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HomeMy WebLinkAbout2010 CON CDC Best, Best & Krieger - Legal Services 1AGREEMENT FOR LEGAL SERVICES BY AND BETWEEN THE CITY OF NATIONAL CITY, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND BEST, BEST & KRIEGER, LLP THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between TIIE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY"), THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic, (the "CDC"), and BEST, BEST & KRIEGER, 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 CITY and CDC hereby retains the FIRM to assist in the defense in the case entitled Community Youth Athletic Association v. All Persons Interested in the Matter of the Amendment to National City's Redevelopment Plan as Adopted by Ordinance 2007-2295, Case No. 37-2007-00076404-CU-EI-CTL, subject to this Agreement. The FIRM has been representing the Respondents in the above -referenced matter since the inception of the litigation, and the parties now seek to formalize the relationship into writing. Article 2. Scope of Services. The CITY and CDC shall have the right in their sole discretion to determine the particular services to be performed by the FIRM under this Agreement. The CTI'Y and CDC are engaging the services of Firm Partner Bruce Beach. All work shall be performed by or under supervision of Bruce Beach. These services include the following: defense in the above -entitled matter. It is expected that the FIRM will work with the CITY's City Attorney. CITY staff, CDC Legal Counsel and CDC staff. Article 3. Compensation. Compensation paid under this Agreement shall be as follows: Partner: Bruce Beach Senior Associate: Jr. Associate: Paralegal/Legal Assistant: $225.00 per hour $215.00 per hour $175.00 per hour $150.00per hour A. The FIRM shall not use more than one attorney for the same specific task without the CITY and 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 CITY and 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 CITY's City Attorney and CDC's Legal Counsel and the FIRM. Neither the CITY nor the CDC shall be obligated to pay the FIRM amounts not discussed, budgeted, and agreed to before being incurred by the FIRM. C. One -hundred sixty -thousand dollars ($160,000) has been appropriated or otherwise duly authorized as the not to exceed amount for the payment of legal services and out-of-pocket disbursements pursuant to this Agreement. The FIRM has already been paid $137,582.78 for services rendered through June 30, 2010. The authorized appropriation in the not to exceed amount of $160,000 is for services rendered after June 30, 2010. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CITY and the CDC. D. The FIRM shall keep the CITY and the CDC advised monthly as to the level of attorney hours and client services performed under Article 1. The FIRM will not charge the CITY or the CDC for travel time; however, the FIRM may charge for work performed for the CITY or the CDC during any travel time. E. The CITY and CDC further agree 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 FIRM shall provide the CITY and the CDC with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CITY and 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 $.15 (fifteen 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 CITY and the CDC will consider reimbursement on a case -by -case basis. The CDC or the CITY 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 or CITY's prior consent. The CITY and the CDC expect these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CITY and 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 CITY and the CDC's payment process, the CITY and 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 Claudia G. Silva, City Attorney, 1243 National City Boulevard, National City, CA 91950-4301. The Page 2 of 8 Legal Services Agmnt (CYAC ) City of National City and tan&K individual time and disbursement records customarily maintained by the FIRM for billing evaluation and review purposes shall be made available to the CITY and the CDC in support of bills rendered by the FIRM. G. The FIRM agrees to forward to the CITY and the CDC a statement of account for each one -month period of services under this Agreement, and the CITY and the CDC agree to compensate the FIRM on this basis. The FIRM will consult monthly with the CITY and 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 biller's professional capacity (partner, associate, paralegal, etc.) should be included (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate (a) Neither the CITY nor the CDC 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. (b) Due to the nature of the CITY and the CDC's payment process, the CITY and the CDC will not pay any late charges. Every effort will be made to pay bills promptly. I. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. Ultimately, staffing is a CITY and CDC decision, and the CITY and the CDC's representatives 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 CITY and 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 Legal Services Agmnt (CYAC ) City of National City and BB&K or the attorney leaves the FIRM. The CITY and 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 CITY and 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 CITY and 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 CITY and the CDC. All such work product shall be confidential and not released to any third party without the prior written consent of the CITY and 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 CITY or 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 CITY and 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 CITY/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 CITY/CDC or the FIRM shall give to the other written notice. Within ten (10) business days, the FIRM and the CITY/CDC shall each prepare a report which supports their position and file the same with the other party. The CITY/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 each the CITY and the CDC and their 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 Page 4 of 8 Legal Services Agmnt (CYAC ) City of National City and BB&K claims or liability arising from the established sole negligence or willful misconduct of the CITY or 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 CITY and 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. Commercial 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 CITY and the CDC and their elected 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 CITY and the CDC and their elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CITY and the CDC; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CITY and the CDC by certified mail. Before this Agreement shall take effect, the FIRM shall furnish the CITY and 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 CITY's Drug -Free Workplace requirements. Every person awarded a contract by the CITY for the provision of services shall certify to the CITY 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. 'I he 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 Page 5 of 8 Legal Services Agmnt (CYAC ) City of National City and I3t3&K places available to employees and applicants for employment any notices provided by the CITY 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 the CITY/CDC and continue until written notice of cancellation. 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 CITY's City Attorney and CDC's Legal Counsel. 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 CITY and 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: Claudia G. Silva 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 91950-4301 Notice to the FIRM shall be addressed to: Bruce Beach, Esq. Best, Best & Krieger, LLP 655 West Broadway 15th Floor San Diego, CA 92101-3301 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. Page 6 of 8 Legal Services Agmnt (CYAC City of National City and [3[3&K 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 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 CITY/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 CITY/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 CITY/CDC. This prohibition shall not preclude the CITY/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 9th day of November, 2010. --- Signature Page to Follow --- Page7of8 legal Services Aa int (CYAC ) City of National City and t3B&K COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY //-L on Morrison, Chairman APPR ED S O FORM: By: audia G. S 1 CDC Gen • a Counsel CITY OF NATIONAL CITY Bv: APP By: on Morrison, Mayor ED S FO audia G. S City Attorney BEST, BEST, & KRIEGER, LLP (Corporation —signatures of two corporate officers) (Partnership — one signature) (Sole proprietorship — one signature) By: ?ate-, l t Bruce Beach, Esq. By: (Signature) (Print Name) Page 8 of 8 Legal Services Agmnt (CYAC City of National City and BB&K RESOLUTION NO. 2010 — 265 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF NATIONAL CITY, THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, AND THE LAW FIRM OF BEST, BEST & KRIEGER, LLP, TO PROVIDE LEGAL DEFENSE SERVICES IN THE NOT TO EXCEED AMOUNT OF $160,000 WHEREAS, the Community Development Commission of the City of National City (CDC) is currently engaged in litigation in a case entitled Community Youth Athletic Association (CYAC) v. All Persons Interested in the Matter of the Amendment to National City's Redevelopment Plan as Adopted by Ordinance 2007-2295; and WHEREAS, attorney Bruce Beach of Best, Best & Krieger, LLP, has represented the CDC in this matter, and the parties seek to enter into an Agreement for legal services to further memorialize the relationship for legal defense services pertaining to the CYAC litigation; and WHEREAS, the law firm of Best, Best & Krieger, LLP, is a qualified and experienced law firm, and has provided high quality legal services to the City and the Community Development Commission on a variety of projects and issues pertaining to eminent domain, redevelopment, 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 the law firm Best, Best & Krieger, LLP, to provided legal defense services regarding the CYAC litigation in an amount not to exceed $160,000. Said Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 23rd day of Novembgr, 2010. P'OVEI A .T! ORM: dia G. S eneral Coun"il, CDC onorrison, Chairman Passed and adopted by the Community Development Commission of the City of National City, California, on November 23, 2010, by the following vote, to -wit: Ayes: Commissioners Morrison, Sotelo-Solis, Van Deventer, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission Secre evelopment Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2010-265 of the Community Development Commission of the City of National City, California, passed and adopted on November 23, 2010. Secretary, Community Development Commission By: Deputy :STING DATE: CITY OF NATIONAL CITY, CALIFORNIA COMMUNITY DEVELOPMENT COMMISSION COUNCIL AGENDA STATEMENT November 23, 2010 C'ao‘o AGENDA ITEM NO. 48 ITEM TITLE: Resolution of the Community Development Commission of the City of National City authorizing the Chairman to execute an Agreement between the City, the CDC, and the Law Firm of Best, Best & Krieger, LLP, to continue providing legal defense services in the not to exceed amount of $160,000 (Funded by Tax Increment funds.) PREPARED BY: Claudia G. Silva yPHONE: Ext.4222 DEPARTMENT: City Attorney APPROVED BY: EXPLANATION: Bruce Beach of the law firm of Best, Best & Krieger, LLP, is an attorney who is well -qualified and experienced in redevelopment litigation. He has been providing excellent service to the City and the CDC in the defense of the current matter since 2007. The proposed resolution would authorize a legal services agreement between the City, CDC and Mr. Beach to continue providing legal services related to the defense in the case entitled Community Youth Athletic Association v. All Persons Interested in the Matter of the Amendment to National City's Redevelopment Plan as Adopted by Ordinance 2007-2295, in the not to exceed amount of $160,000. FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Funds are budgeted in Account 511-445-460-213-0000. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt resolution. BOARD / COMMISSION RECOMMENDATION: N/A TTAC H M E NTS: Legal Services Agreement Resolution e. December 7, 2010 Mr. Bruce Beach Best, Best & Krieger, LLP 655 West Broadway, 15th Floor San Diego, CA 92101 Dear Mr. Beach, 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 On November 23`d, 2010, Resolution Nos. 2010-254 and 2010-265 were passed and adopted by the City Council and the Community Development Commission of the City of National City, authorizing execution of an Agreement with Best, Best & Krieger, LLP. We are enclosing for your records certified copies of the above Resolutions and a fully executed copy of the Agreement. Michael R. Dalla, CMC City Clerk Enclosures