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HomeMy WebLinkAbout2011 CON CDC Opper and Varco LLP - Park Village Project Beauchamp Family TrustAGREEMENT FOR LEGAL SERVICES BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND OPPER AND VARCO LLP THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION FOR THE CITY OF NATIONAL CITY (the "CDC") and OPPER AND VARCO, 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 environmental obligations and funds owed to the CDC per the Cooperative Remediation Agreement for the Park Village Project, National City California by and between the CDC and the Beauchamp Family Trust dated February 6, 2006, 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: represent and advise the City and its Redevelopment Division on matters related to the collection of money for obligations that were created in prior redevelopment and remediation agreements regarding the project and the developer for the Park Village project which was not completed. It is expected that the FIRM will work with the CDC Attorney and City staff. The FIRM has been representing the CDC's interests since the inception of the Cooperative Remediation Agreement, and the parties desire to further formalize the relationship into writing. This Agreement is necessary so that the CDC can protect and enforce its interests in the existing Cooperative Remediation Agreement. Article 3. follows: Compensation. Compensation paid under this Agreement shall be as Partner: $325.00 per hour Senior Associate: $275 per hour Associate: $195 per hour Paralegal/Legal Assistant: $95 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. 1 CDC & Opper & Varco Legal Services Agreement 10-2011 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 Attorney 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. Please see attachment A. C. The CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $13,000 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 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 $.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 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 Claudia G. Silva, CDC 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. 2 CDC & Opper & Varco Legal Services Agreement 10-2011 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 attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. I I. 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) 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) 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. (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. 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. The biller's professional capacity (partner, associate, (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 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 3 CDC & Opper & Varcu Legal Services Agreement 10-2011 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 arc 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. 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. Commercial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). 4 CDC & Opper & Varco Legal Services Agreement 10-2011 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 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 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; and (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. 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 apprerticeship. 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 12. Effective Date and Term. This Agreement shall be effective upon execution by the FIRM and 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 CDC 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. 5 CDC & Opper & Varco Legal Services Agreement 10-2011 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 CDC Attorney City of National City 1243 National City Boulevard National City, CA 91950-4301 cc: Chris Zapata, Executive Director Community Development Commission of the City of National City 1243 National City Boulevard National City, CA 91950-4301 Notice to the FIRM shall be addressed to: Richard Opper, Esq. Opper and Varco LLP 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 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. 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. 6 CDC & Opper & Varco Legal Services Agreement 10-2011 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 3rd day of October, 2011. COMMUNITY DEVELOPMENT COMMISSION OF THE CI ' i OF NATIONAL CITY By: APP By: Opper & Varco LLP (Corporation - signatures of two corporate officers) (Partnership - one signature) (Sole proprietorship - one signature) Chris Za.: a,' ty Manager Richard Opper, Esq. VED AS TO FORM: audia 6 Silva CDC At'. ey Exhibit A Term: October 2011 through October 2012 Scope: Represent and advise the CDC on matters relating to the collection of money for obligations that were created in prior redevelopment and remediation agreements regarding this project and the developer for the "Park Village" project which was not completed. Estimated level of effort: I estimate a level of effort of 10 hours per month - that is predicated on arriving at a negotiated settlement with the Developer within the next four 7 CDC & Opper & Varco Legal Services Agreement 10-2011 months. If litigation becomes necessary, the CDC would agree to renegotiate this to an on -call or "as -needed" contract. (10 x $325/hr. x 4 months = $13,000.) Total Cost: Flat rate for four month period $13,000, to be adjusted to "as needed" should litigation be required. 8 CDC & Opper & Varco Legal Services Agreement 10-2011 OPPER-1 OP ID: AN ACQ►RO" CERTIFICATE OF LIABILITY INSURANCE DATE (MM)DD/YYYY) 10/05/11 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Ahem Insurance Brokerage 9655 Granite Ridge Dr., #500 San Diego, CA 92123 Christine B. Clark 858-571-9030 858-571-9010 INSURED Opper & Varco, LLP 225 Broadway Suite 1900 San Diego, CA 92101 CONTACT NAME: PHONE (NC No Extl: E-MAIL ADDRESS: FAX (NC, No): INSURER(S) AFFORDING COVERAGE INSURER A Greenwich Insurance Company INSURER B: NAIC INSURER C : INSURER D : INSURER E : INSURER F COVERAGES CERTIFICATE NUMBER: • THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSR SUBR WVD POLICY NUMBER POLICY EFF (MM/DDlWYY) POLICY EXP IMM/DD/YYYY) LIMITS GENERAL LIABILITY EACH OCCURRENCE S COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED PREMISES (Ea occurrence) $ JCLAIMS -MADE i OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES'IEPER: PRODUCTS - COMP/OP AGG $ POLICY ECT LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT (Ea accident) $ ANY AUTO BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY(Per acadenl ) $ _. HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE (Per accident) $ UMBRELLA LIAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS -MADE AGGREGATE $ DED RETENT ON$ S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / WCSTATU- TORY LIMITS OTH- ER ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? N N/A E.L. EACH ACCIDENT $ (Mandatory in NH) If describe E.L. DISEASE. - EA EMPLOYEE $ yes, under DESCRIPTION OF OPERATIONS below I E.L. DISEASE - POLICY LIMIT $ A PROFESSIONAL LIABILITY INS. LPB 002945301 11/01/10 11/01/11 PER CLAIM 2,000,000 AGGREGATE 2,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) *10 DAY NOTICE OF CANCELLATION FOR NON-PAYMENT Deductible: $5,000 Per Claim Prior Acts Date: 11/01/1996 CERTIFICATE HOLDER CANCELLATION NATION1 The City of National City Redevelopment Division 1243 National City Boulevard National City, CA 91950-4301 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 Michael R. DaIla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax October 19, 2011 Mr. Richard Opper Opper and Varco LLP 225 Broadway, Suite 1900 San Diego, CA 92101 Dear Mr. Opper, On October 3rd, 2011, an Agreement was entered between the Community Development Commission of the City of National City and Opper and Varco LLP. We are enclosing for your records a fully executed original Agreement. Sincerely, eq,„14.),//9,,,16. Michael R. Dalla, CMC City Clerk Enclosure cc: Office of the City Attorney