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HomeMy WebLinkAbout2006 CON CDC Opper & Varco LLC - Legal ServicesAGREEMENT FOR LEGAL SERVICES THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC") and OPPER & VARCO LLC, (the "Firm"). This Agreement sets forth the parties' mutual understanding concerning legal services to be provided by the Firm and the fee arrangement for said services. Article 1. Retainer. The CDC hereby retains the Firm to assist in representing the CDC or the City of National City in connection with legal services — environmental, subject to this Agreement. Article 2. Scope of Services. The CDC shall have the right in its sole discretion to determine the particular services to be performed by the Firm under this Agreement. These services may include the following: providing advice, negotiations with outside parties, preparing legal documents, representing CDC to regulating agencies. It is expected that the Firm will work with the CDC's Legal Counsel and CDC staff. Article 3. Compensation. Compensation paid under this Agreement shall be as shown in the Fee Schedule attached as Exhibit A. A. The Finn shall not use more than one attorney for the same specific task without the CDC's approval. The Firm may use the minimum number of attorneys for this engagement consistent with good professional practice after consulting with and obtaining approval by the CDC. B. As requested by CDC, the Firm agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the CDC's Legal Counsel and the Firm. The CDC shall not be obligated to pay the Firm amounts not discussed, budgeted, and agreed to before being incurred by the Firm. C. The CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $ 250,000 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CDC. D. The Firm shall keep the CDC advised monthly as to the level of attorney hours and client services performed under Article 1. E. The CDC further agrees to reimburse the Firm, in accordance with the procedures set forth in this Article, for telephone, fax, mail, messengers, federal express deliveries, document reproduction, client -requested clerical overtime, lodging, and similar out-of-pocket expenses charged by the Firm as a standard practice to its clients generally, with the exception of travel and meals. In any billing for disbursements, the Page 1 of 8 Agreement for Legal Services Firm shall provide the CDC with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CDC has specifically agreed otherwise: (1) Word Processing, clerical or secretarial charges, whether expressed as a dollar disbursement or time charge. (2) Storage of open or closed files, rent, electricity, local telephone, postage, receipts or transmission of telecopier documents, or any other items traditionally associated with overhead. (3) Photocopy charges in excess of the firm's own cost per page. (4) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (5) Secretarial overtime. Where case requirements demand overtime, the CDC will consider reimbursement on a case -by -case basis. The CDC will not reimburse overtime incurred for the convenience of the Firm's failure to meet deadlines known in advance. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis (without pre -authorization) or like items. (7) Express charges, overnight mail charges, messenger services or the like, without the CDC's prior consent. The CDC expects these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CDC will consider reimbursement on a case -by -case basis. (8) Meals. (9) Late payment charge and/or interest. Due to the nature of the CDC's payment process, the CDC will not pay any late charges or interest charges to bills. Every effort will be made to pay bills promptly. F. Bills from the Firm should be submitted to Patricia Beard, Redevelopment Manager, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and disbursement records customarily maintained by the Firm for billing evaluation and review purposes shall be made available to the CDC in support of bills rendered by the Firm. G. The Firm agrees to forward to the CDC a statement of account for each one -month period of services under this Agreement, and the CDC agrees to compensate the Firm on this basis. The Firm will consult monthly with the CDC as to the number of Page 2 of 8 Agreement for Legal Services attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. H. Billing Format. Each billing entry must be complete, discrete and appropriate. (1) Complete (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be reference ("telephone call re: trial brief," "interview in preparation for deposition"). (e) The biller's professional capacity (partner, associate, paralegal, etc.) should be included. (f) All invoices should reference a Project Name and, where available, a Project Number as provided by the CDC (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate: The CDC does not pay for clerical support, administrative costs, overhead costs, outside expenses or excessive expenses. For example, the CDC will not pay for secretarial time, word processing time, air conditioning, rental of equipment, including computers, meals served at meetings, postage, online research, or the overhead costs of sending or receiving faxes. Neither will the CDC pay for outside expenses such as messenger delivery fees, outside photocopying, videotaping of depositions, investigative services, outside computer litigation support services, or overnight mail, without pre -authorization as needed or requested. I. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. Ultimately, staffing is a CDC decision, and the CDC's representative may review staffing to insure that it is optimal to achieve the goals of the engagement at the least cost. (1) Paralegals are to be used to the maximum extent possible to enhance efficiency and cost-effectiveness. All tasks typically considered associate work should be considered for assignment to a paralegal. Written authorization from the CDC must be had before associate hours billed exceed paralegal hours billed. (2) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded Page 3 of 8 Agreement for Legal Services or the attorney leaves the firm. The CDC will not pay the costs of bringing a new attorney up to speed. (3) If more than one attorney is going to perform the same task, prior approval from the CDC must be had. This includes document review. Article 4. Independent Contractor. The Firm shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the Firm without prior written consent of the CDC. Retention of the Firm is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the Firm including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the Firm pursuant to this Agreement is for the sole use of the CDC. All such work product shall be confidential and not released to any third party without the prior written consent of the CDC. Article 6. Compliance with Controlling Law. The Firm shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the Firm shall comply immediately with any and all directives issued by the CDC or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CDC shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the Firm and the CDC cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm in this Agreement, the CDC or the Firm shall give to the other written notice. Within ten (10) business days, the Firm and the CDC shall each prepare a report which supports their position and file the same with the other party. The CDC shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm. Article 8. Indemnification. The Firm agrees to indemnify and hold the CDC and its agents, officers, and employees harmless from and against all claims asserted or liability established for damages or injuries to any person or property, including injury to the Firm's employees, agents, or officers, which arise from or are connected with or caused or claimed to be caused by the acts or omissions of the Firm and its agents, officers, or employees in performing the work or other obligations under this Agreement, and all expenses of investigating and defending against same; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the sole negligence or willful misconduct of the CDC, its agents, officers, or employees. Page 4 of 8 Agreement for Legal Services Article 9. Insurance. The Firm shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CDC. At its sole cost and expense, the Firm shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. Commericial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). B. For all of the Firm's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. C. Errors and omissions insurance in an amount not less than two million dollars ($2,000,000) per claim. D. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CDC and its Board officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1)if possible, the insurer waives the right of subrogation against the CDC and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CDC; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CDC by certified mail. Before this Agreement shall take effect, the Firm shall furnish the CDC with copies of all such policies upon receipt of them, or a certificate evidencing such insurance. The Firm may effect for its own account insurance not required under this Agreement. Article 10. Non -Discrimination Provisions. The Firm shall not discriminate against any subcontractor, vendor, employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The Firm will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Firm agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. Article 11. Effective Date and Term. The term of this Agreement shall commence onsepremher 5 ,2006, and terminate on September 5,2011, unless sooner terminated as provided for herein. This Agreement may be terminated at any time by either party with sixty Page 5 of 8 Agreement for Legal Services (60) days' written notice to the other. Notice of termination by the Firm shall be given to the CDC's Legal Counsel. Article 12. Notification of Change in Form. The Firm has the right to effect changes in form including but not limited to: the change in form from a partnership to a professional law corporation; the change in form of any partner or partners from an individual or individuals to a professional law corporation; the change in form of any corporate partner or partners to any individual partners. The CDC shall be promptly notified in writing of any change in form. Article 13. Notices. In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage paid. When so given, such notice shall be effective from the date of mailing of the notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: George Eiser, Legal Counsel Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 cc: Chris Zapata Executive Director Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 Notice to the Firm shall be addressed to: Richard Opper Opper & Varco LLC 225 Broadway, Suite 1900 San Diego CA 92101 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 14. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Page 6 of 8 Agreement for Legal Services Article 15. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The Firm covenants and agrees to submit to the personal jurisdiction of any state court in the State of California for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement: This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CDC and the Firm. D. Severability: The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. E. Waiver: The failure of the CDC to enforce a particular condition or provision of this Agreement shall not constitute a waiver of that condition or provision or its enforceability. F. Conflict of Interest: During the term of this Agreement, the Firm shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC. This prohibition shall not preclude the CDC from expressly agreeing to a waiver of a potential conflict of interest under certain circumstances. G. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. H. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Page 7 of 8 Agreement for Legal Services IN WITNESS WHEREOF, the parties have executed this Amended Agreement on the 5th day of September , 2006. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: APPROVED AS TO FORM: George H. Eiser, III Legal Counsel OPPER & VARCO LLC (Corporation — signatures of two corporate officers) (Partnership — one signature) By: (Name) (Title) Page 8 of 8 Agreement for Legal Services EXHIBIT "A" CDC HOURLY RATES 2006 Richard G. Opper $255/hr. Suzanne R. Varco $255/hr. Linda C. Beresford $235/hr. Contract Attorney $120-$175/hr. Paralegal $95/hr. *These rates have been established since 2003. Increases in the rates are occasionally required, and they are subject to change upon mutual agreement between the law firm and the Executive Director of the CDC. RESOLUTION NO. 2006 — 193 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT FOR LEGAL SERVICES BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY AND OPPER & VARCO LLC WHEREAS, the Community Development Commission of the City of National City is charged with implementing the National City Redevelopment Plan; and WHEREAS, the implementation of the National City Redevelopment Plan frequently requires complex legal negotiations and strategies related to the remediation of hazardous waste on properties; and WHEREAS, Opper & Varco LLC is a qualified and experienced law firm that specializes in environmental issues, including issues related to the handling and remediation of hazardous waste on properties to be redeveloped; and WHEREAS, the Community Development Commission desires to retain Opper & Varco LLC for legal services. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of National City hereby authorizes the Chairman to execute an Agreement for Legal Services between the Community Development Commission of National City and Opper & Varco LLC. Said agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 5th day of September, 2006. Nick In:'1/► ATTES Chris Z- •a' Secretary APPROVED AS TO FORM: aC George H. Eiser, III Legal Counsel airman Passed and adopted by the Community Development Commission of National City, California, on September 5, 2006, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Chairman Ciimunity Development Commission Secrets Com inity evelopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-193 of the Community Development Commission of the City of National City, California, passed and adopted on September 5, 2006. Secretary Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE September 5,2006 AGENDA ITEM NO. 27 ITEM TITLE A Resolution authorizing the Chairman to execute an Agreement for legal services between the Community Development Commission of National City and Opper & Varco LLC. PREPARED BY Patricia Beard Redevelopment Manager DEPARTMENT Community Development Commission EXPLANATION The law firm of Opper & Varco, LLP specializes in representing local jurisdictions in matters related to environmental contamination of redevelopment sites. The Community Development Commission has retained the firm since its formation in 2003 and previously utilized the services of its principal partner, Richard Opper, since 1999. The firm has a proven track record of assisting with "brownfield" redevelopment projects. Current projects benefiting from the firm's expertise include: Marina Gateway hotel, ACE Metals site remediation, Pacific Steel redevelopment, The Cove at San Diego Bay and Park Village. The City Attorney's office is recommending a new method of retaining attorneys for as needed services. The Opper & Varco Agreement is the first to be recommended following the new approach. If approved, the Agreement will be in effect for five years. Environmental Review This Agreement is exempt from the California Environmental Quality Act ("CEQA"). Financial Statement This Agreement is for time and materials as shown in the attachments. Legal fees are allocated to redevelopment projects as they are incurred. Account No STAFF RECOMMENDATION Adopt the Resolution. BOARD / COMMISSION RECOMMENDATION Not applicable. J ATTACHMENTS Resolution No. ; 00 1. Agreement for Legal Services A-200 (9/80) RESOLUTION NO. 2006 — 193 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT FOR LEGAL SERVICES BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF NATIONAL CITY AND OPPER & VARCO LLC WHEREAS, the Community Development Commission of the City of National City is charged with implementing the National City Redevelopment Plan; and WHEREAS, the implementation of the National City Redevelopment Plan frequently requires complex legal negotiations and strategies related to the remediation of hazardous waste on properties; and WHEREAS, Opper & Varco LLC is a qualified and experienced law firm that specializes in environmental issues, including issues related to the handling and remediation of hazardous waste on properties to be redeveloped; and WHEREAS, the Community Development Commission desires to retain Opper & Varco LLC for legal services. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of National City hereby authorizes the Chairman to execute an Agreement for Legal Services between the Community Development Commission of National City and Opper & Varco LLC. Said agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 5th day of September, 2006. Nick Inzunza,Chairman ATTEST: Chris Zapata, Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC") and OPPER & VARCO LLC, (the "Firm"). This Agreement sets forth the parties' mutual understanding concerning legal services to be provided by the Firm and the fee arrangement for said services. Article 1. Retainer. The CDC hereby retains the Firm to assist in representing the CDC or the City of National City in connection with legal services — environmental, subject to this Agreement. Article 2. Scope of Services. The CDC shall have the right in its sole discretion to determine the particular services to be performed by the Firm under this Agreement. These services may include the following: providing advice, negotiations with outside parties, preparing legal documents, representing CDC to regulating agencies. It is expected that the Firm will work with the CDC's Legal Counsel and CDC staff. Article 3. Compensation. Compensation paid under this Agreement shall be as shown in the Fee Schedule attached as Exhibit A. A. The Firm shall not use more than one attorney for the same specific task without the CDC's approval. The Firm may use the minimum number of attorneys for this engagement consistent with good professional practice after consulting with and obtaining approval by the CDC. B. As requested by CDC, the Firm agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the CDC's Legal Counsel and the Firm. The CDC shall not be obligated to pay the Firm amounts not discussed, budgeted, and agreed to before being incurred by the Firm. C. The CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $ 250,000 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CDC. D. The Firm shall keep the CDC advised monthly as to the level of attorney hours and client services performed under Article 1. E. The CDC further agrees to reimburse the Firm, in accordance with the procedures set forth in this Article, for telephone, fax, mail, messengers, federal express deliveries, document reproduction, client -requested clerical overtime, lodging, and similar out-of-pocket expenses charged by the Firm as a standard practice to its clients generally, with the exception of travel and meals. In any billing for disbursements, the Page 1 of 8 Agreement for Legal Services Firm shall provide the CDC with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CDC has specifically agreed otherwise: (1) Word Processing, clerical or secretarial charges, whether expressed as a dollar disbursement or time charge. (2) Storage of open or closed files, rent, electricity, local telephone, postage, receipts or transmission of telecopier documents, or any other items traditionally associated with overhead. (3) Photocopy charges in excess of the firm's own cost per page. (4) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (5) Secretarial overtime. Where case requirements demand overtime, the CDC will consider reimbursement on a case -by -case basis. The CDC will not reimburse overtime incurred for the convenience of the Firm's failure to meet deadlines known in advance. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis (without pre -authorization) or like items. (7) Express charges, overnight mail charges, messenger services or the like, without the CDC's prior consent. The CDC expects these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CDC will consider reimbursement on a case -by -case basis. (8) Meals. (9) Late payment charge and/or interest. Due to the nature of the CDC's payment process, the CDC will not pay any late charges or interest charges to bills. Every effort will be made to pay bills promptly. F. Bills from the Firm should be submitted to Patricia Beard, Redevelopment Manager, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and disbursement records customarily maintained by the Firm for billing evaluation and review purposes shall be made available to the CDC in support of bills rendered by the Firm. G. The Firm agrees to forward to the CDC a statement of account for each one -month period of services under this Agreement, and the CDC agrees to compensate the Firm on this basis. The Firm will consult monthly with the CDC as to the number of Page 2 of 8 Agreement for Legal Services attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. H. Billing Format. Each billing entry must be complete, discrete and appropriate. (1) Complete (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be reference ("telephone call re: trial brief," "interview in preparation for deposition"). (e) The biller's professional capacity (partner, associate, paralegal, etc.) should be included. (f) All invoices should reference a Project Name and, where available, a Project Number as provided by the CDC (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate: The CDC does not pay for clerical support, administrative costs, overhead costs, outside expenses or excessive expenses. For example, the CDC will not pay for secretarial time, word processing time, air conditioning, rental of equipment, including computers, meals served at meetings, postage, online research, or the overhead costs of sending or receiving faxes. Neither will the CDC pay for outside expenses such as messenger delivery fees, outside photocopying, videotaping of depositions, investigative services, outside computer litigation support services, or overnight mail, without pre -authorization as needed or requested. I. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. Ultimately, staffing is a CDC decision, and the CDC's representative may review staffing to insure that it is optimal to achieve the goals of the engagement at the least cost. (1) Paralegals are to be used to the maximum extent possible to enhance efficiency and cost-effectiveness. All tasks typically considered associate work should be considered for assignment to a paralegal. Written authorization from the CDC must be had before associate hours billed exceed paralegal hours billed. (2) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded Page 3 of 8 Agreement for Legal Services or the attorney leaves the firm. The CDC will not pay the costs of bringing a new attorney up to speed. (3) If more than one attorney is going to perform the same task, prior approval from the CDC must be had. This includes document review. Article 4. Independent Contractor. The Firm shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the Firm without prior written consent of the CDC. Retention of the Firm is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the Firm including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the Firm pursuant to this Agreement is for the sole use of the CDC. All such work product shall be confidential and not released to any third party without the prior written consent of the CDC. Article 6. Compliance with Controlling Law. The Firm shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the Firm shall comply immediately with any and all directives issued by the CDC or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CDC shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the Firm and the CDC cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm in this Agreement, the CDC or the Firm shall give to the other written notice. Within ten (10) business days, the Firm and the CDC shall each prepare a report which supports their position and file the same with the other party. The CDC shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm. Article 8. Indemnification. The Firm agrees to indemnify and hold the CDC and its agents, officers, and employees harmless from and against all claims asserted or liability established for damages or injuries to any person or property, including injury to the Firm's employees, agents, or officers, which arise from or are connected with or caused or claimed to be caused by the acts or omissions of the Firm and its agents, officers, or employees in performing the work or other obligations under this Agreement, and all expenses of investigating and defending against same; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the sole negligence or willful misconduct of the CDC, its agents, officers, or employees. Page 4 of 8 Agreement for Legal Services Article 9. Insurance. The Firm shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CDC. At its sole cost and expense, the Firm shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. Commericial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). B. For all of the Firm's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. C. Errors and omissions insurance in an amount not less than two million dollars ($2,000,000) per claim. D. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CDC and its Board officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1)if possible, the insurer waives the right of subrogation against the CDC and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CDC; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CDC by certified mail. Before this Agreement shall take effect, the Firm shall furnish the CDC with copies of all such policies upon receipt of them, or a certificate evidencing such insurance. The Firm may effect for its own account insurance not required under this Agreement. Article 10. Non -Discrimination Provisions. The Firm shall not discriminate against any subcontractor, vendor, employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. The Firm will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Firm agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. Article 11. Effective Date and Term. The term of this Agreement shall commence on ,2006, and terminate on ,2011, unless sooner terminated as provided for herein. This Agreement may be terminated at any time by either party with sixty Page 5 of 8 Agreement for Legal Services (60) days' written notice to the other. Notice of termination by the Firm shall be given to the CDC's Legal Counsel. Article 12. Notification of Change in Form. The Firm has the right to effect changes in form including but not limited to: the change in form from a partnership to a professional law corporation; the change in form of any partner or partners from an individual or individuals to a professional law corporation; the change in form of any corporate partner or partners to any individual partners. The CDC shall be promptly notified in writing of any change in form. Article 13. Notices. In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage paid. When so given, such notice shall be effective from the date of mailing of the notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: George Eiser, Legal Counsel Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 cc: Chris Zapata Executive Director Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 Notice to the Firm shall be addressed to: Richard Opper Opper & Varco LLC 225 Broadway, Suite 1900 San Diego CA 92101 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 14. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Page 6 of 8 Agreement for Legal Services Article 15. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The Firm covenants and agrees to submit to the personal jurisdiction of any state court in the State of California for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement: This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CDC and the Firm. D. Severability: The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. E. Waiver: The failure of the CDC to enforce a particular condition or provision of this Agreement shall not constitute a waiver of that condition or provision or its enforceability. F. Conflict of Interest: During the term of this Agreement, the Firm shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC. This prohibition shall not preclude the CDC from expressly agreeing to a waiver of a potential conflict of interest under certain circumstances. G. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. H. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Page 7 of 8 Agreement for Legal Services IN WITNESS WHEREOF, the parties have executed this Amended Agreement on the day of , 200_. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Nick Inzunza, Chair APPROVED AS TO FORM: George H. Eiser, III Legal Counsel OPPER & VARCO LLC (Corporation — signatures of two corporate officers) (Partnership — o (S By: (Name) (Title) Page 8 of 8 Agreement for Legal Services City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 September 20, 2006 Mr. Richard Opper Opper & Varco, LLC 225 Broadway Suite 1900 San Diego, CA 92101 Project: National City — Community Development Commission - Legal Services Dear Mr. Opper: On September 5th, 2006, the City Council and Community Development Commission of the City of National City passed and adopted Resolution No. 2006 - 193, executing an Agreement with Opper & Varco, LLC for Legal Services for the Community Development Commission. We are pleased to enclose one fully executed original contract and one certified copy of the Resolution for your records. Should you have any questions, please contact Mr. Brad Raulston, Executive Director, Community Development Commission at (619) 336-4250. Sincerely, Michael R. Qalla City Clerk MRD Enclosure cc: CDC File C2006-43 ® Recycled Paper