CITY OF MORRO BAY
Notice of Special Meeting of the City Council
Agenda
Thursday, December 19, 2024, 5:30 p.m.
Veterans Memorial Hall, 209 Surf St., Morro Bay, CA
Public Participation
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• Meetings are also broadcast on cable Channel 20 and streamed on the City's website.
Community Members are encouraged to submit agenda correspondence via email to the City Council at [email protected] prior to the meeting. Agenda correspondence received by 10:00 a.m. on the meeting day will be posted on the City website. •
Pages
1. ESTABLISH QUORUM AND CALL TO ORDER
2. PUBLIC COMMENT FOR ITEMS ON THE AGENDA
3. SPECIAL MEETING AGENDA ITEM(S)
3.a Consideration of Termination of the Agreement with Burke, Williams & Sorensen, LLP for City Attorney Services
1 (City Manager)
Recommended Action
As directed at closed session on Monday December 16th, the Mayor and Council Members instruct staff to proceed with termination of the Agreement with Burke, Williams & Sorensen (BWS) to allow for a successor agreement, with the exception of closure on ongoing items to be specified by the City.
3.b Approval of Agreement with Robert Schultz for Interim City Attorney Services
3 (City Manager)
Recommended Action
Should the Council authorize termination of the City’s contract with BWS, it is recommended the Mayor and Council Members approve and authorize the Mayor to execute an Agreement with Robert W. Schultz for Interim City Attorney Services.
4. ADJOURN
/s/ Carla Wixom, Mayor
This agenda is subject to amendment up to 24 hours prior to the date and time set for the meeting. Please refer to the agenda posted at City Hall, 595 Harbor Street, Morro Bay, CA 93442 for any revisions or call the Clerk's office at (805) 772-6205 for further information.
In compliance with the Americans with Disabilities Act, if you need special assistance to participate in a City meeting, please contact the City Clerk's office at (805) 772-6205 or [email protected] at least 24 hours prior to the meeting to ensure reasonable arrangements can be made to provide accessibility to the meeting.
Prepared By: YK Dept Review: ________
City Manager Review: YK City Attorney Review: ___ ___
Staff Report
TO: Honorable Mayor and City Council DATE: December 18, 2024 FROM: Yvonne Kimball, City Manager
SUBJECT: Consideration of Termination of the Agreement with Burke, Williams & Sorensen, LLP for City Attorney Services
RECOMMENDED ACTION
As directed at closed session on Monday December 16th, the Mayor and Council Members instruct staff to proceed with termination of the Agreement with Burke, Williams & Sorensen (BWS) to allow for a successor agreement, with the exception of closure on ongoing items to be specified by the City.
BACKGROUND
Aleshire & Wynder has provided city attorney services to the City of Morro Bay since March 2014.
Chris F. Neumeyer, a partner at A&W, has been the appointed City Attorney since 2019. The City Attorney gave notice to A&W on November 4, 2024 that he accepted an offer from law firm BWS to join BWS as a partner effective November 14, 2024.
On November 12, 2024 the City Council approved (3-2 vote) an agreement with BWS for City Attorney Services and appoint Chris Neumeyer as City Attorney, and terminated agreement with A&W for City Attorney services with the exception of closure on ongoing items to be specified by the City.
DISCUSSION
At the December 16, 2024 Closed Session Meeting, the City Council gave direction to Staff to agendize the termination of the BWS for City Attorney Services.
Section 15 of the Agreement between the City and BWS for City Attorney Services states the, “City may discharge BWS at any time.” If the City Council decides to terminate the Agreement, the termination date should allow for enough time for the Interim City Attorney to consult with BWS on any ongoing legal matters that need immediate attention.
CONCLUSION
Staff recommends the Council discuss and consider termination the agreement with Burke, Williams and Sorensen, LLP for City Attorney services except for consultation needed by the Interim City Attorney or Staff on any ongoing legal matters that need immediate attention.
Given the short timeframe to produce this report, should any follow up Council action be needed, that will be brought forward at a future meeting.
AGENDA NO: 3.a
MEETING DATE: December 19, 2024
ATTACHMENT(S)
None
Prepared By: YK Dept Review: ________
City Manager Review: YK City Attorney Review: ___ ___
Staff Report
TO: Honorable Mayor and City Council DATE: December 18, 2024 FROM: Yvonne Kimball, City Manager
SUBJECT: Approval of Agreement with Robert Schultz for Interim City Attorney Services
RECOMMENDED ACTION
Should the Council authorize termination of the City’s contract with BWS, it is recommended the Mayor and Council Members approve and authorize the Mayor to execute an Agreement with Robert W. Schultz for Interim City Attorney Services.
BACKGROUND
If Council terminates the current agreement with Burke Williams and Sorensen, LLP (BWS) for City Attorney services, there will be a need for immediate Interim City Attorney Services until the City can enter into an agreement with a permanent City Attorney.
DISCUSSION
Given Council’s direction to terminate BWS agreement during the December 16 th Closed Session
meting appointment of an Interim City Attorney is time sensitive. Attorney Robert Schultz is available to step in. The proposed Agreement between the City and Robert Schultz for legal Services is attached. The estimated term of the agreement is 3 to 6 months but may be terminated at any time.
Mr. Schultz’s hourly rate is $200.
Mr. Schultz was the City Attorney for Morro Bay from 1998 until 2013 and then was Town Attorney for the Town of Los Gatos from 2013 to 2022. During Mr. Schultz’s career, he also served as District Counsel for San Simeon Community Services District and is currently District Counsel for Oceano Community Services District. He has also served as Special Counsel for the City of Santa Maria, Guadalupe, Pismo Beach, San Luis Obispo, Atascadero, Kings City, Solvang and Gilroy. His legal assignments have included conducting internal investigations, serving as a hearing officer for administrative appeals, and providing legal advice on contracts, lease issues, and development projects.
In addition, Mr. Schultz has served on various boards and committees including the Cal Cities State Brown Act Board, the Cal Cities State Public Works Board, the Cal Cities State Economic Development Committee, the Cal Cities State Housing Committee, the Cal Cities State Marijuana Committee, the JPA Risk Management Executive Board, the City of San Luis Obispo Architectural Review Board, the City of Tustin Recreation & Parks Board, and the San Luis Obispo Downtown Economic Development Board.
AGENDA NO: 3.b
MEETING DATE: December 19, 2024
Since Mr. Schultz served as City Attorney for Morro Bay for 15 years, he has the expertise and knowledge to bridge the gap between the termination of the agreement with BWS and the formal recruitment/RFP process for permanent City Attorney services.
CONCLUSION
Staff recommends the Council discuss and approve the agreement with Robert Schultz for Interim City Attorney Services.
Given the short timeframe to produce this report, should any follow up Council action be needed, that will be brought forward at a future meeting.
ATTACHMENT(S)
1. Proposed Professional Services Agreement
2. Robert W. Schultz Resume
AGREEMENT FOR LEGAL SERVICE
This Agreement for Legal Services (“Agreement”) is made and entered into this 19th day of December 2024, by and between the City of Morro Bay, a municipal corporation, (“City”) and Robert W. Schultz, Attorney at Law. (“Consultant”). To the extent that California Business & Professions Code section 6148 applies to this engagement, this Agreement is intended to fulfill the requirements of that section.
RECITALS
A. The City desires to retain legal services from Consultant while a recruitment for City Attorney is conducted for long time legal services; and B. Consultant represents that it is fully qualified to perform such services by virtue of its experience and the training, education and expertise of its principals and employees.
NOW, THEREFORE, in consideration of performance by the parties of the promises, covenants and conditions contained herein, the parties hereby agree as follows:
1. SCOPE AND LEVEL OF SERVICES. Consultant agrees to perform legal services for City and to do so in a timely, efficient, and effective manner. The scope of the requested representation by the Consultant is to advise and represent the City in connection with any legal matters that the City may refer to the Consultant while acting as Interim City Attorney. The parties anticipate these services primarily consist of legal work which must be completed before the City can obtain a permanent City Attorney and where Consultant’s knowledge and background on legal matters would best serve the City. In addition, Consultant shall provide the City with strategic advice as to the selection of a permanent City Attorney. It is understood by and between the parties that the City may also hire additional legal counsel for other matters after the execution of this Agreement.
2. TIME OF PERFORMANCE. Time is of the essence. The services shall be performed on a timely basis.
3. STANDARD OF PERFORMANCE. As a material inducement to the City to enter into this Agreement, Consultant hereby represents and warrants that it has the qualifications and experience necessary to undertake the services to be provided pursuant to this Agreement. Consultant shall perform all work to the highest professional standards and in a manner reasonably satisfactory to the City.
Consultant hereby covenants that it shall follow the highest professional standards in performing all services required hereunder and will perform the services to a standard of reasonable professional care.
4. PRIOR AGREEMENTS. All prior agreements between the parties are hereby terminated, including any restriction on Consultant performing legal services for the City.
5. COMPLIANCE WITH LAW. All services rendered hereunder by Consultant shall be provided in accordance with all ordinances, resolutions, statutes, rules, and regulations of the City, and any federal, state, or local governmental agency having jurisdiction in effect at the time the service is rendered.
6. TERM. The term of this Agreement shall be from the Effective Date until the City has selected and entered into an agreement with a permanent City Attorney. The parties estimate the time period to be between 3 and 6 months. This Agreement shall remain in full force and effect unless and until this Agreement is terminated as provided for herein.
7. COMPENSATION. The City agrees to compensate Consultant for its legal services at an hourly rate of $200. The attorneys’ fees component of the billing statement will appear in “block billing” format. In other words, while the work performed by the Attorney on any given day will be stated in some detail, the time spent performing those tasks will be aggregated and will appear a single time entry. The minimum billing block is 0.1 hour for each task.
8. REIMBURSEMENT. No fees will be charged for routine photocopying, mail, and faxes. Actual costs will be charged for extraordinary printing, mailings, couriers, recording of documents, as well as consultants and experts preapproved by City.
Mileage reimbursement will not be requested unless travel is outside the County.
9. METHOD OF PAYMENT. Consultant shall invoice the City for work performed on a calendar monthly basis. Payments to Consultant by City shall be made within thirty (30) days after receipt by City of Consultant’s itemized invoices.
10.INDEPENDENT CONTRACTOR. Consultant is and shall at all times remain as to the City, a wholly independent contractor and not an agent or employee of City.
Consultant shall receive no premium or enhanced pay for work normally understood as overtime, nor shall Consultant receive holiday pay, sick leave, administrative leave, or pay for any other time not actually worked. The intention of the parties is that Consultant shall not be eligible for benefits and shall receive no compensation from the City except as expressly set forth in this Agreement. Consultant shall have no power to incur any debt, obligation, or liability on behalf of the City or otherwise act on behalf of the City as an agent. Neither the City, nor any of its agents shall have control over the conduct of Consultant or any of Consultant’s partners or employees, except as set forth in this Agreement. Consultant shall at no time, or in any manner, represent that it or any of its partners, agents or employees are in any manner employees of the City. Consultant agrees to pay all required taxes on amounts paid to Consultant under this Agreement,
11.CONFIDENTIALITY. Consultant in the course of his duties, may have access to financial, accounting, statistical and personal data of private individuals and employees of the City. Consultant covenants that all data, documents, discussion,
or other information developed and received by Consultant or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Consultant without written authorization by the City. The City shall grant such authorization if disclosure is required by law. Upon request, all City data shall be returned to the City or destroyed upon the termination of this Agreement.
Consultant’s covenant under this Section shall survive the termination of this Agreement.
12.OWNERSHIP OF MATERIAL. All reports, documents, or other written materials developed or discovered by Consultant, or any other person engaged directly or indirectly by Consultant in the performance of this Agreement shall be and remain the property of the City without restriction or limitation upon its use or dissemination by the City.
13.CONFLICT OF INTEREST. Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which may be affected by the services to be performed by Consultant under this Agreement, or which would conflict in any manner with the performance of its services hereunder. Consultant further covenants that, in performance of this Agreement, no person having any such interest shall be employed by it. Furthermore, Consultant shall avoid the appearance of having any interest which would conflict in any manner with the performance of its services pursuant to this Agreement. Consultant agrees not to accept any employment or representation during the term of this Agreement which is or may make Consultant “financially interested” (as provided in California Government Code Sections 1090 and 87100) in any decision made by the City on any matter in connection with which Consultant has been retained pursuant to this Agreement. Nothing in this section shall, however, preclude Consultant from accepting other engagements with the City or representing clients residing or owning property in the City.
14.ASSIGNABILITY; SUBCONTRACTING. The parties agree that the expertise and experience of Consultant are material considerations for this Agreement.
Consultant shall not assign, transfer, or subcontract any interest in this Agreement, nor the performance of any of Consultant’s obligations hereunder, without the prior written consent of the City Council, and any attempt by Consultant to do so shall be void and of no effect and a breach of this Agreement. Notwithstanding the foregoing, nothing herein shall preclude other attorneys or staff associated with Consultant from performing services for City pursuant to the terms of this Agreement under the supervision and direction of Representative.
15.INDEMNIFICATION. To the fullest extent permitted by law, Consultant shall indemnify, defend (with independent counsel approved by the City) and hold harmless the City, and its elective or appointive boards, officers, employees agents and volunteers against any claims, losses, or liability that may arise out of or result from damages to property or personal injury received by reason of, or in the course of work performed under this Agreement due to the acts or omissions of Consultant or Consultant’s officers, employees, partners, agents or subcontractors. The provisions of this Section survive completion of the services or the termination of this Agreement. The acceptance of such services shall not
operate as a waiver of such right of indemnification.
16.With regard to Consultant’s professional services, Consultant agrees to use that degree of care and skill ordinarily exercised under similar circumstances by members of Consultant’s profession, including without limitation adherence to all applicable safety standards. To the fullest extent permitted by law, Consultant shall indemnify, defend (with independent counsel approved by the City) and hold harmless the City, and its elected or appointed boards, officers, and employees from and against all liabilities, including without limitation all claims, losses, damages, penalties, fines, and judgments, associated investigation and administrative expenses, and defense costs, including, but not limited to, reasonable attorneys’ fees, court costs and costs of alternative dispute resolution regardless of nature or type that arise out of, pertain to, or relate to the negligence, reckless, or willful misconduct of Consultant or Consultant’s officers, employees, agents or subcontractors. The provisions of this Section survive completion of the services or the termination of this Agreement. The acceptance of said services and duties by City shall not operate as a waiver of such right of indemnification.
17.INSURANCE REQUIREMENTS. Consultant carries errors and omissions insurance with biBERK, a Berkshire Hathaway Company. After a standard deductible, this insurance provides coverage beyond what is required by the State of California. A declaration page containing information about Consultant’s errors and omissions insurance policy is available upon Client’s request.
18.TERMINATION. City reserves the right to discharge Consultant and terminate this Agreement at any time. In the event of such discharge or termination, the City shall compensate Consultant for services rendered and expenses necessarily incurred up to and including the date of termination. City shall terminate services and/or the Agreement by delivering to Consultant a written notice specifying the extent to which services and/or the Agreement are terminated and the effective date of the termination. Consultant may terminate this Agreement at any time by giving the City not less than thirty (30) days prior written notice.
19.NOTICES. Any notices, bills, invoices, reports, or other communications required or permitted to be given under this Agreement shall be given in writing by US Mail Service, personal delivery, or email as follows:
To City:
City Manager
City of Morro Bay
595 Harbor Street
Morro Bay, CA 94025
To Consultant:
Robert Schultz
Attorney at Law
3940 Broad Street, Ste 7-155
San Luis Obispo, CA 93401
20.NON-DISCRIMINATION AND EQUAL EMPLOYMENT OPPORTUNITY. In the performance of this Agreement, Consultant shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental handicap, or medical condition. Consultant will take action to ensure that employees are treated without regard to race, color, creed, religion, sex, marital status, sexual orientation, national origin, ancestry, age, physical or mental handicap, or medical condition.
21.PRIOR AGREEMENTS AND AMENDMENTS; ENTIRE AGREEMENT. This Agreement, and any other documents incorporated herein by specific reference, represent the entire and integrated agreement between the City and Consultant.
This Agreement supersedes all prior oral and written negotiations, representations, or agreements. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This Agreement may only be modified by a written amendment duly executed by the parties to this Agreement.
IN WITNESS WHEREOF, the City and Consultant have executed this Agreement effective as of the date written above.
CITY OF MORRO BAY
______________________________
Carla Wixom, Mayor
ROBERT W. SCHULTZ, ATTORNEY AT LAW
______________________________
Robert W. Schultz
ATTEST:
Dana Swanson, City Clerk
R O B E R T W. S C H U L T Z
3940 Broad Street, Suite 7-155
San Luis Obispo, CA 93401
(805) 550-3588
[email protected]
LEGAL
EXPERIENCE GENERAL: Seasoned attorney with experience in a wide range of legal matters. Proven ability to provide sound legal advice, effectively manage a legal department, and build positive relationships with board members, city officials, employees, other governmental agencies, and the community.
Conducted extensive legal research and prepared legal memorandums, opinion and staff reports on interpreting laws, pending legislation and court decisions. My legal experience includes trials and legal issues related to tort claims, land use, construction, real estate transactions, energy, water, wastewater, and labor. Admitted to practice in the courts of the State of California, the United States District Court for the Central Districts of the State of California, and the United States Ninth Circuit Court of Appeals. 2023-Present SAN LUIS OBISPO LEGAL ASSISTANCE FOUNDATION, Staff Attorney Part Time Staff Attorney for a nonprofit corporation that provides free legal services to the underserved community. My primary focus is with housing and government benefit issues.
2023-Present OCEANO COMMUNITY SERVICES DISTRICT, Interim District Counsel Providing legal advice and opinions to Town officials and Staff and help recruit and retain permanent District Counsel.
2013 -2022 TOWN OFLOS GATOS, Town Attorney/Risk Manager Provided legal advice and opinions to Town officials, departments, employees, boards, and commissions. Drafted and reviewed all contracts, real estate transactions, ordinances, resolutions, and staff reports. Represented the Town’s legal interests before judicial and administrative agencies. Conducted employee internal investigations, landlord/tenant mediations, and prosecuted violations of the Municipal Code. Also served as the Risk Manager and managed outside special counsel.
1998- 2013 CITY OFMORRO BAY,City Attorney/Risk Manager
Provided legal advice and opinions to City officials, departments, employees, boards, and commissions. Drafted and reviewed all contracts, leases, ordinances, resolutions, staff reports and other City documents. Rendered legal advice and opinions in complex environmental compliance matters, land use/natural resource strategies, water rights and permitting and protection of water supply and wastewater discharge permits. Represented the City’s legal interests in labor negotiations, before judicial and administrative agencies including the Water Quality Control Board, the Energy Commission, and the Coastal Commission. Conducted internal investigations and managed the work of outside special counsel. Also served as the Risk Manager for the City.
1998- 2013 SAN SIMEON COMMUNITY SERVICES DISTRICT , District Counsel Provided legal advice and services to the District Board and Committees.
Drafted and reviewed all contracts, ordinances, resolutions, and other documents. Rendered legal opinions and represented the District in complex environmental compliance matters and in the permitting and protection of the District’s water supply and wastewater discharge permits. Represented the District’s legal interests before judicial and administrative agencies including the Water Quality Control Board and Coastal Commission. 1997-2002 HUNT & ASSOCIATES, Attorneys and Counselors at Law:
Senior Attorney serving the Firm and its clients in the Firm’s litigation practice group and served as Assistant City Attorney for Pismo Beach. Extensive trial experience in all aspects of civil litigation, including insurance defense, public entity defense, land use, construction, real estate, and personal injury. 1990 - 1997 BAILEY &SCHULTZ, APC
PARTNER of a law firm specializing in land use, construction and public works disputes against Cities and Counties.
1987 - 1990 ANDRADE &HARGAN APC:
ASSOCIATE Attorney in civil litigation firm specializing in insurance defense and construction law.
EDUCATION JD, December of 1986, SOUTHWESTERN UNIVERSITY SCHOOL OFLAW.
BS, June of 1983, Business Administration, UNIVERSITY OF LA VERNE.
OTHER
EXPERIENCE
During my career, I have also served as special counsel for the City of Santa Maria, Guadalupe, Pismo Beach, Atascadero, Kings City, Solvang and Gilroy. The legal assignments included conducting internal investigations, serving as a hearing officer for administrative appeals, and providing legal advice on contracts, lease issues, and development projects.
In addition, I have served on various boards and committees including the Cal Cities State Brown Act Board, the Cal Cities State Public Works Board, the Cal Cities State Economic Development Committee, the Cal Cities State Housing Committee, the Cal Cities State Marijuana Committee, the PLANJPA Risk Management Executive Board, the City of San Luis Obispo Architectural Review Board, the City of Tustin Recreation & Parks Board, the Cal Poly Athletic Board, the San Luis Obispo Downtown Economic Development Board, and the Association of General Contractors Legal Advisory Board.
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