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HomeMy WebLinkAbout2010-04-13 City Council & RDA Item No. 4CITY OF i~ LAKE LS I lYOIZE DREAM EXTREME.. REPORT TO CITY COUNCIL AND REDEVELOPMENT AGENCY TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL HONORABLE CHAIRMAN AND MEMBERS OF THE REDEVELOPMENT AGENCY FROM: BARBARA LEIBOLD CITY ATTORNEY/AGENCY COUNSEL DATE: APRIL 13, 2010 RE: SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT FOR LEGAL SERVICES Background The Agreement for Legal Services between the City/Agency and the law firm of Leibold McClendon & Mann provides that the City Council annually review the City Attorney's performance. Such performance evaluation was conducted in closed session at the City Council's meeting on March 23, 2010. A copy of the Agreement for Legal Services is attached along with a copy of the First Amendment approved in 2008. The First Amendment addressed a change in the firm's name and the term of the agreement. Discussion An amendment to the existing Agreement for Legal Services is necessary to reflect an extension of the term of the agreement to June 30, 2011. A Second Amendment has been prepared by the City Attorney and is attached for consideration by the City Council and Redevelopment Agency. This Second Amendment reflects only the change to the term. Fiscal Impact The proposed Amendment does not change the financial terms of the existing Agreement for Legal Services. AGENDA ITEM NO. 4 Page 1 of 13 Second Amendment to Amended and Restated Agreement for Legal Services April 13, 2010 Page 2 Recommendation That the City Council and Agency Board approve the Second Amendment to the Amended and Restated Agreement for Legal Services and authorize the Mayor and Chairman to execute the same. Prepared by: Barbara Leibold City Attorney Approved by: Robert A. Brady City Manager Attachments: Second Amendment Existing Agreement for Legal Services, as amended Page 2 of 13 SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT FOR LEGAL SERVICES This Second Amendment to the Amended and Restated Agreement for Legal Services (the "Amendment'), dated as of April 1, 2010 (the "Effective Date"), is by and among the City of Lake Elsinore ("City") and the Lake Elsinore Redevelopment Agency (the "Agency"), on the one hand (the Agency and the City are collectively referred to herein as "Employer"), and Leibold McClendon & Mann ("Employee"), on the other hand. RECITALS A. Employee serves as City Attorney of the City and General Counsel of the Agency by way of the Amended and Restated Agreement for Legal Services dated as of September 27, 2005, as amended by the First Amendment dated April 8, 2008 (collectively, the "Agreement'). B. On March 23, 2010, the City Council evaluated the performance of Employee and authorized the City Attorney to prepare this Second Amendment to the Agreement. AGREEMENT 1. The Term of Agreement shall be extended through June 30, 2011. 2. Except as provided herein, the terms and conditions set forth in the Agreement shall remain in full force and effect. IN WITNESS WHEREOF the parties have caused this Second Amendment to be executed on April 13, 2010. CITY OF LAKE ELSINORE: LAKE ELSINORE REDEVELOPMENT AGENCY: Melissa A. Melendez Mayor Robert E. Magee Chairman ATTEST: Carol Cowley Interim City Clerk/Agency Secretary Second Amend Agr for Legal Services 040610 PREPARED BY: Barbara Leibold City Attorney/Agency General Counsel 1 Page 3 of 13 Page 4 of 13 AMENDED AND RESTATED AGREEMENTFUR LEGAL SERVICES This Amended and Restated Agreement for Legal Services (the "Agreement") is made and entered into as of the 27th day of September 2005, by and between the City of Lake Elsinore, a municipal corporation and the Redevelopment Agency of the City of Lake Elsinore, a public body, corporate and politic (collectively as the "City"), on the one hand, and Van Blarcom, Leibold, McClendon & Mann, a professional corporation ("VLMM"), on the other hand. RECITALS A. City engaged VLMM to perform the duties of the office of the City Attorney and Agency General Counsel by Agreement dated July 1, 1997 and amended by City Council action on June 26, 2001 (the "Existing Agreement"), B. VLMM is specially trained, experienced and competent to perform the special services which will be required by this Agreement. C. VLMM possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. D. City and VLMM desire to enter into this Agreement to amend and restate the Existing Agreement. AGREEMENT 1. Scope of Services. By this Agreement, City retains VLMM to perform the duties of City Attorney and Agency General Counsel and to provide the services described on Exhibit A which is attached hereto and incorporated herein by reference. VLMM shall provide said services at the time, place, and in the manner specified in Exhibit A; subject to the direction of the City Council and the Redevelopment Agency Board (collectively as the "City Council"). in connection with the performance of the duties of the City Attorney/Agency General Counsel, City agrees to be truthful with VLMM, to cooperate with VLMM's representation, and to make available, in prompt and businesslike manner, all necessary and available documentation and background data as may be necessary from time to time. 2. Term of Agreement. The terms and conditions under this Agreement shall commence on September 1, 2005 and shall continue thereafter unless amended or terminated until September I, 2007. 3. Compensation. Compensation to be paid to VLMM shall be in accordance with the Schedule of Charges set forth in Exhibit B, which is attached hereto and incorporated herein by reference. 4. Method of Payment. VLMM shall submit monthly billings to City describing the work performed during the preceding month. VLMM's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. Services will be billed in increments of one- tenth (1/10"i) of an hour. City shall pay VLMM no later than 30 days after approval of the monthly invoice by the City Manager. Page 5 of 13 5. Termination. This Agreement may be terminated by the City immediately for cause or by either party without cause upon thirty (30) days' written notice of termination. Upon termination, VLMM shall be entitled to compensation for services performed up to the effective date of termination. 6. Ownership of Documents. All writings prepared by VLMM in the course of implementing this Agreement, except working notepad, preliminary draft and internal documents, are the property of the City. VLMM's Books and Records. a. VLMM shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of payment to VLMM under this Agreement, b. VLMM shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination of this Agreement. C. Anyrecords or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit by the City Manager, City Auditor or City Councilmember(s), at any time during regular business hours, upon written request by the City Council. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at VLMM's address indicated for receipt of notices in this Agreement. Nothing herein shall require or permit the release or inspection of any privileged document without the express written waiver of such privilege by the City Council. d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of VLMM's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. 8. Independent Contractor. It is understood that VLMM, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. VLMM shall obtain no rights to retirement. benefits or other benefits which accrue to City's employees, and VLMM hereby expressly waives any claim it may have to any such rights. 9. Interests of VLMM. VLMM (including principals, associates and professional employees) covenants and represents that it does not now have any investment or, interest in real properly and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of VLMM's services hereunder. VLMM further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. CilyAttnnmyLegal Services Agreernent.Finai Page 6 of 13 10, Professional Ability of VLMM. City has relied upon the professional training and ability of VLMM to perform the services hereunder as a material inducement to enter into this Agreement. VLMM shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by VLMM under this Agreement shall be, in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in VLMM's field of'expertise. II. Compliance with Laws. VLMM shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 12. Licenses. VLMM represents and warrants to City that it has the licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of VLMM to practice its profession, VLMM represents and warrants to City that VLMM shall, at its sole cost and expense, keep in effect or obtain at all times during the tenn of this Agreement, any licenses, pennits, insurance and approvals which are legally required of VLMM to practice its profession. 13, Imderrmity. VLMM agrees to defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs and expenses in connection therein), arising out of the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers. 14. Professional Liability Coverage. VLMM shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from V LMM's operations under this Agreement, whether such operations by the VLMM or by its employees, subcontractors, or subconsuttants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims-made annual aggregate basis, or a combined single limit per occurrence basis. 15. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of tnailing if mailed as provided in this section. rf to City: City of Lake Elsinore Attn: City Manager 130 South Main Street Lake Elsinore, CA 92530 If to VLMM: Van Blarcom, Leibold, McClendon & Mann, P.C. Attn: Barbara Zeid L,eiboid 23422 Mill Creek Drive, Suite 105 Laguna Hilts, CA 92653 OLVAUomeyLegxl Services Arcenicnl.Finul 3 Page 7 of 13 16. Entire Agreement. This Agreement is an amendment and restatement of the Existing Agreement and constitutes the complete and exclusive statement of Agreement between the City and VLMM. All prior written and oral communications, including the Existing Agreement, correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 17. Amendments. This Agreement may be modified or amended only by a written document executed by both VLMM and City and approved as to form by the City Attomey. 18. Assit nment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of VLMM. VLMM shall be fully responsible to City for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the VLMM under this Agreement will be permitted only with the express consent of the City. VLMM shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the City. ]f City consents to such subcontract, VLMM shall be fully responsible to City for all acts or omissions of those subcontractors. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 19. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 20. SeverabilitY. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 21. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in tine County of Riverside. 22. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 23. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation, The parties shall mutually agree upon the mediator and share the costs of mediation equally. It the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE ("JAMS") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 24. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one mid the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 4 CityAtlomeyl-egal Services Agmemenl.Ftnal Page 8 of 13 25, Authority to Enter Agreement. VLMM has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 26. Prohibited Interests. VLMM maintains and warrants that it has not. employed nor retained any company or person, other than a bona fide employee working solely for VLMM, to solicit or secure this Agreement. Further, VLMM warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for VLMM, any fee, commission, percentage, brokerage fee, gill orother consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 27. Equal Opportunity Employment. VLMM represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. VI-MM shall also comply with all relevant provisions of City's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. 28. Annual Performance Review. The City Council shall annually review the perl'onnanee of VLMM in the first quarter of each calendar year. IN WITNESS WHEREOF the panties have caused this Agreement to be executed on the date first written above. CITY OF LAKE ELSINORE/: REDEVELOPMENT AGENCY OF THE CITY OF..LA.KE ELSINORE: Robert A, /Executive Manager/ AT'rES'I' City Clerk/Agendy Secretary 0(yAuomey1cym1 Services Agreementfinal VANBLARCOM, LEIBOLD, MCCLENDON & MANN, P.C. 4 Barbara ` eid Leibold 5 Page 9 of 13 EXHIBIT "A" SCOPE OF SERVICES Barbara Leibold is hereby designated as the City Attorney to the City and General Counsel to the Redevelopment Agency, Additional attorneys and licensed paralegals my be assigned to perform services in connection with the performance of the Agreement as deemed necessary and appropriate by Ms. Leibold. General Legal Services. This work consists of attending regularly scheduled meetings of the City Council, Agency Board and Planting Commission along with review of standardized agreements and the provision of legal advice on general municipal matters. City and VLMM mutually estimate General Legal Services to require approximately 50 hours per month. VLMM shall submit quarterly reports to City Council summarizingpending projects and an estimated schedule for the completion of each. Special Legal Services. (A) franchise, financial and economic development matters; (B) natural resources and environmental issues; (C) land use, real estate or real property related matters; (p) redevelopment and housing; (E) labor relations and employment law; (F) election law matters; (G)litigation; (H) water and utilities; and (1) other special matters requiring special expertise and /or anticipated to require significant attorney time upon direction of the City Council. Page 10 of 13 EXHIBIT "B" SCHEDULE OF CHARGES Retainer Services. VLMM shall be compensated by City for the performance of General Legal Services by way of a retainer in the amount of $8,500 per month. Additional Specialized Services. Additional legal services provided by the City Attorney and any Assistant/Deputy City Attorneys shall be compensated at a rate of $170 per hour; services provided by paralegals shall be compensated at a rate of $110 per hour. Third Party Reimbursements. All legal services provided to the City for which the City receives reimbursement from a developer or other third party, as determined according to the mutual agreement of the parties on a case-by-case basis, shall be billed at VLMM's then current published standard private client rates, minus ten percent (10%). If VLMM believes that a matter falls within the reimbursed services category, VLMM shall first seek approval from the City Manager. Issuer's Counsel for Municipal Bonds. A. minimum fee of $15,000 and increasing to 1/10 of I % of the amount of the bond issuance in excess of $15,000,000 (to be paid as a cost of issuance from bond proceeds). Adjustments to Rates, The rates provided in this Exhibit shall be automatically adjusted as fol lows: On July 1, 2006 and every July 1 st thereafter during the term of the Agreement, all rates shall be adjusted for changes in the cost of living for the most recently published twelve (12) month period, as shown by the U.S. Department of Labor in its All Urban Consumer Index set forth for the Los Angeles-Anaheim-Riverside area. Cost Reimbursement and Exceptions. The City and the Agency shall reimburse VLMM for all reasonable and necessary out-of-pocket expenses incurred by VLMM in providing legal services. Authorized reimbursable expenses shall include, but are not limited to, printing and copying expenses (at $0.15 per page, or at cost if provided by third party copy services), mileage expenses at the rate allowed by the Internal Revenue Service (except as provided below), court fees, computerized research time (e.g., Lexis or Westlaw), extraordinary mail or delivery costs (e.g., courier, overnight and express delivery), actual fees and expenses (no mark-up) for consultants retained by VLMM, and similar costs relating to the services that are generally chargeable to a client. However, no separate charge shall be made by VLMM for secretarial or word processing services, and no mileage shall be charged for attendance at any meeting scheduled within the City of Lake Elsinore. Page 11 of 13 Page 12 of 13 FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT FOR LEGAL SERVICES This First Amendment to the Amended and Restated Agreement for Legal Services (the "Amendment'), dated as of April 8, 2008 (the "Effective Date"), is by and among the City of Lake Elsinore ("City") and the Lake Elsinore Redevelopment Agency (the "Agency"), on the one hand (the Agency and the City are collectively referred to herein as "Employer'), and Leibold McClendon & Mann ("Employee"), on the other hand. RECITALS A. Employee serves as City Attorney of the City and General Counsel of the Agency by way of a Legal Services Agreement dated as of July 1, 1997 by and between Employer and Employee, amended on June 26, 2001 and amended and restated on September 25, 2005 (collectively, the "Agreement'). B. On March 25, 2008, the City Council evaluated the performance of Employee and authorized the City Attorney to prepare this First Amendment to the Amended and Restated Agreement for Legal Services. AGREEMENT 1. All references to "Van Blarcom, Leibold McClendon & Mann" shall be amended to read "Leibold McClendon & Mann." 2. The Term of Agreement shall be extended through March 31, 2010. 3. Except as provided herein, the terms and conditions set forth in the Agreement shall remain in full force and effect. IN WITNESS WHEREOF the parties have caused this First Amendment executed on April 8, 2008. CITY OF LAKE ELSINORE: :Z) ickman Mayor AITEST: L l! ~ Vivian M. Munson City Clerk/Agency Secretary LAKE ELSINORE REDEVELOPMENT AGENC Tho c~ey Chairman iPR~&RED B jee I d / 1 'z ara Zeid Lej old City Attorney/Agency General Counsel First Amend Agr for Ural Services 033108 Page 13 of 13