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HomeMy WebLinkAboutStaff Report 4.D 7/15/2013 AliU ge tcicoIte n/#40D • "785$' DATE: July 15,,2013 TO: Honorable Mayor and Members of the City Council FROM: John C. Brown, City Manage5---- ' SUBJECT: Resolution Approving Legal Services Agreement with Meyers Nave and Authorizing the Mayor to Execute the Agreetnentand all'Related Documents. RECOMMENDATION It is recommended.that the City Council approve the attached.resolution authorizing the Mayor to execute a Legal Services Agreement with Meyers Nave for the'period from July 16, 2013 through October 31, 2013, and all related documents. BACKGROUND On June 3, 2013, the City Council,adopted a resolution approving an in-house City Attorney's • Office; and authorizing;the Mayor to execute an at-will:agreement for,employment for the City Attorney. Noted in the staff report for that agenda was the transition period required to establish the Attorney's office consistent with.the staffing plan, and the need to continue to purchase legal services from Meyers Nave during the transition at a cost at least equal to the rate adjustments proposed in June 2012. DISCUSSION Meyers Nave is willing to provide continuing legal services during the transition period, and has offered=the City a revised agreement for legal services from July 16ti through October 31, 2013. The agreement anticipates providing the full range of services the City would expect,to=need, including Assistant City Attorney services, support for the Successor Agency to°the former Petaluma Community Development Commission, "Specialty" Law(enterprises and utilities, labor and employment,,environmental,,telecommunications, and mobile home park rent stabilization), land use cost.recovery, and-litigation. These services would be provided at the request of the City Attorney, the City Manager,:or the'City Council, and only on an as-needed basis. The agreement provides for the orderly transition of files and records to the in-house offices during this period. It also provides for termination by the City at any time prior to October 31, 20.13 if the City's need for these services should end sooner. Rates for the period are those proposed in June 2012. Rates pursuant to the attached agreement, and a comparison to those in effect through July 15„2013 are: Agenda Review:' - City Attorney Finance Dire. or ? anager BILLING CATEGORY "„ CURRENT RATE ADJUSTED RATE .INCREASE INCREASE i. (Matted (Per Hour), lPer'Hourl (Dollarsi (Percent) Municipal Law 160 190 30 18.75% Specialty Law- Principal 195 260 65 33.33% Specialty Law-Sr. Assoc. 195 220 25 12.82% Specialty Law-Jr. Assoc. 175 200 25 14.29% Cost Recovery 225 270 45 20.00% Paralegal/law clerk 95 125 30 31.58% Meyers Nave's services may be required beyond the term of the attached agreement, pursuant to a contract extension with a more.limited scope of services. This would continue defense of certain litigated cases where leaving them with Meyers Nave makes more sense than transitioning them to in-house staff or another contract attorney. The City Attorney's Office intends to defend as many cases as it can,and to make use of a defense panel when cases are contracted out. In that regard, staff is establishing the list of attorneys to be included in the initial defense panel, and is presently engaged in interviews with interested`individuals and firms. Councilmembers have asked about the process and timing to'establish the City Attorney's office. A recruitment is underway to fill a full time legal assistant position. That individual will preferably be a paralegal who, in addition to the other support they will provide the office, can handle routine matters that would otherwise be.handled'by an attorney. Effective July 16, 2013, that position will be filled with a temporary hire; a permanent hire,at the conclusion of the recruitment is expected by the end of July. Job classification and description work for two senior attorneys is being completed, and will be discussed in the meet-and-confer process with the interested bargaining group. Recruitment for those positions is expected to commence in July 2013; the successful candidates are expected to report to work by the end of October 2013. In the meanwhile, space remodel to accommodate the offices is underway and will be completed prior to full staffing of the office. Until staff is hired and the defense panel is in place, the City has,need for Meyers Nave's services, and the City Council's approval of theattached resolution is recommended. It is staff s intention_to carefully manage the use of these services to minimize the impact of rate adjustments, to the extent that is possible, on our legal services budgets. FINANCIAL IMPACT In the report provided to the Council in June 2013, it was noted that the anticipated cost of an in- house legal services program could provide modest savings from the total paid for legal services in 2012, and more significant savings when compared to the same total adjusted for Meyers Nave's rate increase. Included in the in-house estimate, in addition to the salaries and benefits associated with staffing, was $100,000 for contract services. 'It is difficult to predict the impact_ that the recommended action will have on legal services budgets. Hourly costs will increase for the services purchased from Meyers Nave during the transition period. These increases can be • offset by judicious use of these services,but mill.be-dictated by the work that is needed. Costs can be absorbed in part by salary savings and with monies;budgeted for contract°services. In addition, cost increases associated with cost recovery work will be reimbursed by project applicants, and not borne by the City of Petaluma. Ideally;the cost of legal services during the transition will be absorbed within budgeted totals, although there is the possibility they may not. It is also possible any savings projected for 2013/14 may not be realized, and that savings associated with an in-house office will not be realized until 2014/15. As previously indicated, staff will carefully manage the use of Meyers Nave's services during the transition period to minimize the impact of rate adjustments, to the extent that is possible, on our legal services budgets. ATTACHMENTS 1. Resolution ATTACHMENT 1 Resolution No. 2013- N.C.S. of the City of Petaluma, California RESOLUTION APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT FOR SERVICES WITH MEYERS, NAVE, RIBACK, SILVER AND WILSON, AND ALL RELATED DOCUMENTS WHEREAS, since 2001, the City of Petaluma has contracted with the law firm Meyers, Nave, Riback, Silver and Wilson (Meyers Nave) for the full range of legal services; and WHEREAS, a City Council Committee was formed to evaluate City Attorney services for the City of Petaluma; and WHEREAS, based on the recommendations of that Committee, the City Council voted unanimously on June 3, 2013, to establish an in=house Office of the City Attorney, and to enter into an At-Will Agreement for Employment with the City Attorney; and WHEREAS, it is anticipated that it will require approximately four months to complete the full transition from contracted legal services to those provided in-house; and WHEREAS, the City will require ongoing legal services from Meyers Nave during this transition period; and WHEREAS, Meyers Nave is willing to;provide those services for the period from July 16, 2013 through October 3, 2013, pursuant to a new legal services agreement. NOW,THEREFORE,BE IT RESOLVED that the City Council of the City of Petaluma hereby approves the Agreement for Legal Services attached as Exhibit A and incorporated herein by reference. BE IT FURTHER RESOLVED that the City Council of the City of Petaluma hereby authorizes the Mayor to execute said Agreement and all related documents. • EXHIBITA LEGAL SERVICES CONTRACT 1. Scope of Engagement. Meyers, Nave, Riback, Silver-&Wilson (hereafter "we"or "Meyers Nave") will provide the legal services reasonably required,.and solely as:requested by the City Attorney, City Manager or City Council to represent and advise the City of Petaluma (hereafter "you" or "City of Petaluma") in connection with interim assistant city attorney, successor agency, special (i.e. enterprise fund, mobile home rent control, labor and employment, environmental and telecommunications), land use cost recovery and litigation services. The term of this agreement shall commence on July 16, 2013 and shall terminate on October 31, • 2013 unless extended by amendment to this agreement. 2. Fees and Personnel. As compensation for our services, our fees will be based on our current standard billing rate for the personnel performing particular services under this agreement at the time such services are rendered. Our standard billing rates, by type of service, for attorneys and paralegals are attached as Attachment 1. Steven Mattas will be the Principal in charge of representing your interests. Kevin Gilbert will have primary responsibility for the litigation. If other attorneys and/or paralegals are assigned to work on your matter, the then current hourly rates of those individuals will be utilized. This agreement retains the legal services of our law firm and not of a particular attorney. 3. Disbursements and Expenses. In addition to hourly fees, we may incur out-of-pocket expenses related to your representation. Our Statement of Fee andBilling.Information, which sets forth the details of our disbursement and expense policy, is attached as Attachment 2. 4. Billing and Payment Responsibilities. We will send monthly statements which are due within 30 days of receipt. If you have any questions about an invoice, please promptly telephone or write me so that we may discuss these matters. Our Statement of Fee and Billing Information sets forth the details of our fee and billing policy. 5. • Termination of Services. The City olPetalurna may terminate our services at any time by written notice. After receiving such notice, we will cease providing services. We will cooperate with you in the orderly transfer of all related:files and records to your new counsel. We may terminate our services at any time with your consent or for good cause. Good cause exists if (a) any statement is not paid within 60 days of its date; (b) you fail to meet any other obligation under this agreement and continue in that failure for 15 days after we send written notice to you; or (c) any other circumstance exists in which ethical rules of the legal profession mandate or permit termination, including situations where a conflict of interest arises. If we terminate our services, you agree to execute a substitution of attorneys promptly and otherwise cooperate in effecting that termination. • Termination of our services, whether by you or by us, will not relieve the obligation to pay for • services rendered and costs incurred before our services formally ceased. 6. Insurance. During the term of thisengagement;;this Meyers Nave shall take out and maintain general liability and property damageinsurancerin amounts not less than $1,000;000; professional errors and omissions insurance, in amounts s not less than$2,000,000 per occurrence; and $4,000,000 aggregate, which insurance-may not be canceled or reduced in required limits of liability unless at least ten days advance written notice be given to you. 7. No Guarantee of Outcome. Any comments made by us about the potential outcome of this matter are expressions of opinion only and are not guarantees or promises about any outcome or results. 8. Dispute Resolution. In the event that City of Petaluma becomes dissatisfied with any aspect of our relationship, we encourage the City of Petaluma to bring such concerns to our attention immediately. If we are unable to resolve any dispute, either arising out of or in connection with this Agreement or relating to the services performed by our firm or any of its attorneys, to our mutual satisfaction, our firm will first comply with any mandatory dispute resolution procedures that may apply to any such dispute. If we are unable to resolve any dispute, and after mandatory dispute resolution procedures have been waived or exhausted, the parties shall submit such dispute to final and binding arbitration in Sonoma County, California before the American Arbitration Association, pursuant to its then prevailing rules, unless the parties agree in writing to a different arbitration method or forum. By signing this agreement, you acknowledge and agree'that you have read and understand this arbitration provision. You understand that by agreeing to arbitration we each give up the right to present our claims or defenses for trial by a-judge or jury, and we also give up the right to an appeal. The initial resort to the courts by either party shall not be considered a waiver of that party's right to compel binding arbitration under this provision. This agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. 9. Entire Agreement; Full Understanding; Modifications-in Writing. This letter contains our entire agreement about our representation. Any modifications or additions to this letter agreement must be made in writing. 10. Joint Representation. Our firm maintains of counsel agreements with certaindegal specialists. Because these individuals are deemed independent contractors under,.the applicable provisions of the tax laws and not employees of the firm, it is necessary that you.consent to dual representation by the firm and the specialist in the event the matter which you have engaged us to handle requires the use of that specialist. This arrangement has no effect whatsoever on the cost of your legal services, rather it is an ethical requirement that we disclose this fact and that you consent. You are consenting by signing this letter. 11. Conflicts. Our firm represents many public agencies in California, Nevada and Arizona. Since 1986, we have represented over seven hundred public clients, including numerous cities, redevelopment agencies, special districts, counties and other public entities, and we are accepting new engagements all the time. It is virtually inevitable that we will work on projects from other June 28, 2013 Page 2 clients having different governmental or political objectives, beliefs or views from the City of Petaluma. Meyers Nave performs a variety of professional services for its public sector clients and it is possible that we will represent public agency clients which are adverse to the City of Petaluma on other matters. To avoid potential problems, you agree that you expressly waive any actual or potential conflicts that might arise from such representation, that you will not attempt to disqualify Meyers Nave on such matters, and that our firm is free to represent its clients on such matters. By signing this letter and returning it to us, you acknowledge that we-have discussed these matters and you confirm that the City of Petaluma does not object to our representation of clients on matters where their legal, governmental or political objectives and/or positions may be different from or adverse to those of the City of Petaluma, and that the City of Petaluma waives any conflict of interests with respect to our representation of such clients with differing legal, governmental or political interests. You further confirm that the City of Petaluma will not assert any conflict of interest concerning such representation or attempt to disqualify this firm from representing such clients notwithstanding such adversity. While you would certainly be free to terminate our relationship, you agree that this firm nonetheless would be free to represent such clients even on those matters which you consider adverse, and that you waive any conflict of interest in connection therewith. These acknowledgments do not permit our firm to represent another client in opposing the specific projects for which you engage us without your specific written consent. You may wish, and we encourage you, to consult legal counsel regarding the effect of this conflict waiver. • DATED: Steven'Mattas Chair, Municipal and Special District Law Meyers Nave DATED: David-Glass Mayor City of Petaluma c: Billing Department Conflicts Department Enclosures: Attachments 1 and 2 Client copy of Engagement Letter 2101670.1 June 28, 2013 Page 3 ATTACHMENT 1 MEYERS, NAVE, RIBACK, SILVER & WILSON RATE SHEET Assistant City Attorney Services $190/hour Special Services and Litigation Principals $260/hour Senior Associates/Of Counsel $220/hour Junior Associates $200/hour Land Use Cost Recovery $270/hour Paralegals $125/hour Special services includes legal services related to enterprise fund, mobile'home rent control, labor and employment, environmental and telecommunications 2101697.1 ATTACHMENT'2 • MEYERS, NAVE,,RIBACK, SILVER &.WILSON • STATEMENT OF FEE AND BILLINGJNFORMATION The following is a general description of our fee and billing policies. These general..policies may be modified by the specific engagement letter or agreement to which this summary is attached. Professional Fees. Our fees for professional services are basedon the fair value of the services rendered.. To help;us determine the value of our services, our attorneys and,;paralegals maintain"time records for each client and matter. Our attorneys and paralegals are assigned hourly rates which;ar'e.based on:years of experience,, specialization, training and level of professional attainment. We adjust our rates periodically (usually at the beginning of each year) to take into account inflation and the increased experience of Our professional personnel. To keep professional fees at a minimum, legal work that does not require;mormexperienced attorneys will-be performed, where feasible, by attorneys with lower billing rates. Of course,the quality of the work is paramount, and we do not sacrifice quality to economy. Before undertaking a particular assignment, we will, if"requested,provide you with a fee estimate to the extent possible. Estimates are not possible for some matters,however, and cannot:berrelied on in many others because;the scope of our work will not be clear at the outset. When a fee estimate is given, it-is only=an. estimate;it is-not a maximum or minimum fee quotation. The.actual fee may-,be<more;or less than the quoted estimate. Billing And Payment Procedures. Unless other arrangements are made at thettirime of the engagement, invoices will be sent monthly. Invoices for outside services exceeding $100 may be billed separately. Occasionally, however, we may defer billing for a given month or months if the accrued fees and costs do not warrant'current billing or if other circumstances would make it appropnate,to defer billing. Our invoices contain a brief narrative description of the work.performed; if:_requested, the initials of the attorney who performed the work will appear on the statement. The invoice will include'a line item,reflecting. in-house administrative costs. 'The firm's in-house administrative costs include duplicating, facsimile charges, telephone charges, E-mail, postage, mileage and other administrative•expenses. The firm will be reimbursed for all outside services incurred in the course of providing,legal servicesto our client(s). Outside services will include, but are not limited to, all third-party expenses, delivery charges„travel expenses, outside research services, filing fees, expert witness and expert consultantfees If you have any questions regarding an invoice, the Finance Director or Executive Director is available,to answer your questions. For any unresolved matters, the Bar Association hasanarbitration mechanism that can be used:to resolve such matters. .Late Payments. Statements for services are payable upon presentation and, intall;events,within thirty (30) days after receipt. Occasionally a client has difficulty in making timely payments. To avoid.burdening those. clients who pay their statements promptly with the added costs we incur as a result of'late payments, a late charge will be assessed on statements not paid within thirty (30) days. The=maximum;monthly'late•payment charge will be 1.5% per month. In the unlikely event we are required to institute legal proceedings to collect fees:and costs, the prevailing party will be entitled to reasonable attorneys' fees and-other costs of collection.