CITY COUNCIL AGENDA ITEM
Meeting Date: February 28, 2006
Subject/Title: Amendment to the Legal Services Agreement with McDonough,
Holland and Allen in an amount not to exceed $150,000
Prepared by: Damien Brower, City Attorney
Submitted by: Damien Brower, City Attorney
Adopt a Resolution approving, and authorizing the City Manager to execute,
Amendment No 2 to the legal services agreement with McDonough, Holland and
Allen in an amount not to exceed $150,000.
On August 10, 2004, the City Council approved Resolution No. 2004-198
authorizing the City Manager to execute purchase orders or contracts for
various vendors. A legal services agreement, not to exceed $150,000, with
McDonough, Holland & Allen (MHA) was included in this Resolution.
On June 14, 2005, the City Council approved Resolution No. 2005-133
authorizing the City Manager to execute an amendment to the professional
services agreement with MHA to increase the agreement amount by $340,000 for
Interim City Attorney services.
On June 14, 2005, The City Council approved Resolution No. 2005-143 adopting
the 2005/06-2006/07 Operating Budget for the City of Brentwood.
In August 2004, when the City Council authorized the City Manager to execute
a purchase order with MHA, the subsequent vacancy in the City Attorney’s
Office was not anticipated. On March 1, 2005, the City retained the services
of Thomas Curry of MHA to serve as the City’s Interim City Attorney. On
August 8, 2005, I was sworn in as Brentwood’s City Attorney.
Counsel from MHA provides specialized legal assistance on various issues,
including affordable housing, civil litigation, redevelopment, and
construction issues. In addition, they appear on behalf of the City in
certain court proceedings, including weapons confiscation petitions and
motions to review police personnel records (“Pitchess” motions). The firm
also supplements the City’s general legal needs and has done so since the
creation of an in-house City Attorney’s Office.
Since my arrival, I have been working with the Finance Department to examine
how the costs for the above matters have been allocated. Although a cursory
review may suggest that the money appropriated for outside legal costs comes
exclusively from the City’s general fund, this is not the case. Many
projects handled by special counsel are appropriately charged to specific
project accounts with their own budgets, including assessment districts and
enterprise accounts, such as sewer and water. Legal services agreements,
invoices and City Council staff reports do not, however, always reflect this
To ensure that outside legal costs are charged to the proper account and not
simply the general fund, the City Attorney’s Office and Finance Department
have been reviewing and re-codifying prior legal invoices. In addition, the
billing categories of special counsel invoices are being revised to include
more specific categories. These revisions allow for better tracking of
expenses and ensure the proper accounting of legal costs. As new assignments
are given to outside counsel, new billing entries will be added and, if
appropriate, old entries removed.
Along with the above efforts and a rigorous review of outside counsel
invoices, the City Attorney’s Office will work with the Finance, Community
Development and Engineering Departments to ensure that future developer
deposit accounts include payments for any required legal review. Such a
system is often employed in other cities and serves to lower legal expenses
associated with project reviews. Similarly, future development agreements
will include a provision that requires the developer to pay the City’s legal
expenses associated with implementing the agreement. Although such a clause
is not uncommon in cities throughout California, it has not been included in
past Brentwood development agreements.
Finally, to better account for outside legal costs separate legal services
agreements will be entered into with private law firms for project specific
matters. Generally, these separate agreements will be used when the City is
facing a lawsuit that is not covered by the Joint Powers Authority Risk Pool
or for a particularly large project. For example, MHA currently represents
the City in several litigation matters that have underlying specific project
accounts. Under the authority granted the City Manager by the Purchasing
Ordinance, separate agreements will be entered into with MHA for these
matters. Should costs associated with these matters approach the limits of
the City Manager’s authority, the City Council will be asked to amend the
agreements as appropriate. These agreements will better protect the general
fund and ensure that outside legal costs are being paid for from the proper
With regard to the subject of this staff report and as stated in the
Previous Action section, in June, 2005 the City Council approved an
amendment to the legal services agreement with MHA increasing the total
amount of the agreement by $340,000. At the time, it was anticipated that
these funds would be used for services through August of 2005. Since August
2005, the remaining balance of the $340,000 was utilized for MHA legal
expenses. With approximately four months remaining in the current fiscal
year, the previously approved funds to spend on MHA are almost exhausted. It
is therefore necessary to approve additional funds to spend on MHA for the
remainder of Fiscal Year 2005/2006 and the attached amendment accomplishes
this action. It should be noted that this action does not ask for a budget
increase. The funds to be spent will come from the existing City Attorney’s
budget. It is anticipated that for Fiscal Year 2006/2007 the City Council
will be asked to authorize a new agreement with MHA, utilizing the City’s
new form legal services agreement.
Funding for these services are currently budgeted in the 2005/06 Operating
Budget. This action does not request a budget increase.
Amendment No. 2 to Legal Services Agreement
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD APPROVING, AND
AUTHORIZING THE CITY MANAGER TO EXECUTE, AMENDMENT NO. 2 TO THE LEGAL
SERVICES AGREEMENT WITH MCDONOUGH, HOLLAND AND ALLEN INCREASING THE TOTAL
AGREEMENT AMOUNT BY $150,000
WHEREAS, counsel from law firm of McDonough, Holland and Allen (“MHA”)
provides specialized legal assistance for affordable housing, civil
litigation, redevelopment, and construction issues; and
WHEREAS, MHA appears on behalf of the City in certain court proceedings
including weapons confiscation petitions and motions to review police
personnel records (“Pitchess” motions); and
WHEREAS, the firm also supplements the City’s general legal needs and has
done so since the creation of an in-house City Attorney’s Office; and
WHEREAS, on August 10, 2004, the City Council approved Resolution No.
2004-198 authorizing the City Manager to execute purchase orders or
contracts for the not-to-exceed dollar amounts for various vendors,
including MHA in the amount of $150,000, for fiscal Year 2004/2005; and
WHEREAS, on June 14, 2005, the City Council approved Resolution No. 2005-133
authorizing the City Manager to execute an amendment to the professional
services agreement with MHA in an amount not to exceed $340,000 for Interim
City Attorney services; and
WHEREAS, also on June 14, 2005, The City Council approved Resolution No.
2005-143 adopting the 2005/06-2006/07 Operating Budget for the City of
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Brentwood
that Amendment No. 2 to the legal services agreement with McDonough, Holland
and Allen is hereby approved and the City Manager is authorized to execute
same in the amount of $150,000.
PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at
a meeting held on the 28th day of February 2006 by the following vote:
AMENDMENT NO. 2 TO AGREEMENT FOR LEGAL SERVICES
(McDonough, Holland & Allen)
This Amendment No. 2 is entered into and effective as of the ___ day of
_______________, 2006, amending the agreement dated __________________ (the
“Agreement”) by and between the City of Brentwood, a municipal corporation
of the State of California ("City"), and McDonough, Holland & Allen,
(“Consultant") (collectively, the “Parties”) for legal services.
A. On June 14, 2006, the City Council authorized the City Manager to execute
Amendment No. 1 to the Agreement to increase the total agreement amount by
$340,000 for interim City Attorney services; and
B. The Parties desire to increase the total agreement amount by an
additional $150,000 for the remainder of the 2005/2006 Fiscal Year.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, the Parties agree as follows:
1. The total not to exceed Agreement amount is increased by $150,000.
2. All other provisions of the Agreement, as may have been amended from time
to time, will remain in full force and effect.
3. All requisite insurance policies to be maintained by Consultant pursuant
to the Agreement, as may have been amended from time to time, will include
coverage for this Amendment.
4. The individual executing this Amendment and the instruments referenced in
it on behalf of Consultant represents and warrants that he has the legal
power, right and actual authority to bind Consultant to the terms and
conditions of this Amendment.
McDonough Holland & Allen:
City of Brentwood:
Donna Landeros, City Manager
Margaret Wimberly, City Clerk
APPROVED AS TO FORM:
Damien B. Brower, City Attorney