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Home My WebLink About2014 CON Best Best & Krieger - Legal Services Community Youth Athletic Center - Amendment #5FIFTH 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 Fifth Amendment to Agreement is entered into this l8th day of February, 2014, 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 entered into a Fourth Amendment on September 3, 2013 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 Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $100,000 for a total not -to -exceed amount of $562,500. G. The case remains on -going as it has been remanded to the trial court for further proceedings after appeal, and CYAC has petitioned for review to the California Supreme Court, thus continued legal representation remains necessary. 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 and the California Department of Finance prior to being effective. NOW. '1'H FREFORE, the Parties agree that the Agreement entered into on October 9, 2010, and amended on October 18, 2011, May 15, 2012, October 30, 2012, and September 3, 2013, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $100.000 for a total not -to -exceed amount of $562,500. 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 RED T LOPMENT AGENCY By: on Morrison, Chairman APP ) ED • TO FORM: By: I till 7'Wia ' . itua Silva Successor ' r -icy Counsel CITY OF NATIONAL CITY B on Morrison, Mayor APP 'IVED mSTOFORM: By: acitua Silva City Aey Fifth Amendment to Agreement BEST, BEST, & KRIEGER, LLP By: SG 1- .�.� w, ??.4)-e4V Bruce Beach, Esq. 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2014 — 17 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIFTH 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 $100,000 FOR A TOTAL AMOUNT OF $562,500 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, on September 17, 2014, the City Council adopted Resolution No. 2013-134 authorizing the Fourth Amendment to the Agreement in the amount of $53,500 for the on -going appeal process, for a total not -to -exceed amount of $462,500; and WHEREAS, this Fifth Amendment to the Agreement in the amount of $100,000 is necessary for the ongoing litigation, which will bring the total not -to -exceed amount to $562,500; and WHEREAS, the Fifth Amendment must also be approved by the Oversight Board and State Department of Finance prior to becoming effective. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Fifth Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $100,000, for a total not to exceed amount of $562,500, to cover legal services for the ongoing Community Youth Athletic Center ("CYAC") litigation. Said Fifth Amendment to the Agreement is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2014 — 17 Page Two PASSED and ADOPTED this 18th day of February,..2014. ATTEST: �/ ft Micel R. Dalla, ity Clerk TO FORM: CI �.ia Gacit Silva City Attorney on Morrison, Mayor Passed and adopted by the Council of the City of National City, California, on February 18, 2014 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 2.026(11 City C erk of the City orNational City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2014-17 of the City of National City, California, passed and adopted by the Council of said City on February 18, 2014. City Clerk of the City of National City, California By: Deputy CITY OF NATIONAL CITY, CALIFORNIA COUNCIL AGENDA STATEMENT C. MEETING DATE: February 18, 2014 AGENDA ITEM NO.6', ITEM TITLE: Resolution of the City Council of the City of National City authorizing the Mayor to execute a Fifth Amendment to the Agreement for Legal Services with the Successor Agency to the Community Development Commission as the National City Redevelopment Agency and Best Best & Krieger, LLP, for the Community Youth Athletic Center legal challenge defense to increase the not to exceed amount by $100,000 for a total not -to -exceed amount of $562,500. PREPARED BY: Claudia Gacitua Silva PHONE: Ext. 4222 EXPLANATION: Please see attached staff report. DEPARTMENT: APPROVED BY: 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 Fifth Amendment to the Agreement with BB&K for Legal Services Proposed resolution `)G1L \ r) 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. 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. The Court's award of attorney's fees totaling approximately two -million dollars ($2,000,000) was appealed to the 4th District Court of Appeals. The case remains on- going as it has been remanded to the trial court for further proceedings after appeal regarding the attorneys' fees, and the CYAC has petitioned for review to the California Supreme Court. The remand to the trial court to determine the amount of attorneys' fees, if any, in light of the reversal of the due process claims, as well as other factors of consideration, will take time. The original judge has retired, thus a new judge will need to become familiar with this case, including the weeklong trial, so that an appropriate review can occur of the attorneys' fees claimed. Accordingly, this will require an extensive amount of legal work to examine CYAC's attorney bills in light of the Court of Appeals ruling. Thus, continued legal representation remains necessary. 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). 5. Fourth Amendment to the Agreement in the amount of 53,500 (September 17, 2013). This Fifth Amendment to the Agreement in the amount of $100,000 is necessary for the ongoing litigation, which will bring the total not -to -exceed amount to $562,500. The Fifth Amendment will also require the approval of the Oversight Board and State Department of Finance prior to becoming effective. FIFTH 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 Fifth Amendment to Agreement is entered into this 18th day of February, 2014, 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 entered into a Fourth Amendment on September 3, 2013 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 Parties desire to amend the Agreement to increase the not -to -exceed amount of the Agreement by $100,000 for a total not -to -exceed amount of $562,500. G. The case remains on -going as it has been remanded to the trial court for further proceedings after appeal, and CYAC has petitioned for review to the California Supreme Court, thus continued legal representation remains necessary. I1. On February 1, 2012, all California redevelopment agencies were dissolved, successor agencies were established as successor agencies to the former redevelopment agencies Fifth Amendment to Agreement 2 National City, Successor Agency, and Best Best & Krieger, LLP 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 and the California Department of Finance 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, October 30, 2012, and September 3, 2013, shall be amended by amending Article 3 (Compensation), Section C of the Agreement by increasing the not -to -exceed amount by $100,000 for a total not -to -exceed amount of $562,500. 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 Bv: 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. Fifth Amendment to Agreement 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2014 — RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A FIFTH 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 $100,000 FOR A TOTAL AMOUNT OF $562,500 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, on September 17, 2014, the City Council adopted Resolution No. 2013-134 authorizing the Fourth Amendment to the Agreement in the amount of $53,500 for the on -going appeal process, for a total not -to -exceed amount of $462,500; and WHEREAS, this Fifth Amendment to the Agreement in the amount of $100,000 is necessary for the ongoing litigation, which will bring the total not -to -exceed amount to $562,500; and WHEREAS, the Fifth Amendment must also be approved by the Oversight Board and State Department of Finance prior to becoming effective. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute the Fifth Amendment to the Agreement with Best Best & Krieger, LLP ("BB&K"), to increase the not to exceed amount by $100,000, for a total not to exceed amount of $562,500, to cover legal services for the ongoing Community Youth Athletic Center ("CYAC") litigation. Said Fifth Amendment to the Agreement is on file in the office of the City Clerk. --- Signature Page to Follow --- Resolution No. 2014 — Page Two PASSED and ADOPTED this 18th day of February, 2014. Ron Morrison, Mayor ATTEST: Michael R. Dalla, City Clerk APPROVED AS TO FORM: Claudia Gacitua Silva City Attorney 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 BEST BEST & KRIEGER; ATTORNEYS AT LAW 655 West Broadway, 15Th Floor, San Diego, CA 92101 Phone: (619) 525-1300 I Fax: (619) 233-6118 I www.bbklaw.com February 4. 2014 Ms. Ginny Miller Executive Assistant to the City Attorney City of National City 1243 National City Blvd National City, California 91950-4301 Re: Fifth Amendment to Agreement for Legal Services Dear Ginny: Riverside (951) 686-1450 Sacramento (916) 325-4000 Walnut Creek (925) 977-3300 Washington, DC (202) 785-0600 Enclosed arc the two originals of the Fifth Amendment to Agreement for Legal Services, which have been executed by Bruce Beach. Please provide a fully executed original for our file once it becomes available. Should you have any questions regarding the above, please contact the undersigned at your convenience. Thank you. Very truly yours, an <ba1 Legal Assistant ruce W. Beach of BEST BEST & KRIEGER LLP BWB:wjr Enclosures I649820064y8580905,1 �t1NL Cy. CITY OF NATIONAL CITY Office of the City Clerk 1243 National City Blvd., National City, California 91950 619-336-4228 phone / 619-336-4229 fax Michael R. Dalla, CMC - City Clerk February 25, 2014 Mr. Bruce Beach Best Best & Krieger, LLP 655 West Broadway, 15th Floor San Diego, CA 92101 Dear Mr. Beach, On February 18th, 2014, Resolution No. 2014-17 was passed and adopted by the City Council of the City of National City and Resolution No. 2014-42 was passed and adopted by the Successor Agency to the Community Development Commission as the National City Redevelopment Agency, authorizing execution of a Fifth 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