RNEY and members or assaciates of his firm m furn~shmg the ser+rices provided hereunder, and to revtew the compensat~on provrsions hereof The parties may agree to changes ar amendments hereta, mcluding, but n~t I~mitetl to changes in ~ompensation provisians, which changes or amendments shali be evidenced by written amendment hereto 9 Term wntten nohce This Agreement shall be terminable by C17Y at will and by ATT~RNEY upon 3a days' 10 Effective pate This Agreement shali be effective March 1, 2008 71 Supersessi~n of ~nar Aqreements amended This Agreement shali supersede the Agreement for Legal Services, dated July 1,1998, as Legal Services Agreer~ent Page 3 of 4 ~Between Dublin and MNRSW} IN WITiVESS WHERE4F, the parties have executed this Agreement for Legal Services the day and year set forth belaw CITY OF DUB~.iN A Munic~pal Cflrporativn Dated sy Janet L.ockhart Mayor Attest C~ty Clerk MEYERS, NAVE, RI6ACK, SILVER & WILSON Dated 1046229 1 114 1 D~1 Legal 5ervaces Agreement (Between Dubl~n and MNRSW} By Jayne W Williams Managing Pnncipal ~~ ~ a 3 Page 4 of 4 California Government Code Section 41801 The caty attorney shall advise the city officials ~n all Iegal matters pertaining to city business Sectzon 47.802 He shall frame aIl orda.nances and resoluta.ons requared by the legislative body section 4~8D3 He shaJ.l perform other legal servzces zequzred from time to tzme by the ].egzs~atzve body Secta.on 41803 5 ta) With the consent of the district attorney of the county the city attorney of any general law city or chartered city with~n the ~ounty may prosecute any misdemeanor committed wzthin the city arising out of viola~ion of state law This section shall no~ be deemed to a£fect any di the provisions of Section 72193 (b? zn any case in whicn the dxstrict attorney is granted any powers or access to information with regard to the prosecution of mYSdemeanars, thzs grant of powers or access to information shall be deemed to apply to any other o£fzcar charged with the duty of proaecuting misdemeanor charges zn the state as authorized by law l~ ~3 ~ ~`~'TA~~-11[ll~IlElV7C 4 ~5~4~~1'l['flON I~I~ - a ~s~~,~~~~~ ~~ ~~~ ~~~x ~~~~rc~~ . _~- 023 ~ ~~ ~~~ ~~~~ ~~ ~~~~ff~ *~*~~~*~* ACCEPTIlVG THE RESIGNATI(~N OF EL~ZABETH H SILVER AS CITY ATTORNEY, APPOINTtNG JOHN D BAKKER AS CITY ATTORNEY AND ELIZABETH H SILVER AS ASS~STANT CITY ATTORNEY, AND APPROViNG AGREEMENT FOR LEGAL SERVICES WHEREAS, El~zaheth H S11ver was Acting C~ty Attorney from September ~ 1, 1989 until June 30, 1990 and was appo~nted C~ty AttQrney on July 1, 1990, and V~HEREAS, Jahn D Bakker has assrsted Ms Silver m prov~dmg legal advice ta the City since 2001 and ~as been Ass~stant C~ty Attorney since July 2004, and WHEREAS, the City contracts w~th Ms Silver and Mr Bakker's law firm - Meyers, Nave, Riback, Silver & W~lson - for legal services and the current Agxeement for Legal Serv~ces was last amended by the e~ghth amendnnent, effective July 1, 2007, and WHEREAS, Ms Srlver has decided to scale back her work to half-time #hrough the end of 2009 and has asked the Ga~ncil to accept her resigxaation as the City Attorney, effective February 29, 20Q8, NOW, THEREFQRE BE IT RESOLVED that the City Council {1} accepts the resignation of Elizabeth H SiZver as C2ty Attorney, effecti~e February 29, 2008, appoints John D Bakker as Ctty Attorney, effective March i, ZdQ8, appoints Elizabeth H Sil~er as Assistartt City Attorney, effective March 1, 2005, and approves the Agreement for Legai Services, dated January 15, Z008 and authorrzes and directs the Mayor to sign the agreemen# PASSED, APPROVED AND ADOPTED this 15 day of January, 20fl8, by the following vote AYES NOES ABSENT ABSTAIN ATTEST MAYOR CITY CLERK A'~'~'A~~IVfflEI~1~' S ~oFflU~~j~ CITY CLERK ~ ~~~ File # ^~0~'~0 ~- ~ -~ $Z 13 .~ 3 ,C;~l/ \41,~Fnt21y1~ , AGENDA STATEMENT CITY COUNCIL MEETING DATE: July 15, 2008 SUBJECT: First Amendment to Agreement for Legal Services Reporf Prepared by: John Bakker, City Attorney ATTACHMENTS: 1. Agreement for Legal Services, dated January 15, 2008 2. Proposed First Amendment to Agreement for Legal Services, dated July 1, 2008 RECOMMENDATION: Approve First 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 hourly rate from $200 to $205 (a 2.5% increase) and increase the rate charged for litigation and work performed by the . City Attorney for which the City is reimbursed by third parties from $240 to $247 an hour (a 2.92% increase) commencing July 1, 2008. 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 January 15, 2008 (Attachment 1). The City Attorney has requested that the Council consider changes to the agreement. The first is a non-substantive change to delete paragraph six of the agreement. When this agreement was drafted, the intent was to increase the malpractice insurance coverage amounts contained in the predecessor agreement in order to bring the coverage in line with current practice. The current agreement contains both the outdated insurance provision as well as the current one. The substantive change would be to increase the hourly rate for all general work from $Z00 to $205 and to increase the hourly rate for litigation and for all work performed by the City Attorney for which a third party reimburses the City for legal services from $240 to $247. The increase from $200 to $205 is a 2.5% increase and the increase from $240 to $247 is a 2.92% increase. Attachment 2 is a proposed First Amendment to the Agreement for Legal Services. The only changes from the current agreement are as described above. ------------------------------------------------------------------------------------------------------------- COPY TO: Page 1 of 2 ATTACHMENT ~ The proposed amendment would be effective July 1, 2008. I~ ~~ Recommendation: Staff recommends that by motion the City Council authorize the Mayor to execute the First Amendment to Agreement for Legal Services (Attachment 10). 1 ] 17596.2 2 ~ ~ AGREEMENT FOR LEGAL SERVICES 15 a3 This Agreement, made and entered mto as of January 15, 2008, by and between the CITY OF DUBLIN a Murncipal Corporation in the State of Califom~a hereinafter referred to as "CITY" and MEYERS, NAVE, RIBACK SILVER & WILSON, a professional law corporatron, heremafter referred to as "MNRSW" W17NESSETH WHEREAS, JOHN D BAKKER is a member of the law firm of MNRSW, WHEREAS, CITY and MNRSW are parties to an agreement dated July 1,1998, entitled "Agreement for Legal Services" and WHEREAS, said "Agreement for Legal Services" has been amended nine t~mes on June 15,1999, July 1, 2000, July 1, 2001 July 1, 2002, July 1, 2003 July 1, 2004, September 1, 2005 July 1 2006 and July 2, 2007 respectively and WHEREAS, the parties desire to make certam 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 amended and make certain changes, and WHEREAS, it is the desire of the parties hereto to enter this agreement and establish the terms and condit~ons for rendition of legal services to the CITY OF DUBLIN and the compensation therefore, NOW THEREFORE, IT IS MUTUALLY AGREED as follows Appointment of Citv Attomev CITY hereby retams JOHN D BAKKER hereinafter referred to as "ATTORNEY " as City Attomey for the CITY OF DUBLIN and ATTORNEY agrees to faithfully represent the legal mterests of CITY dunng the term of this agreement 2 ATTORNEY's Services ATTORNEY shail provide, through his own services and those of such other attorneys of MNRSW as he shail determine, all legal services usuaily and normally provided by city attomeys, and specifically those duties and serv~ces descnbed m Govemment Cotle Sections 41801, 41802 41803 and 41803 5 Such serv~ces shall include, but not be limited to Legal Services Agreement (Between Dublin and MNR511~ Page 1 oF 4 Ib ~ 3 Attendance at City Council and Plannmg Commission meetings ~ Preparation of ordmances, resolutions, leases, contracts or other legal documents c Preparation of all findings decisions or other documents pertaining to legislative or quasi ~udiciai actions or decisions made by the City Council boards, commissions or officers, d Rendering fegal advice (both oral and wntten) to members of the City Council commiss~ons, boards and to the City Manager department heads and employees with respect to City matters, e Negotiatmg and/or rendenng advice with respect to negotiations pertammg to City's contracts leases and memoranda of understanding, f Representing City in litigation and/or arbitration or other ~ud~cial, admirnstrative or quasi-Judicial proceedmgs, g Furrnshing legal services for assessment distnct or bond proceedings, and h Fumishmg legai services for the redevelopment agency, parkmg authonty or other agencies or entities which are not operated as an mtegral part of City, but which are or may be created by City as mdependent agencies 3 Indeqendent Contractor ATTORNEY shall provide legal services to CITY as an independent contractor, with control over his offices hours support staff and other matters except as provided herein 4 Compensation City shall compensate ATTORNEY, through MNRSW, m the amount of $200 per hour for all services rendered whether by ATTORNEY or by other attorneys associated with MNRSW ~nnth the following exceptions (a) litigat~on, for which ATTORNEY, through MNRSW, shall be compensated in the amount of $240 per hour for all litigation services rendered whether by ATTORNEY or other attomeys m her firm and (b) work for which the City is reimbursed by third parties, for which ATTORNEY through MNRSW shall be compensated at the rate of $240 per hour for all services rendered whether by ATTORNEY or other attorneys m her firm MNRSW will also be reimbursed for customary costs and disbursements including deposition and witness fees court costs, telephone photocopymg facsimile charges, computer research on Ime fees and messenger services AT70RNEY, through MNRSW, shali bill CITY at least on a monthly basis and CITY agrees to pay ATTORNEY within 30 days of such bdl or statement Legal Services Agreement Page 2 of 4 (8etween Dublm and MNRSW) No Assiqnment -~f ~~.~ This Agreement is entered into by CITY and MNRSW and except as set forth herem the rights and obligations of ATTORNEY may not be assigned or delegated to any other attomey of MNRSW without express wntten consent of the City Councii This Agreement is not assignable 6 Insurance ATTORNEY agrees, through MNRSW, to carry mafpractice msurance rn full force and effect dunng the term of this agreement in an amount not less than $200,000 per person and $600,000 per occurrence 7 Insurance ATTORNEY agrees, through MNRSW to carry malpractice msurance m full force and effect dunng the term of this agreement in an amount not less than $1,000 000 (one mdlion dolla~s) per person and $2,000,000 (two mdlion dollars) per occurrence 8 Annual Review Annually dunng the month of February ATTORNEY and Councd shall meet to review the performance of ATTORNEY and members or associates of his firm m furrnshmg the seroices provided hereunder, and to review the compensation provisions hereof The parties may agree to changes or amendments hereto includmg, but not limited to changes in compensation provisions, which changes or amendments shall be ev~denced by wntten amendment hereto 9 Term This Agreement shall be terminable by CITY at wdl and by ATTORNEY upon 30 days' wntten notice 10 Effect~ve Date This Agreement shall be effective March 1, 2008 11 Supersession of Pnor Aqreements This Agreement shall supersede the Agreement for Legal Services dated July 1, 1998 as amended Legal Serv~ces Agreement Page 3 of 4 (Between Dublin and MNRSW) IN WITNESS WHEREOF the parties have executed this Agreement for Legal Seroices the day ~~ ~ 3 and year set forth below CITY OF DUBLIN A Mumcipal Corporafion Dated ! 2~ 0~ By ~~ /Janet Lockhart, Mayor Attest ~ ~~ Gty Clerk ~ ~ MEYERS NAVE, RIBACK, SILVER & WILSON Dated ~ - ~ ~~~ ~' ~ By ~t~~ ~~ Jayn Wi ams Managing Pnncipal 1046229 1 114 1001 Legal Services Agreement Page 4 of 4 (Between Dublm and MNRSUI~ FIRST AMENDMENT TO AGREEMENT FOR LEGAL SERVICES i ~~~ a3 This First Amendment to Agreement for Legal Services is made and entered into as of July 1, 2008, 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, RIBACK, SILVER & WILSON are parties to an Agreement for Legal Services, dated and entered into as of January 15, 2008; and WHEREAS, it is the desire of the parties hereto to amend the agreement. NOW, THEREFORE, IT IS MIJTUALLY 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 $205 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 $247 per hour for all litigation services rendered whether by ATTORNEY or by other attorneys associated witt~ 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 $247 per hour for all services rendered whether by ATTORNEY or other attorneys associated with MNRSW. 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." 2. Paragraph 6 is deleted in its entirety and new paragraph 6 is added, to read as follows: First Amendment to Agreement for Legal Services Page 1 of 2 (Between Dublin and MNRSW) ATTACHMENT 2 ~ ~3 . ~ "6. Intentionally Left Blank." IN WITNESS WHEREOF, the parties have executed this First Amendment to Agreement for Legal Services the day and year set forth below. Dated: CITY OF DUBLIN A Municipal Corporation By: Janet Lockhart, Mayor Attest: City Clerk Dated: By: 1117588.2 MEYERS, NAVE, RIBACK, SILVER & WILSON John D. Bakker First Amendment to Agreement for Legal Services Pa e 2 of 2 g (Between Dublin and MNRSW) SECOND AMENDMENT TO AGREEMENT FOR LEGAL SERVICES ~1 ~3 This Second Amendment to Agreement for Legal Services is made and entered into as of July l, 2011, 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, RIBACK, SILVER & WILSON are parties to an Agreement for Legal Services, dated and entered into as of January 15, 2008, and amended as of July 1, 2008; 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. Com~ensation. City shall compensate ATTORNEY, through MNRSW, in the amount of $209 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 $252 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 $252 per hour for all services rendered whether by ATTORNEY or other attorneys associated with MNRSW. 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 Second Amendment to Agreement for Legal Services the day and year set forth below. Second Amendment to Agreement for Legal Services (Between Dublin and MNRSW) Page 1 of 2 ATTACHMENT 7 ~2 a3 Dated: By: Attest: Dated: By: 1671300.1 CITY OF DUBLIN A Municipal Corporation Tim Sbranti, Mayor City Clerk MEYERS, NAVE, RIBACK, SILVER & WILSON John D. Bakker Second Amendment to Agreement for Legal Services Page 2 of 2 (Between Dublin and MNRSW) RESOLUTION NO. -2011 ~~ r~ ~` ~ A RESOLUTION OF THE CITY COUNCIL OF THE CiTY OF DUBLIN ********* ACCEPTING THE RESIGNATION OF ELIZABETH H. SILVER AS ASSISTANT CITY ATTORNEY AND APPOINTING STEPHEN MUZIO AS ASSISTANT CITY ATTORNEY WHEREAS, Elizabeth H. Silver was the City Attorney from June 30, 1990 until February 29, 2008, when John Bakker was appointed as the City Attorney and she was appointed Assistan~ City Attorney; and WHEREAS, since Mr. Bakker's appointment as City Attorney, Ms. Silver has further ~ scaled back her workload in anticipation of eventual retirement and has asked the City Council to accept her resignation as of July 19, 2011; and WHEREAS, Stephen Muzio, an associate at Mr. Bakker's law firm, Meyers, Nave, Riback, Silver & Wilson, has assisted Ms. Silver and Mr. Bakker in providing legal advice to the City since 2007. NOW, THEREFORE BE IT RESOLVED that the City Council (1) accepts the resignation of Elizabeth H. Silver as Assistant City Attorney and (2) appoints Stephen Muzio as Assistant City Attorney effective July 20, 2011. PASSED, APPROVED AND ADOPTED this 19th day of July, 2011, by the following vote: AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk 1671308.1 ATTACHMENT "1