HomeMy WebLinkAbout2022 CON Christensen & Spath - Affordable Housing Project NegotiationsCharles B. Christensen
Walter F. Spath 111
Joel B. Mason
Jose A. Garcia
Erin . dale
February 17, 2022
Charles E. Bell, Jr.
City Attorney
City o National City
1243 National City Boulevard
National City, CA 91950
Subject: Christensen & Spath LLP Contract
Mr. Bell:
Enclosed please find the executed Agreernent for Legal Services.
(iulste.nsen & Span] hP
401 West A Street . Suits 2250
San Diego . Calif of Dia 92101
{i} 619.236.9343
{f} 619. 36.8307
If you have any questions or need any additional information, please do not hesitate to
contact me. My direct line is 619-255-6587.
Sincerely,
Enclosure
AGREEMENT FOR LEGAL SERVICES
BY AND BETWEEN
THE COMMUNITY ITY EVEL PMENT COMMISSION — HOUSING
AUTHORITY OF THE CITY OF NATIONAL CITY
AND
CHI ISTE fiSE T & SPATH LLP
THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made as of the lst
day of March, 2022 between THE COMMUNITY DEVELOPMENT COMMISSION -
HOUSING AUTHORITY OF THE CITY OF NATIONAL I AL CITY ("CDC -HA"), a municipal
corporation (the CDC -HA) and CHRISTENSEN & SPATH LLP, a limited liability partnership
(the "FIRM"). This Agreement sets forth the parties' mutual understanding concerning legal
services to be provided by the FIRM and the fee arrangerret for said services.
Article I Retain. The CDC -HA hereby retain the FIRM to assist in affordable
housing project negotiations, advise the CDC -HA Board, and research and preparation of
documents related to these matters, subject to this Agreement.
Article 2. Effective Date and Term. This Agreement shall be effective on March 1,
2022 and continue until written notice of cancellation. This Agreement may be terminated at any
time by either party with sixty 0 days' written notice to the other. Notice of termination by the
FIRM shall be given to the General Counsel.
Article 3. Sope of Services. The CDC -HA shall have the right in its sole discretion
to determine the particular services to be performed by the FIRM under this Agreement. These
services may include the following: advising and drafting documents related to the CDC -HA in
its role as a housing authority and providing legal support in defending lawsuits. It is expected
that the FIRM will work with. the CDC -HA General Counsel and CDC -HA staff as per the Proposal
Letter attached as Exhibit A ("LEGAL SERVICES"). It is expected that the FIRM will work with
the General Counsel and CDC -HA staff.
Article 4. Compensation. Compensation paid under this Agreement shall be as set
forth in the Proposal Letter attached as Exhibit A.
A. The FIRM shall not use more than one attorney for the same specific task
without the CDC -HA' 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 -HA.
B. For services on any project in excess of one (1) hour, the FIRM agrees to
document a plan and budget consistent with the scope of services described above in Article 3 to
be agreed to by the General Counsel and the FIRM. The CDC -HA shall not be obligated to pay
the FIRM amounts not discussed, budgeted, and agreed to before being incurred by the FIRM.
C. The CDC -HA has appropriated or otherwise duly authorized the payment
of an amount not to exceed $200,000.00 for LEGAL SERVICES and out-of-pocket disbursements
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pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements
exceed this amount without written authorization the CDC -HA.
D. The FIRM shall keep the CDC -HA advised monthly as to the level of
attorney hours and client services performed under Article 1. The FIRM will not charge the CDC -
HA for travel time; however, the FIRM may charge for work performed for the CDC -HA during
any travel time.
E. The CDC -HA 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
exception of travel and meals. In any billing for disbursements, the FIRM shall provide the
CDC -HA with a statement breaking down the amounts by category of expense. The following
items shall not be reimbursed, unless the CDC -HA 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. Wh.ere case requirements demand overtime,
the CDC -HA will consider reimbursement on a case -by -case basis. The CDC -HA will not
reimburse overtime incurred for the convenience of the IRM' S failure to meet deadlines
known in advance.
(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 -PTA's prior consent. The CDC -HA expects these expenses to be
incurred in emergency situations only. Where case necessity requires the use of these
services, the CDC -HA will consider reimbursement on a case -by -case basis.
(8) Travel and meals.
(9) Late payment charge or interest. Due to the nature of the CDC-
HA's payment process, the CDC -HA. will not pay any late charges or interest charges to bills.
Every effort will be made to pay bills promptly.
P. Bills from the FIRM should be submitted to General Counsel, 12
National ral City Boulevard, National City, CA 919 0- 3 1. The individual time and disbursement
records customarily maintained by the FIRM for billing evaluation and review purposes shall
be made available to the CDC -HA in support of bills rendered by the FIRM.
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G. The FIRM agrees to forward to the CDC -HA a statement of account for
each one -month period of services under this Agreement, and the CDC -HA agrees to
compensate the FIRM on this basis. The FIRM will consult monthly with the CDC -HA 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.
H. Billing Format. Bach 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 bilier'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) Appropriate.
(a) The CDC -HA does not pay for clerical support,
administrative costs, overhead costs, outside expenses or excessive expenses. For example, the
CDC -HA 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 -HA 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-H 's payment process, the
CDC -HA will not pay any late charges. Every effort will be made to pay bills promptly.
Staffing. Every legal matter should have a primarily responsible attorney
and a paralegal assigned. Ultimately, staffing is a CDC -HA decision, and the CDC-HA'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 -HA 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 -HA will not pay the costs of bringing a new attorney up to
speed.
(3) If more than one attorney is going to perfomi the same task, prior
approval from the CDC -HA must be had. This includes document review.
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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 -HA. 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 -HA. All such
work product shall be confidential and not released to any third party without the prior written
consent of the CDC -HA.
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 -HA 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.
Article 8. Acceptability of Sri. The CDC -HA shall decide any and all questions
which may arise as to the quality or acceptability of the services performed and the .ter of
performance, the acceptable completion of this Agreement and the amount of compensation due.
If the FIRM and the CDC -IAA cannot agree to the quality or acceptability of the work, the manner
of performance, or the compensation payable to the FIRM in this Agreement, the CDC -HA or the
FIRM shall give to the other written notice. Within ten 1 business days, the FIRM and the
CDC -HA shall each prepare a report which supports their position and file the same with the other
party, The CDC -HA shall, with reasonable diligence, detennine the quality or acceptability of the
work, the manner of performance or the compensation payable to the FIRM.
Article 9. Indemnification. The FIRM agrees to indemnify, defend, and hold the
CDC -HA and its agents, officers, employees, and volunteers harmless from and against all claims
asserted or liability established for damages or injuries to any person or property, including injury
to the FI M' 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 -HA, its agents, officers, employees, or volunteers.
Article I. Insurance. The FIRM, at its sole cost and expense, shall purchase and
maintain throughout the term of this Agreement, the following insurance policies:
A. Professional Liability Insurance (errors and omissions) with minimum
limits of $1,000,000 per claim.
B. Intentionally Left Blank
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C. Commercial General Liability Insurance, with minimum limits of either
$2,000,000 per occurrence and $4,000,000 aggregate, or $1,000,000 per occurrence and
$2,000,000 aggregate with a $2,000,000 umbrella policy, covering all bodily injury and property
damage arising out of its operations, work, or performance under this Agreement. The policy shall
name the CDC -HA and its officers, agents, employees, and volunteers as additional insureds, and
a separate additional insured endorsement shall be provided. The general aggregate limit must
apply solely to the "location". The "location" should be noted with specificity on an endorsement
that shall be incorporated into the policy.
D. workers' Compensation Insurance in an amount sufficient to meet
statutory requirements covering all of FIRM' S employees and employers' liability insurance with
limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver
of subrogation in favor of the CDC -HA. Said endorsement shall be provided prior to
commencement of work under this Agreement.
E. The aforesaid policies shall constitute primary insurance as to the CDC -HA,
its officers, officials, employees, and volunteers, so that any other policies held by the CDC -HA
shall not contribute to any loss under said insurance. Said policies shall provide for thirty 3 days
prior written notice to the CDC HA's Risk Manager, at the address listed in subsection G below,
of cancellation or material change.
F. If required insurance coverage is provided on a "claims made" rather than
"occurrence" form, the FIRM shall maintain such insurance coverage for three years after
expiration of the terra and any extensions) of this Agreement. In addition, the "retro" date must
be on or before the date of this Agreement.
G. The Certificate Holder for all policies of insurance required by this
Section shall be:
City of National City
c/o Risk Manager
1243 National City Boulevard
National City, CA 1 50-43 '
H. Insurance shall be written with only insurers authorized to conduct business
in California that hold a current policy holder's alphabetic and financial size category rating of not
less than A:VIT according to the current Best's Key Rating Guide, or a company of equal financial
stability that is approved by the City of National City' s Risk Manager. In the event coverage is
provided by non -admitted "surplus lines" carriers, they must be included on the most recent List
of Approved Surplus Line Insurers ("LASLI") and otherwise meet rating requirements.
I. This Agreement shall not take effect until certificate(s) or other sufficient
proof that these insurance provisions have been complied with, are filed with and approved by the
City of National City's Risk Manager. If the FIRM does not keep all insurance policies required
by this Article 10 in full force and effect at all times during the terra of this Agreement, the CDC -
HA may treat the failure to maintain the requisite insurance as a breach of this Agreement and
terminate the Agreement as provided herein.
J. All deductibles and self -insured retentions in excess of $10,000 must be
disclosed to and approved by the CDC -HA. CDC -HA reserves the right to modify the insurance
requirements of this Article 10, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
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K. If the FIRM maintains broader coverage or higher limits (or both) than the
minimum limits shown above, the CDC -HA shall be entitled to the broader coverage or higher
limits (or both) maintained by the FIRM. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to the CDC -HA.
Article 11. Drug Free Work Place. The FIRM agrees to comply with the CDC -HA'
Drug -Free Workplace requirements. Every person awarded a contract by the CDC -HA or the
provision of services shall certify to the CDC -HA 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, seq., 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 -HA setting forth the
provisions of this non-discrimination clause.
Article 13. Notification of Chan ire Form. The FIRM has the right to effect changes
in form including but not limited to: the change in iorm 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 -HA shall be promptly notified in writing of any change in form.
Article 14. Notices. In all eases 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 inwriting from the respective parties, notice to the Agency
shall be addressed to:
General Counsel
City of National City
1243 National City Boulevard
National City, CA 91950-4397
cc: Executive Assistant to the General Counsel
City of National City
1243 National City Boulevard
National City, CA 1 o- 3 7
and to: cbellnationalcityca,gov
leahnignationalcityca.gov
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Notice to the FIRM shall be addressed to:
Christensen & Spath, LLF
401 West A Street, Suite 2250
San Diego, CA 9 101
and to:wfandIw.nt
Nothing contained in this Agreement shall preclude or render inoperative service
or such notice in the manner provided by law.
Article 15. Administrative Provisions.
A. Time of Essence. Time is of the essence for each provision of this
Agreement.
B. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shallconstitute but one and
the same instrument.
C. Headings. Any captions to, or headings of., the sections or subsections of
this Agreement are solely for the convenience of the parties hereto, are not a part of this
Agreement, and shall not be used for the interpretation or determination of the validity of this
Agreement or any provision hereof.
D. California Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California, The venue for any legal action arising under
this Agreement shall be in either state or federal court in the County of San Diego, State of
California.
E. Integrated Agreement. This Agreement including attachments and 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 -HA and the FBI.
F. Severability. The unenforceability, invalidity, or illegality of any provision
of this Agreement shall not render the other provisions unenforceable, invalid, or illegal.
G. Waiver. The failure of the CDC -HA to enforce a particular condition or
provision of this Agreement shall not constitute a waiver of that condition or provision or its
enforceability.
H. Conflict of . Interest, During the term ofthis 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 -HA. This prohibition shall not preclude the CDC-FLfrom expressly agreeing
to a waiver of a potential conflict of interest under certain circumstances.
I. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery ofthis 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.
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J. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference for all purposes. To the extent any exhibits, schedules,
or provisions thereof conflict or are inconsistent with the terms and conditions contained in this
Agreement, the terms and conditions of this Agreement shall control.
K. 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(hi) .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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
THE COMMUNITY DEVELOPMENT CHRISTENSEN & SPATH, LLP
COMMISSION — HOUSING AUTHORITY
OF THE CITY OF NATIONAL CITY
Al eej an s a Sot co- i s, Chair
APPROVED AS TO FORM:
By:
r
Charles E. Bell, Jr.
General Counsel
Title: Partner
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Charles B. Christensen
Wolter', Spath III
Mel B. Mason
Jere A. Gorda
Erin C. Hale
Charles E. Bell, Jr.
City Attorney
City of National City
11P
Jannary 27, 2022
Subject: Lega1.SeMces.Projosa1
Mr. Bell:
Christensen & Spath LLP hereby submits a proposal to the City of National City for the following
legal services:
(hristonswi Spath hP
401 Yes! A Slteat. SuEleR230
San Diego. [eINornlu 42101
fi} 814,236.9343
{I} 614136.8301
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Affordable housing
Federal and state financixig programs and program compliance
Section 8 Program
Tax credit finanoing
Bond financing
Pannie Mae Secondary Market compliance
Litigation of all kinds, including without limitation, enviramnental issues,
condemnation actions, and enforcement of loan documents and regulatory
agreements
Deed of trust foreclosures
Appointment of receivers, and other iltigation, as and when requested
Drafting of documents, including, but not limited to, disposition and development
agreements, exclusive negotiating agreements, affordability restrictions, loan
agreements, environmental indemnity agreements, UCC financing statements,
security agreements, deeds of trust, and other documentation1
All such other and further services, including transactional and litigation services as
and when requested by the City of National City
The rate will be $260 per hour for the first year of the contract, increasing to $300 per hour in the
second year.
Please do not hesitate to contact me if you have any questions or need any additional information.
My direct line is 619 25 5 7,
Sincerely,
EXHIBIT