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HomeMy WebLinkAbout2008 CON CDC Mazzarella Caldarelli LLP - The Cove at San Diego Bay / 'ARE' HoldingAGREEMENT BY AND BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND MAZZARELLA CALDARELLI LLP FOR LEGAL SERVICES PERTAINING TO THE COVE AT SAN DIEGO BAY PROJECT AND ARE HOLDINGS, LLC THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate, and politic (the "CDC") and MAZZARELLA CALDARELLI 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 assist in representing the CDC in connection with a dispute involving The Cove at San Diego Bay Project and ARE Holdings, LLC, subject to this Agreement. The attorneys with primary responsibility in this matter are Mark C. Mazzarella and William J. Caldarelli. Other attorneys and paralegals of the Firm may be used as appropriate. 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, subject to the Firm's agreement to provide such services. These services may include the following: litigation and counseling. It is expected that the Firm will work with the City Attomey and CDC staff. Article 3. Compensation. Compensation paid under this Agreement shall be as follows: Attorney: $ 275.00 per hour Paralegal $ 100.00 per hour 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 CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $25,000 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. C. 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 without prior consent of CDC; however, the Firm may charge for work performed for the CDC during any travel time. 1 D. 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. The CDC will pay directly for any third party consultants, such as investigators or expert witnesses, engaged on its behalf and with its consent. 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) Secretarial overtime. (3) Storage of open or closed files, rent, electricity, local telephone, or any items traditionally associated with overhead. (4) Photocopy charges in excess of $.15 (fifteen cents) per page. (5) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis or like items except for electronic legal research separately charged with CDC's prior consent. (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. E. Bills from the Firm should be submitted to George H. Eiser, III, City Attorney, 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. F. 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 attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. G. 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"). 2 (e) The biller's professional capacity (partner, associate, paralegal, etc.) should be included somewhere on the billing statement. (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate (a) 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 without prior approval, 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 prior approval. (b) Due to the nature of the CDC's payment process, the CDC will not pay any late charges. Every effort will be made to pay bills promptly. 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 reasonable 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, deliver an opinion as to 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 3 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 established sole negligence or willful misconduct of the CDC, its agents, officers, or employees or from cross -complaints asserted by any party against which the CDC may file a complaint in this matter. Article 9. Insurance. 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. For all of the Firm's employees who are subject to this Agreement, Workers' Compensation Insurance in the amount sufficient to satisfy California law. B. Errors and omissions/Professional liability insurance in an amount not less than One Million Dollars ($1,000,000) per claim, Two Million Dollars ($2,000,000) aggregate. Any deductible and/or self -insured retention in excess of Ten Thousand Dollars ($10,000) must be disclosed at the time evidence of insurance is provided, and is subject to the approval of the Risk Manager. C. All insurance required by express provision of this Agreement shall be carried by insurers licensed to do business in the State of California, which are rated at least "A,VII" by the current A.M. Best Rating Guide. In the event coverage is provided by non -admitted, "surplus lines", carriers, the insurer(s) must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI List), and otherwise meet rating requirements. All policies should be written on an occurrence form; if a claims made form is used, similar coverage shall be maintained for a period of three (3) years following performance of the Agreement. All policies should be written on an occurrence form; if a claims made form is used, similar coverage shall be maintained for a period of three (3) years following performance of the Agreement. All policies shall contain language, to the extent obtainable, that 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. Drug Free Work Place. The Firm agrees to comply with the CDC'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 4 employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. Article 12. Effective Date and Term. This Agreement shall be effective upon execution by the Firm and CDC and continue until written notice of cancellation or conclusion of the matter described in Article 1, hereof. This Agreement may be terminated at any time by either party. Notice of termination by the Firm shall be given to the City Attorney. Article 13. 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 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, City Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: Brad Raulston Executive Director Community Development Commission 1243 National City Boulevard National City, CA 91950-1301 Notice to the Firm shall be addressed to: Mark C. Mazzarella Mazzarella Caldarelli LLP 550 West C Street, Suite 700 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. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 16. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. 5 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. IN WITNESS WHEREOF, the parties have executed this Agreement on the / day of Af qrc h , 2008. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Brad I2�ulsi4� n Executii rec tor APPROVED AS TO FORM: AC) George H. Eiser, III City Attorney MAZZARELLA CALDAI2ELLI LL By: By: (Name) (Title) (Name) (Title) 6 CITY OF NATIONAL CITY OFFICE OF THE CITY ATTORNEY 1243 National City Boulevard, National City, CA 91950-4301 Claudia G. Silva • City Attorney Phone: (619) 336-4220 Fax: (619) 336-4327 TDD: (619) 336-1615 E-mail: Attorney@ci.national-city.ca.us TO: City Clerk DATE: October 17, 2011 FROM: Ginny Miller, Legal Assista SUBJECT: Legal Services Agreement; : azzarella Caldarelli, LLP Attached please find an original, fully -executed 2008 Legal Services Agreement between the CDC and the law firm of Mazzarella Caldarelli, LLP for your files. Thank you. Attachment OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax MAZZARELLA CALDARELLI Legal Services The Cove at San Diego Bay Project and ARE Holdings Ginny Miller (City Attorney) Forwarded Agreement to Consultant