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HomeMy WebLinkAbout2013 CON Best, Best & Krieger - Amendment #4 Legal ServicesFOURTH 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 Fourth Amendment to Agreement is entered into this 3rd day of September , 2013, 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 entered into a Third Amendment on October 30, 2012 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 Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $53,500 for a total not -to -exceed amount of $462,500. F. The case remains on -going as it is on appeal, and requires continued legal representation. G. 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. H. 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. I. This Fourth 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, May 15, 2012, and October 30, 2012, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $53,500 for a total not -to -exceed amount of $462,500. 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 Fourth Amendment to the Agreement on the date and year first above written. SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEYE NT AGENCY By on Morrison, Chairman APPR• VED AS TO FORM: By: (li) C a�.ta Gac Successor A a Silva Counsel APPED AS TO FORM: By: a City Att Silva Fourth Amendment to Agreement BEST BEST & KRIEGER, LLP By: 1 O4-u.. TtVaCk Bruce Beach, Esq. 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2013 — 134 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FOURTH 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 $53,500 FOR A TOTAL AMOUNT OF $462,500 WHEREAS, on November 23, 2010, the City Council adopted Resolution No. 2010-254 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 City Council adopted Resolution No. 2011-229 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 City Council adopted Resolution No. 2012-105 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, on October 30, 2012, the City Council adopted Resolution No. 2012- 220 authorizing the Third Amendment to the Agreement in the amount of $45,000 for the on- going appeal process, for a total not -to -exceed amount of $409,000; and WHEREAS, a Fourth Amendment to the Agreement in the amount of $53,500 is necessary for the final process of the appeal, which will bring the total not -to -exceed amount to $462,500; and WHEREAS, the Fourth Amendment must also be approved by the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Fourth Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $53,5000, for a total not to exceed amount of $462,500, to cover legal services for the appeal regarding the Community Youth Athletic Center ("CYAC") litigation. Said Fourth Amendment to the Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 17th day of Septe. .- 013. on Morrison, ATTEST: Michael R. Della, City Clerk Passed and adopted by the Council of the City of National City, California, on September 17, 2013 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California h Ar City C erk of the City of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2013-134 of the City of National City, California, passed and adopted by the Council of said City on September 17, 2013. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT c a 3\c - MEETING DATE: September 17, 2013 AGENDA ITEM NO. 7 ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Fourth 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 $53,500 for a total not -to -exceed amount of $462,500. PREPARED BY: Claudia Gacitua Silva PHONE: Ext. 4222 EXPLANATION: Please see attached staff report. FINANCIAL STATEMENT: ACCOUNT NO. Funds are budgeted in Account 711-409-000-209-0000. ENVIRONMENTAL REVIEW: N/A ORDINANCE: INTRODUCTION: FINAL ADOPTION: DEPARTMENT: APPROVED BY: APPROVED: N ,,4,t- -�n Finance APPROVED: MIS STAFF RECOMMENDATION: Adopt proposed resolution. BOARD / COMMISSION RECOMMENDATION: N/A ‘TTAC H M ENTS: Staff report Fourth Amendment to the Agreement with BB&K for Legal Services Proposed resolution QA'' 01 v'\\G- V?; 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 $53,500 are needed for the on -going appeal. The City Council 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). 4. Third Amendment to the Agreement in the amount of $45,000 (October 30, 2012). This Fourth Amendment to the Agreement in the amount of $53,500 is necessary for the on- going appeal process, which will bring the total not -to -exceed amount to $462,500. 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 Fourth Amendment is between the Successor Agency to the Community Development Commission as the National City Redevelopment Agency and BB&K. The Fourth Amendment will also require the approval of the Oversight Board to the Successor Agency prior to being effective. FOURTH 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 Fourth Amendment to Agreement is entered into this 3rd day of September , 2013, 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 entered into a Third Amendment on October 30, 2012 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 Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $53,500 for a total not -to -exceed amount of $462,500. F. The case remains on -going as it is on appeal, and requires continued legal representation. G. 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. H. 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. I. This Fourth 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, May 15, 2012, and October 30, 2012, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $53,500 for a total not -to -exceed amount of $462,500. 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 Fourth 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: 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. Fourth Amendment to Agreement 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2013 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FOURTH 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 $53,500 FOR A TOTAL AMOUNT OF $462,500 WHEREAS, on November 23, 2010, the City Council adopted Resolution No. 2010-254 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 City Council adopted Resolution No. 2011-229 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 City Council adopted Resolution No. 2012-105 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, on October 30, 2012, the City Council adopted Resolution No. 2012- 220 authorizing the Third Amendment to the Agreement in the amount of $45,000 for the on- going appeal process, for a total not -to -exceed amount of $409,000; and WHEREAS, a Fourth Amendment to the Agreement in the amount of $53,500 is necessary for the final process of the appeal, which will bring the total not -to -exceed amount to $462,500; and WHEREAS, the Fourth Amendment must also be approved by the Oversight Board to the Successor Agency prior to being effective. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Fourth Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $53,5000, for a total not to exceed amount of $462,500, to cover legal services for the appeal regarding the Community Youth Athletic Center ("CYAC") litigation. Said Fourth Amendment to the Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 17th day of September, 2013. Ron Morrison, Mayor ATTEST: APPROVED AS TO FORM: Michael R. Dalla, City Clerk Claudia Gacitua Silva City Attorney INCoapouATEP September 25, 2013 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 September 17th, 2013, Resolution No. 2013-134 was passed and adopted by the City Council of the City of National City and Resolution No. 2013-38 was passed and adopted by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency, authorizing execution of a Fourth 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 original copy of the Amendment. Michael R. Dalla, CMC City Clerk Enclosures