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HomeMy WebLinkAbout10/01/1996, C-14 - LEGAL SERVICES AGREEMENT FOR STREET LIGHT ACQUISITION council j acjcnaa uEpoat CITYOF SAN LUIS O B I S P O FROM: Michael D. McCluskey, Public Worcs Direc Prepared By: David Elliott, Administrative Analyst'..'94 SUBJECT: Legal Services Agreement for Street light Acquisition CAO RECOMMENDATIONS 1) Award a legal services agreement for street light acquisition to the Law Offices of Donald H. Maynor 2) Authorize the City Administrative Officer to execute the agreement DISCUSSION Background There are 1,876 street lights within the City. The City owns 51 of these lights and pays PG&E for electricity and maintenance on those 51. PG&E owns the remaining 1,825 lights, and the City pays PG&E for rent plus electricity and maintenance on those 1,825. In 1994 Public Works began investigating the feasibility of acquiring the street lights from PG&E in order to reduce operating costs. Since then, the following events have taken place: c In July 1994 a public utilities appraiser completed a capitalized income appraisal to establish a preliminary value for the system. o In August 1994 an electric utilities consultant completed a report to determine the feasibility of the City acquiring the 1,825 street lights owned by PG&E and assuming maintenance responsibility for all 1,876 lights. The feasibility report showed that the City could save about $120,000 each year in operating costs. c In February 1995 the Council approved a 1994-95 midyear budget request to hire an attorney for negotiation and condemnation services ($20,000) and an appraiser for appraisal and negotiation services ($15,000). c In August 1995 Public Works consulted with Donald H. Maynor, an attorney who specializes in negotiation and condemnation proceedings needed to acquire street light systems from public utilities. He advised the City to wait on its acquisition for two reasons. First, there were two huge acquisitions then underway in Alameda County and Solano County which had the potential to skew comparable sales averages downward to the City's advantage. And second, PG&E had proposed a rate restructuring which had the potential to reduce ongoing savings to the City's disadvantage. Council Agenda Report - Legal Services Agreement for Street Light Acquisition Page 2 o In 1996 the Solano County acquisition was completed at prices somewhat lower than previously paid in other jurisdictions. (The Alameda County acquisition is still pending.) c In 1996 the California Public Utilities Commission approved the rate restructuring. c In April 1996 Public Works recalculated the feasibility of acquisition under the new rate schedule and found that the City could still save about $75,000 each year in operating costs. c In June 1996 the Council approved a budget request to appropriate $550,000 in bond proceeds for acquisition of the street lights. c In August 1996 the City's appraiser completed two other required appraisals and revised the capitalized income appraisal to reflect the newly approved rates. c In August 1996 Public Works again consulted with Mr. Maynor to outline a basic acquisition strategy and negotiate an agreement for legal services. Next Steps If the Council awards the proposed legal services agreement to Mr. Maynor, the acquisition process will start on October 22, 1996, when Public Works will present a proposed resolution to approve the completed appraisals and authorize tendering an offer to PG&E. HSCAL EMPACT The estimated cost of the proposed legal services is $18,000, although if complications arise, the agreement allows a maximum compensation of$50,000 without renegotiation. There is $20,000 budgeted for this purpose. Although it is unlikely, if it appears the cost may exceed $20,000, Public Works will return to the Council with a request to amend the budget. Attachment Legal Services Agreement (two originals) LEGAL SERVICES AGREEMENT )ev" -Lw This agreement is entered into this_day ofle 199,, ey and between the LAW OFFICES OF DONALD H. MAYNOR, A PROFESSIONAL LAW CORPORATION, hereafter referred to as "COUNSEL," and the CITY OF SAN LUIS OBISPO, hereafter referred to as "CITY." This agreement is required by Business and Professions Code section 6148 and is intended to fulfill the requirements of that section. 1. SCOPE OF SERVICES TO BE PROVIDED. COUNSEL shall perform such legal services(including litigation and consultation services)for the CITY as may be requested from time-to-time by the CITY ATTORNEY or his designee in connection with the negotiation, acquisition, and/or condemnation of certain PG&E streetlighting facilities located in the CITY. 2. TIME OF PERFORMANCE. The services of COUNSEL are to commence upon the execution of this agreement and shall be undertaken and completed in such sequence to assure their expeditious completion. 3. RESPONSIBILITIES OF COUNSEL AND CITY. COUNSEL will perform the legal services called for under this agreement, keep the City Attorney informed of progress and developments, and respond promptly to CITY's inquiries and communications. COUNSEL understands that full communication ahead of time and at every step of the way with CITY is a key element and consideration for this agreement. CITY will be cooperative with COUNSEL, keep COUNSEL reasonably informed of developments, and timely make any payments required by this agreement. 4. COORDINATION. (a) CITY. The City Attorney, or his designee, shall be the representative of the CITY for all purposes under this agreement, in close consultation with the Public Works Director. The City Attorney shall manage, control and supervise the progress and services provided for under this agreement, and shall be designated as co-counsel on all pleadings associated with this agreement. (b) COUNSEL. In recognition of his knowledge, skill, and other unique personal factors,DONALD H. MAYNOR shall be the primary attorney assigned by COUNSEL to perform the work provided for under this agreement, and shall serve as liaison with the CITY's representative. Mr. Maynor shall not delegate any significant aspect of this agreement without prior consultation and approval of the City Attorney. 5. COMPENSATION. CITY will pay COUNSEL for COUNSEL's fees for all legal services provided to the CITY under this agreement on an hourly basis as set forth on Exhibit"A' attached hereto. COUNSEL will charge in increments of one tenth of an hour, rounded off for each partiailar activity to the nearest one tenth of an hour. The minimum time charged for any particular activity will be one tenth of an hour. 6. COMPENSATION CAP. COUNSEL agrees that it shall not bill in excess of $50,000.00 to the CITY without prior authorization of the City Attorney. Within thirty(30) days of execution of this agreement, COUNSEL shall submit to the City Attorney an estimated budget of fees and costs for the major stages of representation in this matter. 7. REMMURSEMENT. In addition to the compensation provided above, the CITY shall reimburse COUNSEL for all "costs" reasonably necessary to facilitate the representation of the CITY, which shall include necessary travel expenses, printing and copying expenses, postage, long distance telephone calls, court filing fees, deposition costs, investigation costs, messenger service fees, process server fees and similar matters as set forth in Exhibit "B" attached hereto. Costs will be advanced by COUNSEL and then billed to CITY. 8. METHOD OF PAYMENT: As a condition precedent to any payment of COUNSEL under this AGREEMENT, COUNSEL shall submit monthly to the CITY a detailed statement of account which clearly sets forth the dates, times, designated items of work and person performing such work, and all costs incurred, for which the billing is submitted. Such statements shall be submitted no later that the fifteenth (15th) of each month. The CITY shall review COUNSEL's monthly statements and shall pay COUNSEL for services rendered and costs incurred, at the rates and in the amounts provided hereunder, on a monthly basis in accordance with the approved monthly statements. If no attorney's fees or costs are incurred for a particular month, or if they are minimal, the statement may be held and combined with that for the following month. Any balance will be paid in fiill within 30 days after the statement is mailed. 9. CHANGES IN RATES AND CHARGES. COUNSEL shall have the right to change the rates and charges set forth in Exhibit"A" not more than once each calendar year, upon the giving of thirty(30)days' advance written notice of any changes, and acceptance thereof by CITY. 10. COST CONTAINMENT. COUNSEL shall be sensitive to CITY budget constraints, and will make every reasonable effort to n irrimize expense by assigning activities, where appropriate, to more junior attorneys or paralegals, for billing at lower rates, provided however,DONALD H. MAYNOR shall personally conduct any trial, and any other pivotal work or proceeding including but not limited to significant discovery and/or settlement negotiation proceedings. Such practices as excessive discovery or motions, multiple representation at appearances, or multiple billings for COUNSEL initiated conferences with its own staff or associates shall be strictly discouraged. 11. EMPLOYMENT OF OTHER COUNSEL SPECIALISTS OR EXPERTS. COUNSEL shall not employ or otherwise incur an obligation to pay other counsel, specialists or experts for any services in connection with this agreement without the approval of the City Attorney or his designee. 12. QUALIFICATION OF COUNSEL.. COUNSEL covenants and represents that it is qualified to furnish the services described under this agreement by nature of its expertise and experience in the area of condemnation of utility property. 13. NOTICES. All notices hereunder shall be given in writing and mailed, postage prepaid, by Certified Mail, addressed as follows: To City: Jeffrey G. Jorgensen City Attorney 990 Palm Street, P.O. Box 8100 San Luis Obispo, CA 93403-8100 To Counsel: Donald H. Maynor A Professional Law Corporation 3220 Alpine Road, Suite A Portola Valley, CA 94028 14. INSURANCE. At the request of the CITY, COUNSEL shall provide proof of comprehensive general liability insurance($1,000,000 including automobile) and professional liability insurance($100,000/300,000) satisfactory to the CITY. 15. INTEREST OF COUNSEL. COUNSEL covenants that it presently has no interest, and shall not acquire any interest, direct or indirect, financial or otherwise, which would conflict in any manner or degree with the performance of the services hereunder. COUNSEL further covenants that, in the performance of this agreement, no person or entity having such an interest shall be employed by COUNSEL. COUNSEL certifies that no one who has or will have any financial interest under this agreement is an officer or employee of the CITY. It is expressly agreed that, in the performance of the services hereunder, COUNSEL shall at all times be deemed an independent contractor and not an employee of CITY. 16. DISCHARGE AND WITHDRAWAL. CITY may discharge COUNSEL at any time. COUNSEL may withdraw only for good cause. Among the facts constituting good cause would be breach of this contract, refusal to cooperate with COUNSEL or to follow COUNSEL's advice on a material matter, or any fact or circumstance that would render COUNSEL's continuing representation of CITY unlawful or unethical. Each party agrees to sign any documents reasonably necessary to effect or complete discharge or withdrawal. 17. TERMINATION OR CONCLUSION. Upon the termination or conclusion of Counsel's services, all unpaid charges for services rendered and costs incurred or advanced through the termination or conclusion date shall become immediately due and payable. If CITY should replace COUNSEL with another attorney or attorneys, COUNSEL will unconditionally transfer CITY's file to the new attorney promptly upon payment of the cost of copying and transferring the file. 18. COSTS AND ATTORNEY'S FEES. The prevailing party in any action between the parties to this agreement brought to enforce the terms of this agreement or arising out of this agreement may recover its reasonable costs and attorney's fees expended in connection with such an action from the other party. 19. DISCLAIMER OF IITTARANTEE. Nothing in this agreement and nothing in COUNSEL's statements to CITY will be construed as a promise or guarantee about the outcome of CITY's matter. COUNSEL makes no such promises or guarantees. COUNSEL's comments about the outcome of CITY's matter are expressions of opinion only. 20. AGREEMENT.CONTAINS ALL UNDERSTANDINGS. This document represents the entire and integrated agreement between CITY and COUNSEL and supersedes all prior negotiations, representations, or agreements, either written or oral. This document may be amended only by written instrument, signed by both CITY and COUNSEL. All provisions of this agreement are expressly made conditions. This agreement shall be governed by the laws of the State of California. IN WITNESS WHEREOF, CITY and COUNSEL have executed this agreement on the day and year first above written. COUNSEL Attorney at Law By: Donald H. Maynor Law Offices of Donald H. Maynor A Professional Law Corporation CITY OF SAN LUIS OBISPO By: John Dunn City Administrative Officer APPROVED AS TO FORM: ?AJeeor sen City Att ey T EXHIBIT"A" Compensation Attorney's Fees $240/hr Paralegal Fees $ 85/hr EX IIBIT uD» Cost Reimburrsement 1. Filing Fees: cost without markup 2. Rgporters Fees: cost without markup 3. Long Distance..Telephone Charges; 4. Travels Time included in attomey's-fees no mileage; Aifare, lodging at cost without markup 5 Postage: Cost without markup 6. Copies/fax 30¢ pet page 7. -'Westlaw Research: Cost without markup 8. Process Server.Fees/messenger fees: Cost without.markup c-XwPwir%s Tn v waxewen