CC - Item 4A - City Attorney Billing Procedures• •
ROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: OLIVER C. CHI, CITY MANAGER4,
DATE: APRIL 8, 2008
SUBJECT: DISCUSSION REGARDING CITY ATTORNEY BILLING PROCEDURES
SUMMARY
Council Member Taylor has requested that the City Council engage in a discussion related to
several different issues concerning the City Attorney.
First, the Council Member Taylor has requested that the City Council review of the City Attorney's
contract as it relates to payment for services. Currently, the City has received billing statements for
work performed through the end of the month of December 2007 for retainer related services and
for litigation related services. In addition, the City has received billing statements for work on the
Grand Jury Referral matter through the end of the month of November 2007.
Per Council Member Taylor's request, we have included a copy of the agreement for City Attorney
Services for review (Attachment A). "Payment for Services" is included in the contract per Section
3, Subsection G of the document.
In addition, Council Member Taylor has requested the opportunity to review the City Attorney's
billing statements, including billing detail, as it relates to the review of the distribution of postcards.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Attachment A: Agreement For City Attorney Services
APPROVED FOR CITY COUNCIL AGENDA:
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AGREEMENT FOR CITY ATTORNEY SERVICES
THIS AGREEMENT, is made and entered into by and between the CITY OF
ROSEMEAD, a California public entity, corporate and politic (hereinafter "City") and the
law firm of GARCIA CALDERON RUIZ, LLP, a limited liability partnership (hereinafter
"GCR") and shall be effective September 1, 2007. In consideration. of.the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration the receipt and sufficiency of which is hereby agreed, the parties agree as
follows:
SECTION 1. Recitals. This Agreement is made and entered into with respect to
the following facts:
A. City desires to engage the services of GCR to act as City Attorney and to
perform all legal services which are needed by the City; and,
B. GCR has agreed to provide such legal services, in the time, manner and
for the compensation, as hereinafter set forth; and,
C. That the City Council has heretofore determined that the public interest,
convenience and necessity require the execution of this Agreement.
SECTION 2. Legal Services. GCR shall perform the legal services necessary
to serve the City which shall include, but are not limited to, the following:
A. GCR shall attend all meetings of the City Council unless excused by the
Mayor or the City Manager of the City, as well as attend any other meetings as so
requested by the Mayor or the City Manager of the City;
B. Provide legal advice and opinions on all matters affecting the City when
requested by the City Council, Mayor, City Manager, or a Department Head of the City
of Rosemead, and represent the City in administrative proceedings and litigation
involving the City which may arise from those matters upon which such advice has been
given; and,
C. Prepare and approve as to legal form all resolutions, ordinances,
contracts, agreements and other legal documents and represent the City in
administrative proceedings and litigation involving the City which may arise from those
matters upon which such advice has been given; and,
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GCR shall not be required to perform the services described above where to do
so would be'a conflict of interest pursuant to the State Bar Act.
SECTION 3. Compensation. GCR shall be compensated by City for the
performance of such services as follows:
A. Monthly Retainer: The City shall compensate GCR a monthly retainer fee,
exclusive of expenses, of Fifteen Thousand Dollars ($15,000.00) for seventy hours of
coverage by the attorneys of the Firm at all meetings of the City Council, any meetings
of other City commissions or agencies as requested by the City Manager or City
Council, and the provision of routine City Attorney services in the following areas:
• Open government and ethics
• Elections
• Personnel and Human Resources
• Municipal services and utilities
• Public contracting
Public property
• Regulating businesses and personal conduct
B. Basic Services. For hours of routine City Attorney services provided in
excess of seventy hours GCR shall be compensated at the discounted and blended
hourly rate of $210.00 for partners and associates and other attorneys serving with the
GCR, $150.00 per hour for law clerks, and $125.00 per hour for paralegals. Such
additional fees, exclusive of costs, shall not exceed $15,000.00 in any single month.
C., Extraordinary and Specialty Services: The monthly retainer fee and fees
for Basic Services referenced in Sections 3A and 3B above shall not cover the handling
of "extraordinary" matters. The term "extraordinary" shall include:
• Public finance or bond counsel services
• Litigation or preparation for litigation;
• Court proceedings, arbitrations or hearings challenging the City Council's
or City Manager's determinations with respect to public employee
appointments, discipline, releases, or reassignments;
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• California Department of Fair Housing and Employment or federal Equal
Employment Opportunity Commission complaint or proceeding;
• California Public Employee Relations Board or Office of Administrative
Hearings complaint or proceeding;
• Other administrative or fact-finding hearing or preparations for the
foregoing;
• Investigations of City personnel, consultants or vendors;
• Investigation of any complaint or claim filed or threatened to be filed
against the City;
• Any collective bargaining; nor
• Any other matter which the City Manager and City Attorney, or the City
Council determine to be "extraordinary."
The Monthly Retainer and Basic Services shall also not include "specialty" legal
services which shall be defined as matters involving the handling of major business
transactions, real estate, intellectual property, software, and or school financing, bid
protests, eminent domain, inverse condemnation, construction defect or other
construction related matters.
The rates for extraordinary and specialty matters as set forth in sub-paragraph A
above shall range from $205.00 to $225.00 per hour for associate attorneys and
$235.00 to $295.00 per hour for partners, special counsel, of counsel, senior lawyers of
the firm and lawyers with seven or more years of experience.
D. The hours and amount of the Monthly Retainer, the rates and cap on fees
for Basic Services, and the rates for Specialty Services as set forth in sub-paragraphs
3A, B and C, above, shall be adjusted annually at the close of the City of Rosemead's
fiscal year (June 30), by the increase in the Consumer Price Index ("CPI") by measuring
the change in the CPI (measured from the average of the monthly increase in the
calendar year preceding the conclusion of such fiscal year). The percentage increase in
the CPI shall be determined through the use of the CPI publications of the Bureau of
Labor Statistics, United States Department of Labor or its successor as published for
Urban Wage Earners and Clerical Workers @, All Items @, Los Angeles County Area @
(1982-84=100). In the event such CPI ceases to be published, the parties shall utilize
such substitute index as common in the industry to measure cost of living increases.
E. Legal Services for Bond and Financial Matters. For public finance, the fee
structure for bond counsel services is one percent of the first $8 million executed and
delivered; one-half percent of the next $4 million executed and delivered; and one-
quarter percent of all amounts in excess of the first $12 million subject to a minimum fee
of Sixty Thousand Dollars ($60,000.00). In the event that multiple series of bonds or
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notes are issued, the foregoing fee schedule would be applied to each issue, subject to
the $60,000.00 minimum fee. Payment of the fees are entirely contingent upon the
successful execution and delivery of the bonds or notes to be payable on or after
delivery except for out-of-pocket expenses.
The fee for disclosure counsel services is a flat fee of $40,000.00 per issuance
under $5 million; $50,000.00 per issuance under $10 million; and $60,000.00 per
issuance over $10 million; provided that the transaction does not present any unusual
disclosure concerns, such as previously undisclosed liabilities or prior failure of the
issuer to comply with disclosure requirements for other financings.
F. Reimbursable Expenses. GCR shall be entitled to reimbursement for all
reasonable and necessary expenses incurred by it in the performance of legal services
hereto, provided that the same are first approved by the Executive Director.
Reimbursable expenses to which GCR shall be entitled shall include, but not be limited
to, duplication costs, word processing costs, travel, telephone and telecommunications
costs, extraordinary mail costs, messenger service, and other costs customarily made
as a part of the performance of legal services by GCR.
G. Payment for Services. GCR shall submit monthly statements to the City
accounting for all services provided and costs incurred pursuant to the terms of this
Agreement. Said statements shall clearly set forth by date the type of work performed,
the time spent on a task and the attorney performing the task. Payment to GCR shall
be made by City within thirty (30) days of receipt of the statement, except for those
specific items on the billing which are contested or questioned and returned by City,
with written explanation, within thirty (30) days of receipt of the statement. GCR shall
provide to City a written response to any statement contested or questioned and further,
upon request of City, provide City with any and all documents related to the service or
costs. No charge shall be made for time expended in providing this information to the
City.
SECTION 4. Term. The term of this Agreement shall commence on September
1, 2007, shall supersede all prior written retainer agreements between the City and
GCR, and shall continue thereafter unless terminated by either party hereto pursuant to
the terms of this Agreement. The City Council-may terminate this Agreement at any
time. GCR may terminate this Agreement on the giving of thirty (30) days written notice
to the City of such termination. GCR will comply with all obligations required of it
pursuant to the State Bar Act in connection with such termination and the transition to
replacement counsel. GCR shall be compensated for its services rendered through and
including the effective date of such termination.
SECTION 5. Document Retention. City is entitled, upon written request, to any
files in our possession relating to the legal services performed by GCR for City,
excluding our internal accounting records and other documents not reasonably
necessary to City representation, subject to our right to make copies of any files
withdrawn by City. Upon termination of services under the Agreement, GCR will close
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City's file. City's physical files may be sent to storage offsite, and thereafter there may
be an administrative cost of retrieving them from storage. Thus, GCR recommends that
City request the return of City files if this'Agreement is terminated. Under the GCR
document retention policy, files are normally destroyed five years after a matter is
closed, unless other arrangements are made with the client.
GCR and City agree that all client-supplied materials and all attorney end
produce (referred to generally as "client material") are the property of the City. Attorney
end product includes, for example, finalized contracts, pleadings, and trust documents.
The firm and the client agree that attorney work product is the property of the firm.
Attorney work product includes, for example, drafts, notes, internal memoranda and
electronic files, and attorney representation and administration materials, including
attorney-client correspondence and conflicts materials.
If services are terminated, GCR will notify the client of any client materials that
remain in GCR's possession. The City will be invited to retrieve these materials within
45 days of notice, or the City may direct GCR to forward the materials to the City, at the
City's expense. If within 45 days of this notice City fails to retrieve the materials or
request GCR to forward them, the City authorizes GCR to destroy the client materials.
After the 45-day period, GCR will, consistent with all applicable rules of
professional conduct, use its discretion as to the retention or destruction of all attorney
work product and any City materials that remain with the firm.
SECTION 6. The Garvey School District. GCR is aware, and has previously
disclosed to the City, that the City is a party to litigation involving the Garvey School
District ("District") regarding the City's granting of a conditional use permit for the
development of a Wal-Mart store project. GCR is the General Counsel to the District.
Neither GCR nor any of its attorneys have ever represented the District in the foregoing
litigation, nor been privy to any attorney client privileged communication or attorney
work product involving said litigation.
Rule 3-310(C)-(F) of the California Rules of Professional Conduct provides as
follows:
(C) A member shall not, without the informed written of
each client:
(1) Accept representation of more than one client
in a matter in which the interests of the clients
potentially conflict; or
(2) Accept or continue representation of more than
one client in a matter in which the interests of
the clients actually conflict; or
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time in a separate matter accept as a client a
person or entity whose interest in the first
matter is adverse to the client in the first
matter.
(D) A member who represents two or more clients shall
not enter into an aggregate settlement of the claims of
or against the clients, without the informed written
consent of each client.
(E) A member shall not, without the informed written
consent of the client or former client, accept
employment adverse to the client or former client
where, by reason of the representation of the client or
former client, the member has obtained confidential
information material to the employment.
(F) A member shall not accept compensation for
representing a client from one other than the client
unless:
(1) There is no interference with the member's
independence of professional judgment or with
the client-lawyer relationship; and
(2) Information relating to representation of the
client is protected as required by Business and
Professions Code section 6068, subdivision
(e); and
(3) The member obtains the client's informed
written consent, provided that no disclosure or
consent is required if:
(a) such nondisclosure is otherwise
. authorized by law, or
(b) the member is rendering legal services
on behalf of any public agency which
provides legal services to other public
agencies or the public.
Rule 3-310 requires that California attorneys avoid representation of adverse
interests concerning their clients without the informed written consent of the affected
client. GCR does not believe that Rule 3-310 is applicable to the aforementioned
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litigation between the City and the District because GCR nor any of its attorneys have
ever been involved in that litigation in the past nor shall they be in the future.
SECTION 7. Notices. Notices required pursuant to this Agreement shall be
given by personal service upon the party to be notified, or by delivery of same to the
custody of the United States Postal Service, or its lawful successor, postage prepared
and addressed as follows:
CITY: City of Rosemead
8838 East Valley Boulevard
Rosemead, California 91770
Attention: City Manager
GCR: GARCIA CALDERON RUIZ, LLP
500 South Grand Avenue
Suite 1100
Los Angeles, CA 90071
Attention: Bonifacio Bonny Garcia, Esq.
Service of a notice by personal service shall be deemed to have been given as of
the date of such personal service. Notices given by deposit with the United States
Postal Service shall be deemed to have been given two (2) consecutive business days
following the deposit of the same in the custody of said Postal Service. Either party
may, from time to time, by written notice to the other, designate a different address
which shall be substituted for the one above specified.
SECTION 8. Indemnification. GCR does hereby agree to hold City, and its
elected and appointed officers and officials, employees and other agents free and
harmless from any claim, demand or judgment which may arise based upon personal
injury or damage to property to a third party arising out of the performance of services
by GCR hereto.
SECTION 9. Insurance. Not in derogation of the provisions of Paragraph 7
hereof, GCR does hereby agree to take out and maintain in full force and effect under
the terms of this Agreement the following insurance coverage:
A. Such insurance coverage as is required pursuant to the Workers
Compensation Laws of the State of California; and,
B. A liability policy with coverage of not less than $1,000,000.00; and,
C. Professional Liability (errors and omissions) insurance in an amount of not
less than $1,000,000.00.
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SECTION 10. General Provisions.
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A. GCR shall not assign this Agreement, or any of the rights, duties or
obligations hereunder. It is understood and acknowledged by the parties that GCR is
uniquely qualified to perform the services provided for in this Agreement.
B. GCR is and shall at all times remain as to the City a wholly independent
contractor. Neither the City nor any of its officers, employees, servants or agents shall
have control over the conduct of GCR or any of GCR's officers, employees or agents.
GCR shall not at any time or in any manner represent that it or any of its officers,
employees or agents are in any manner employees of the City. City acknowledges and
agrees that the General Counsel, Assistant General Counsel and attorneys
representing the City will need to represent to others their capacity and relationship to
the City.
C. In the performance of this Agreement, GCR shall not engage in
discrimination in employment of persons because of the age, race, color, sex, national
origin or ancestry or religion of such persons.
D. Nothing contained in this Agreement shall be deemed, construed or
represented by the City or GCR to any third person to create the relationship of principal
or agent, or of a partnership, or of a joint venture, or of any other association of any kind
or nature between the City and GCR.
E. This Agreement constitutes the entire agreement of the parties concerning
the subject matter hereof and all prior agreements or understandings, oral or written,
are hereby merged herein. This Agreement shall not be amended in any way except by
a writing expressly purporting to be such an amendment, signed and acknowledged by
both of the parties hereto.
F. Should interpretation of this Agreement, or any, portion thereof, be
necessary, it is deemed that this Agreement was prepared by the parties jointly and
equally, and shall not be interpreted against either party on the ground that the party
prepared the Agreement or caused it to be prepared.
G. No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision. No waiver
shall be binding, unless executed in writing by the party making the waiver.
H. The law of the State of California will govern the validity of this Agreement,
its interpretation and performance. Any litigation arising in any way from this Agreement
shall be brought in Los Angeles County, California.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their representatives as follows:
CITY of ROSEMEAD
Dated: August _ 2007 By: Oe-c,
Interim City Manager
GARCIA CALDERON RUIZ, LLP
A LimiAd Liability,Rartnership
Dated: August 2007
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