City Attorney's Employment Agreement 09-01-15

8/20/2019 City Attorney's Employment Agreement 09-01-15

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CITY OF CARMEL-BY-THE-SEA

AGENDA BILL

TO: Honorable Mayor and Members of the City Council

FROM: Douglas Schmitz, City Administrator

AB 1004

September 1 2015

Consent Calendar

SUBJECT: Consideration of a Resolution adjusting the City Attorney's Employment Agreement

AMOUNT OF EXPENDITURE 126,000

AMOUNT BUDGETED 100,000

APPROPRIATION REQUIRED 26,000

RECOMMENDATION

Adopt Resolution adjusting the City Attorney's Employment Agreement

SUMMARY

The City Council held closed sessions on 5 January and 6 April to conduct performance reviews with

the City Attorney and City Administrator. As a result of those sessions, the Council determined that the

City Attorney's Employment Agreement and compensation should be adjusted.

Amongst the changes from the existing agreement are: 1) the addition of Section B---Scope

of

Work

and Duties;

2

adjustment in compensation from 7500/month to

1

0,500/month. (The agreement and

compensation have not been adjusted since January 2004.) 3) the addition

of

and expansion

of

a

CONFLICTS. (There was not a separate entry

for

CONFLICTS in the 2004 contract; however, it did

reference Freeman's role as City Attorney in Seaside. The proposed contract lists several other public

agencies for which Freeman is legal counsel.) 4) the addition of a section entitled FILES;

5)

TERM AND

TERMINATION section has been amended to include a thirty (30) day notice; the 2004 contract does

not have a specified time period for separation of service.

Included on the Consent Calendar is a Resolution adjusting the budget for FY 15/16 addressing the

City Attorney's contract and several other matters

PRIOR CITY COUNCIL ACTION

Mr

. Freeman was hired as City Attorney

in

January 1984. The last contract was approved by the City

Council

on

2 March 2004, retroactive to January of that year.

Page 1


2/12

ATTACHMENTS

1 Resolution 2015-

2.

Resolution

2004 24

and accompanying contract

APPROVED

ouglas J Sch

Date

3? d q: r

Page 2


3/12

ATTACHMENT - 1

RESOLUTION 2015 _

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA

UPDATING AN AGREEMENT FOR LEGAL SERVICES WITH DONALD G. FREEMAN CITY

ATTORNEY

WHEREAS, Donald

G

Freeman has served as City Attorney

of

Carmel by the Sea since

February 1984; and

WHEREAS, an agreement for legal services provided

by

Mr. Freeman has not been

amended since 2004; and

WHEREAS, the City is

in

the process

of

reviewing and updating its contracts with

various service providers and vendors;

NOW, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE CITY OF

CARMEL BY THE SEA DOES:

1 Adopt this resolution and approves the accompanying Employment Agreement for Legal

Services between the City and Donald G. Freeman;

2 Authorizes the Mayor to sign the Employment Agreement;

3 Said Agreement is effective as of 1 September 2015.

PASSED AND ADOPTED

BY

THE CITY COUNCIL OF THE CITY OF CARMEL-BY

THE-SEA this 1st day of September 2015, by the following roll call vote :

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

SIGNED: ATTEST:

Jason Burnett, Mayor Lee Price, MMC, Interim City Clerk

Counci l Meeting Date: 09/0

1

2015

A

ge

nda Item: 9

Page 3


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AGREEMENT

FOR CITY

ATIORNEY SERVICES

CITY OF CARMEL-BY-THE-SEA

This AGREEMENT FOR

CITY

ATIORNEY

SERVICES

(the AGREEMENT ),

effective as

of

September 1, 2015, is

by

and

between

DONALD

G.

FREEMAN

(hereinafter

CITY

ATIORNEY ) and

the CITY

OF

CARMEL

-BY-THE -

SEA,

a municipal

corporation

(hereinafter CITY ).

A

APPOINTMENT

City Council

hereby

appoints DONALD G.

FREEMAN as the

CI

TY

ATIORNEY

to

render such

legal services as are

customarily

rendered by such official and as

further

specified herein, including

attending regular meetings

ofthe

City Council and

other

boards and bodies

of CITY as

directed by

CITY. CITY

ATIORNEY is allowed to miss

two

(2) regular City Council meetings

per

calendar year.

CITY

A TIORN EY

will find

a replacement

attorney for

those meetings subj

ect to CITY

approval.

CITY

shall be responsible

for

compensation

to the

replacement attorney.

B. SCOPE

OF

WORK AND

DUTIES

1. CITY ATIORNEY shall

perform

any and all work necessary for the provision of CITY

ATTORNEY

services to

CITY,

including,

without

limitation the following:

(a) Attend regular City Council meetings unless excused by CITY, and other board

and commission meetings on request of

CITY;

(b) Provide legal advice,

written

legal opinions, and consultation on all matters

relating to

the

normal day-to-day business of

CITY,

to

the

City Council, City

Administrator

boards,

commissions,

committees

and officers

of

CITY

and

as

requested

by the

City Council

or the

City

Administrator

.

(c)

Be

.available

for telephone

consultation

with CITY staff

and

members ofthe

Ci

ty

Council;

(d) Prepare

or

review

normal

legal

documents

such

as

ordinances, resolution

s,

and

ordinary

contracts;

(e) Advise

CITY

on pending and potential litigation

as

comes

to

his

attention

or

as

requested by CITY.

(f)

Monitor pending

and current legislation and

case law as

appropriate and

inform

the

CITY of any items of

interest;

and

(g) Supervise outside legal services

as

authorized. Provided,

however

,

CITY

ATIORNEY recognizes

that

CITY may

consult

directly with

outs ide legal counsel

as

it

may find

necessary at

which time

CITY ATIORNEYwill

not

be responsible

for

such matters, and said outside

Council Meeting Date: 09/01/2015

Agenda Item: 9

Page 4


5/12

legal counsel shall

report

directly

to the

City Council. The

CITY

is currently represented by outside

legal counsel on matters related to personnel and employment, negotiations, workers'

compensation, and finance/bonding which are outside the scope of

he

CITY ATIORNEY'S review.

2. CITY ATIORNEYwill keep CITY informed

as

to

the

progress and status of all pending

matters. CITY

ATIORN

EY is

expected to manage, control and oversee

the

delivery

of

egal services

in a competent , professional, and cost-ef fective manner. All legal services shall be properly

supervised and all personnel shall be quali fied to handle the

work

assigned. If outside special legal

counsel is retained, unless otherwise directed by

the

City Council

as

set

forth

in sub-paragraph

l. g) above, such special legal counsel shall

be

supervised by CITY ATTORNEY.

C. COMPENSATION

CITY

ATIORNEYwill provide ordinary legal services to CITY

for

a retainer of 10,500.00

per

month . Extraordinary legal services

as

set

forth

in paragraph 2. below shall be charged at the rate

of

250 per

hour

.

1. Ordinary Legal Services. Ordinary legal services shall include normal day-to-day

legal advice and legal opinions

to

the City Council, City Administrator, and

departments

in the

regular course of CITY business concerning all such matters

as

administrative procedures, Council

and Commission actions, ordinance and resolution interpretations; and shall include attendance

at all regular City Council meetings. Ordinary legal services shall include preparing

or

reviewing

ordinances, resolutions, ordinary contracts and agreements; and engaging in normal lega l

research, study and review necessary

to

properly advise and

protect the

interests of

CITY.

2. Extraordinary Legal Services. Extraordinary legal services shall include

the

preparation

of

complex legal documents, complex legal opinions, complex legal research, complex

Public Records Act requests, review

and/or

preparation of CITY policies, representing CITY in any

court

litigation

or

in proceedings before any

other

pub lic

or

administrative body,

court

appearances, prosecution of

CITY

ordinances

or

state laws. Legal services provided to any

independent or separate agency or entity shall also be considered as extraordinary legal services.

Attendance at special City Council meetings, study

sess

ions, Planning Commission,

other

commission meetings,

or committee

meetings as requested by

the

City Council, shall be

considered extraordinary legal services. CITY ATIORNEY shall notify, and seek prior approval of

the City Council prior

to

rendering extraordinary legal services,

if

time permits.

D.

COSTS

AND

OTHER CHARGES

CITY ATIORNEY shall be reimbursed for all out-of-pocket expenses and costs advanced

or

paid on

behalf

of

CITY

including

court reporter

fees and charges, court

costs

costs of outside

investigators

or

experts pertaining to CITY litigation .


Agenda Item: 9

Page 5


6/12

All clerical services, ordinary travel costs (e.g., from the

CITY

ATTORNEY S office to

court

or City Hall). and miscellaneous expenses (e.g., telephone and facsimile charges) are included

within the rates set forth above, and shall be at no additional charge for such expenses.

Extraordinary travel expenses, including

transportation

meals, and lodging, when incurred outs ide

of

the

County

of

Monterey on behalf

of

the

CITY

shall be reimbursed by

CITY

.

E. STATEMENTS

For extraordinary legal services, CITY ATTORNEY shall render to CITY a statement

for

fees,

costs, and expenses incurred on a monthly basis. Such statement(s) shall indicate the basis

ofthe

fees, including the hours worked, the hourly rate(s). and a briefdescription of

he

work performed.

Reimbursable costs shall be separately itemized.

Payments shall be made by CITY within thirty {30) days

of

receipt

of

the

statement.

F

INDEPENDENT

CONTRACTOR

CITY ATTORNEY shall perform all legal services required under this AGREEMENT as an

independent contractor

of

CITY

G. NOTICES

Notices required pursuant to this AGREEMENT shall be given by personal service upon the

party to be notified, or by delivery of same

into the

custody of

the

United States Postal Services,

or its

lawful

successor; postage prepaid and addressed as follows:

CITY:

City of Carmel-by-the-Sea

Monte Verde Street between Ocean and Seventh Avenues

P.O

. Box CC

Carmel-by-the-Sea, CA

9392

Attention: City Administrator

ATTORNEY:

Donald G. Freeman

Perry Freeman Law Offices

San Carlos Street between

7th

and

8th

Avenues

P.O. Box 80S

Carmel-by-the-Sea, CA 9392


Agenda Item: 9

Page 6


7/12

Services of a notice by personal service shall be deemed to have been given

as

of

he

date

of

such personal service. Notice given

by

deposit with the Uni ted States Postal Service shall be

deemed

to

have been given two (2) consecutive business days following

the

deposit of

the

same

in

the custody

of

said Postal Service. Either party hereto may, from

time

to

time,

by written notice

to

the other,

designate a

different

address

or

person which shall

be

substituted

for

that

specified

above.

H.

TERM AND TERMINATION

This

AGREEMENT

shall commence on September 1, 2015, and shall remain in

full force

and

effect until terminated by either party. Either party to this AGREEMENT may terminate th is

AGREEMENT, with or without cause, upon thirty (30) calendar days written notice.

I.

CONFLICTS

CITY

ATTORNEY

is also

the

City

Attorney for the

City

of

Seaside.

CITY

ATTORNEY

also

provides legal counsel to Monterey Peninsula Regional Water

Authority

and the Association

of

Monterey

Bay Area Governments as well as

other

public agencies upon request. CITY ATTORNEY

has no present or contemplated employment which is adverse to CITY. CITY ATTORN EYagrees that

it shall not represent clients in matters either litigation or non-litigation against th e

CITY.

However,

CITY

ATTORNEY may have past, present or future clients which,

from

time to

time,

may

have interests adverse to

CITY

and CITY ATTORNEY reserves the right to represent such clients in

matters

not connected with its representation

of

CITY .

J.

INDEMNIFICATION AND PROTECTION

CITY

agrees

to

extend

the

indemnification and protections

of

California Government Code

Section 825 to

CITY

ATTORNEY, including associates, employees, or appointees

of

CITY

ATTORNEY

provided by CITY ATTORNEY to CITY ATTORNEY and shall defend and hold harmless CITY

ATTORNEY and

other

associates, employees or appointees of

CITY ATTORNEY

including

other

attorneys working behalf of

CITY ATTORNEY in carrying

out

the

terms

and cond i

tions of this

AGREEMENT

from any action resulting from providing legal services pursuanttothisAGREEMENT.

CITY

ATTORNEY

agrees

that

a

llegal

files maintained by the CITY ATTORNEY pertaining to

the services provided to CITY pursuant to this AGREEMENT are and will remain CITY S property.

However,

CITY

ATTORNEY

will

have

the

right

to

retain copies

of

such files upon completion

of

he

services provided

for

by th is AGREEMENT,

or

upon the earlier term ination such services

in

the

manner hereinafter provided in this AGREEMENT. For purposes of this

AGREEMENT the term

files

will

include electronic files and data, as

well

as

paper

f iles that are maintained by CITY

ATTORNEY in

the

performance ofthe services required by this

AGREEMENT.

Council Meeting

Da

te: 09/01/2015

Agenda Item: 9

Page 7


8/12

l.

INTERPRETATION OF

AGREEMENT AND FORUM

This AGREEMENTshall be construed and interpreted

both as

to validity and

performance

of

the

parties in accordance with the laws of

the

State of California. In

the

event of any dispute

hereunder, forum shall be the Superior Court,

Monterey

County.

M. CORPORATE AUTHORITY

The persons executing this AGREEMENT on behalfofthe parties hereto warrant

that

they

are

duly

authorized to execute this AGREEMENT on behalf of said partiesand that in so executing

this AGREEMENT the parties hereto are formally bound to

the

provisions of this AGREEMENT.

IN WITNESS

WHEREOF

the parties hereto have executed this AGREEMENT as ofthe date

of execution by

the

CITY.

DATED : _ 2015

CITY OF CARMEL-BY-THE-SEA,

A Municipal

Corporation

Jason

Burnett Mayor

ATTEST:

Lee Price, Interim City Clerk

APP OVED

AS

TO FO, M:

~ . . , . . . . . _ - . . . .

James

G.

Heisinger

Attorney at Law

CITY

ATTORNEY


Agenda Item: 9

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CITY

OF CARMEL-BY-THE-SEA

CITY

COUNCIL

RESOLUTION NO. 2004-24

ATTACHMENT 2

U

56

A RESOLUTION OF

THE

CITY COUNCIL OF THE CITY OF CARMEL-BY-THE

SEA ENTERING INTO AN EMPLOYMENT AGREEMENT FOR LEGAL SERVICES

WITH

DONALD

G. FREEMAN,

CITY

ATTORNEY

WHEREAS, the City desires to employee Donald G. Freeman as the City

Attorney; and

WHEREAS, Donald G. Freeman is ready, willing, and able to provide legal

services as the City Attorney; and

WHEREAS, the terms and conditions for Donald G. Freeman to be the City

Attorney are included in his Employment Agreement for Legal Services; and

WHEREAS, the Employment Agreement for Legal Services is effective June 1,

2004.

NOW

, THEREFORE, BE IT RESOLVED THAT THE CITY COUNCIL OF THE

CITY OF CARMEL-BY-THE-SEA DOES:

1. Execute the Employment Agreement for Legal Services with

Dona

ld G.

Freeman as the City Attorney, attached as Exhibit

A

.

2. Transfer 2,500 from account no. 01-61051 , Professional Services to

account no. 01-61010, Salaries to cover the increase cost through the

remainder

of

the current Fiscal Year.

PASSED AND ADOPTED

BY

THE CITY COUNCIL OF THE CITY OF

CARMEL-BY-THE-SEA this

nd

day

of

March 2004 by the following roll call vote:

A YES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS :

ABSENT: COUNCIL MEMBERS:

ATTEST:

Karen Crouch, City Clerk

SIGNED:

SUE McCLOUD, MAYOR


Agenda Item:

9

Page 9


10/12

EMPLOYMENT AGREEMENT FOR LEGAL SERVICES

AGREEMENT

made

and

en

t ered in to

th i

s

c day of

2004,

by

and between the CITY OF CARMEL-BY-THE

SEA h

ereinaf ter

r

ef

erred

to

as

City

and

DONALD

G.

FREEMAN

hereinaf ter re fe r red to as Attorneyu, both

of

whom understand as

follows:

A.

1,

2004,

paragraph

Term: The term

of

t h i s Agreement

sha

l l commence

on

January

and sha l l

cont inue

annually unless te

rminated

pursuant to

K. of t h i s

Agreement.

B.

Compensation. Attorney wil l

provide

ordinary l egal services

to the City for a r e ta ine r of $7,500.00 per month.

Extraordinary

l ega l

services as se t for th in paragraph D. hereinbelow

sha l l

be

charged

a t the r a te

of

$250.00

per hour.

Attorney's

serv ices

regarding

Planning Department/Consultant

pro jec t s as se t forth in

paragraph

E.

hereinbelow

sha l l be

charged a t

the r a te of $250.00 per hour.

C. Ordinary Services. Ordinary lega l se rv ices sha l l inc lude

lega l advice and

l ega l

opinions to the City Council, City

Adminis t ra tor , department

heads and

c i t y

employees, in the regular

course

of City

business

and

concerning

a l l such matters as

adminis t ra t ive procedures, Council and

Commission

act ions ordinance

and reso lu t ion in te rpre ta t ions and

sha l l inc lude a t tendance a t

a l l

regular

Council

meetings

and regula r

Redevelopment Agency

Meetings.

Attorney i s to be responsible

for

as s i s t ing

in

the draf t ing

and

preparing of ordinances , reso lu t ions ordinary

contrac ts

and

agreements,

and engaging

in

whatever l

egal

research,

s tudy

and

review

necessary to

prope r

ly

advise

and

pro tect the in te r es t s of the City .

D.

Extraordinary

Legal Services. Extraordinary l egal services

sha l l inc lude the prepara t ion of

complex lega l

documents, represent ing

the

City in any

court l i t i g a t io n

or in

proceed i ngs before any other

publ ic or adminis t ra t ive

body,

court appearances for the prosecut ion

of

c i t y

ordinances or s t a t e laws,

eminent

domain proceedings,

labor

negot ia t ions

and

municipal

bond and

assessment proceedings.

Legal

se rv ices provided

to any

independent

or separate agency or

en t i ty

of

government not operated as an

in tegra l

par t of City governmen t sha l l

a l so be considered as extraordinary l egal se rv ices . Examples of

separa te agencies

or

en t i t i e s are j o in t

powers author i t ies hereinaf ter

created and

non -prof t

corporat ions

governed by adminis t ra t ive

or

l eg i s l a t ive bodies other than

the Ci ty Council act ing in

i t s

capaci ty

as

the City Council . Attendance a t Special

City

Council meetings or

s tudy sess ions Planning Commission or other

commission

or committee

meetings

as

requested by

the City

Co

uncil

the

City Administ

r a to r or

commission or committee chairperson.

Attorney

sha l l no t i fy the

City

Council

or City

Adminis t ra tor pr i o r

to render ing ex t r aord inary

lega l

serv ices .

Council Meeting Date: 09 01 2015

Agenda Item: 9

Page 1


11/12

E. Planning Department/Consultant

author ized

to

b i l l

for l egal services a t

250.00 per hour

in

connect ion with

any

development

and/or consul tant pro jects

reimbursement.

Projects . Attorney i s

Attorney's

standard r a te

of

and

a l l

of City's

planning,

where City i s

en t i t l ed

to

F.

City s Obligat ions.

For

the

provis ion of lega l se rv ices ,

City sha l l

provide a l l reasonable

and necessary of f ice f ac i l i t i e s ,

equipment,

books,

supplies , sec re ta r i a l se rv ices , insurance pol ic ies

and

other property or

se rv ices necessary to carry out the terms of

t h i s

agreement as requested by Attorney.

G

Reimbursement

of Costs. In addi t ion , Attorney sha l l be

reimbursed

for a l l out-of-pocket

expenses

and

costs

advanced or paid

on

behal f

of the

City ,

inc luding

court

repor ter

fees

and

charges,

court

costs , cos ts of outs ide inves t igators

or

experts

pertaining

to

City l i t iga t ion , long-dis tance

telephone

ca l l s and long-distance

facsimile (fax) t ransmissions, mileage reimbursement on the same basis

as other City

employees, and

the cost of necessary assoc ia t ion

memberships,

i f

requested by

Attorney.

H

Attorney s

Obligat ions.

As t i s

in the

bes t i n t e res t

of

the

City tha t

Attorney

keep

abreas t of rap id ly changing developments

in

municipal

law. Attorney sha l l

be expected to

at tend

conferences of

the League of Cali forn ia Cit ies , o r other meetings as requested or

approved by the Ci ty

Council ,

and

such other

courses and

seminars

in

muni cipal law as may be necessary to

maintain

current prof ic iency.

Attorney

sha l l

be reimbursed

for

reasonable

out -of-pocket

expenses for

t ravel ,

lodging,

and

inciden ta l expenses in connection

with

attendance

a t such meetings, conferences, courses, or

seminars

Attorney

sha l l

make

his

law

l i b ra ry

ava i lab le

to

members

of the Ci ty

Council

and

City

s t a f f .

I .

Miscellaneous. City recognizes that Attorney

has a pr ivate

law prac t ice curren t ly

located

in Carmel-by-the-Sea,

California ,

and

wi l l r e ta in tha t o f f ice as h i s pr incipal place of bus in

ess .

City recognizes Attorney i s also the City Attorney for the

Ci ty of Seaside Should a conf l ic t of in t eres t a r i se for Attorney

between

the City of Seaside

and

the Ci ty of

Carmel-by-the-Sea

each of

those

c i t i e s sha l l re t a in

outs ide

l egal

counsel

to represent each

City s i n t e res t

and

the expense

of

such outs ide lega l counsel

sha l l

be

borne by

each

c i ty respec t ive ly .

City

authorizes Attorney

to be

absent

from two (2) regular

City Council meetings

per

Agreement

year . The City Administrator

must

approve a s ubs t i t u t e l egal

counsel

in advance of

such absence by

Attorney, and

the subs t i tu te

lega l counsel

sha l l be paid by City .


Agenda Item: 9

Page


12/12

J .

Associat ion

of Special Legal

Counsel.

City and Attorney

recognize ,

t ha t

from

t ime

to

t ime, t may

become

necessary to

assoc ia te with spec ia l lega l counsel for

matters

involv i ng l i t i ga t ion

l abor negot ia t ions worker s compensat ion

personnel

o r bond i s sue

proceedings and

other

matters where

e i t he r

the Ci ty Council o r

Attorney fee l

effect ive representation requires

spec ia l lega l counsel .

K. Termination. This

Agreement

may be terminated by e i t he r

par ty a t any t ime

without

cause.

IN WITNESS WHEREOF the CITY

OF

CARMEL BY THE SEA has caused th i s

agreement to be s igned and executed on i t s beha lf

by

i t s Mayor, and

duly

a t t es t ed by i t s City

Clerk;

and the

Attorney

has

s igned

and

executed

th i s agreement

in dupl ica te

or ig inals t

he

day

and year

f i r s t

hereinabove

wr i t t en .

CITY OF CARMEL BY THE SEA:

ue McCloud,

Mayor

ATTORNEY:

Z hdt.A

~

Donald

G.

Freeman

City At torney

-3 -

ATTEST:

1 J ~ ~ v

Karen

crouch,

City Clerk


City Attorney's Employment Agreement 09-01-15

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Transcript of City Attorney's Employment Agreement 09-01-15