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Home My WebLink About2014 CON SA Best Best & Krieger - Legal Services Community Youth Athletic Center - Amendment #5NOTE TO FILE 02-20-14 IN THE MATTER OF: Resolution of the Successor Agency to the CDC as the National City Redevelopment Agency authorizing the Chairman to execute a Fifth Amendment to the Agreement for legal services with the City of National City and Best Best & Krieger, LLP, for the Community Youth Athletic Center (CYAC) legal challenge defense to increase the not to exceed amount by $100,000 for a total not -to -exceed amount of $562,500. Please note the following: THE FULLY EXECUTED ORIGINAL AMENDMENT HAS BEEN FILED WITH CITY COUNCIL RESOLUTION NO. 2014-17 UNDER THE SAME FILE NO. C2010-77 • Only one fully executed original amendment has been provided for both Successor Agency Resolution No. 2014-42 and City Council Resolution No. 2014-17 NTF 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. 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, 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 RED J XELOPMENT AGENCY B APP By: on Morrison, Chairman ' • A ED • TO FORM: W ► is Silva Successorttua icy Counsel CITY OF NATIONAL CITY on Morrison, Mayor APP' 4 VED : S TO FORM: By: audi City A citua Silva ey Fifth Amendment to Agreement BEST, BEST, & K RIEGER, LLP By: (Jal.(,Q. ? eo tAk Bruce Beach, Esq. 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2014 — 42 RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN 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 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, on October 30, 2012, the Successor Agency adopted Resolution No. 2012-25 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 Successor Agency adopted Resolution No. 2013-38 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 Board of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby authorizes the Chairman 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, which will bring the total not -to -exceed amount to $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 — 42 Page Two PASSED and ADOPTED this 18th day of Febru14. on Morrison, Chairman ATTEST: ,Q �J Mic ael R. Dalla, C1ty Clerk as Secretary to the Successor Agency PROVED AS TO FORM: is G. itua Silva Successo A.-ncy 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 February 18, 2014 by the following vote, to -wit: Ayes: Boardmembers Cano, Morrison, Natividad, Rios, Sotelo-Solis. 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. 2014-42 of the Successor Agency to the Community Development Commission as the Redevelopment Agency of the City of National City, California, passed and adopted on February 18, 2014. 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 February 18, 2014 c tj,„ AGENDA ITEM NO. 2 ITEM TITLE: Resolution of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency authorizing the Chairman to execute a Fifth Amendment to the Agreement for Legal Services with the City of National City 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 DEPARTMENT: ' (sty Attorney PHONE: Extension 4222 APPROVED BY: EXPLANATION: Please see attached staff report. 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 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 arc 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. 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 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 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. Fifth Amendment to Agreement 2 National City, Successor Agency, and Best Best & Krieger, LLP RESOLUTION NO. 2014 — RESOLUTION OF THE SUCCESSOR AGENCY TO THE COMMUNITY DEVELOPMENT COMMISSION AS THE NATIONAL CITY REDEVELOPMENT AGENCY AUTHORIZING THE CHAIRMAN 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 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, on October 30, 2012, the Successor Agency adopted Resolution No. 2012-25 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 Successor Agency adopted Resolution No. 2013-38 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 Board of the Successor Agency to the Community Development Commission as the National City Redevelopment Agency hereby authorizes the Chairman 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, which will bring the total not -to -exceed amount to $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, Chairman ATTEST: Michael R. Dalla, City Clerk as Secretary to the Successor Agency APPROVED AS TO FORM: Claudia Gacitua Silva Successor Agency Counsel 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