HomeMy WebLinkAbout11-17-2015 Item 04 - Extension of Legal Services Contract for ongoing personnel disciplinary appeal
Meeting Date: 11/17/2015
FROM: J. Christine Dietrick, City Attorney
Prepared By: Kelly White, Legal Assistant
SUBJECT: EXTENSION OF LEGAL SERVICES CONTRACT FOR ONGOING
PERSONNEL DISCIPLINARY APPEAL
RECOMMENDATION
Authorize the City Attorney to execute a Second Amendment to the October 1, 2014 Legal
Services Agreement with the Law Offices of Jones & Mayer for a personnel disciplinary appeal
increasing the “not to exceed” amount from $50,000 to $70,000.
DISCUSSION
Last year the City Attorney’s Office issued a Request for Proposals for on-call legal services,
requesting proposals in a variety of practice areas. The law firm of Jones & Mayer was a successful
proposer and is currently on the City’s on-call list for personnel and employment matters. Greg
Palmer of that firm has specialized expertise with police and fire personnel and disciplinary matters
and Mr. Palmer has previously represented the City in such matters. Based on discussions with Mr.
Palmer, review of other RFP responses, cost comparison, and experience with other qualified
attorneys in this area, as well as his baseline knowledge of the case from the prior consultation, the
City Attorney determined that Mr. Palmer was the most appropriate and cost effective
representation in a current public safety disciplinary matter. It is necessary to retain outside counsel
in these proceedings because the City Attorney is the regular advisor to the City Council and having
the Council act as an independent reviewer of a decision on which the City Attorney has already
advised and advocated raises due process concerns that could subject the Council’s final decision to
challenge, depending on the hearing officer’s recommendation and the Council’s final action.
In 2014, the City Attorney engaged Mr. Palmer’s services to represent the City in this matter up to
Department Head authority and, in December 2014, City Manager approval was given to continue
the legal services engagement with costs not to exceed $25,000. In September 2015, further City
Manager approval was given to extend the contract amount up to $50,000, with the additional funds
coming from the City Attorney, Police, and Human Resources Department budgets.
The matter required significant preparation for the termination appeal hearing, and though staff
initially anticipated that the hearing on the matter could be completed in three to four days,
opposing counsel pursued the matter very aggressively, proceeded at a very slow pace, and utilized
eight days of hearing time to complete its defense, in addition to the two and a half days required by
the City to present its case. Opposing counsel also served multiple discovery motions, subpoenas,
and Public Records Act requests, which drove additional motion/opposition work and significant
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review costs, despite attempts to minimize costs by managing the records production and review in
house. The ten days of hearings have been completed, with final briefing scheduled.
Following final briefing the City will be responsible for the costs of the independent hearing
officer’s review of the record and the parties’ briefs, as well as his drafting of a decision with
findings and a recommendation to Council. Additional outside counsel work to complete this matter
is estimated to be at least five (5) additional days, for work on the closing and reply briefing, as well
as potential subsequent work if the Council’s decision is appealed to Superior Court. The City
Attorney requests the Council authorize $20,000 be transferred from the salary savings in the Police
Department budget. The City Attorney’s office will obviously make every effort to minimize actual
costs incurred, while ensuring effective representation and adherence to due process/conflicts
requirements.
FISCAL IMPACT
As the Attorney’s office does not have a standing budget for litigation associated with personnel
disciplinary appeals, it is seeking to transfer monies from the Police Department, from which the
matter originated, which is consistent with past practice. Salary savings in the Police
Department budget are currently available to cover the costs of additional funding required to
complete the current appeal matter in the amount of $20,000. As of the end of October, the
Police Department has realized salary savings in the approximate amount of $265,000 resulting
from vacancies of several positions within the Department. Any other vacancies occurring this
fiscal year in the Police Department will also contribute to existing savings. This transfer of
$20,000 will bring the approved contractual amount with the Law Offices of Jones & Mayer to
$70,000.
Attachments:
a - Second Amendment to Law Offices of Jones and Mayer Agreement
b - Law Offices of Jones & Mayer Agreement
c - First Amendment to Law Offices of Jones & Mayer
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SECOND AMENDMENT TO AGREEMENT
This Second Amendment to Agreement is made and entered in the City of San Luis Obispo on
___________, 2015, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein
after referred to as City, and LAW OFFICES OF JONES & MAYER, a professional corporation,
hereinafter referred to as Consultant.
W I T N E S S E T H:
WHEREAS, on October 1, 2014, the City entered into an Agreement with Consultant for
professional legal services related to a personnel disciplinary appeal; and
WHEREAS, work on this matter is not yet complete and litigation practices by appellant and
counsel have significantly increased the anticipated length of hearings and volume of work to be
performed; and
WHEREAS, the parties seek to modify the certain provisions of the Agreement between them to
address anticipated increased costs related to increased work.
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants
hereinafter contained, the parties hereto agree as follows:
1. Section 1. Term of the Agreement is modified to provide that the total costs incurred for
the work shall not exceed $70,000.
2. All other terms and conditions of the Agreement, as amended hereby, remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day
and year first above written.
ATTEST: CITY OF SAN LUIS OBISPO
_________________________________ By:________________________________
Jon Ansolabehere, Interim City Clerk J. Christine Dietrick, City Attorney
Signed on __________________________
LAW OFFICES OF JONES & MAYER
By: ________________________________
Richard D. Jones
Its: Owner/President
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AGREEMENT
Twit-, AQ is made and entered into in the City of San Luis Obispo on ," bye
I by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter
referred to as City, and LAW OFFICES OF JONES & MAYER, a professional corporation, hereinafter
referred to as Consultant.
WITNESSETH
WHEREAS, on July 3, 2013, City requested qualifications and proposals for legal counsel;
WHEREAS, pursuant to said request, Consultant submitted a proposal that was accepted by City for said
services; and
WHEREAS, the City requires professional legal services related to a personnel investigation (the
services").
NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter
contained, the parties hereto agree as follows:
1. Term. The term of this Agreement shall be from October 1, 2014 until completion of said services
and the total costs for services related to this project shall not exceed $25,000 without express written
consent signed by both parties.
2. Termination. If, during the term of the contract, the City determines that the Consultant is not
faithfully abiding by any term or condition contained herein, the City may notify the Consultant in
writing of such defect or failure to perform. This notice must give the Consultant a 10 (ten) calendar
day notice of time thereafter in which to perform said work or cure the deficiency.
If the Consultant has not performed the work or cured the deficiency within the ten days specified in
the notice, such shall constitute a breach of the contract and the City may terminate the contract
immediately by written notice to the Consultant to said effect. Thereafter, neither party shall have any
further duties, obligations, responsibilities, or rights under the contract except, however, any and all
obligations of the Consultant's surety shall remain in full force and effect, and shall not be
extinguished, reduced, or in any manner waived by the termination thereof.
In said event, the Consultant shall be entitled to the reasonable value of its services performed from
the beginning date in which the breach occurs up to the day it received the City's Notice of
Termination, minus any offset from such payment representing the City's damages from such breach.
Reasonable value" includes fees or charges for goods or services as of the last milestone or task
satisfactorily delivered or completed by the Consultant as may be set forth in the Agreement payment
schedule; compensation for any other work, services or goods performed or provided by the
Consultant shall be based solely on the City's assessment of the value of the work -in -progress in
completing the overall workscope.
The City reserves the right to delay any such payment until completion or confirmed abandonment of
the project, as may be determined in the City's sole discretion, so as to permit a full and complete
accounting of costs. In no event, however, shall the Consultant be entitled to receive in excess of the
compensation quoted in its proposal.
If, at any time during the term of the contract, the City determines that the project is not feasible due
to funding shortages or unforeseen circumstances, the City reserves the right to terminate the
contract. Consultant will be paid compensation due and payable to the date of termination.
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3. Ability to Perform. The Consultant warrants that it possesses licenses and qualifications necessary
to carry out and complete the work hereunder in compliance with any and all applicable federal, state,
county, city, and special district laws, ordinances, and regulations.
4. Sub -contract Provisions. No portion of the work pertinent to this contract shall be subcontracted
without written authorization by the City. Any substitution of sub -consultants must be approved in
writing by the City.
5. Contract Assignment. The Consultant shall not assign, transfer, convey or otherwise dispose of the
contract, or its right, title or interest, or its power to execute such a contract to any individual or
business entity of any kind without the previous written consent of the City.
6. Inspection. The Consultant shall furnish City with every reasonable opportunity for City to ascertain
that the services of the Consultant are being performed in accordance with the requirements and
intentions of this contract. All work done and all materials furnished, if any, shall be subject to the
City's inspection and approval. The inspection of such work shall not relieve Consultant of any of its
obligations to fulfill its contract requirements.
7. Conflict of Interest. The Consultant shall disclose any financial, business, or other relationship with
the City that may have an impact upon the outcome of this engagement. The Consultant covenants
that it presently has no interest, and shall not acquire any interest—direct, indirect or otherwise—that
would conflict in any manner or degree with the performance of the work hereunder. The Consultant
further covenants that, in the performance of this work, no sub -consultant or person having such an
interest shall be employed. The Consultant certifies that no one who has or will have any financial
interest in performing this work is an officer or employee of the City. It is hereby expressly agreed
that, in the performance of the work hereunder, the Consultant shall at all times be deemed an
independent Consultant and not an employee of the City.
8. Rebates, Kickbacks or Other Unlawful Consideration. The Consultant warrants that this contract
was not obtained or secured through rebates, kickbacks or other unlawful consideration, either
promised or paid to any City employee. For breach or violation of the warranty, the City shall have
the right in its discretion; to terminate the contract without liability; to pay only for the value of the work
actually performed; to deduct from the contract price; or otherwise recover the full amount of such
rebate, kickback or other unlawful consideration.
Covenant Against Contingent Fees. The Consultant warrants by execution of this contract that no
person or selling agency has been employed, or retained, to solicit or secure this contract upon an
agreement or understanding, for a commission, percentage, brokerage, or contingent fee, excepting
bona fide employees or bona fide established commercial or selling agencies maintained by the
Consultant for the purpose of securing business. For breach or violation of this warranty, the City has
the right to annul this contract :without liability; pay only for the value of the work actually performed,
or in its discretion, to deduct from the contract price or consideration, or otherwise recover the full
amount of such commission, percentage, brokerage, or contingent fee.
10. Compliance with Laws and Wage Rates. The Consultant shall keep itself fully informed of and
shall observe and comply with all applicable state and federal laws and county and City of San Luis
Obispo ordinances, regulations and adopted codes during its performance of the work. This includes
compliance with prevailing wage rates and their payment in accordance with California Labor Code.
For purposed of this paragraph, "construction" includes work performed during the design and
preconstruction phases of construction, including but not limited to, inspection and land surveying
work.
11. Payment of Taxes. The contract prices shall include full compensation for all taxes that the
Consultant is required to pay.
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12. Safety Provisions. The Consultant shall conform to the rules and regulations pertaining to safety
established by OSHA and the California Division of Industrial Safety.
13. Immigration Act of 1986. The Consultant warrants on behalf of itself and all sub -consultants
engaged for the performance of this work that only persons authorized to work in the United States
pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be
employed in the performance of the work hereunder.
14. Consultant Non -Discrimination. In the award of subcontracts or in performance of this work, the
Consultant agrees that it will not engage in, nor permit such sub -consultants as it may employ, to
engage in discrimination in employment of persons on any basis prohibited by State or Federal law.
15. Indemnification for Professional Liability. To the fullest extent permitted by law, the
Consultant shall indemnify, protect, defend and hold harmless the City and any and all of its
officials, employees and agents ("Indemnified Parties") from and against any and all losses,
liabilities, damages, costs and expenses, including attorney's fees and cost which arise out
of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the
Consultant.
16. Insurance.
16.1 Professional Errors and Omissions Insurance. The Consultant shall obtain and maintain
in full force and effect at all times Professional Errors and Omissions Liability Insurance. Such
insurance shall provide coverage in an amount not less than one million dollars ($1,000,000)
per occurrence. The insurance policy required under this paragraph shall be endorsed to
state that coverage shall not be suspended, voided, cancelled, reduced in coverage, or in
limits, except after thirty (30) days prior written notice, by certified mail return receipt
requested, given to the City.
16.2 Workers Compensation Insurance. The Consultant shall obtain and maintain workers
compensation insurance in accordance with section 3700 of the California Labor Code.
17. Non -Exclusive Contract. The City reserves the right to contract for the services listed in this
proposal from other consultants during the contract term.
18. Consultant Invoices and Payment. The Consultant shall deliver a monthly invoice to the City,
itemized by project work phase or, in the case of on-call contracts, by project title. Invoice must
include a breakdown of hours billed and miscellaneous charges and any sub -consultant invoices,
similarly broken down, as supporting detail. For on-call services, the City will pay and the Consultant
shall receive compensation as agreed to on a project by project basis. Hourly rates include direct
salary costs, employee benefits, overhead and fee. The City's payment terms are 30 days from the
receipt of an original invoice.
19. Agreement Parties.
City: City Attorney's Office
City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Consultant: Law Offices of Jones & Mayer
3777 N. Harbor Blvd.
Fullerton, CA 92835
All written notices to the parties hereto shall be sent by United States mail, postage prepaid by
registered or certified mail addressed as shown above.
20. Incorporation by Reference. City Request for Proposal and Consultant's proposal are hereby
incorporated in and made a part of this Agreement.
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21. Amendments. Any amendment, modification or variation from the terms of this Agreement shall be
in writing and shall be effective only upon approval by the City Attorney.
22. Working Out of Scope. If, at any time during the project, the Consultant is directed to do work by
persons other than the City Attorney and the Consultant believes that the work is outside of the scope
of the original contract, the Consultant shall inform the City Attorney immediately. If the City Attorney
and Consultant both agree that the work is outside of the project scope and is necessary to the
successful completion of the project, then a fee will be established for such work based on
Consultant's hourly billing rates or a lump sum price agreed upon between the City and the
Consultant. Any extra work performed by Consultant without prior written approval from the City
Attorney shall be at Consultant's own expense.
23. Complete Agreement. This written agreement, including all writings specifically incorporated herein
by reference, shall constitute the complete agreement between the parties hereto. No oral
agreement, understanding or representation not reduced to writing and specifically incorporated
herein shall be of any force or effect, nor shall any such oral agreement, understanding or
representation be binding upon the parties hereto. For and in consideration of the payments and
agreements hereinbefore mentioned to be made and performed by City, Consultant agrees with City
to do everything required by this Agreement, the said specification and incorporated documents.
24. Authority to Execute Agreement. Both City and Consultant do covenant that each individual
executing this agreement on behalf of each party is a person duly authorized and empowered to
execute Agreements for such party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument'to be executed the day and
year first above written.
CITY OF SAN LUIS OBISPO:
911
Attorney
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FIRST AMENDMENT TO AGREEMENT
This First Amendment to Agreement is made and entered in the. City of San Luis Obispo on
2015, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, herein
after eferred to as City, and LAW OFFICES OF JONES & MAYER, a professional corporation,
hereinafter referred to as Consultant.
WITNESSETH:
WHEREAS, on October 1, 2014, the City entered into an Agreement with Consultant for
professional legal services related to a personnel disciplinary appeal; and
WHEREAS, work on this matter is not yet complete and litigation practices by appellant and his
counsel have significantly increased the anticipated length of hearings and volume of work to be
performed; and
WHEREAS, the parties seek to modify certain provisions of the Agreement between them to
address anticipated increased costs related to increased work.
NOW, THEREFORE, in consideration of their mutual promises, obligations and covenants
hereinafter contained, the parties hereto agree as follows:
1. Section 1. Term of the Agreement is modified to provide that the total costs incurred for
the work shall not exceed $50,000.
2. All other terms and conditions of the Agreement, as amended hereby, remain in full force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day
and year first above written.
CITY OF SAN LUIS QB }'b
ristine D_ietrick, City Att
Y\ P 0! 'V n- I l S
7 y
LAW OFFICES OF JONES & MAYER
By: ... 4 ..
Richard D. Jones
Its: Owner/President
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