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Home My WebLink About2012 CON SA Best, Best & Krieger - Amendment #3 Legal ServicesTHIRD AMENDMENT TO AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY, THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AND BEST BEST & KRIEGER, LLP This Third Amendment to Agreement is entered into this 30th day of October , 2012, by and between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY"), THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY, a public body, corporate and politic, (the "SUCCESSOR AGENCY"), and BEST, BEST & KRIEGER, LLP, (the "FIRM"). RECITALS A. The CITY, the SUCCESSOR AGENCY and the FIRM (the "Parties") entered into an agreement on October 9, 2010, ("the Agreement") wherein the FIRM agreed to provide legal services in the defense of 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, in the amount of $160,000, and subject to the terms of the Agreement. B. The Parties entered into the First Amendment to the Agreement on October 18, 2011, (the "First Amendment") to increase the not -to -exceed amount of the Agreement by $134,000, for a total Agreement not -to -exceed amount of $294,000. C. The Parties entered into a Second Amendment on May 15, 2012 to increase the not -to -exceed amount by $70,000 for a total not -to -exceed amount of $364,000. D. The Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $45,000 for a total not -to -exceed amount of $409,000. E. The case remains on -going as it is on appeal, and requires continued legal representation. F. On January 10, 2012, the City Council adopted Resolution No. 2012-15, pursuant to Part 1.85 of the California Health and Safety Code, electing for the City to serve as the successor agency to the CDC upon the dissolution of the Redevelopment Agency. G. On February 1, 2012, all California redevelopment agencies were dissolved, successor agencies were established as successor agencies to the former redevelopment agencies pursuant to Health and Safety Code Section 34173, and successor agencies are tasked with paying, performing and enforcing the enforceable obligations of the former redevelopment agencies. H. This Third Amendment will require the approval of the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, the Parties agree that the Agreement entered into on October 9, 2010, and amended on October 18, 2011, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $45,000, for a total not -to -exceed amount of $409,000. The parties further agree that with the foregoing exception, each and every term and provision of the Agreement dated October 9, 2010, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to the Agreement on the date and year first above written. SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY By APPROVED AS TO FORM: By audia G. Silva Successor A • - y Counsel CITY OF NATIONAL CITY ,i' on Morrison, Mayor Third Amendment to Agreement BEST, BEST, & KRIEGER, LLP By: W t ',7eo Bruce Beach, Esq. 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2012 — 25 RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN TO EXECUTE A THIRD AMENDMENT TO THE AGREEMENT FOR LEGAL SERVICES BY BEST BEST & KRIEGER, LLP, FOR THE CYAC LEGAL CHALLENGE DEFENSE TO INCREASE THE NOT TO EXCEED AMOUNT BY $45,000 FOR A TOTAL AMOUNT OF $409,000 WHEREAS, on November 23, 2010, the Community Development Commission of the City of National City ("CDC") adopted Resolution No. 2010-265 approving an Agreement between the City of National City, the CDC, and Best Best & Krieger, LLP ("BB&K"), to provide legal defense services regarding the Community Youth Athletic Center ("CYAC") litigation in the not to exceed amount of $160,000; and WHEREAS, on October 18, 2011, the CDC (now the Successor Agency) adopted Resolution No. 2011-233 approving the First Amendment to the Agreement that increased the not to exceed amount by $134,000, bringing the total not to exceed amount to $294,000; and WHEREAS, on May 15, 2012, the Successor Agency adopted Resolution No. 2011-10 authorizing the Second Amendment to the Agreement in the amount of $70,000 for the on -going appeal process, for a total not -to -exceed amount of $364,000; and WHEREAS, a Third Amendment to the Agreement in the amount of $45,000 is necessary for the on -going appeal process, which will bring the total not -to -exceed amount to $409,000; and WHEREAS, the Third Amendment must also be approved by the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, BE IT RESOLVED that the Board of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby authorizes the Chairman to execute the Third Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $45,000, for a total not to exceed amount of $409,000, to cover charges for continuing legal defense services regarding the Community Youth Athletic Center ("CYAC") litigation. Said third Amendment to the Agreement is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2012 — 25 Page Two PASSED and ADOPTED this 30th day of October, 2012 on Morrison, Chairman ATTEST: Michael R. Dalla, City Clerk as Secretary to the Successor Agency AP ROVED AS TO FORM: It,I Clams : c . - Silva Succes or Age y Counsel Passed and adopted by the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California, on October 30, 2012 by the following vote, to -wit: Ayes: Boardmembers Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman of the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California ity Clerk Servin as Secretary to the Successor Agency By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2012-25 of the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California, passed and adopted on October 30, 2012. City Clerk Serving as Secretary to the Successor Agency By: Deputy MEETING DATE: SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AGENDA STATEMENT October 30, 2012 AGENDA ITEM NO.3 ITEM TITLE: Resolution of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency authorizing the Chairman to execute a Third Amendment to the Agreement for Legal Services by Best Best & Krieger, LLP, for the Community Youth Athletic Center legal challenge defense to increase the not to exceed amount by $45,000 for a total amount of $409,000 PREPARED BY: Claudia Gacitua Silva PHONE: Extension 4222 EXPLANATION: Please see attached staff report. DEPARTMENT: APPROVED BY: rnev FINANCIAL STATEMENT: APPROVED: ACCOUNT NO. APPROVED: Funds are budgeted in Account 711-409-000-209-0000. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: Finance MIS STAFF RECOMMENDATION: Adopt proposed resolution. BOARD / COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Staff report Third Amendment to the Agreement with BB&K for Legal Services Proposed resolution STAFF REPORT This matter is a result of the Community Youth Athletic Center ("CYAC") legal challenge to the 2007 Redevelopment Plan Amendment. In addition to the Plan Amendment challenge, the CYAC made other claims, including violations of the Public Records Act and due process. This lawsuit has been working its way through the legal system since the Fall of 2007. Currently, the case is on appeal from Judge Denton's decision. Judge Denton invalidated the 2007 Redevelopment Plan Amendment, found that the Public Records Act was not complied with when draft notes and consultant's documents were not provided, and found the CYAC was not provided due process because they did not have sufficient time to object to the plan amendment. CYAC has cross -appealed on all the claims in which the Court held against them. The Court's award of attorney's fees totaling approximately two -million dollars ($2,000,000) has been also appealed to the 4th District Court of Appeals. Bruce Beach and Rebecca Andrews of Best Best & Krieger, LLP ("BB&K") have been our outside counsel in this case. Given the nature and length of the case, additional funds in the amount of $45,000 are needed for the on -going appeal. The Successor Agency has previously approved the following: 1. Original Agreement for Legal Services in the amount of $160,000 (November 12, 2010). 2. First Amendment to the Agreement in the amount of $134,000 (October 18, 2011). 3. Second Amendment to the Agreement in the amount of $70,000 (May 15, 2012). This Third Amendment to the Agreement in the amount of $45,000 is necessary for the ongoing appeal process, which will bring the total not -to -exceed amount to $409,000. The appeal process is anticipated to be completed and decision rendered within the next 12 months. Because all redevelopment agencies were dissolved by the State, this Third Amendment is between the Successor Agency to the Community Development Commission as the National City Redevelopment Agency and BB&K. The Third Amendment will also require the approval of the Oversight Board to the Successor Agency prior to being effective. THIRD AMENDMENT TO AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY, THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AND BEST BEST & KRIEGER, LLP This Third Amendment to Agreement is entered into this 30th day of October , 2012, by and between THE CITY OF NATIONAL CITY, a municipal corporation, (the "CITY"), THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY, a public body, corporate and politic, (the "SUCCESSOR AGENCY"), and BEST, BEST & KRIEGER, LLP, (the "FIRM"). RECITALS A. The CITY, the SUCCESSOR AGENCY and the FIRM (the "Parties") entered into an agreement on October 9, 2010, ("the Agreement") wherein the FIRM agreed to provide legal services in the defense of the case entitled Community Youth Athletic Association v. All Persons Interested in the Mauer of the Amendment to National City's Redevelopment Plan as Adopted by Ordinance 2007-2295, Case No. 37-2007-00076404-CU-EI-CTL, in the amount of $160,000, and subject to the terms of the Agreement. B. The Parties entered into the First Amendment to the Agreement on October 18, 2011, (the "First Amendment") to increase the not -to -exceed amount of the Agreement by $134,000, for a total Agreement not -to -exceed amount of $294,000. C. The Parties entered into a Second Amendment on May 15, 2012 to increase the not -to -exceed amount by $70,000 for a total not -to -exceed amount of $364,000. D. The Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $45,000 for a total not -to -exceed amount of $409,000. E. The case remains on -going as it is on appeal, and requires continued legal representation. F. On January 10, 2012, the City Council adopted Resolution No. 2012-15, pursuant to Part 1.85 of the California Health and Safety Code, electing for the City to serve as the successor agency to the CDC upon the dissolution of the Redevelopment Agency. G. On February 1, 2012, all California redevelopment agencies were dissolved, successor agencies were established as successor agencies to the former redevelopment agencies pursuant to Health and Safety Code Section 34173, and successor agencies are tasked with paying, performing and enforcing the enforceable obligations of the former redevelopment agencies. H. This Third Amendment will require the approval of the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, the Parties agree that the Agreement entered into on October 9, 2010, and amended on October 18, 2011, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $45,000, for a total not -to -exceed amount of $409,000. The parties further agree that with the foregoing exception, each and every term and provision of the Agreement dated October 9, 2010, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to the Agreement on the date and year first above written. SUCCESSOR AGENCY TO THE COMMIJNTI`Y DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY By: Ron Morrison, Chairman APPROVED AS TO FORM: By: Claudia Gacitua Silva Successor Agency Counsel CITY OF NATIONAL CITY By: Ron Morrison, Mayor APPROVED AS TO FORM: By: Claudia Gacitua Silva City Attorney BEST, BEST, & KRIEGER, LLP By: Bruce Beach, Esq. Third Amendment to Agreement 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2012 — RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN TO EXECUTE A THIRD AMENDMENT TO THE AGREEMENT FOR LEGAL SERVICES BY BEST BEST & KRIEGER, LLP, FOR THE CYAC LEGAL CHALLENGE DEFENSE TO INCREASE THE NOT TO EXCEED AMOUNT BY $45,000 FOR A TOTAL AMOUNT OF $409,000 WHEREAS, on November 23, 2010, the Community Development Commission of the City of National City ("CDC") adopted Resolution No. 2010-265 approving an Agreement between the City of National City, the CDC, and Best Best & Krieger, LLP ("BB&K"), to provide legal defense services regarding the Community Youth Athletic Center ("CYAC") litigation in the not to exceed amount of $160,000; and WHEREAS, on October 18, 2011, the CDC (now the Successor Agency) adopted Resolution No. 2011-233 approving the First Amendment to the Agreement that increased the not to exceed amount by $134,000, bringing the total not to exceed amount to $294,000; and WHEREAS, on May 15, 2012, the Successor Agency adopted Resolution No. 2011-10 authorizing the Second Amendment to the Agreement in the amount of $70,000 for the on -going appeal process, for a total not -to -exceed amount of $364,000; and WHEREAS, a Third Amendment to the Agreement in the amount of $45,000 is necessary for the on -going appeal process, which will bring the total not -to -exceed amount to $409,000; and WHEREAS, the Third Amendment must also be approved by the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, BE IT RESOLVED that the Board of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby authorizes the Chairman to execute the Third Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $45,000, for a total not to exceed amount of $409,000, to cover charges for continuing legal defense services regarding the Community Youth Athletic Center ("CYAC") litigation. Said third Amendment to the Agreement is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2012 — Page Two PASSED and ADOPTED this 30th day of October, 2012 Ron Morrison, Chairman ATTEST: Michael R. Dalla, City Clerk as Secretary to the Successor Agency APPROVED AS TO FORM: Claudia Gacitua Silva Successor Agency Counsel Indian Wells (760) 568-2611 Irvine (949) 263-2600 Los Angeles (213) 617-8100 Ontario (909) 989-8584 Bruce W. Beach (619) 525-1335 bruce.beach@bbklaw.com File No. 60161.00008 VIA MESSENGER BEST BEST & KRIEGER ATTORNEYS AT LAW 655 West Broadway, 15m Floor, San Diego, CA 92101 Phone: (619) 525-1300 1 Fax: (619) 233-6118 (www.bbklaw.com October 25, 2012 Ms. Ginny Miller Executive Assistant to the City Attorney City of National City 1243 National City Blvd National City, California 91950-4301 Re: Third Amendment to Legal Services Agreement Dear Ginny: Riverside (951) 686-1450 Sacramento (916) 325-4000 Walnut Creek (925) 977-3300 Washington, DC (202) 785-0600 As requested by e-mail today, enclosed are two executed originals of the Third Amendment to the legal services agreement between the City of National City and Best Best & Krieger LLP dated October 30, 2012. Should you have any questions regarding the above, please contact us at your convenience. Thank you. Very truly yours, anaaKo Legal Ass . ' • ce W. Beach of BEST BEST & KRIEGER LLP /wjr Enclosure 60161.00008\7638233.1 10/25/12 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 November 5, 2012 Mr. Bruce Beach Best, Best & Krieger, LLP 655 West Broadway, 15th Floor San Diego, CA 92101 Dear Mr. Beach, On October 30th, 2012, Resolution No. 2012-220 was passed and adopted by the City Council of the City of National City and Resolution No. 2012-25 was passed and adopted by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency, authorizing execution of a Third Amendment to 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 Amendment. Michael R. Dalla, CMC City Clerk Enclosures