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CC - Item 4A - City Attorney Services AgreementROSEMEAD CITY COUNCIL STAFF REPORT TO: MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: October 13, 2009 SUBJECT: CITY ATTORNEY SERVICES AGREEMENT SUMMARY The City Council will consider approval of an agreement to retain the law firm of Burke, Williams & Sorenson as its City Attorney. Joseph Montes, with the firm of Burke, Williams & Sorenson, currently serves as the City Attorney on an "Interim" basis. The agreement essentially will remove the "Interim" designation and continue existing service levels and rates. So that all agreements with the firm of Burke, Williams & Sorenson are set forth in one place, the agreement also reiterates provisions of the existing agreement with the firm, under which Mr. Montes serves as General Counsel to the Rosemead Community Development Commission (CDC) and the Rosemead Housing Development Commission (HDC). The agreement provides the City with the right to terminate the services of the firm at any time upon written notice. Staff Recommendation Staff recommends that the City Council authorize the agreement to be executed by the Mayor, who also serves as the Chair of the CDC and HDC. ANALYSIS In March of 2009, Joseph Montes as a member of the firm of Burke, Williams & Sorenson, was retained as Interim City Attorney. Previously, Mr. Montes had been designated as the General Counsel of the CDC and HDC and has continued in those capacities since March. Since March of 2009, other members of the firm have also served in the capacity of Interim Assistant City Attorney providing legal services to the Planning Commission and other bodies. During these periods of service, Mr. Montes and the firm have performed admirably and gained the confidence of the City's elected and appointed officials. The current rate charged by Burke Williams & Sorenson for City Attorney/Assistant City Attorney services is a discounted $225 per hour, which is less than Mr. Montes' standard billing rate of $255 as a partner in the firm. ITEM NO.L4.N - APPROVED FOR CITY COUNCIL AGENDA: October 13, 2009 Jeffry B. Allred City Manager City of Rosemead City Hall 8838 East Valley Boulevard Rosemead, CA 91770 Re: City of Rosemead City Attorney Services, Rosemead Community Development Commission Agency Counsel and Rosemead Housing Development Corporation General Counsel Retainer Agreement Dear Mr. Allred This letter is a written retainer agreement of the terms under which Burke, Williams & Sorensen, LLP ("Burke") has been retained by the City of Rosemead ("City") as its City Attorney (as described herein), by the Rosemead Community Development Commission ("CDC") to serve as its Agency General Counsel and the Rosemead Housing Development Corporation ("HDC") as its General Counsel. The City, HDC and the CDC are collectively referred to herein as "Client." California Business and Professions Code Section 6148 requires a written fee agreement between attorneys and their clients setting forth the scope of services and fees to be charged. When executed by you below and delivered to us, this agreement shall satisfy the requirements of Section 6148. This Agreement is intended to supercede any and all prior agreements between Client and Burke. If this agreement fully sets forth your understanding of the terms and conditions of our representation, please execute four copies and return one to the undersigned in the self-addressed envelope provided. The other three copies are to be retained by the City, HDC and the CDC. 1. Scope of Representation for the CDC. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the CDC as our client, as its General Counsel. Such representation includes, but is not limited to, providing advice on Redevelopment Projects and operation of the Agency, drafting of required legal documents, attendance at CDC meetings, prosecution of actions on behalf of the CDC to implement redevelopment projects undertaken by the CDC, or defend challenges to same and such other matters as the CDC may request from time to time. 2. Scope of Representation for the HDC. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the HDC as our client, as its General Counsel. Such representation includes, but is not limited to, providing advice on housing projects and operation of the HDC, drafting of required legal documents, attendance at HDC meetings, prosecution of actions on behalf of the HDC to implement projects undertaken by the HDC, or defend challenges to same and such other matters as the HDC may request from time to time. LA #4834-6153-6516 0 3. Scope of Representation for the City. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the City of Rosemead as its City Attorney. Joseph Montes shall be the City's designated City Attorney. Rachel Richman shall be the City's designated Assistant City Attorney. Any change to the designation of the Assistant City Attorney shall require the written approval of the City Manager. In the absence of the City Attorney, the Assistant City Attorney may act on behalf of the City Attorney. The scope of Burke's representation of the City as City Attorney shall include, but not be limited to, a. Attend all regular meetings of the City Council and adjourned and special meetings of the City Council. b. Attend meetings of the Planning Commission. C. Attend other meetings of boards, commissions and committees of the City. d. Provide legal advice and opinions on all matters affecting the City, except when prevented from doing so by a conflict of interest. e. Prepare resolutions and ordinances initiated by the City. f. Prepare or review and certify as to legal form contracts, agreements and other documents between the City and other parties. g. Prepare or review and certify as to legal form contracts, agreements and other documents (i) for the acquisition or disposal of services, supplies, equipment or land by the City; or (ii) for public works or projects initiated by the City. Criminal prosecution of violations of City ordinances. Represent the City in civil litigation brought on behalf of, or against, the City, as directed by the City Council. Other duties as assigned by the City Manager or City Council. k. Prepare or review bond documents, as City Attorney. Should the City require services as bond counsel or disclosure counsel, such services shall be provided pursuant to separate agreement, at rates set forth in such other agreement. 4. Client's Obligations. Client agrees to be truthful, to cooperate, and to keep Burke advised of information and developments pertaining to this engagement. Client also agrees to keep Burke informed of Client's current address and telephone number and to pay the fees, costs and other sums incurred when due. p. 2 of 6 LA #4834-6153-6516 v1 5. Fees. Fees for this engagement are computed on an hourly basis in accordance with the rates assigned to the particular attorneys performing the work. The rates of the attorneys for this engagement will be as set forth on the attached Exhibit A. The firm's billing rates are subject to revision annually, starting January 1, 2010. If the increase is equal to or less than the Consumer Price Index for the prior 12 months, client will be notified in writing of such increase. Any increase greater than the CPI shall require written agreement by the Client. Burke reserves the right to forego any rate increase in any given year, provided that in subsequent years, Burke may increase rates by such deferred increase amount without further Client consent. Additionally, City, HDC and CDC agree that Burke may charge its standard private client (as opposed to public entity client) rates for work that is reimbursed by private parties pursuant to litigation, conditions of approval, etc. 6. Costs. Burke will bill Client for costs and expenses incurred in connection with this engagement. These currently include, but are not limited to, expenses away from the office on Client's behalf, automobile mileage at the standard rate for business use as announced from time to time by the Internal Revenue Service, the actual cost of other travel, long distance telephone charges, facsimile transmissions, computer research, copying charges, the cost of producing or reproducing photographs, documents or other things, filing fees, and similar expenses. 7. Billing. Burke's attorneys bill in 1/101h of one hour increments. The firm's billing cycle typically runs from the first day of the month to the last day of the month. The HDC, City and the CDC will each receive separate statements each month for services rendered and costs incurred during the immediately prior month. Bills are due and payable within thirty (30) days of presentation. Payment is not contingent upon any aspect of this engagement. 8. Experts. Should Burke deem it necessary to engage an expert in any matter, Client will be directly responsible for the hiring and payment of all fees for such expert services. Burke will not undertake to engage any such expert without prior consultation with Client and then only with Client's consent. 9. Attorney's Lien. Client agrees that Burke may deduct all fees and costs not previously paid from any sums coming into Burke's possession by way of settlement, judgment, execution or otherwise. 10. Conflicts. The California Rules o- by the California State Bar, require that an att from a client prior to undertaking work where t existing or future clients (Rule 3-310). Should written waiver from the City or CDC arise, the such waiver on behalf of the City or CDC. Professional Conduct, as promulgated )rney receive informed written consent sere is a potential for conflicts between potential conflict of interest requiring a City Manager is authorized to execute 11. Document Retention. Client is entitled upon written request to any files in our possession relating to the legal services performed by us for Client, excluding our internal accounting records and other documents not reasonably necessary to your p. 3 of 6 LA #4834-6153-6516 v1 representation, subject to our right to make copies of any files withdrawn by you. Once your matter is concluded, we will close your file, and you will receive notice thereof. Your physical files may be sent to storage offsite, and thereafter there may be an administrative cost for retrieving them from storage. Thus, we recommend that you request the return of your file at the conclusion of your matter. Please be advised that the firm will destroy Client's files at three years after this matter is closed, unless other arrangements are made with Client, and Client hereby authorizes the firm to do so. The firm and the Client agree that all Client-supplied materials and all attorney end product (referred to generally as "client material") are the property of the Client. 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. 12. Fee Disputes. If a dispute between Client and Burke arises over fees or other amounts charged to Client for services, the controversy will be submitted to binding arbitration in accordance with the rules of the California State Bar Fee Arbitration Program, set forth in California Business and Professions Code, Sections 6200 through 6206. The arbitrator or arbitration panel shall have the authority to award to the prevailing party in such arbitration attorney's fees, costs and interest incurred. Any arbitration award may be served by mail upon either side and personal service shall not be required. 13. Termination of Representation. Client has the right to terminate Burke's services upon written notice at anytime. Burke also has the right to terminate this engagement to Client upon written notice in the event Client fails to make any payment when due, or to cooperate on a reasonable request, or in the event that Burke determines, that to continue services to Client would be unethical, impractical, or improper. 14. Notices. Any notices required under this agreement shall be in writing and shall be deemed to have been duly served if delivered in person to the party for whom it is intended or if delivered at or sent by registered or certified mail, or overnight courier service with signature required from the receiving party, to the residential or business address of the party for whom intended, provided that notices to Client may be sent to Client's last known address as shown on Burke's records. 15. Miscellaneous. The effective date of this agreement shall be retroactive to the date Burke first performs services for Client. This agreement shall be governed by the laws of the State of California, without regard to the doctrine of conflicts of law. The terms of this engagement agreement are not set by law but are the result of negotiation between the parties. Client has the right to consult with another attorney regarding this agreement before signing it. This agreement constitutes the entire agreement between the parties. LA #4834-6153-6516 v1 p. 4 of 6 We are pleased that the City, HDC and the CDC have decided to retain our firm and we look forward to serving you. Please contact Joe Montes or the undersigned if, at anytime, you have questions. Very truly yours, BURKpE, WILLIAMS & SORENSEN, LLP ,14H ' W LSH MAN GING ARTNER I/we have read and understand the foregoing terms and provisions and agree to same as of October 13, 2009. CITY OF ROSEMEAD By: Its: ROSEMEAD HOUSING DEVELOPMENT CORPORATION By: Its: ROSEMEAD COMMUNITY DEVELOPMENT COMMISSION By: Its.. p.5of6 LA #48346153-6516 v1 Exhibit A City Attorney/Assistant City Attorney $225 per hour Partners $235 per hour, 12 years or less experience $255 per hour, 13 to 20 years $275 per hour, 21 years or more Associates $175 per hour, 1S year $185 per hour, 2"d year $195 per hour, 3`d year $205 per hour, 4th year $215 per hour, 5th year $220 per hour, 6th and above Paralegals/Law Clerks $135 per hour p.6of6 LA #4834-6153-6516 v1