HomeMy WebLinkAbout2011 CON Mazzarella Lorenzana LLP - Legal ServicesAGREEMENT FOR LEGAL SERVICES
BY AND BETWEEN
THE CITY OF NATIONAL CITY,
THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF NATIONAL CITY, AND
MAZZARELLA LORENZANA, LLP
THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between
THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY"), THE COMMUNITY
DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a community
development commission (the "CDC") and MAZZARELLA LORENZANA, 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 and CITY hereby retain the FIRM to assist in
representing the CDC and CITY in connection with the CDC's dispute with Rosenow Spevacek
Group ("RSG") arising from RSG's failure to meet its obligations pursuant to its February 20,
2007 contract with the CDC to provide consulting services. Pursuant to ABx1 26 legislation, the
CDC has an obligation to minimize liabilities of its redevelopment agency. The CDC is currently
facing a potential liability of at least two -million dollars due to the award of attorneys fees in the
matter of CYAC v. CDC, et al. (SDSC Case No. 37-2007-00076404-CU-El-CTL, currently on
appeal), which was a matter based on the CDC's 2007 Redevelopment Plan Amendment. The
purpose of this engagement is to pursue indemnity claims and other theories of recovery to
minimize or eliminate the pending liability described herein. The attorneys with primary
responsibility in this matter are Mark C. Mazzarella and Luis E. Lorenzana, subject to this
Agreement.
Article 2. Scope of Services. The CDC and CITY shall have the right in its sole
discretion to determine the particular services to be performed by the FIRM under this
Agreement. It is expected that the FIRM will work with the City Attorney, CDC General
Counsel, CITY and CDC staff.
Article 3. Compensation. The FIRM will be compensated by a blend of hourly fees
and contingency fees. The hourly component of the FIRM's fees shall be paid at the following
rate:
Attorneys: $150.00 per hour
Paralegals $ 50.00 per hour
In addition to the hourly fees due the FIRM, the FIRM shall be entitled to a contingency
fee at percentages which reflect approximately 50% of the contingency fee normally charged by
the FIRM. The contingency fee is not set by law, but is negotiable.
If no recovery is obtained for the CDC in this case, CDC shall owe no contingency fee to
the FIRM, but the CDC shall pay the costs and expenses as well as the hourly component of the
FIRM's fee. If any recovery is obtained for the CDC in this case, whether by way of settlement,
1 City of National City, CDC, & Mozzarella Lorenzana
Legal Services Aerecment- 2011
judgment or otherwise, CDC agrees to pay the FIRM 12.5% of the "amount recovered" if the
case is resolved prior to the selection of the arbitrators, and 16.5% of the amount recovered
thereafter until 60 days before the first date the matter is set for arbitration, and 20% thereafter
through the end of arbitration. Compensation for any appeal shall be negotiated and agreed upon
separate from this Agreement.
The "amount recovered" shall equal the total gross amount actually paid by or recovered
from adverse parties for the benefit of CDC, including amounts received as a result of settlement,
award, or judgment, before and reduction for costs, or expenses, liens and/or payments due to
third parties. If payment of all or any part of the amount to be received will be deferred (such as
in the case of any annuity, a structured settlement, or periodic payments), the "amount
recovered", for purposes of this Agreement, will be any initial lump sum payment plus the
present value at the time of settlement of the payment to be received or the cost to the defendant
of purchasing the annuity or deferred payment asset. The full attorney's fees due to the FIRM
will be paid out of the initial lump sum payment. if the initial lump sum payment is insufficient
to pay the FIRM's fees in full, the balance will be paid from subsequent payments of the
recovery before any distribution to CDC.
Any award of attorney's fees made by the court and recovered from the adverse parties
for benefit of the CDC will be treated the same as any other amount recovered.
All costs of the suit, including those described in the following paragraph, which the
CDC has not previously paid, will be paid to the FIRM entirely from CDC's share of any
recovery.
If no recovery is obtained for CDC by way of any settlement or after trial or arbitration,
then no contingency attorney's fees will be charged to CDC, and CDC will be responsible only
for the payment of hourly component of the FIRM's compensation.
Article 4. The following provisions and procedures shall be followed by the FIRM:
A. The FIRM shall not use more than one attorney for the same specific task
without the CDC and CITY'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 and CITY.
B. The CDC has appropriated or otherwise duly authorized the payment of an
amount not to exceed $50,000 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; however, the FIRM may charge for work performed for the CDC during any travel
time.
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
City of National City, CDC, & Mozzarella Lorenzana
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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.
(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.
E. Bills from the FIRM should be submitted to Claudia Gacitua Silva, City
Attorney, City of National City, 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").
(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 City of National City, CDC, & Ma zzarella Lorenzana
Legal Services Agreement - 2011
(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.
H. Staffing. Every legal matter should have a primarily responsible attorney
and a paralegal assigned. Ultimately, staffing is a CDC decision, and the CDC's representative
may review staffing to insure that it is optimal to achieve the goals of the engagement at the least
cost.
(1) Paralegals are to be used to the maximum extent possible to
enhance efficiency and cost-effectiveness. All tasks typically considered associate work should
be considered for assignment to a paralegal. Written authorization from the CDC must be had
before associate hours billed exceed paralegal hours billed.
(2) Once an attorney is given primary responsibility for an
engagement, that person should continue on the legal matter until the matter is concluded 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 5. 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 6. 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 7. 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.
4 City of National City, CDC, & Mazzarella Lorenzana
Legal Services Agreement - 2011
Article 8. 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 9. Indemnification. The FIRM agrees to indemnify and hold the CDC and
the CITY, 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 claims or liability arising from the established sole negligence or
willful misconduct of the CDC, the CITY, their agents, officers, or employees.
Article 10. 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 and CITY. 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 ($1,000,000).
B. For all of the FIRM's employees that are subject to this Agreement, to the
extent required by the State of California, Workers' Compensation Insurance in the amount
required by law. one
Errors and omissions insurance in an amount not less thanyxo million
dollars ($ 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.
5 City of National City, CDC, & Mazzarella Lorenzana
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Article 11. 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 12. Non -Discrimination Provisions. The FIRM shall not discriminate
against any subcontractor, vendor, employee or applicant for employment because of age. race,
color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical
handicap, or medical condition. The FIRM will take positive action to insure that applicants are
employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation.
marital status, national origin, physical handicap, or medical condition. Such action shall include
but not be limited to the following: employment, upgrading, demotion. transfer, recruitment or
recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and
selection for training, including apprenticeship. The FIRM agrees to post in conspicuous places
available to employees and applicants for employment any notices provided by the CDC setting
forth the provisions of this non-discrimination clause.
Article 13. Effective Date and Term. This Agreement is effective as of November
21, 2011 and shall 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 Attorney.
Article 14. 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 15. 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 Gacitua Silva
City Attorney
City of National City
1243 National City Boulevard
National City, CA 91950-4301
6 City of National City, CDC, & Mazzarella Lorenzana
Legal Services Agreement - 2011
Notice to the FIRM shall be addressed to:
Mark C. Mazzarella
Mazzarella Lorenzana, 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 16. Headings. All article headings are for convenience only and shall not
affect the construction or interpretation of this Agreement.
Article 17. Miscellaneous Provisions.
A. Time of Essence. Time is of the essence for each provision of this
Agreement.
B. California Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California. The FIRM covenants and agrees to submit
to the personal jurisdiction of any state court in the State of California for any dispute, claim, or
matter arising out of or related to this Agreement.
C. Integrated Agreement. This Agreement, including attachments and/or
exhibits, contains all of the agreements of the parties and all prior negotiations and agreements
are merged in this Agreement. This Agreement cannot be amended or modified except by
written agreement, and mutually agreed upon by the CDC and the FIRM.
D. Severability. The unenforceability, invalidity, or illegality of any
provision of this Agreement shall not render the other provisions unenforceable, invalid, or
illegal.
E. Waiver. The failure of the CDC to enforce a particular condition or
provision of this Agreement shall not constitute a waiver of that condition or provision or its
enforceability.
F. Conflict of Interest. During the term of this Agreement, the FIRM shall
not perform services of any kind for any person or entity whose interests conflict in any way
with those of the CDC. This prohibition shall not preclude the CDC from expressly agreeing to a
waiver of a potential conflict of interest under certain circumstances.
G. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto.
H. Construction. The parties acknowledge and agree that (i) each party is of
equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and
negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are
to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or
any portions hereof, or any amendments hereto.
7 City of National City, CDC, & Mazzarella Lorenzana
Legal Services Agreement - 2011
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
written above.
COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF
NATIONAL CITY
By:
Chris Zapata, Executive Director
APPOVED AS TO FORM:
By:
a dia G
CDC Gen
Silva
unsel
CITY OF NATIONAL CITY
Chris Zapata, City Manager
APPR'i VED AS TO FORM:
Bv•
citua Silva
ty
MAZZARELLA LORENZANA, LLP
Ma f% C. Mazzare
Luis E. Lorenzana
Partner(s)
8 City of National City, CDC, & Mazzarella Lorenzana
Legal Services Agreement - 201 I
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
February 1, 2012
Mr. Mark Mazzarella
Mazzarella Lorenzana, LLP
550 West C Street, Suite 700
San Diego, CA 92101
Dear Mr. Mazzarella,
On November 21st, 2011, an Agreement was entered between the City of
National City, Community Development Commission of the City of National City
and Mazzarella Lorenzana, LLC.
We are enclosing for your records a fully executed original Agreement.
Sincerely,
4 E,U,��I,lf./l �' /
dt
Michael R. Dalla, CMC
City Clerk
Enclosure
cc: Office of the City Attorney
TO:
FROM:
SUBJECT:
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@nationalcityca.gov
City Clerk
Ginny Miller, Legal Assistan
Agreement for Legal Services - Mazzarella
DATE: January 31, 2012
Attached please find two original, full -executed Agreements for Legal Service between the City,
CDC and Mazzarella Lorenzana, LLP, for processing.
Thank you.
Attachments