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HomeMy WebLinkAbout2008 CON CDC Christensen, Schwerdtfeger - Legal ServicesAGREEMENT FOR LEGAL SERVICES THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION OF TFIE CITY OF NATIONAL CITY (the "CDC") and CHRISTENSEN, SCHWERDTFEGER & SPATH LLP, (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 provide legal advice and assistance with regard to provide legal services, as and when requested by the CDC, involving issues of affordable housing, redevelopment law, and related litigation, if requested, as more specifically described in Exhibit A, 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 are identified in Exhibit A. 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. 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 $75,000 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. The Firm will not charge the CDC for travel time; however, the Firm may charge for work performed for the CDC during any travel time. 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 Page 1 of 8 Agreement for Legal Services 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 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 $.10 (ten cents) 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 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) Travel and 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 George Eiser, Legal Counsel, 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 Page 2 of 8 Agreement for Legal Services the Firm on this basis. The Firm will consult monthly with the CDC as to the number of 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 bilier'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. 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) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded or the attorney leaves the firm. The CDC will not pay the costs of bringing a new attorney up to speed. Page 3 of 8 Agreement for Legal Services (2) 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'. Acceptaftility 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 which result directly from the Firm's negligent performance of 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 established sole negligence or willful misconduct of the CDC, its agents, officers, or employees. 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 Page 4 of 8 Agreement for Legal Services 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) 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. Prue Free Work Place. The Firm agrees to comply with the City of National City's Drug -Free Workplace requirements. Every person awarded a contract by the CDC for the provision of services shall certify to the CDC that it will provide a drug -free workplace. Any subcontract entered into by the Firm pursuant to this Agreement shall contain this provision. Article 11. 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. Page 5 of 8 Agreement for Legal Services Article 12. Effective Date and Term. The term of this Agreement shall commence on January 22, 2008, and terminate on January 22, 2009, unless sooner terminated as provided for herein. This Agreement may be terminated at any time by either party with sixty (60) days' written notice to the other. Notice of termination by the Firm shall be given to the CDC's Legal Counsel. Article 13. Notification of Chanee 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 14. 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: Brad Raulston 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: Christensen Schwerdtfeger & Spath LLP 550 West C Street, Suite 1660 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 15. llieadin2s. 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 16. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall he construed and interpreted in accordance with the laws of the State of California. The Firrn 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 unenforceahility, 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 d a No day of t..Avt ky , 2008. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Ron Morison ayor APPROVED AS TO FORM: George H. Eiser, ID Legal Counsel Christensen, Schwerdtfeeer & Saath, LLP (corporation- signatures of two corporate others) (Partnership - one signature) (Sole prapnelors By (Name,CX f l&LES '.Cf{tt e,O (Title) /1-kv*Ge.'C 194/ By: (Name) (Title) Page 8 of 8 Agreement for Legal Services Exhibit A Scope of Services Perform legal services, as and when requested by the CDC, concerning all issues within the expertise of the Contractor, including but limited to services concerning the following: • Affordable housing • Redevelopment law • Housing authority law • Federal and state financing programs and program compliance • Section 8 program advice • Tax credit financing • Bond financing • First time homebuyer programs • Fannie Mae Secondary Market compliance • Litigation of all kinds, including without limitation, environmental issues, condemnation actions, Polanco actions, enforcement of regulatory agreements and enforcement of inclusionary agreements • Deed of trust foreclosures • Appointment of receivers , and other litigation, as and when requested • Drafting of documents, including, but not limited to, disposition and development agreements, exclusive negotiating agreements, affordable restrictions, loan agreements, environmental indemnity agreements, UCC financing statements, security agreements, deed of trust, and other documentation • All such other and further services, including transactional and litigation services as and when requested by the CDC of National City of National City Hourly rates are as follows: Attorneys Paralegals Clerks Non Litigation $175.00 $90.00 $70.00 Litigation $200.00 $90.00 $70.00 Exhibit B ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MWDO/YYYY) 1/2/2008 PRODUCER (858)457-3414 FAX: Barney & Barney, LLC CA Insurance Lic: 0003950 9171 Towne Centre Dr, 500 San Diego CA 92122 INSURED Christensen, Schwerdtfeger & Spath, LLP 550 West C Street, Suite 1660 San Diego CA 92101 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURERA: Travelers NAIC # 25674 INSURERB: Travelers Casualty/Surety 31194 INSURER C. INSURER U INSURER E: THE REQUIREMENT, THC AGGREGFATE W RJ POLICIES OF INSURANCE LISTED BELOW TERM OR CONDITION OF ANY INSURANCE AFFORDED BY THE POL LIMITS SHOWN MAY HAVE BEEN HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, CIES OCSCRIBED HEREIN 15 SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. REDUCED BY PAID CLAIMS. ADM DD TYPE OF INSURANCE POLICY NUMBER DATE (M WOE) POLICYAA(MM DDm)N LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY I6804547L49807 6/15/2007 6/15/2008 EACH QSSURRENCE S 1,000,000 DX PREMISES SES (AGE EaEoccw anool 5 300,000 CLAIMS MADE I"I OCCUR MEDEXP(Any ono-Lcoon) S 5,000 -_] PERSONAL 3 ADV INJURY S 1,000,000 GENERAL AGGREGATE 5 2,000,000 GENL AGGREGATE LIMIT APPLIES PER PRODUCTS - COMP/Q' AGG $ 2,000,000 F� PRO- 1-1X POLICY I { JEC7 LOC 'AUTOMOBILE - `_ LIABILITY ANY AUTO ALI. OWNEDA'JIOS SCHEDULED AUTOS HIRED AUTOS NONOWNEDAUI QS COMBINED SINGLE LIMIT (Ea acodenl) S BODILY INJURY (Per person) 5 _ BODILY INJURY (Pei accident) S PROPERTY DAMAGE (Per accident) S _ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EAAC,C S AUTO ONLY: AGG S EXCESSNMBRELLA LIABILITY OCCUR I l CLAIMS MADE EACH OCCURRENCE S .J ...., AGGREGATE S DEDUCTIBLE __RETENTION $ $ 5 B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROI'RIETOR/PARTNERffXECUTIVE OFFICER/MEMBEREXCLUOLU'' II yes. descebe urger SPL CIAL PROVISIONS below U87011Y37907 6/15/2007 6/15/2008 C$ TWORY LIM TS OTH.1i E L EACH ACCIDENT S 1,000,000 El. DISEASE - EA EMPLOYEE S 1,000,000 E L. DISEASE - POLICY LIMIT $ 1,000,000 OTHER DESCRIPTION 0= OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Additional Insured: Community Development Commission of The City of National City CERTIFICATE HOLDER CANCELLATION Community Development Commission of The City of National City Denise Davis, Administrative Assistant 1243 National City Blvd kB National City, CA 91950 ACORD 25 (2001/08) INS025 (0loe).0ea SHOULD ANY OF THE ABOVE DESCRIBED PODCIES BE CANCELLED BEFORE THE EXPIRATION GATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SMALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS ENTS OR REPRESENTATIVES. AUTHORIZED ESENTATIVE o ACORD CORPORATION 1988 Page lo12 RESOLUTION NO. 2008 — 14 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH CHRISTENSEN, SCHWERDTFEGER & SPATH, LLP IN THE NOT TO EXCEED AMOUNT OF $75,000 FOR AS -NEEDED LEGAL SERVICES WHEREAS, the Community Development Commission of the City of National City (CDC) is charged with implementing the National City Redevelopment Plan; and WHEREAS, the CDC desires to retain Christensen, Schwerdtfeger & Spath, LLP to provide as -needed legal services; and WHEREAS, Christensen, Schwerdtfeger & Spath, LLP is a qualified and experienced law firm, and has satisfactorily provided legal services to the CDC on a variety of projects and issues pertaining to affordable housing, redevelopment law and related litigation. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an agreement with Christensen, Schwerdtfeger & Spath, LLP to provide as -needed legal services. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 22tnd day of J. i .. 2008. ATTEST: APPROVED AS TO FORM: George H. Ei J III Legal Counsel Ron Mom" hairman Passed and adopted by the Community Development Commission of the City of National City, Califomia, on January 22, 2008, by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Parra, Ungab, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secretary, ommunity Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-14 of the Community Development Commission of the City of National City, Califomia, passed and adopted on January 22, 2008. Secretary, Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE January 22. 2008 20 AGENDA ITEM NO. ITEM TITLE Resolution of the Community Development Commission of the City of National City approving an Agreement with Christensen Schwerdtfeger & Spath LLP (CSS) for as needed legal services and authorizing the Chairman to execute said Agreement with a not to exceed amount of $75,000. PREPARED BY DEPARTMENT Colby Young (x4297) Redevelopment Division Project Manager EXPLANATION On March 2, 2004 and August 22, 2006, the CDC approved an Agreement with Christensen Schwerdtfeger & Spath LLP (CSS) for as needed legal services. The most recent Agreement with CSS has since expired and staff desires to retain CSS to continue to provide legal services to the CDC when requested. CSS is a qualified and experienced law firm, and has satisfactorily provided legal services to the CDC on a variety of projects and issues pertaining to affordable housing, redevelopment law, and related litigation. As a result, staff recommends that the Board approve the Agreement with CSS for as needed legal services. The attached Background Report outlines the Agreement's scope of work. Environmental Review CEQA is not applicable. Financial Statement The Agreement sets a not to exceed amount of $75,000 for services performed within the term of the Agreement (one year). Account No STAFF RECOMMENDATION Adopt resolution approving an Agreement with Christensen Schwerdtfeger & Spath LLP for as needed legal services and authorizing the Chairman to execute said Agreement. ATTACHMENTS I. Background Report 2. Resolution 3. Agreement Resolution No. a o o % • A-200 (9/80) City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 February 11, 2008 Mr. Charles B. Christensen Partner Christensen, Schwerdtfeger & Spath, LLP 550 West C Street, Suite 1660 San Diego, CA 92101 Dear Mr. Christensen, On January 22nd, 2008, Resolution No. 2008-14 was passed and adopted by the Community Development Commission of the City of National City, authorizing execution of agreement with Christensen, Schwerdtfeger & Spath, LLP. We are forwarding for your records a certified copy of the above Resolution and a fully executed original agreement. Sincerely, Michael R. Dalla, CMC City Clerk Enclosures cc: Community Development Commission ® Recycled Paper