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2010/08/24 City Council Resolution 2010-105RESOLUTION NO. 2010-105 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK APPROVING AN AGREEMENT FOR CITY ATTORNEY SERVICES BETWEEN CITY OF ROHNERT PARK AND BURKE, WILLIAMS & SORENSEN, LLP WHEREAS, the firm of McDonough Holland & Allen PC ( "MHA ") has provided legal services to the City of Rohnert Park ( "City ") since 2002; WHEREAS, Michelle Marchetta Kenyon, on behalf of MHA, has served as City Attorney since 2005; WHEREAS, MHA has determined to wind down its firm operations and will be dissolving as of August 31, 2010; WHEREAS, Michelle Marchetta Kenyon and the entire Oakland Office of MHA will be joining the law firm of Burke, Williams & Sorensen, LLP ( "Burke ") effective August 30, 2010; WHEREAS, City and Burke desire to enter into an Agreement to provide City Attorney services to City as described in the Agreement for City Attorney Services, attached hereto as Exhibit A. NOW, THEREFORE, BE IT RESOLVED by the City that its Agreement for City Attorney Services with McDonough Holland & Allen PC is hereby terminated effective August 29, 2010. BE IT FURTHER RESOLVED by the City of Rohnert hat the Mayor is hereby authorized to enter into the Agreement for City Attorney Services between City and Burke, Williams & Sorensen, LLP to be effective August 30, 2010 in a form attached hereto and incorporated herein as Exhibit "A." DULY AND REGULARLY ADOPTED by the City Council of the City of Rohnert Park this 24th day of August, 2010. ATTEST 19 CITY OF ROHNERT PARK My Clerk CALIPOitNiA BELFORTE: AYE BREEZE: NO CALLINAN: NO MACKENZIE: AYE STAFFORD: AYE AYES: (3) NOES: (2) ABSENT: (0) ABSTAIN: (0) 1344653v2 80068/0001 AGREEMENT FOR CITY ATTORNEY SERVICES THIS AGREEMENT, dated August 30, 2010, is made and entered into by and between the City of Rohnert Park, a municipal corporation ( "City "), and Burke, Williams & Sorensen, LLP ( "Burke "). RECITALS WHEREAS, the firm of McDonough Holland & Allen PC ( "MHA ") has provided legal services to City since 2002; and WHEREAS, Michelle Marchetta Kenyon has served as the City Attorney for the City since 2005 and several other attorneys from MHA's Oakland office have served as the Assistant City Attorney and special counsel for the City during that time; and WHEREAS, MHA has determined to wind down its firm operations and will be dissolving as of August 31, 2010; and WHEREAS, Michelle Marchetta Kenyon and MHA's Oakland Office will be joining the law firm of Burke, Williams & Sorensen, LLP effective August 30, 2010; and WHEREAS, it is the desire of the parties to enter into this Agreement to establish the terms and conditions for rendition of City Attorney and special counsel services to the City. NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: Section 1. Legal Services. Burke's duties shall be that of City Attorney, as described generally in California Government Code §§ 41801- 41805, and Burke shall perform any and all basic City Attorney duties and functions entrusted to it by the City including, without limitation, attendance at meetings of the City Council and other City bodies as requested, rendition of legal advice on City matters to City staff, preparation of ordinances, resolutions, contracts, and other legal documents pertaining to City affairs, preparation of opinions regarding City matters as requested by appropriate City officials, and general municipal advice to all departments of the City. Burke shall also provide special counsel services such as personnel, redevelopment, construction law and representation of the City in all matters of litigation involving the City unless upon consultation with Burke the City Council authorizes retention of separate litigation counsel. Michelle Marchetta Kenyon shall be designated the City Attorney and she will be the coordinator of services provided to the City with other attorneys of the firm as necessary. EXHIBIT A 1348860vl 80078/0012 City and its members recognize that the firm of Burke provides legal representation to public entities throughout California. Legal services will not include matters in which Burke has a conflict of interest that precludes Burke from representing City, members of the City Council, or officers or employees of City. If Burke has a conflict of interest or lacks expertise to handle a particular assignment, Burke shall provide the City with a recommendation to hire outside counsel. City also agrees to exercise reasonable discretion in providing waivers for any potential or perceived conflicts that might arise out of representation of Burke's other clients, which representation does not directly involve Burke's representation of City. Section 2. Compensation. In consideration for the rendition of legal services, beginning August 30, 2010, City shall compensate Burke as follows: A. For basic City Attorney services which shall include attendance at two City Council meetings per month, regular office hours, rendition of routine legal advice, preparation of ordinances, resolutions, contracts and other standard legal documents, and preparation of formal written opinions, City shall pay to Burke a monthly retainer of $23,229.00 per month for 120 hours per month. This sum shall be billed to City on a monthly basis. For any work performed in any month above and beyond 120 hours, the City shall pay Burke $235 per hour for work performed by Michelle Marchetta Kenyon or other Burke shareholders, $190 per hour for work performed by senior associates and $175 per hour for work performed by junior associates, which shall be billed to City on a monthly basis. B. For other additional services rendered in connection with real estate matters, redevelopment, personnel matters, specialized construction/public contract advice, preparation, prosecution and defense of litigation and/or formal adjudicative or investigative proceedings, City shall be billed by Burke at the standard hourly public agency rate established by and as changed from time to time by Burke. For cost recovery matters for which the City receives reimbursement, City shall be billed by Burke at the standard hourly rates established by and as changed from time to time by Burke. Prior to instituting any such rate increase, Burke agrees to provide City Manager with prior notice of any rate increase. Section 3. Monthly Billing Expense Reimbursements. Burke shall bill the City on a monthly basis. Each bill shall indicate the date of the work done, the work that was accomplished, the attorney or paralegal who performed the work, and the fee for the work. To each bill, Burke shall add an administrative charge of 4% of legal fees in lieu of separately itemizing general overhead costs which are generally chargeable to a client, including long distance telephone service, facsimile charges, regular postage, and routine copying of documents. Burke shall regularly monitor its actual administrative expenses to ensure that the administrative charge is a fair and reasonable approximation of actual expenses. 1348860vl 80078/0012 The following out -of- pocket expenses will be separately itemized and included in bills to the City: (1) extraordinary operating expenses, including items such as messenger services, overnight mail charges, extraordinary copying, and computer- assisted research; (2) necessary travel and subsistence expenses; (3) court costs, including filing fees, witness fees, and deposition and discovery costs not paid directly by the City. The City shall review and approve Burke's monthly statements and pay Burke for services rendered and expenses incurred at the rates and in the amounts provided in this Agreement on a monthly basis in accordance with the approved monthly statements. Section 4. Amendment; Annual Review, This Agreement may be amended from time to time by written agreement of the parties. The City and Burke agree that there shall be an annual review of the provisions contained in this Agreement to ensure that its terms and conditions are mutually satisfactory to both parties prior to June 1 of each year. The parties also agree that the City Council shall conduct an annual performance review of the position of City Attorney prior to June 1 of each year. Section 5. Termination. This Agreement may be terminated by City at any time upon written notice to Burke and by Burke upon sixty (60) days written notice to City. In the event of termination, City shall be responsible only for fees and costs incurred as of the effective date of the termination. Section 6. Professional Liabili1y Coverage. During the term of this Agreement, Burke shall at all times maintain insurance coverage for professional liability. A copy of the policy shall be provided to the City upon request. Section 7. Indemnification. Burke agrees to defend, indemnify and hold the City harmless from and against claims or liabilities arising out of the negligent errors or omissions of Burke discharging its obligations under this Agreement, excluding claims or liabilities arising out of the City's active negligence or wrongful conduct. Section 8. Ownership Of Records; Retention Of Records Upon termination of this contract, all reports, plans, documents, records, and data or certified copies of same prepared by Burke pursuant to this Agreement shall become the property of City, excluding Burke's internal accounting records and other documents not reasonably necessary to City's representation, subject to Burke's right to make copies of any files withdrawn by City. Once a matter is concluded, Burke will close the file, and City will receive notice of 1348860x180078/0012 any City materials that remain in Burke's possession. City will be invited to retrieve these City materials within 45 days of notice, or City may direct Burke to forward the City materials to City, at City's expense. If within 45 days of this notice City fails to retrieve the City materials or request Burke to forward them, City authorizes Burke to destroy the City materials. After the 45 -day period, Burke 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 Burke. Under Burke's document retention policy, Burke normally destroys files five (5) years after a matter is closed, unless other arrangements are made with City. All City - supplied materials and all attorney end product (referred to generally as "City material ") are the property of City. Attorney end product includes, for example, finalized contracts, pleadings, and trust documents. Attorney work product is the property of Burke. Attorney work product includes, for example, drafts, notes, internal memoranda and electronic files, and attorney representation and administration materials, including attorney -City correspondence and conflicts materials. IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the date first above written. CITY OF ROHNERT PARK a municipal corporation By: Pam Stafford Mayor, City of Rohnert Park ATTEST: City Clerk 1348860v1 80078/0012 BURKE, WILLIAMS & SORENSEN, LLP LE John J. Welsh Managing Partner