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HomeMy WebLinkAboutBerliner Cohen - 1999 Agreement for Attorney Services AMENDED AND RESTATED AGREEMENT FOR LEGAL SERVICES This Amended and Restated Agreement for Legal Services ("Agreement") is made and entered into this ~ day Of~, to become effective July 1,1999, between the City of Gilroy, a Charter City of the State of California ("CITY"), and Berliner Cohen, Attorneys, a partnership including professional corporations ("BC"). In consideration of the mutual covenants set forth herein, the parties agree as follows: 1. Appointment as City Attorney. CITY hereby engages BC to perform the services of its City Attorney, commencing as of the date first stated herein. CITY and BC agree that Linda A. Callon, a Partner in BC, is hereby named City Attorney/Redevelopment counsel for CITY. Acting City Attorney, Assistant City Attorneys or Deputy City Attorneys shall be assigned by BC with the concurrence of the City Council. BC agrees to expend its best efforts to carry out the professional services described herein, and faithfully to represent the legal interests of CITY during the term of this Agreement. 2. City Attorney's Services. BC shall provide, in a professional manner, all legal services usually and customarily provided by a city attorney/redevelopment counsel, consisting of the following: (a) Attend all regular and special City Council/Redevelopment Agency meetings and Planning Commission meetings each month, except when legal representation is not deemed necessary, to render advice and opinions on all legal matters which may arise during such meeting. (b) Establish and maintain office hours at City Hall or a functional equivalent thereof, for twenty (20) hours per month, on dates and times to be mutually agreed upon between BC and the CITY, and be available for telephone consultation and attend meetings upon request of the CITY. (c) Research, prepare, and review ordinances, resolutions, leases, contracts, notices, legal opinions, memoranda, findings, decisions and other documents and papers pertaining to City business and to the legislative or quasi-judicial actions of the City Council, Planning Commission, other boards, or officers. Negotiate or advise in negotiations pertaining to routine CITY contracts and leases. (d) Examine for legal sufficiency all documents in the category described by subparagraph (c) above, drafted by or on behalf of City officers or employees. (e) Furnish legal advice on matters of City business to City Councilmembers, the City Administrator, Planning Commissioners, department heads and other designated personnel. IKHM1431424.03 96-0330INHSEOOO -1- (f) Monitor and advise the City Council and staff of legislation affecting CITY, and prepare and promote such legislation as directed by CITY (g) Represent CITY before other public entities on legal matters. (h) Advise CITY as to when special counsel should be retained for a particular matter, and monitor the activities of any such special counsel retained by CITY. (i) Perform such other legal services for CITY consistent with the City Charter as may be requested by the City Councilor City Administrator. (j) Render litigation services as follows: (i) Represent CITY in the administration and defense of all claims and legal actions filed against it, except those matters accepted for defense by ABAG or assigned to special counsel. (ii) Represent CITY in claims or actions brought by CITY as deemed appropriate by City Council. (iii) Represent CITY in all legal proceedings, civil or criminal, required to enforce CITY's ordinances. 3. Compensation. CITY shall compensate BC for the above services as follows: (a) For the services described in paragraph 2 above, on an hourly basis at the rate of One Hundred Seventy-five Dollars ($175) for attorneys, and at the rate published by BC for paralegals and other staff aides, due and payable upon the terms set forth in subparagraph ( e) below. (b) For complex litigation and other extraordinary services, at a public agency discount rate often percent (10%) below BC's published rates. (c) CITY shall also reimburse BC for reasonable costs incurred in connection with BC's services to CITY, including but not limited to: (i) Customary costs of litigation, provided that the hiring of any experts shall be approved by the City Councilor City Administrator. (ii) Costs of photocopying, postage, computer research on-line fees, word processing, and long-distance telephone calls relating to the professional services specified herein. (iii) Meals when the expense is necessarily incurred in connection with City business. IKHM1431424.03 96-0330INHSEOOO -2- (iv) Travel, meals and lodging expenses incurred on business outside the County of Santa Clara for CITY, subject to approval by the City Administrator. (v) Mileage at the IRS authorized reimbursement rate. BC shall not, however, charge CITY for travel time and mileage to and from its offices to CITY for regular meetings with the City Council and/or the Planning Commission. (d) BC shall bill CITY on a monthly basis, said bills due and payable upon receipt. Said bills will not be itemized unless requested in writing by the City Administrator. CITY agrees to pay BC within thirty (30) days of receipt of such bill or statement. A late charge of 1 % will be imposed on fees and costs which are outstanding more than two months after the date set forth on the first billing statement for those fees and costs. A late charge of 1 % will continue to be imposed each month thereafter on said unpaid balance on each billing statement until it is paid in full. ( e) The parties acknowledge and agree that compensation shall not include any health, dental or retirement benefits, nor shall CITY be liable for Workers' Compensation or unemployment benefits for BC, its agents or employees. In addition, BC shall bear all expenses incurred for attendance at courses and seminars relating to municipal law, and the expenses of acquiring and maintaining books, texts, periodicals and other materials relating to municipal law. BC shall also bear all expenses incurred for attendance of its personnel at meetings and conferences of city attorneys, except that CITY shall pay the reasonable expenses for the attendance of the City Attorney once annually at the League of California Cities' City Attorneys Conference or its equivalent, and to such other meetings as may be deemed beneficial to CITY with the approval of the City Council. 4. Adjustments to Compensation. On an annual basis beginning July 1, 2000, BC's compensation for professional services shall be increased by the United States Consumer Price Index Urban Wage Earners, San Francisco, California, all Items Series A ("CPI") for the previous twelve months. Any other increases shall only be by mutual agreement of the parties as expressed in writing. 5. Facilities. CITY shall provide a furnished office or space at City Hall suitable for the conduct of legal business during any office hours required of City Attorney, and usual office support services, such as general clerical assistance, telephone, FAX, office supplies, and copying facilities. 6. Term. This Agreement shall remain in full force and effect until terminated either by CITY or BC as set forth herein. 7. Termination. Either party may terminate this Agreement, without cause, by giving the other party thirty (30) days' written notice. In the event of termination, the parties shall cooperate to achieve an orderly transition and assumption of duties by any succeeding city attorney. All original City files, documents, and other City property shall be returned in good order to CITY. IKHM1431424.03 96-0330INHSEOOO -' -3- 8. Review and Amendment. The terms and conditions of this Agreement and BC's performance of services thereunder shall be subject to annual review at the request of either party. The parties may agree to changes or amendments to the terms and conditions of this Agreement, which changes or amendments shall be evidenced by a written agreement. Nothing in this paragraph shall be deemed to prevent or inhibit more frequent review of performance, compensation or otherwise inhibit the free and candid exchange of views between the parties. 9. Assignment. The professional services to be provided under this Agreement are personal in nature and this Agreement cannot be assigned. BC may only replace Linda A. Callon as City Attorney/Redevelopment Counsel with the express consent of the City Council. 10. Insurance. Defense. Indemnification. BC agrees to maintain lawyer's professional liability insurance in full force and effect during the term of this Agreement. Such insurance shall have a limit of not less than One Million Dollars ($1,000,000) per claim. CITY recognizes that the City Attorney, Assistant City Attorneys, Deputy City Attorneys, and Acting City Attorney are officers of CITY pursuant to Section 801 of the City Charter. CITY agrees to defend, indemnify and hold harmless said officers and BC in any action, lawsuit or proceeding brought by third parties against them in their official or individual capacities, or both, arising out of or in connection with their duties under this Agreement. Notwithstanding the foregoing, in the event that said officers or BC are finally adjudged by a court of competent jurisdiction to have engaged in willful misconduct or performed the duties under this Agreement negligently, CITY shall have no duty to indemnify said officers to Be. 11. Notices. Written notices to BC required under this Agreement shall be delivered personally or by first-class mail, postage prepaid, to: Berliner Cohen Linda A. Callon, Esq. Ten Almaden Blvd., Eleventh Floor San Jose, CA 95113-2233 Written notices to CITY required by this Agreement shall be delivered personally or by first-class mail, postage prepaid, to: City Administrator City of Gilroy 7351 Rosanna Street Gilroy, CA 95025 12. This Agreement supersedes the foregoing agreement between City and Berliner, Cohen and Biagini dated August 5, 1991. IKHM1431424.03 96-0330INHSEOOO -4- IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year set forth below: Dated: ~~ III l1il \ CITY OF GILROY a Charter City By: Ie'. ~ < ~lGcCk) K. A. Mike Gilroy, Mayor BERLINER COHEN Dated: /111" /~ /H'i By: ~4.~ Linda A. Callon, Esq. IKHM1431424.03 96-0330INHSEOOO -5- _/ 1999 PROFESSIONAL RATES PROFESSIONAL RATE PROFESSIONAL RATE ADAMS 195 HUMPHREYS 260 BERLINER 375 ISOLA, H. 250 BRAGA 140 ISOLA, M. 175 CALLON 260 JOHNSON 235 CASAD 260 KELLEY 240 CASHMAN 260 KIRSCH 195 CHORTEK 240 McWILLIAMS 155 DA VIDSEN, * paralegal 105 MILLER, * paralegal 110 DOMINGUE 130 MURPHY 210 DURHAM 160 OLSEN, * paralegal 120 DWORAK 260 PINNER 290 DWYER 120 REINIG, * paralegal 120 FABER 310 REITON 260 FARB 270 SILLS 140 GABEL 180 SIPLE 250 GEARY,* paralegal 60 SPRINGGA Y 270 GOINES 310 SWANSON 260 GROSS 160 UBHAUS 270 HARDT-MASON 125 WEBER 160 HAYASHI 260 WEIN 130 HOUSTON 155 WOLF 225 *p ARALEGAL OVERTIME MAY BE BILLED AT HIGHER RATES. ",