Agenda Item A.5
CPMS CONSENT CALENDAR
Meeting Date: October 3, 2023
TO: Mayor and Councilmembers
FROM: Robert Nisbet, City Manager
SUBJECT: Amendment No. 4 to Legal Services Agreement with Best Best & Krieger RECOMMENDATION:
A. Approve the Fourth Amendment to Agreement between Best Best & Krieger LLP and the City of Goleta for Legal Services.
B. Authorize the City Manager to execute the Fourth Amendment to Agreement with Best Best & Krieger LLP.
BACKGROUND:
The City of Goleta uses a hybrid model in providing its City Attorney services, contracting with Best Best & Krieger LLP (“ BBK”) to provide the City Attorney and City Attorney’s Office’s lega l services, while also employing an in -house Assistant City Attorney to provide on the ground legal support and counsel. BBK is a full-service municipal law firm which provides considerable resources for Goleta on an as-needed basis. It utilizes a team of attorneys and subject matter specialists to advise the City on all issues that may arise, from litigation, including eminent domain matters, to labor and employment/negotiations, real estate, housing and affordable housing, land use, CEQA, and a variety of other municipal law subjects.
DISCUSSION:
The City entered into the original Agreement for contract legal services for the performance of city attorney legal services with the law firm of Jenkins & Hogin (“Agreement”) on April 4, 2017. On April 1, 2018, the City consented to the assignment of the Agreement from Jenkins & Hogin to BBK, following the law firms merger, through the First Amendment to the Agreement (“Amendment No. 1”).
The 2017 Agreement provided for retainer legal services of $12,000 per month , and hourly billable rates for litigatio n services ($225/275/325 per hour based on years of experience) and additional non-retainer and specialized legal services ($195 per hour).
On June 18, 2019, the City approved the Second Amendment to the Agreement (“Amendment No. 2”), which provided a smal l increase to the retainer to reflect an anticipated growth of work (to $13,000 per month) . On February 18, 2020, the City 1 Meeting Date: October 3, 2023
approved the Third Amendment to the Agreement (“Amendment No. 3”), which distinguished the hourly rate for “specialized” legal services ($350 per hour for partners/of counsel, $275/hour for associates, and $225/hour for junior associates) from additional general (non-retainer) services ($195 per hour) . Amendments Nos. 2 and 3 provided a
1.5% escalator to be applied to the retainer and a dditional general (non-retainer) legal services only.
The City Attorney’s Office provides general legal services as well as specialized legal counsel and litigation services. The Council has recently conducted an annual performance evaluation of the City Attorney and desires to continue to utilize BBK’s services. Staff has been very pleased with the knowledge, professionalism , and service provided by BBK. Moreover, BBK’s experience with the City and institutional knowledge have proven to be a valuable resource.
As BBK has not received a rate increase on additional general (non-retainer) legal or litigation services since 2017 (other than the 1.5% escalator applied to additional general (non-retainer) legal services commencing in 2020) , and only a small in crease for the retainer in 2019 (subject to the 1.5% escalator commencing in 2019) , staff recommends that the Council approve the attached Fourth Amendment to the Agreement (“Amendment No. 4”) to reflect an increase in BBK’s rates that is more consistent with market rates and reflects an increase in cost of living. The proposed rates in Amendment No. 4 to be paid by the City are as follows:
Retainer of $16,500 per month for 70 hours of general legal services work, and general legal services work in excess of 70 hours will be billed at $270/hour (all attorneys, except Code Enforcement and Public Records Act attorney services will be billed at a reduced rate of $239/hour; paralegals , analysts, and law clerks will be billed at $180/hour); and
Specialized and litigation services will be billed at $355/hour for partners/of counsel, $280/hour for associates, and $185/hour for paralegals, analysts, and law clerk; and
The Fourth Amendment also provides an annual increase to the compensation rate, based on the pre vious year’s May Consumer Price Index, All Urban Consumers, Los An geles-Riverside-Orange Counties; provided, however, that such adjustment shall never be lower than zero percent (0%) nor more than four percent (4%).
In addition to the proposed changes in compensation, the Fourth Amendment includes some clean-up revisions to reflect the transition from Michael Jenkins to Megan Garibaldi as City Attorney.
FISCAL IMPACTS:
It is anticipated the proposed rate changes w ill result in an approximately $70,000 increase in actual costs billed by BBK from the prior year. The fiscal year 2023-24 budget 2 Meeting Date: October 3, 2023
anticipated an increase and is projected to be sufficient to cover the cost of BBK’s City Attorney services.
ALTERNATIVES:
The City Council may elect not to authorize this contract amendment as presented and provide staff with alternative direction.
Reviewed By: Legal Review By: Approved By:
Kristy Schmidt Winnie Cai Robert Nisbet
Assistant City Manager Assistant City Attorney City Manager ATTACHMENTS:
1. Amendment No. 4 to Legal Services Agreement with Best Best & Krieger
2. Agreement for Legal Services dated April 4, 2017 with Best Best & Krieger (Agreement No. 2017-034) and Amendments Nos. 1 through 3 3 Attachment 1
Amendment No. 4 to Legal Services Agreement
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AMENDMENT NO. 4
TO A PROFESSIONAL SERVICES AGREEMENT FOR LEGAL SERVICES
BETWEEN THE CITY OF GOLETA AND BEST BEST & KRIEGER LLP
This Amendment No. 4 to the AGREEMENT FOR LEGAL SERVICES dated April 4, 2017 (Agreement No. 2017 -034) (“Agreement”) is made and entered into as of this 3rd day of October, 2023, by and between the CITY OF GOLETA, a California municipal corporation (“City”) and BEST BEST & KRIEGER LLP, a California Limited Liability Partnership (“BBK”). City and BBK are sometimes individually referred to herein as “Party” and collectively as “Parties.”
RECITALS
WHEREAS, the City and Jenkins & Hogin LLP entered into the Agreement for the purpose of providing general municipal legal services to the City; WHEREAS, thereafter, Amendment Nos. 1 through 3 to the Agreement, amended on April 1, 2018, June 18, 2019, and February 18, 2020, respectively, subsequently modified t he Agreement by consenting to the assignment of the Agreement from Jenkins & Hogin to BBK and modifying the compensation provided for therein; and
WHEREAS, the Parties now desire to further amend the Agreement to (1) clean-up certain provisions, including updates to reflect the prior transition of the City Attorney position from Michael Jenkins to Megan K. Garibaldi, who was appointed as City Attorney by resolution of the City Council on October 5, 2021 , and (2) make adjustments to the retainer and hour ly rates for legal services t o reflect cost of living and growth of the volume of City Attorney legal services work to be performed.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the promises contained herein, City and BBK agree as follows:
1. Recitals. The foregoing recitals are true and correct and incorporated herein by this reference.
2. Amendments. In accordance with Section 9 of the Agreement, the Agreement may be modified by mutual written approval of the Parties. The Parties hereby agree to amend the Agreement as follows:
a. Section 2. Section 2 of the Agreement is hereby deleted and replaced in its entirety as follows:
2. Designation of City Attorney.
Megan K. Garibaldi is designated as City Attorney of the City.
The Parties understand and agree that BBK may use other attorneys, paralegals, and analysts with BBK to assist Ms.
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Garibaldi in the performance of this Agreement. The designation set forth in this paragraph may be changed by mutual agreement without a formal amendment to this Agreement.
b. Interim City Attorney . All references in the Agreement to “Interim City Attorney” shall be deemed a reference to the “City Attorney.”
c. Section 15. Section 15 of the Agreement is hereby deleted and replaced in its entirety as follows:
15. Notices.
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:
TO CITY: Robert Nisbet
City Manager
City of Goleta
130 Cremona Drive
Goleta, CA 93117
TO BBK: Megan K. Garibaldi
Best Best & Krieger
18101 Von Karman Ave.
Suite 1000
Irvine, CA 92612
d. Exhibit A-1. Exhibit A-1 to the Agreement, as set forth in Amendment No. 3, entitled “Scope of Services and Applicable Billing Rates,” is hereby replaced in its entirety with Exhibit A-1 attached hereto and incorporated herein by this reference.
3. Effective Date. This Amendment No. 4 shall be effective as of August 1, 2023.
4. Continuing Effect of Agreement . Except as expressly amended by this Amendment No. 4, all other provisions of the Agreement, including those provisions set forth in Amendment Nos. 1 through 3, remain in full force and effect and shall govern the actions of the Parties under this Amendment No. 4. From and after the date of this Amendment No. 4, whenever the term “Agreement” or “Contract” appears in the Agreement, it shall mean the Agreement as amended by Amendment Nos. 1 through 4.
5. Adequate Consideration. The Parties hereto irrevocably s tipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this Amendment No. 4.
6. Severability. If an y portion of this Amendment No. 4 is declared invalid, illegal, or DocuSign Envelope ID: D57ADA2A-3CDE-4068-85F8-0D8217ED09D3 6 65266.00003\41552464.2
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall continue in full force and effect.
7. Counterparts. This Amendment No. 4 may be executed in duplicate originals, each of which is deemed to be an origi nal, but when taken together shall constitute but one and the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
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SIGNATURE PAGE FOR AMENDMENT NO. 4 TO THE
AGREEMENT FOR CITY ATTORNEY LEGAL SERVICES
BETWEEN THE CITY OF GOLETA AND BEST BEST & KRIEGER LLP
IN WITNESS WHEREOF, the Parties have entered into this Amendment No. 4 to the Agreement for Legal Services as of the day and year first above written.
CITY OF GOLETA
Robert Nisbet
City Manager
ATTEST:
Deborah Lopez
City Clerk
APPROVED AS TO FORM:
Winnie Cai
Assistant City Attorney
BEST BEST & KRIEGER
Megan K. Garibaldi, Partner
Best Best & Krieger LLP
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EXHIBIT A-1
SCOPE OF SERVICES AND APPLICABLE BILLING RATES
1. General Legal Services.
A. Description. The General Legal Services to be provided by Best Best & Krieger to the City shall include the following:
1. Preparation for and a ttendance at all meetings of the City Council , other legislative bodies of the City, and meetings of City staff.
2. Provide routine legal assistance, advice and consultation to the City Council and to City staff related to general municipal law issues , including routine Brown Act, conflicts of interest, Public Records Act, Municipal Code interpretation, land use, and public employment matters.
3. Preparation of routine ordinances, resolutions, agreements, and related documents.
4. Agenda and contract review.
5. Risk management.
6. Code Enforcement.
7. Any other routine legal issues not identified in the Special Legal and Litigation Services provided in Section 2, below.
B. Retainer (Flat Fee) . The City shall pay for General Legal Services at the flat rate monthly retainer amount of $16,500.00 per month for up to 70 hours of routine legal services.
C. Hourly Rate (Retainer Overage). General legal services in excess of 70 hours in any given month shall be billed at $270 per hour (blended) for attorneys and $180 per hour (blended) for paralegals, analysts, and law clerks , with the exception that Code Enforcement and Public Records Act services shall will be billed at the rate of $239 per hour (blended) for attorneys and $180 per hour (blended) for paralegals, analysts, and law clerks.
D. Reevaluation. At the request of either Party, the Parties agree to re-evaluate the retainer after six months to adjust to the Parties’ needs, if necessary.
2. Special Legal and Litigation Services.
A. Description: Special Legal and Litigation Services shall include the following types of services:
1. All litigation and formal administrative or other adjudicatory hearing matters, whether initiated by or against the City.
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2. Labor relations/negotiations and complex employment matters, including tax, ERISA, and employee benefits.
3. Non-routine real estate matters ( e.g., DDA negotiation/preparation, CC&R’s, deed or title work).
4. Land acquisition and disposal matters (including pre -condemnation) and all agreements related to such acquisition and disposal.
5. Redevelopment/successor agency matters.
6. Housing-related matters.
7. Taxes, fees, and charges (e.g., Prop. 218 & Mitigation Fee Act).
8. Non-routine land use and development matters (including review of general plan updates, specific plan documents, LCPs, annexations and development agreements).
9. Non-routine renewable energy and energy-efficient projects.
10. Public bidding/construction/contracting advice and disputes.
11. Non-routine and extended contract negotiation matters (including use of non- BB&K model agreements and franchise agreements).
12. Environmental (CEQA, NEPA, endangered species) matters.
13. Water law, complex public utility, and solid waste matters.
14. Bankruptcy matters.
15. Non-routine election law matters.
16. Other matters mutually agreed upon by the Goleta City Manager and BBK.
B. Hourly Rate. The City shall pay for Special Legal and Litigation Services at the hourly rate of $355 per hour for partners/of counsel, $280 per hour for associates, and $185 per hour for paralegals, analysts, and law clerks.
3. Third Party Reimbursable Legal Services.
A. Description. Third Party Reimbursable Legal Services shall include legal services provided to the City for which the City receives reimbursement from a developer or other third party.
These reimbursable legal services typically include litigation for whi ch the City is ind emnified by a project applicant; CEQA and land use planning review, review of CC&Rs; establishment of financing districts (i.e., Community Facilities Districts; Assessment Districts; Landscape and Lighting Maintenance Districts); and land use/environmental projects for which the City is entitled to reimbursement.
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B. Rates. The City shall pay for Third Party Reimbursable Legal Services at BBK’s then- current standard private client rates (which may be adjusted from year to year), less 10%.
4. Annual Adjustments; Other Mutual Adjustments . The rates or amounts provided for in Sections 1 and 2 shall be autom atically increased as follows: Beginning on July 1, 20 24 and every other July 1st thereafter during the term of this Agreement, they shall be increased for the change in the consumer price index for the twelve (12) month period published for the month of May, as shown by the U.S. Department of Labor in its All Urban Consumers Index set forth for the Los Angeles- Riverside-Orange Counties area; provided, however, that such adjustment shall never be lower than zero percent (0%) nor more than four percent (4%). In addition to the automatic rate increases, either BB&K or the City may initiate consideration of a rate increase at any time.
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Prior Agreements
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