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HomeMy WebLinkAboutItem 8.4 City Atty Resignation C~TY Cl[ER~ f~~e # D~[Q]~..~~ ftl+o ~ #() AGE~DA STATEME~r C~TY COU~C~l MEEr~~G DATE JaruJJary 15,2008 SUBJECT A 1'1' ACHMENl'S RECOMMENDA1I'IO~1 Acceptance of ResIgnation of City Attorney, Appomtment of New City Attorney and Assistant City Attorney, Correspondmg Amendment to Agreement for Legal Services Report prepared by ElIzabeth H Sliver, City Attorney 1 Agreement for Legal ServIces, as amended by mnth amendment Letter to CouncIl from Elizabeth H Stlver, dated January 8, 2008 Proposed Agreement for Legal Services, dated January 15, 2008 Copy of Government Code sectIOns 41801, 41802, 41803 and 41803 5 ResolutIOn acceptmg resignatIOn of Ehzabeth H Silver as CIty Attorney, appomtmg John D Bakker as City Attorney, appomtmg ElIzabeth H SIlver as ASSIstant City Attorney, and approvmg the Agreement for Legal Services, dated January 15, 2008 2 3 4, 5 Adopt Resolullon acceptmg resignatIOn of ElIzabeth H Silver as City Attorney, appomtmg John D Bakker as CIty Attorney, appomtmg Ehzabeth H Silver as ASSIstant CIty Attorney, and approvmg the Agreement for Legal Services :!FINANCIAL 81' A TEMENT None There IS no change m the proposed Agreement for Legal ServIces (Attachment 3) to the CIty Attorney's rates DESCRIPTION ElIzabeth H Sliver worked WIth MIchael Nave, the CIty'S first CIty Attorney, In provldmg legal services to the City from shortly after the City'S mcorporatlOll m 1982, and she was Actmg City Attorney from September 11, 1989 until she was appomted City Attorney on July 1, 1990 The CIty'S legall'5Sues have mcreased both III volume and m compleXity over the years as the CIty co JPY TO ------------------------------------------------------------------------------------------------------------- Page I of2 JITEM NO ~ .* c.-- has grown Smce January, 2001, John Bakker has assisted Ms SIlver III providIng legal advice to the CIty and, 10 July 2004, the Council appomted Mr Bakker as the Assistant City Attorney Mr Bakker has worked closely wIth Staff, commiSSIOns and the CouncIl smce then The CIty contracts With Ms SIlver and Mr Bakker's law firm - Meyers, Nave, RIback, Silver & WIIson- for legal servIces The Agreement for Legal Services was last amended by the eIghth amendment, effective July 1, 2007 (Attachment 1) The Agreement for Legal Services speCifies that Ms SlIver WIll be the CIty Attorney Ms Silver has decided to scale back her work and has asked the CouncIl to accept her resIgnatIon as the CIty Attorney, effectIve February 29,2008, and to appoIllt Mr Bakker as the CIty Attorney, effective March 1,2008 (Attachment 2) She also suggests that the CouncIl desIgnate her as the ASSistant City Attorney to ensure contlOUlty She Will contIllue to work part-tIme through the end of 2009 and Will be able to assist the Council and the CIty staff dunng that time on a regular baSIS as the AssIstant CIty Attorney She Illtends to be aVailable to the CIty after that on an as-needed basIs Mr Bakker IS a pnnclpal With Meyers, Nave, RIback, Silver & WIlson He has been practIcmg law Since 1998 He has worked wIth CItIes and speCIal dlstncts hiS entIre legal career He has adVIsed the Plannmg CommlsslOn, CIty staff and the CouncIl, III Ms Silver's absence, SInce 2004 He has worked extensively wIth the Commumty Development Department and PublIc Works Department Staff on most of the development projects He has extensive expenence wIth land use law, ProposItIOn 218 and telecommUnicatIons and cable Issues Ifthe Council adopts the attached resolutIOn (Attachment 5), Ms Silver's resignatIOn Will be effective on February 29,2008, and Mr Bakker's appoIlltment as CIty Attorney and Ms SIlver's appomtment as ASSistant CIty Attorney would be effectIve on March 1, 200g Staff proposes that a revIsed legal services agreement be approved, rather than amendmg the eXlstmg Agreement for Legal Services, whIch has already bcen amended nme tImes Thus, the proposed resolutIOn would approve a restated Agreement for Legal ServIces to name Mr Bakker as the City Attorney There are a few other mmor changes from the eXistmg legal servIces agreement (Attachment 1) Paragraph 5 IS deleted, it proVides for Ms SIlver's partiCipatIon III the PublIc Employees' Retirement System The PERS law has changed smce Ms SlIver's appoIlltment, and It IS no longer pOSSIble for a contract City attorney to become a member ofPERS Paragraph 7 is also deleted, It proVIdes for reimbursement lfthe City Attomeypartlclpates In profeSSional actiVItIes, such as meetmgs of the CIty Attorneys' Department of the League ofCahfornIa CItIes Although Ms Silver does attend such meetmgs, her law firm has never asked the CIty to reImburse It for such costs Fmally, paragraph 8 IS reVIsed to reqUire mcreased malpractice Insurance coverage, the agreement currently reqUIres $200,000 per person and $600,000 per occurrence These amounts are reVised to $1 ,000,000 per person and $2,000,000 per occurrence, whIch are more III IIlle wIth current practIce Attachment 4 mcludes the Government Code sections referenced m the agreement R.ECOMMENDA TKON The CIty Attorney recommends that the CounCIl adopt the resolutIon acceptmg the reSIgnatIon of Ehzabeth H SlIver as City Attorney, appoIlltmg John D Bakker as City Attorney, appomtmg Elizabeth H Silver as ASSistant City Attorney, and approvIllg the Agreement for Legal ServIces, dated January 15 (Attachment 5), 10448431 1141001 IUOJf) NINTH AMENDMENT TO AGREEMENT,FOR LEGAL SERVICES Tlns Nmth Amendment to Agreement for Legal SeI'Vlces IS made and entered mto as of July 1, 2007, by and between the CITY OF DUBLIN, a Muruclpal CorporatIOn In the State of CalIfornIa, heremafter referred to as "CITY" and MEYERS, NAVE, RIBACK, Sn.VER & WILSON, heremafter referred to as "MNRSW" WITNESSETH WHEREAS, CITY and MEYERS, NA VB, RIBACK. SIL VBR & WILSON are partles to an Agreement for legal ServIces, dated and entered mto as of July 1, 1998, and WHEREAS, CITY and MEYERS, NAVE, RIBACK. SIL VBR & WILSON are parhes to the FIrst Amendment to Agreement for Legal ServIces, dated June 15, 1999, and WHEREAS, CITY and MEYERS, NAVE, RlBACK, SILVER & WILSON are partIes to the Second Amendment to Agreement for Legal Services, dated July 1,2000, and WHEREAS, CITY and MEYERS, NAVE, RlBACK, SlL VER & WILSON are partieS to the Thud Amendment to Agreement for Legal ServIces, dated July 1, 2001, and WHEREAS, CITY and MEYERS, NA VB, RIBACK, SILVER & WILSON are partIes to the Fourth Amendment to Agreement for Legal Services, dated July 1,2002, and WHEREAS, CITY and MEYERS, NAVE, RlBACK" SILVER & WILSON are parties to the Fifth Amendment to Agreement for Legal Services, dated July 1, 2003, and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & Wll.,SON are parties to the SIXth Amendment to Agreement for Legal ServIces, dated July 1, 2004, and WHEREAS, CITY and MEYERS, NAVE, RlBACK, SILVER & WILSON are partles to the Seventh Amendment to Agreement for Legal ServIces, dated September 1,2005, and WHEREAS, CITY and MEYERS, NAVE, RIBACK, SILVER & WILSON are partIes to the Eighth Amendment to Agreement for Legal ServIces, dated July 1, 2006, 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 SeI'Vlces IS amended as follows Nmth Amendment to Agreement for Legal SefVlces (Between Dublin and MNRSW) Page 1 of 2 /-10 -() ~ g- i ATTACHMENT 1 200 LV 1 EXlstIllg 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 $200 per hour for all services rendered, whether by ATTORNEY or by other attorneys assocIated With MNRSW, Wlth the folloWIllg exceptIons (a) lItIgatIon, for wlnch ATTORNEY, through MNRSW, shall be compensated III the amount of $240 per hour for all litIgatIon servIces rendered whether by ATTORNEY or other attorneys In her finn. and (b) work for which the CIty IS reImbursed by thud 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 III her firm :MNRSW wIll also be reImbursed for customary costs and dtsbursements, Includmg deposItIon and WItness fees, Court costs, telephone, photocopymg, facsImIle charges, computer research on-Ime 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 II IN WITNESS WHEREOF, the partIes have executed tlus Ninth Amendment to Agreement for Legal ServIces the day and year set forth below CITY OF DUBLIN A MunICIpal CorporatIon ,,, Dated 7/jl/07 . I By Cut I {;I CIty Clerk J Ocflvlj Attest MEYERS, NA VB, RlBACK, SILVER & WILSON Dated b!;g/01 I By~~ -C-- " zabeth H Silver -=--.... 97988U DOC;114 1001 Nmth Amendment to Agreement for Legal SelVlces (Between Dublm and MNRSW) Page 2 of 2 RlllI eve Jl' $1 ~ !OJ "e nbock sliver & wilson professlonlll 11Iw [OrpOfllllon ')'fJ to Elizabeth H Sliver Attorney at Law 5108082000 January 8,2008 Honorable Mayor and Councllmembers City of Dublin 100 CIVIC Plaza Dublin, CA 94568 Dear Mayor and Councllmembers I began practicing law In 1974 aOO got my first taste of mumclpallaw In 1975 when I was hIred as an assistant CIty attorney for a City In 1he cen1ral valley That began my love of mUnicIpal law I have fel1 very fortunate to have found an area of the law that I truly enJoy and find rewarding My Involvement with Du blln began shortly after the City's incorporatIon In 1982 when I began assisting the City'S first CIty Attorney, MJchael Nave, on a part.1lme basIs I became more Involved With Dublin and was appointed Acting City Attorney on September 11, 1989 and City Attorney on July 1, 1990 As you well know, the City'S legal Issues have Increased both In volume and compleXity over the years as the City has grown Although other attomeys from my law firm have always assisted me, sInce January, 2001, John Bakker has played a key role In helping me provide Dublm With sound legal adVice and, In July 2004, the Council appointed Mr Bakker as the ASSistant CIty Attorney John has worked closely With Staff, commiSSIons and the Council since then I have deCided to reduce my legal practice and work only half time, begmnlng thiS month I anticipate working half~tlme though the end of 2009 I plan to spend more bme With my family, which Includes my first grandchild, and to travel I do not believe I can be the City Attorney wnlle practicing law part time and would, thus, ask the CounCil to accept my resignation as the CIty Attorney, effective February 29 2008 I have the utmost confidence In John Bakker and belIeve the CIty CounCil has an eminently qualified successor who Will continue to prOVide the same kind of legal adVice thall have proVided I beheve the City has been well served by the continUity and stabIlity It has had With Its long time City Manager and With the lengthy service that I and my law firm have proVided to the City It IS not only for thiS reason but because he IS so well qualified 1hat I recommend that the CounCil appoint John Bakker as the CIty Attorney, effective March 1 2008 I would also suggest that 1he CounCIl deSignate me as the ASSistant City Attorney to ensure continUity for the two years that I plan to work on a part time basiS FollOWing my retirement at the end of 2009, I Intend to be aVailable to the City on an as-needed baSIS 5i5121h Streel, S!lrtu 1500 I Oakland Callfornm 94&07 I Ie] 510 aoB 2000 I fax 510.444 n08 I www meyersnave com OAKLAND" SAN LEANDRO" SANTA ROSA" SACRAMENTO. SAN FRANC ATTACHMENT 2 Honorable Mayor and Councllmembers January a 2007 Page 2 '11J1lJ John IS a pnnclpal WIth Meyers, Nave, Rlback Silver & Wilson He has been pracbcmg law Since 1998 He has worked With CIties and special dlstncts his entire legal caree r He has adVised the Planmng Commission, CIty staff and the Council He has worked extensively With the Commumty Development Department and Pubhc Works Department Staff on almost all of the applicatlons for land use entitlements He has extensIVe expenence not only With land use law but with Proposition 218 and With telecommunlcabons and cable Issues I have greaUy appreciated the opportUnity to serve as Dublin's CIty Attorney I have enjoyed working With the Council and With all oftha City Staff, Includmg Richard Ambrose, who has been the CIty Manager for my entire tenure With Dublin I thank the Council for glvmg me thiS opportunity Very truly yours, it 'Wr ~/ 1M--' Elizabeth H Silver EHS rkb lD4360~_l DCC 1141001 5'fJ /iJ AGREEMENT FOR LEGAL SERVICES This Agreement, made and entered Into as of January 15, 2008, by and between the CITY OF DUBLIN, a Municipal Corporation In the State of California, heremafter referred to as "CITY" and MEYERS, NA VE, RIBACK, SILVER & WILSON, a professional law corporation heremafter referred to as "MNRSW" WITNESSETH 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 times 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 mak.e 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 amended and mak.e certain changes, and WHEREAS It IS the desire of the parties hereto 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 1 ApPointment of City Attorney CITY hereby retains JOHN 0 BAKKER hereinafter referred to as "ATTORNEY," as City Attorney for the CITY OF DUBLIN and ATTORNEY agrees to faIthfully represent the legal Interests of CITY dunng the term of thiS agreement 2 ATTORNEY's ServIces ATTORNEY shall proVide through his own services and those of such other attorneys of MNRSW, as he 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, 41803 and 41803 5 Such services shalllncl ude, but not be limited to Legal Services Agreement (Between Dublin and MNRSW) Page 1 of 4 ATl'ACHMENT 3 &~ LV 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 Rendenng legal advIce (both oral and wntten) to members of the City Council, commiSSions, boards, and to the City Manager, department heads and employees with respect to City matters, e Negotiating and/or rendenng advice with respect to negotIatIons pertaining to CIty's contracts, leases and memoranda of understanding, f Representing City In litigatIon and/or arbitration or other Judicial, administratIVe or q u aSI-jud IClal proceed Ings, g Furnishing legal services for assessment district or bond proceedings and h Furnishing legal services for the redevelopment agency parking authonty 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 his offices, hours, support staff and other matters except as prOVided herein 4 Compensation City shall compensate ATTORNEY, through MNRSW, In the amount of $200 per hour for all services rendered whether by ATTORNEY or by other attorneys assOCiated With MNRSW With the fOllowmg exceptions (a) litigation, for which ATTORNEY through MNRSW, shall be compensated In the amount of $240 per hour for all litIgation services rendered whether by ATTORN EY or other attorneys In 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 In her firm 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 wlthm 30 days of such bill or statement Legal Services Agreement (Between Dublin and MNRSW) Page 2 of 4 ~fJ to 5 No Asslqnment ThlS Agreement IS entered Into by CITY and MNRSW and, except as set forth herein the nghts and obligations of ATTORNEY may not be assigned or delegated to any other attorney of MNRSW without express wntten consent of the City Council This Agreement IS not assignable 6 Insurance ATTORNEY agrees, through MNRSW, to cany malpractice Insurance In full force and effect dUring the term of this agreement In an amount not less than $200000 per person and $600,000 per occurrence 7 Insurance ATTORNEY agrees, through MNRSW, to carry malpractice Insurance In full force and effect dUring the term of this agreement In an amount not less than $1,000,000 (one mllhon dollars) per person and $2 000 000 (two million dollars) per occurrence 8 Annual ReView Annually, dUring the month of February, ATTORNEY and Council shall meet to review the performance of ATTORNEY and members or associates of hiS firm In furnishing the services prOVided hereunder, and to reVlew the compensation proVISions hereof The parties may agree to changes or amendments hereto, mcludlng, but not hmlted to changes In compensation proVISions, which changes or amendments shall be eVidenced by wntten amendment hereto 9 Term ThiS Agreement shall be termmable by CITY at Will and by ATTORNEY upon 30 days' wntten nolice 10 Effective 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 Services Agreement (Between Dublin and MNRSW) Page 3 of 4 S1J I/) IN WITNESS WHEREOF, the parties have executed this Agreement for Legal Services the day and year set forth below CITY OF DUBLIN A MUnicipal Corporation Dated By Janet Lockhart Mayor Attest CIty Clerk MEYERS, NAVE, RIBACK, SILVER & WILSON Dated By Jayne W Williams Managing Principal 1046229 1 114 1001 legal Services Agreement (Between Dublin and MNRSW) Page 4 of 4 qo/J It) Cal~forn~a Government Code Sect~on 41801 The c~ty attorney shall adv~se the c~ty off~c~als ~n all legal matters perta~n~ng to c~ty bus~ness Sect~on 41802 He shall frame all ord~nances and resolut~ons requ~red by the leg~slat~ve body Sectlon 41803 He shall perform other legal serv~ces requlred from tlme to tlme by the leglslatlve body Sectlon 41803 5 {a} Wlth the consent of the dlstr~ct attorney of the county the Clty attorney of any general law c~ty or chartered c~ty wlthln the county may prosecute any mlsdemeanor commltted wlthln the c~ty arlslng out of vlolatlon of state law Thls sectlon shall not be deemed to affect any of the provlslons of Sectlon 72193 (b) In any case ln wh~ch the d~strlct attorney ~s granted any powers or access to lnformatlon w~th regard to the prosecutlon of m~sdemeanors, thlS grant of powers or access to lnformatlon shall be deemed to apply to any other offlcer charged wlth the duty of prosecutlng mlsdemeanor charges In the state as authorlzed by law ATTACHMENT 4 RESOLUTION NO IOf; I (J A RESOLUTION OlF' THE CITY COUNCIL OlF THE CITY OlF DUBLIN ********* ACCEPTING THE RESIGNATION OF ELIZABETH H SILVER AS CITY ATTORNEY, APPOINTING J ORN D BAKKER AS CITY ATTORNEY AND ELIZABETH H SILVER AS ASSISTANT CITY ATTORNEY, AND APPROVING AGREEMENT FOR LEGAL SERVICES WHEREAS, ElIzabeth H Silver was Actmg City Attorney from September 11, 1989 until June 30, 1990 and was appOInted City Attorney on July 1, 1990, and WHEREAS, John 0 Bakker has aSSIsted Ms Silver m provIdmg legal adVice to the City SInce 2001 and has been Assistant CIty Attorney SInce July 2004, and WHEREAS, the City contracts wIth Ms Silver and Mr Bakker's law firm - Meyers, Nave, Riback, SIlver & WIlson - for legal services and the current Agreement for Legal Services was last amended by the eIghth amendment, effective July 1, 2007, and WHEREAS, Ms StIver has deCIded to scale back her work to half-time through the end of2009 and has asked the CouncIl to accept her resignation as the CIty Attorney, effective February 29,2008, NOW, THEREFORE BE IT RESOLVED that the CIty Council (l) accepts the reSIgnatIon of Elizabeth H SlIver as City Attorney, effective February 29,2008, appomts John D Bakker as City Attorney, effectIve March 1, 2008, appomts ElIzabeth H StIver as ASSistant City Attorney, effectIve March 1,2008, and approves the Agreement for Legal Services, dated January 15,2008 and authonzes and directs the Mayor to SIgn the agreement PASSED, APPROVED AND ADOPTED thiS 15 day of January, 2008, by the followIllg vote AYES NOES ABSENT ABSTAIN " MAYOR ATTEST CITY CLERK A '][1' ACHMENT 5