The URL can be used to link to this page

Resolution No. 7166.0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7166 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE CITY ATTORNEY EMPLOYMENT AGREEMENT ESTABLISHING COMPENSATION FOR DAVID B. BREARLEY AS CITY ATTORNEY WHEREAS, DAVID B. BREARLEY, has served as the City Attorney for the City of Vernon since July 1, 1977; and WHEREAS, the City Council of the City of Vernon approved a new City Attorney Employment Agreement for city attorney services pursuant to Resolution No. 5298 on June 26, 1986; and WHEREAS, the City Council of the City of Vernon approved an amendment to the City Attorney Employment Agreement pursuant to Resolution No. 6977 on June 25, 1997; and WHEREAS, Section 5 of said Agreement provides, in part, as follows: ". .City and Brearley further agree to negotiate increases in the hourly rates provided for herein from time to time. . .with merit performance to be considered in said negotiations. .11 and WHEREAS, the City Council of the City of Vernon adopted Resolution No. 6977 on June 25, 1997, establishing the following compensation for city attorney services effective July 1, 1997: (a) A retainer salary of $23,540.00 per month; (b) A fee for legal services of $152.72 per hour for every hour of legal services provided in each month in excess of 115 hours up to a maximum of 300 hours; and (c) A fee for legal services of $193.72 per hour for all hours of legal services provided in each month 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in excess of 300 hours per month; and WHEREAS, pursuant to Section 5 of the Employment Agreement, the City Council of the City of Vernon, having participated in negotiations with the City Attorney, intends to adjust the compensation for the City Attorney effective July 1, 1998. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon does hereby find and determine that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Amendment to the City Attorney Employment Agreement effective July 1, 1998, a copy of which has been presented to the City Council concurrently with this resolution and the City Council hereby orders said Amendment be received and filed by the City Clerk. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor and the City Clerk to execute said Amendment for, and on behalf of, the City of Vernon. SECTION 4: The City Clerk of the City of Vernon shall certify to the passage of this resolution and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 7th day of July, 1998. EONIS C. MALtkRG, Ma or ATTE,� ,✓ 1 BRUCE V. MALKENHORST, City Clerk -2- I I f 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 7166, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 7, 1998, and thereafter duly signed by the Mayor of the City of Vernon. " 4110�/Z'----� L! G° BRUCE V. MALKENHORST, City Clerk (SEAL) -3- EXHIBIT "A" PROPOSAL FOR CITY ATTORNEY SERVICES AUGUST 25, 1998 1. Term. A. The term of the agreement would be from October 1, 1998 through July 31, 1999 (10 months). If the agreement is extended, it will need to be extended by additional negotiations during the term hereof and upon the mutual agreement of both parties. B. The term provision in the agreement would be changed to eliminate the need for a written notice because the agreement will expire of its own accord on July 31, 1999, unless extended by mutual agreement of the parties. 2. Brearley's Compensation. A. Retainer set at $27,500 per month, subject to increases for longevity based upon prior service (20%). B. Retainer based upon an average of 115 hours per month for the 10-month period between October 1, 1998 through July 31, 1999, or, a contract total of 1150 hours. The total hours worked during the 10 months can be less A 1 than 115 hours in a given month and more than 115 hours in a given month. C. City to guarantee that at least 1150 hours will be requested of Brearley during the 10-month period, and in the event City requests less hours, Mr. Brearley wou dill receive he retainer amount provided for above. D. For all hours Brearley works above 1150 hours during the 10-month period, Brearley will receive a fee of approximately $250 per hour for all such hours worked. The City is not required to offer any additional hours to Mr. Brearley above and beyond the guaranteed total hours of 1150 for the 10- month period. The fees for the additional hours worked by Brearley, if any, will be billed monthly but will be due and payable on July 31, 19999 the end of the contract term. /- E. To the extent that Brearley works on matters related to the Asian Outreach Program, Brearley will receive credit applied to the retainer average of 115 hours per month, for all such hours worked when the location of such work is in the United States. To the extent that any of the hours worked are hours of work in locations in Asia, Brearley will receive a credit for such hours worked at a 60 % basis applied to the retainer average of 115 hours per month. (Example --if Brearley worked 20 hours in Asia, then Brearley receives a credit of 12 hours toward the retainer.) These hours will be billed monthly and paid monthly and if they are excess to the guaranteed A - 2 1150 hours, then they will be compensated pursuant to section 2D. 3. Medical Insurance. Brearley will be permitted to purchase medical insurance from the City upon Brearley's retirement until complete Medicare coverage is provided, which is assumed to be approximately at the age of 67. For example, if Brearley retires at the end of this extension in August of 1999, Brearley will be permitted to purchase medical insurance from the City for his wife and his dependent, if any at that time, until he reaches the age of 67, which is now the age where Medicare coverage is provided, or when Medicare coverage begins if modified later. Brearley will also be permitted to purchase supplemental insurance if such insurance is offered to other retired City employees. 4. Other Attorney's Fees. Rates for other attorneys in the firm would be established at $150 per hour, except that any litigation assigned to the firm would be based upon rates mutually established at that time. A - 3 5. Travel. A. Travel time shall be billable for all travel performed by Brearley or attorneys in Brearley s firm on behalf ate City in the same manner as has been billed during the previous periods covered by the agreement, except that travel time to Asia on behalf of the City to support activities in the Asia Outreach Program shall not be- considered billable hours. B. In the event Brearley has to travel for the City, which includes air travel, City will pay for business class status for all such flights and any and all other appropriate expenses incurred while performing services on behalf of the City. 6. Legal Services Requirements A. The firm will make available and maintain for City's benefit Brearley's services up to a minimum of 1150 hours per year but will have no other requirement to maintain attorneys on staff to provide services above the retainer level. (It is assumed, that the City intends to reduce its need for legal services during the 10 months of the agreement and that the firm A - 4 cannot rely upon the past as a good indicator of the amount of legal services which will be required by the City.) B. This amended City Attorney Employment Agreement will be the sole agreement providing for legal services to the City. All other previous agreements or letters of understanding will be terminated upon the approval and execution of this amended City Attorney Employment Agreement. A - 5 P. 01 �c TRANSACTION REPORT �c �c. SEP-01-1998 TUE 01:11 PM �c �c DATE START RECEIVER TX TIME PAGES TYPE NOTE MO DP �K �c �c �c SEP-01 01:08 PM 011862162755420 3'32" 11 SEND OK 143 �c �K TOTAL 3M 32S PAGES; 11 DATE: TO: FROM: ATT: , RE: CITY OF VERNON 4305 SANTA FE AVENUE Vernon, California, USA Ph# (213) 583-8811 Fax# (213) 58 X -7924 9/ 1 /98 Hilario Gonzales, Motel Guest TIME: 1300 firs (PST) Gloria Orosco, Chief Deputy City Cleric RUSH DELIVERY Counterproposal from City Attorney for Services NOTE: Larry - there was a grave misunderstanding on this end on something that was supposed to be given to you from the City Attorney's office on Monday. You were given documentation DATE: TO: FROM: ATT : RE: CITY OF VERNON 4305 SANTA FE AVENUE Vernon, California, USA Ph# (213) 583-8811 Fax# (213) 581-7924 9/1/98 Hilario Gonzales, Hotel Guest TIME: 1300 Hrs (PST) Gloria Orosco, Chief Deputy City Clerk RUSH DELIVERY Counterproposal from City Attorney for Services NOTE: Larry - there was a grave misunderstanding on this end on something that was supposed to be given to you from the City Attorney's office on Monday. You were given documentation before you left that had to do with reproducing city records and YOU WERE SUPPOSED TO BE GIVEN the counterproposal that David sent to Bruce regarding the city attorney's compensation. I apologize for this error and hope you have time to read this. I believe this matter will be on the next finance meeting (9/ 15) Number of pages including this page is 11 . If you do not receive all pages please call Gloria at (213) 583-8814. Thank you. Sender: REVISED - 9/22/98 Amendment City of Vernon City Attorney Monthly Retainer $20,000 $27,500 plus 20% Additional Longevity Increa Workers Compensation To be deleted Continued as in past agreement Unemployment Insurance To be deleted Continued as in past agreement Retainer - annual increases be negotiated Not required since proposed 10 month agreement independent of other employees Proposed expires on 7/31/99, can be negotiated if City desires to extend the agreement Rates for hours over retainer $150 per hour $250 per hour Rates for hours over retainer be Not required since proposed 10 month agreement negotiated annually Proposed expires on 7/31199, can be negotiated if City desires to ext nd the agreement Retainer would apply to hours worked by Proposed Identified in Section 2.13 Brearley Charged and applied to retainer for work in U.S. Rates for hours worked on overseas $150 per hour and work conducted in 60% of total amount Asia would be charged at worked and applied to ventures retainer, $250 per hour if over retainer Travel time for overseas trips Not chargeable Agreed, specifically to Asia only City will pay up to "business class" Proposed P greed flights and other appropriate expenses $150, however staff attorneys may not be Rates for other attorneys in firm $150 available if retainer is exceeded Amendment City of Vernon City ttorney Longevity Increases, �mployee Resolutions and Longevity increases Not to be applicable Ordinances are all appialary icable to Monthly Retainer Term of Agreement Written notice of 6 months given by City ... and Not applicable, proposed 10 month agreement from Brearley to provide 6 months 10/1/98-- 7/31/99 Proposal validity date ------ Unt�19/22/98 Would be able to pi irchase from the City for Medical Insurance Not Addressed himself, wife, and d--pendent, until Medicare coverage is provided (age 67). Supplemental Insurance Not Addressed Would be able to purchase from the City if offered to other retired City employees. Travel time for Brearley's staff attorneys Not Addressed Included for billable I travel, except to Asia. CITY COUNCIL DAVID B. BREARLEY City Attorney LEONIS C. MALBURG FAX: (626) 330-5818 Mayor KEVIN WILSON THOMAS A. YBARRA Director of Community Services & Water Mayor Pro -Tern FAX: (323) 588-2761 Wm. 'BILL" DAVIS Councilman KENNETH J. DeDARIO Director of Municipal Utilities H. "LARRY" GONZALES FAX: (323) 583-1983 Councilman DAVET W. MICHAEL McCORMICI< Fire Chief Councilman FAX: (323) 581-1385 CITY HALL BRUCE V. MALKENHORST BRUCE W. OLSON City Administrator / City Clerk 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief FAX (323) 581-7924 TELEPHONE (323) 583-8811 FAX: (323) 583-5236 September 21, 1998 VIA FACSIMILE AND MAIL Mr. Bruce V. Malkenhorst City Administrator/City Clerk 4305 Santa Fe Avenue Vernon, California 90058-0805 Re: Renegotiation - Vernon City Attorney Employment Agreement Dear Bruce: I have received your letter dated September 21, 1998, and am providing herein the following clarifications in response to your questions. 1. The proposal establishes a retainer amount at 11$27,500 per month, subject to increases for longevity based upon prior service (20%)." The intent is to apply the longevity factor as it is applied to the current retainer salary. Therefore, the retainer salary will be increased by the longevity factor of 20%. 2. In the letter of August 25, 1998, it was proposed that "Exhibit `A' is a proposal to amend the existing Agreement as specified therein with all other terms and conditions of the existing Agreement remaining unchanged." Therefore, there is no intent to change the current agreement as it relates to workers' compensation and unemployment insurance. 3. The proposal did not provide for a required negotiation for future increase. The proposal would be an agreement that would expire on its own accord on July 31, 1999. If the City is interested in extending the agreement, it can be extended by additional negotiations during its term upon the mutual agreement of both parties based upon each parties' desires at that time. If the City wishes to negotiate an annual increase for a city attorney employment agreement beyond July 31, 1999, Mr. Bruce V. Malkenhorst Page 2 September 21, 1998 where such increases would be negotiated independent of other employees, then the proposed agreement would not prohibit the City from taking such a position. Such a position would be in conformance with the proposed agreement. 4. I believe this answer is provided for in No. 3 above. That is, if the City desires and wishes to continue this arrangement beyond July 31, 1999, both parties would negotiate an extension of this agreement based upon the mutual needs and desires of both parties. Neither party is restricted in any way in future negotiations by the terms and conditions of this proposal. 5. The proposal provides that the retainer salary would be subject to the longevity increase, employee resolutions and ordinances that are in effect at this time. I have attempted to style the proposal in such a manner as to retain my employee status with the City of Vernon so as to be able to maintain my membership in the Public Employees Retirement System. Therefore, issues such as workers' compensation and unemployment insurance as well as longevity increases are representative of employee status with the City of Vernon. If you have any further questions or need further clarification on the proposal, please call. Very truly yours, Doi- X� N. David B. Brearley City Attorney DBB:j1 CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 September 21, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda Heights, CA 91745 RE: City Attorney Agreement Proposal Dear David: DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 In response to your proposal ("Exhibit A") submitted August 25, 1998, I have the following questions: 1. Clarification on the retainer amount of $27,500 - this is,a flat rate with no adjustments? 2. You do not address our proposals of July 22 & 28 pertaining to Workers' Compensation and Unemployment Insurance - these are acceptable? 3. Retainer - annual increases be negotiated independent,of other employees - this was not addressed by you. 4. Rates for hours over retainer be negotiated annually - thi_p was not addressed by you. 5. The city proposal was that longevity increases shall not be applicable - this was not addressed by you. cc: Finance Committee Yours truly, Bruce V.' Malkenhorst City Administrator E OFFICE OF THE CITY ADMINISTRATOR/CITY CLERK INTER -OFFICE MEMORANDUM DATE: September 2, 1998 TO: Gloria J. Orosco FROM: Greg S. Tsujiuchi RE: City Attorney Agreement Attached for your review is a chart that highlights the differences between the proposal by David Brearley and that of what has been proposed by the City of Vernon. The proposal offered by Mr. Brearley is valid until September 22, 1998. I've highlighted one section that seems questionable. I see know where in the agreement proposal by Mr. Brearley that states that work done by his staff would not contribute towards the retainer hours. I'm reading that item 2.1) refers to the hours that he works above the 1150 hours and would then be paid at that proposed rate, but I've read nothing concerning the staff attorney's contribution toward the retainer hours, or is that already understood by both parties. If that is correct, then Mr. Brearley would only, for example, work 5 hours one month and his staff work 110 hours, and that would maximize the monthly retainer hours for that month? Amendment City of Vernon City Attorney Monthly Retainer $20,000 $27,500 Workem Compensation To be deleted No Comment Unemployment Insurance To be deleted No Comment Retainer - annual increases independent of other employees be negotiated Proposed No Comment Rates for hours ovel retainer $150 per hour $250 per hour Rates for hours over � tainer be Proposed No Comment negotiated annually Retainer would apply to h urs worked by Proposed Identified in Section 2.1) Brearley Charged and applied to retainer for work in U.S. Rates for hours worked on overseas $150 per hour and work conducted in Asia would be charged at ventures 60% of total amount worked and applied to retainer, $250 per hour if over retainer Travel time for overseas trips Not chargeable Agreed, specifically to Asia only City will pay up to "business class" Proposed Agreed flights and other approph ate expenses Rates for other attorn ys in firm $150 $150, however staff attorneys may not be available if retainer is exceeded Longevity increases Not to be applicable Included in monthly retainer Term of Agree ent Written notice of 6 months given by City ... and Not applicable, proposed 10 month agreement from Brearley to provide 6 months 10/1/98 - 7/31/99 Pro osal validit date I------ Until 9/22/98 Amen t City of Vernon City Attorney Medical Insurance Not Addressed Would be able to purchase from the City for himself, wife, and dependent, until Medicare coverage is provided (age 67). Supplemental Insurance Not Addressed Would be able to purchase from the City if offered to other retired City employees. Travel time for Brearley's staff attorneys Not Addressed I Included for billable travel, except to Asia. OFFICE OF THE CITY ADMINISTRATOR/CITY CLERK INTER -OFFICE MEMORANDUM DATE: September 1, 1998 TO: Gloria J. Orosco FROM: Greg S. Tsujiuchi RE: City Attorney Agreement For your review is a memorandum that highlights the differences between the proposal by David Brearley and that of what has been offered. Term City of Vernon - Amendment to Section 4 of the agreement to reflect change in written notice times for termination of the agreement. ` (� p9 p S City Attorney It is proposed to eliminate the need for a written notice all together. It is proposed that the agreement would be for 10 months, 10/1/98 7/31/99, or a contract total of 1150 hours and expire on 7/31/99, unless extended by mutual agreement of the parities. Retainer - City of Vernon - The retainer offered was set at $20,000 (115 hours) per month. /ylnrUr City Attorney - The proposal is set at $27,500 per month based on 115 hours per month with subject to increases for longe�vityy based on prior service (20%). *4,- e& _nntP that item nn paaP of the ("itv of VPrnnn 1PttPr rlatPri Tiny �Q 1 OQR �tarAs City of Vernon - Rates for hours over retainer be established at $150 per hour. City Attorney - The proposal states "a fee of approximately $250 per, hour..." for hours worked above 1150 hours (based on 115 hours per month) during the 10 month period. Note that total hours worked during the 10 months can be less than 115 hours in a given month and more than 115 hours in a given month. Cityof Vernon-�lai®- e 6 l( S h d C� � City Attorney - It is proposed that the City guarantee that at least 1150 hours will be requested of Brearley during the 10 month period, and if the City request less, Brearley would still receive the retainer amount of $27,500 per month (plus longevity) City -of -Vernon — Rates-for-hours-over-retainer-b-e-negotiated annually. City Attorney - No4e&pepse. C�,oj M City of Vernon - Retainer would apply to hours worked by Brearley City Attorney - No direct reference to this matter. Travel - City of Vernon - It is offered to pay up to "business class" flight. City Attorney - It is proposed that the "City will pay for business class status..." I see a minor technicality where if only coach seating is available, will the City be liable to still pay the amount of a business class seat? City of Vernon - The City's offer is not to pay for travel time for overseas trips ®��r City Attorney - Whereas Item 5 subparagraph A of the proposal specifically 0,11 states that only "travel time to Aeon behalf of the City to support activities in the Asia Outreach Program shall not be considered billable hour " �aAll 11 travel time shall be billable for all travel performed by-Brearley o Attorneys in Brearley's firm on behalf of the City in the same manner as has een billed during the previous periods covered by the agreement. 601 Insurance - City of Vernon - Workers compensation be deleted. / Fj c 610 � �wU City Attorney - No response. 1 � LJL �, y -VAS $L City of Vernon - Unemployment insurance be deleted.'_ �1 City Attorney - No response. City of Vernon - No-FGspmm. V tC7 Posa City Attorney - Item 3 of the proposal includes Medical Insurance be permitted to be purchased from the City for his wife and his dependent until age 67 if he were to retire prior to Medicare coverage. Also, Brearley would be permitted to purchase supplemental insurance if such insurance is offered to other retired employees Other Attorne_y1s - City of Vernon - A $150 per hour fee. City Attorney - A $150 per hour fee. Note that the proposal includes a clause that states "except that any litigation assigned to the firm would be based upon rates mutually established at that time." Overseas Ventures - City of Vernon - It is offered to pay a rate of $150 for hours worked on overseas ventures. City Attorney - Whereas, item 2 subparagraph E of the proposal entails an entire different concept for compensation. The key point, is that the fee will ultimately cost $250 per hour if the retainer of 1150 hours is exceeded due to 60% of the hours worked would be applied to the retainer e 11V U1J -�JlJ1 ll1V11 L11. �6 CITY COUNCIL( LJ i�f 9 ;�&AVID B. BREARLEY C. p City Attorney LEONIS C. MALBURG (� FAX: (626) 330-5818 Mayor KEVIN WILSON THOMAS A. YBARRA Director of Community Services & Water Mayor Pro-Tem FAX: (323) 588-2761 Wm. 'BILL DAVIS Councilman KENNETH J. DeDARIO Director of Municipal Utilities H. "LARRY" GONZALES FAX: (323) 583-1983 Eouneilman DAVE TELFORD W. MICHAEL McCORMICK Fire Chief Councilman FAX: (323) 581-1385 HALL, BRUCE V.CITY MALKENHORST BRUCE W. OLSON City Administrator / City Clerk 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief FAX (323) 581-7924 TELEPHONE (323) 583-8811 FAX: (323) 583-5236 August,25, 1998 VIA FACSIMILE AND MAIL PRIVILEGED AND CONFIDENTIAL Mr. Bruce V . Malkenhorst City Administrator/City Clerk 4305 Santa Fe Avenue Vernon, California 90058-0805 Re: Renegotiation - Vernon City Attorney Employment Agreement Dear Bruce: Thank you for your letters of July 28th, July 22"d, July 14th, and June 30, 1998, relating to the current City Attorney Employment Agreement. I acknowledge receipt of your letter of June 30, 1998, providing the required notice of intent to terminate the. City Attorney Employment Agreement in accordance with Section 4 of the Agreement. The notice provides for termination on March 31, 1999. If you believe this date is incorrect, please let me know. I am pleased to note that you do not intend to use your survey of surrounding cities as the "sole criteria of what we will be attempting to arrange" as stated in your letter of July 14, 1998. I have served the City of Vernon as its City Attorney since July 1, 1977, and I believe that it can not be disputed that I have brought enormous value and benefit to the City because of my unique blend of experience, knowledge and skills. I do not believe it is an accident that the City of Vernon's Utilities Department has obtained privileges and benefits in negotiations with Edison over the years which are greater in value than the benefits received by the other five resale cities who are situated similarly to Vernon in the electricity business. In addition, I am not aware at this time of any other municipality that has municipalized a utility service in the face of a hostile utility in the State of California in over 50 years. Mr. Bruce V. Malkenhorst Page 2 August 25, 1998 Today, we are on the brink of finalizing our arrangements with the Public Utilities Commission and completing the construction of the parallel gas system which will provide municipal gas service to the constituent businesses within the City of Vernon. I believe this initiative and —effort has produced uring the last five (5) years lower costs and substantial benefits to businesses in the City of Vernon who depend upon natural gas for their energy source. I believe that I could identify and list a host of other activities and projects which I have been intimately responsible for, which have produced substantial benefits to the City of Vernon and its Redevelopment Agency during this time, including the recent Alameda Corridor settlement. The City of Vernon is a unique City demanding sensitivity to unique legal problems that are not present in other municipalities in the Southern California area. The Vernon City Attorney Employment Agreement provided the City with a blend of unique skills and understandings that are not present or readily available to the City from other firms practicing law in this area. In the City Council's effort to determine fair and reasonable compensation, I believe it would be instructive to note the rates for legal services which the City currently pays to other legal counsel representing the City when making an assessment of the value of the unique services I have to offer. GOODIN, MACBRIDE, SQUERI, SCHLOTZ & RITCHIE 1997-1998 MacBride $335 Squeri 310 [Gray 175 SQUIRE, SANDERS & DEMPSEY (formerly Goldberg, Fieldman & Letham) 1997-1998 Fieldman $230 11 11 Recent adjustment to $275 for Arnold Fieldman Mr. Bruce V. Malkenhorst Page 3 August 25, 1998 Letham 198 g/ Strother 194 3J BRADY & BERLINER/CROSSBORDER, INC. 1997-1998 Berliner $214.29 Jimison 195.63 Beach 193.06 RICHARDS, WATSON & GERSHON 1997-1998 Glenn Watson $250.00 Mitch Abbott 225.00 The rates for legal services described above together with the rates which you provided as a result of your survey of neighboring cities indicates a wide variation and further indicates that rates for legal services generally are uniquely dependent upon the skills, experience and talent of the individual offering the services. You have indicated in your letter of July 22, 1998, that the "spiraling costs of legal expenses (93-94 $811,470; 97-98 $980,000)" necessitates the Finance Committee recommending adjustments to the City Attorney Employment Agreement, Section 5, Compensation. These figures appear to be incorrect. I have reviewed my invoices and believe that the compensation for 1993- 1994 equaled $873,f41-7 and not $811, 470. In analyzing the cost of legal services to the City, the rate charged pursuant to the Agreement is only one factor in the calculation. The second more important factor is the amount of services the City requests and requires. In the years you are using for comparison, the amount of legal service hours in 1993- 1994 equaled 4,911 hours and the amount of legal service hours in 1997-1998 equaled 5,152 hours, an increase of 241 hours. 241 hours at the 1997-1998 billing rate equals a cost of $46,686. The net difference in costs to the City when analyzing the legal service z1 Recent adjustment to $275 for Glenn Letham. 31 Recent adjustment to $230 for Channing Strother Mr. Bruce V. Malkenhorst Page 4 August 25, 1998 fee rate effect only, is $59,882 (1997/1998) ($980,000 less $46,686 less $873,432) (1993/1994).-1 Therefore, the increase in legal service fee rates only for the four-year period in aggregate equals 6.85% $59,882 =6.85� $873,432 This is an increase of approximately 1.4% per year. This level of increase in the legal service fee rate does not meet the descriptive term used of "spiraling costs of legal expenses" found in your memo of July 22, 1998. In the last four years, the amount of litigation services requested by the City has increased so that we are providing an average of approximately 430.hours per month of legal services, of which over 125 hours per month is litigation. That is, the City has found it necessary to either initiate litigation or defend itself in litigation. I indicated during the Council meeting that I was willing to participate in negotiations in an effort to develop a fair and reasonable agreement for City Attorney services. I have reviewed the proposal which you sent on July 22, 1998, and then further modified on July 28, 1998, and believe that the following counterproposal would assist in providing a more effective tool in order to control the cost and expense of legal services. However, the legal service fee rate is only part of the equation. The more important determination of total costs to the City is the actual amount of legal services requested by the City. Attached hereto as Exhibit "A" is a proposal to amend the existing Agreement as specified therein with all other terms and conditions of the existing Agreement remaining unchanged. This counterproposal shall remain valid until September 22, 1998, and shall expire on September 23, 1998. I believe this proposal is fair and reasonable for the City and for me and will permit you the ability to assess the continual need *� 1997/98 5,152 hours $980,000 - 241 hours - 46,686 4,911 hours $933,314 1993/94 4,911 hours-873,432 $ 59,882 Mr. Bruce V. Malkenhorst Page 5 August 25, 1998 for legal services during this 10-month period. As always, if you have any questions concerning this proposal, or would like to discuss it further, please let me know. Very truly yours, David B. Brearley City Attorney DBB:jl Enclosure CITY COUNCIL DAVID B. BREARLEY City Attorney LEONIS C. MALBURG FAX: (626) 330-5818 Mayor KEVIN WILSON THOMAS A. YBARRA Director of Community Services & Water Mayor Pro -Ter FAX: (323) 588-2761 Wm. 'BILL" DAVIS KENNETH J. DeDARIO Councilman \I Director of Municipal Utilities I� FAX: (323) 583-1983 H. "LARRY" GONZALES Councilman DAV1; PRLI;ORD W. MICHAEL McCORMICK Fire Chief Councilman - FAX: (323) 581-1385 CITY HALL BRUV. MALKENHORST BRUCE W. OLSON dministrator /City Clerk Administrator City A 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief FAX (323) 581-7924 TELEPHONE (323) 583-8811 FAX: (323) 583-5236 July 28, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda Heights, CA 91745 RE: City Attorney Agreement Dear David: As a follow up to my letter dated July 22, 1998, I would like to reiterate that the Finance Committee is recommending the following adjustments to your employment agreement, Section 5, Compensation: 1. Retainer set at $20,000 (115 hours) per month. 2. Workers Compensation be deleted; 3. Unemployment insurance be deleted; 4. Retainer - annual increases be negotiated independent of other; employees; ht� CO vv,- ✓Y" v r �oc, poi �> i 5. Rates for hours over retainer be established a $150�- er hour, 6. - Rates for hours over retainer be negotiated annually; eOw` J C 7. Retainer would apply to 'hours worked by Brearley�t 8. Rates .for hours worked on overseas ventures be at the $150 rate; �. �.� �o ice` � � 6 � I,J B't- �� lcJ wo 6 ` David B. Brearley July 28, 1998 page 2 9. Travel time for overseas trips would not be chargeable; and 10. City will pay up to "business class" flights and other gpropr-i�te—expen-ae In addition to the above enumerated items the following recommendations are being made: 1. Rates for other attorneys in your firm -be established at4� �'�Q,, $150 per hour. ono r�' Y� 2. Longevity increases shall not be applicable Or 3. That Section 4, Term, of the agreement be changed to read, in part, as follows, "in the even written notice is given. —City shall provide six (6) months ... and Brearley shall provide to �' six (6) months..." Y10 afpUt&jLc- d`0 e6 � �_e` 4. This proposal shall be v lid thru August 31, 1998./ Yours truly, `� I9c1 CITY OF VERNON Bruce V. Malkenhorst City Administrator cc: Finance Committee :DBBNegLtr4 CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Ter Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 July 22, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda_ Heights, CA 91745 RE: City Attorney Agreement Dear David: DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 In light of the spiraling costs of legal expenses (93-94 $811,470; 97-98 $980,000) the Finance committee is recommending the following adjustments to the City Attorney agreement, Section 5, Compensation: 1. Retainer set at $20,000 (115 hours) per month. 2. Workers Compensation be deleted; 3. Unemployment insurance be deleted; 4. Retainer - annual increases be negotiated independent of other employees; 5. Rates for hours over retainer be established at $150 per hour; 6. Rates for hours over retainer be negotiated annually; 7. Retainer would apply to hours worked by Brearley; 8. Rates for hours worked on overseas ventures be at the $150 rate; QN, David B. Brearley page 2 July 22, 1998 9. Travel time for overseas trips would not be chargeable; and 10. City will pay up to "business class" flights and other appropriate—expen-s-e . Yours truly, CITY OF VERNON •tee/ Bruce V. Malkenhorst City Administrator cc: Finance Committee :DBBNegLtr3 CITY COUNCIL DAVID B. BREARLEY LEONIS C. MALBURG City Attorney Mayor FAX: (818) 330-5818 THOMAS A. YBARRA KEVIN WILSON Mayor Pro -Tern Director of Community Services & Water FAX: (213) 588-2761 Wm. "BILL" DAVIS Councilman KENNETH J. DeDARIO Director of Light & Power H. "CARRY" GONZALES FAX:. (213) 583-1983 Councilman DAVE TELFORDFire W. MICHAEL McCORMICK Councilman Chief CITY HALL FAX: (213) 581-1385 BRUCE V. MALKENHORST LOUIS ROSENKRANTZ City Administrator/City Clerk 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 Police Chief FAX: (213) 581-7924 TELEPHONE (213).583-8811 FAX: (213) 581-1178 July 21, 1998 Finance Committee City of Vernon RE: City Attorney Employment Agreement Honorable Members: It is recommended that Section 5 (Compensation:$20,000)of the City Attorney Employment Agreement be modified to exclude the following: 1. Workers' Compensation Coverage; 2. Unemployment Insurance; 3. Annual Increases be negotiated independent of miscellaneous employees; 4. Longevity percentage hall not be applicable; and, $56-i It 5). Rates for hours above the retainer kSe negotiated annually. It is also my recommendation that (i) retainer hours would only be hours worked by David B. Brearley, (ii) that hours worked by Mr. Brearley on overseas ventures have a specific rate (i.e. $150) that would not be part of the retainer, (iii) that travel time for overseas travel would not be chargeable, and (iv) Section 4, Term be changed to "...in the event written notice is given by either p -ty...City shall provide six (6) months and Brearley shall provide (6) months.." Business Class travel and other appropriate expenses would be reimbursable. Very truly yours, Bruce V. Malkenhorst Director of Finance DbbFinLtr Lj, CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem Wm. "BILL" DAVIS Councilman H. "LARRY" GONZALES W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 Finance Committee City of Vernon CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 July 14, 1998 RE: City Attorney Employment Agreement DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 Honorable Members: , - It is recommended that Section 5 (Compensation) of the City Attorney Employment Agreement be modified to exclude the following: 1. Workers' Compensation Coverage;- 2. Unemployment Insurance; s—" 3. Annual Increases be negotiated independent of miscellaneous employees; 4. Longevity percentage shall not be applicable; and,---"" fj 5. Rates for hours above the retainer be negotiated annually. It would also be my recommendation that (i) retainer hours would only be hours worked by David B. Brearley, (ii) that hours worked by Mr. Brearley on overseas ventures have a specific rate (i.e. $150) that would not be part of the retainer, and (iii) that travel time for overseas travel would not be chargeable. Business Class travel and other appropriate expenses would be reimbursable. (- G r- � f / � Ve y truly yours, ow Bruce V. Nlalkenhorst / 7&�U� Director of Finance DbbFinLtr l`� CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem Wm. "BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX. (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 July 14, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda Heights, CA 91745 RE: City Attorney Agreement Dear David: DAVID B. BREARLEY City Attorney FAX:(818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) W-1983 Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 Per our discussion on June 25, 1998, it is the position of the City Council that Section 5 (Compensation) be reconstructed to be more in line with traditional city attorney fees. Section 5, Compensation, provides in part, as follows: "...the city shall pay to Brearley a retainer salary... provide membership in Public Employees System and pay his cost of said membership which is to be credited to his account, provide workers' compensation coverage, provide unemployment insurance coverage and provide at no cost to Brearley coverage in the City's medical benefits program and an annual physical during the term of this Agreement... City agrees that in the event across the board increases in salary are provided for miscellaneous employees, the percentage rates of said increase granted to said employees shall be applied to the retainer salary... longevity percentage increase shall be applicable to the retainer salary in the same manner as said percentage increases are applicable to base salaries of miscellaneous employees... City and Brearley further agree to negotiate increases in the hourly rates provided for herein from time to time taking into consideration the percentage rate increases provided for miscellaneous employees... one half of said percentage rate without consideration of any longevity increase shall be considered a minimum increase in the hourly rates..." U Mr. David Brearley, City Attorney RE: City Attorney Agreement July 14, 1998 page 2 The rates being charged have seemed to grow at a rate not consistent with services being provided, (1986, $91.62; 1998 $209.30; exclusive of benefits as described in Section 5). Additionally, it is our objective to create a rate that would be charged for work done on overseas business. David it is the city's intent to move this as expeditiously as possible. I am in the process of surveying surrounding cities to review what they receive in services for their rates but do not intend to use this as the sole criteria of what we will be attempting to arrange. If you have any thoughts please feel free to share them with me. Thank you. Yours truly, CITY OF VERNON Bruce V. Malkenhorst City Administrator :DBBNegLtrl CITY COUNCIL, LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. "BILL" DAVIS Councilman H. "LARRY" GONZALES W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 June 30, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda, CA 91745 DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX (213) 5M-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) SM-1983 Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 RE: NOTICE OF INTENT TO TERMINATE THE CURRENT CITY ATTORNEY AGREEMENT Dear Mr. Brearley: In accordance with Section 4(Term) of your employment agreement executed on July 1, 1986, this letter shall serve"as the nine (9) month notice of the City's intent terminate the current agreement. FormLtr Very truly yours, CITY OF VERNON / Bruce V. Malkenhorst, City Administrator/City Clerk 92 CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES W. MICHAEL McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 June 26, 1998 VIA FACSIMILE AND MAIL Mr. Bruce V. Malkenhorst City Administrator/City Clerk 4305 Santa Fe Avenue Vernon, California 90058-0805 Re: City Attorney Employment Agreement Dear Bruce: DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 In accordance with the discussion that was held with the City Council during closed session on June 25, 1998, enclosed please find a new Amendment to the City Attorney Employment Agreement by and between the City of Vernon and David B. Brearley that is consistent with the requirements of the existing Agreement. The amendment provides for the following increases: • $24,069 per month as a retainer salary for legal services up to 115 hours per month ($23,540 x 2.25%). • $154.43 per hour for legal services between 115 hours and 300 hours per month ($152.72 x 1.125% = 1.71; 152.72 + 1.71 = 154.43). • $195.89 per hour for legal services in excess of 300 hours per month. ($193.72 x 1.125% = 2.17; 193.72 + 2.17 = $195.89). Resolution No. 7166 as drafted is still correct and, therefore, the resolution and the Amendment can be placed on the agenda for the July 7, 1998 City Council meeting. In the event that we are able to arrive at a different modification to the Agreement, that also would be prepared in sufficient time to be approved by the City Council on July 7th. Mr. Bruce V. Malkenhorst Page 2 ti June 26, 1998 It is my further understanding that the City Council has agreed that we are negotiating fees that will be applicable and effective on July 1, 1998, and therefor any agreement that is approved on July 7, 1998, would be effective Julv 1, 1998. If you have any questions concerning this matter, please call. Very truly yours, David B. Brearley City Attorney DBB : j 1 CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem Wm. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL.McCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX: (213) 581-7924 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (213) 583-8811 June 25, 1998 VIA FACSIMILE AND MAIL Mr. Bruce V. Malkenhorst City Administrator/City Clerk 4305 Santa Fe Avenue Vernon, California 90058-0805 Re: Modification to City Effective July 1, 1998 Dear Bruce: DAVID B. BREARLEY City Attorney FAX: (818) 330-5818 KEVIN WILSON Director of Community Services & Water FAX: (213) 588-2761 KENNETH J. DeDARIO Director of Light & Power FAX: (213) 583-1983 DAVE TELFORD Fire Chief FAX: (213) 581-1385 LOUIS ROSENKRANTZ Police Chief FAX: (213) 581-1178 Attorney Employment Agreement The Finance Committee has met in order to consider the budget for the City's 1998-99 fiscal year. It is my understanding that the Finance Committee will recommend an across the board increase in City employees salaries of 2.25%. The City Attorney Employment Agreement for City Attorney services is dated July 26, 1986, and was most recently amended on June 25, 1997, effective July 1, 1997, and provides for the following fees: • $23,540.00 per month as a retainer salary for legal services up to 115 hours per month. • $152.72 per hour for legal services between 115 hours and 300 hours per month. • $193.72 per hour for legal services in excess of 300 hours per month. Section 5 ("Compensation") of the Agreement provides for an annual adjustment in the retainer salary equal to the percentage rate of increases of an across the board increases in salary for miscellaneous employees. Said Section indicates, in part, as follows: Mr. Bruce V. Malkenhorst Page 2 June 25, ,1998 "In addition, City hereby agrees that in the event across ,the board increases in salary are miscellaneous employees, the percentage increases granted to said employees shall the retainer salary." (Page 2, lines 2-4) provided for rates of said be applied to The Agreement also provides for negotiations in order to establish the hourly rates for service in excess of 115 hours per month. The Agreement, requires as a minimum an increase equal to one-half of the percentage rate for miscellaneous employees with merit performances to be considered in establishing a larger increase. Said Agreement provides, in part, as follows: "...City and Brearley further agree to negotiate increases in the hourly rates provided for herein from time to time taking into consideration the percentage rate increases provided for miscellaneous employees and City agrees that one-half of said percentage rate without consideration of any longevity increase shall be considered a minimum increase in the hourly rates provide for herein with merit performance to be considered in said negotiations. The parties are not precluded from negotiating merit considerations during the term hereof and the City is only required to make minimum adjustments which are to be effective the same date as the across the board increases are effective. -for said miscellaneous employees of said City." (Page 2, lines 11-23) For several years, the City applied the same percentage which was applied to miscellaneous employees for both the salary and the hourly rates. Therefore, in addition to adjusting the retainer salary for fiscal year 1998-99, I hereby request that the City Council also consider establishing increases in the hourly rates equal to the percentage rate applicable to miscellaneous employees. I believe that the services provided during the last year have responded to the City's needs in a prudent, responsible and superior manner. I will be in attendance during the meeting of the City Council in order to discuss these matters if requested. If you need further information pertaining to this, please call me. DBB:j1 Very truly yours, David B. Brear.ley City Attorney 1 �51 A�G - )-( � I-o7o 7-�;-( ecl LA '2- 22 , "�> '72- %, 3 rY Y0.4a S/ 3; F2 r - oo o . o w ( r mr-ro 2Lib?000 5 5 3 ) Sim lq- N N U ►� �1-c�v ►2 \i-RS rn M pt4`t� I"� Xts 1/ E - 2-`-1 i °co`fi x 1207o`�-- is y� pe, � FT — 1/3� S7'z/.?(I = �1 Z72 m12 S1C-L1=7 3r2� sv A—YG —le 2�^ -76°. 57- � CITY COUNCIL DAVID B. BREARLEY City Attorney . LEONIS C. MALBURG FAX: (626) 330-5818 Mayor KEVIN WILSON THOMAS A. YBARRA Director of Community Services & Water Mayor Pro-Tem 11 FAX: (323) 588-2761 1 Wm. "BILL" DAVIS KENNETH J. DeDARIO Councilman Director of Municipal Utilities FAX: (323) 583-1983 H. "LARRY" GONZALES W. MIC_HAEL McCORMICK Fire Chief Councilman FAX: (323) 581-1385 CITY HALL, BRUCE W. OLSON BRUCE V. MALKENHORST 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 City Administrator /City Clerk Police Chief FAX (323) 581-7924 TELEPHONE (323) 583-8811 FAX: (323) 583-5236 September 30, 1998 Mr. David B. Brearley, Esquire 2440 S. Hacienda Blvd. Suite 223 Hacienda Heights, CA 91745 RE: Renegotiation - City Attorney Agreement Dear David: The Finance Committee is unwilling to recommend your counteroffer of September 21, 1998. The Committee will recommend to the City Council based on the magnitude in the differences of City's offer and your counter offer it should consider requests for proposals. Further, you might consider having Mr. Olivo start attending future City Council meetings. Yours truly, CITY OF VERNON 2- --`zf Bruce V. Malkenhorst City Administrator cc: Finance Committee DBBNegLtr7