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Housing - Item 2B - HDC Attorney Contract Agreement• 0 HOUSING DEVELOPMENT CORPORATION STAFF REPORT TO: THE HONORABLE PRESIDENT AND DIRECTORS FROM: OLIVER C. CHI, INTERIM EXECUTIVE DIRECTOR DATE: AUGUST 28, 2007 SUBJECT: HDC ATTORNEY CONTRACT AGREEMENT SUMMARY On April 3, 2007, the City Council hired Bonifacio "Bonny" Garcia of Garcia, Calderon, and Ruiz (GCR) to serve as Rosemead's official legal counsel. Later, on May 8, 2007, the Housing Development Corporation (HDC) approved a contract agreement with GCR to perform legal counsel services for the City's housing authority (Attachment A). At the August 14, 2007 Community Development Commission (CDC) meeting, Burke, Williams, & Sorensen (BSW) was hired to serve as both General Counsel to the CDC and also to provide legal services with respect to matters concerning land use, housing, and economic development. Furthermore, the Commission directed staff to negotiate a retainer agreement for BWS to provide such services (Attachment B). Under the new proposed contract with BWS, attorney fees will be billed $275 per hour for partners, $225 per hour for associates, and $150 per hour for paralegal and law clerk time for services rendered for the HDC. In addition, it is important to note that under the proposed agreement, the first 15 hours of attorney time charged to the HDC each month will be billed at the associate rate of $225 per hour, regardless of whether the work is performed by an associate or a partner. Staff Recommendation Staff recommends that the Housing Development Corporation take the following action: Terminate the agreement for HDC Attorney services with GCR (Attachment A). Approve the agreement for HDC Attorney services with BWS (Attachment B). PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Attachment A: GCR HDC Contract Agreement Attachment B: Proposed BWS HDC Contract Agreement APPROVED FOR HOUSING DEVELOPMENT CORPORATION AGENDA: O • Cr1 cl:t C JaCr,~n ilui ~c. r 0 fvk~'~,xL ~i 1{ l ~R~M~ . ~4PtiY~ S AGREEMENT FOR ROSEMEAD HOUSING DEVELOPMENT CORPORATION ATTORNEY SERVICES THIS AGREEMENT, is made and entered into by and between the ROSEMEAD HOUSING DEVELOPMENT CORPORATION, a California public entity (hereinafter "RHDC") and the law firm of GARCIA CALDERON RUIZ, LLP, a limited liability partnership (hereinafter "GCR") and shall be effective as of the date of GCR's retention by the RHDC. In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration the receipt and sufficiency of which is hereby agreed, the parties agree as follows: SECTION 1. Recitals. This Agreement is made and entered into with respect to the following facts: A.. RHDC desires to engage the services of GCR to act as General Counsel and to perform all legal services which are needed by the RHDC; and, B. GCR has agreed to provide such legal services, in the time, manner and for the compensation, as hereinafter set forth; and, C. That the RHDC has heretofore determined that the public interest, convenience and necessity require the execution of this Agreement. SECTION 2. Legal Services. GCR shall perform the legal services necessary. to serve the RHDC which shall include, but are not limited to, the following: A. GCR shall attend all meetings of the RHDC unless excused by the Chair of the RHDC or the Executive Director, as well as attend any other meetings as so requested by the Chair of the RHDC or the Executive Director; B. Provide legal advice and opinions on all matters affecting the RHDC when requested by the Chair of the RHDC or the Executive Director, and represent the RHDC in administrative proceedings and litigation involving the RHDC which may arise from those matters upon which such advice has been given; and, C. Prepare and approve as to legal form all resolutions, ordinances, contracts, agreements and other legal documents and represent the RHDC in administrative proceedings and litigation involving the RHDC which may arise from those matters upon which such advice has been given; and, G:i1Ci.1 UddCl6r, f:uiz • 0 GCR shall not be required to perform the services described above where to do so would be a conflict of interest pursuant to the State Bar Act. SECTION 3. Compensation. GCR shall be compensated by RHDC for the performance of such services as follows: A. Basic Services. For basic legal services GCR shall be compensated for the services of General Counsel, including travel time, at the discounted and blended hourly rate of $215.00 for partners and associates, $150.00 per hour for law clerks, and $125.00 per hour for paralegals. B. Specialty Services. The rates set forth in sub-paragraph A above shall apply in all matters except for specialty services relating to public or municipal financing, business and real estate, intellectual property, eminent domain, inverse condemnation, construction defect, or other construction related litigation matters. The attorney rates for these services will range from $205.00 to $225.00 per hour for associate attorneys and $235.00 to $295.00 per hour for partners, special counsel, of counsel, senior lawyers of the firm and lawyers with seven or more years of experience. C. The rate for Basic Services, as set forth in sub-paragraphs 3 A and B, above, shall be adjusted annually at the close of the RHDC's fiscal year (June 30), by the increase in the Consumer Price Index ("CPI") by measuring the change in the CPI (measured from the average of the monthly increase in the calendar year preceding the conclusion of such fiscal year). The percentage increase in the CPI shall be determined through the use of the CPI publications of the Bureau of Labor Statistics, United States Department of Labor or its successor as published for Urban Wage Earners and Clerical Workers @, All Items @, Los Angeles County Area). In the event such CPI ceases to be published, the parties shall utilize such substitute index as common in the industry to measure cost of living increases. D. Legal Services for Bond and Financial Matters. For public finance, the fee structure for bond counsel services is one percent of the first $8 million executed and delivered; one-half percent of the next $4 million executed and delivered; and one- quarter percent of all amounts in excess of the first $12 million subject to a minimum fee of Sixty Thousand Dollars ($60,000.00). In the event that multiple series of bonds or notes are issued, the foregoing fee schedule would be applied to each issue, subject to the $60,000.00 minimum fee. Payment of the fees are entirely contingent upon the successful execution and delivery of the bonds or notes to be payable on or after delivery except for out-of-pocket expenses. The fee for disclosure counsel services is a flat fee of $40,000.00 per issuance under S5 million; $50,000.00 per issuance under $10 million; and $60,000.00 per issuance over $10 million; provided that the transaction does not present any unusual disclosure concerns; such as previously undisclosed liabilities or prior failure of the issuer to comply with disclosure requirements for other financings. LA Dm # 4816-5542-2977 7 0 • E. Reimbursable Expenses. GCR shall be entitled to reimbursement for all reasonable and necessary expenses incurred by it in the performance of legal services hereto, provided that the same are first approved by the Executive Director. Reimbursable expenses to which GCR shall be entitled shall include, but not be limited to, duplication costs, word processing costs, travel, telephone and telecommunications costs, extraordinary mail costs, messenger service, and other costs customarily made as a part of the performance of legal services by GCR. F. Payment for Services. GCR shall submit monthly statements to the RHDC accounting for all services provided and costs incurred pursuant to the terms of this Agreement. Said statements shall clearly set forth by date the type of work performed, the time spent on a task and the attorney performing the task. Payment to GCR shall be made by RHDC within thirty (30) days of receipt of the statement, except for those specific items on the billing which are contested or questioned and returned by RHDC, with written explanation, within thirty (30) days of receipt of the statement. GCR shall provide to RHDC a written response to any statement contested or questioned and further, upon request of RHDC, provide RHDC with any and all documents related to the service or costs. No charge shall be made for time expended in providing this information to the RHDC. SECTION 4. Term. The term of this Agreement shall commence on the date of GCR's appointment by the RHDC and shall continue thereafter unless terminated by either party hereto pursuant to the terms of this Agreement. The RHDC may terminate this Agreement at any time. GCR may terminate this Agreement on the giving of thirty (30) days written notice to the RHDC of such termination. GCR will comply with all obligations required of it pursuant to the State Bar Act in connection with such termination and the transition to replacement counsel. GCR shall be compensated for its services rendered through and including the effective date of such termination. SECTION 5. Document Retention. RHDC is entitled, upon written request, to any files in our possession relating to the legal services performed by GCR for RHDC, excluding our internal accounting records and other documents not reasonably necessary to RHDC representation, subject to our right to make copies of any files` withdrawn by RHDC.. Upon termination of services under the Agreement, GCR will close RHDC's file. RHDC's physical files may be sent to storage offsite, and thereafter there may be an administrative cost of retrieving them from storage. Thus, GCR recommends that RHDC request the return of RHDC files if this Agreement is terminated. Under the GCR document retention policy, files are normally destroyed five years after a matter is closed, unless other arrangements are made with the client. GCR and RHDC agree that all client-supplied materials and all attorney end G produce (referred to generally as "client material") are the property of the RHDC. Attorney end product includes, for example, finalized contracts, pleadings, and trust documents. The firm and the client agree that attorney work product is the property of the firm. Attorney work product includes, for example, drafts, notes, internal LA Doc. # 4816-5542-2977 3 C,:u c il( alda,'n k ut= memoranda and electronic files, and attorney representation and administration materials, including attorney-client correspondence and conflicts materials. If services are terminated, GCR will notify the client of any client materials that remain in GCR's possession. The RHDC will be invited to retrieve these materials within 45 days of notice, or the RHDC may direct GCR to forward the materials to the RHDC, at the RHDC's expense. If within 45 days of this notice RHDC fails to retrieve the materials or request GCR to forward them, the RHDC authorizes GCR to destroy the client materials. After the 45-day period, GCR will, consistent with all applicable rules of professional conduct, use its discretion as to the retention or destruction of all attorney work product and any RHDC materials that remain with the firm. SECTION 6. Notices. Notices required pursuant to this Agreement shall be given by personal service upon the party to be notified, or by delivery of same to the custody of the United States Postal Service, or its lawful successor, postage prepared and addressed as follows: RHDC: Rosemead Housing Development Corporation 8838 East Valley Boulevard Rosemead, California 91770 Attention: Executive Director GCR: GARCIA CALDERON RUIZ, LLP 500 South Grand Avenue Suite 1310 Los Angeles, CA 90071 Attention: Bonifacio Bonny Garcia, Esq. Service of a notice by personal service shall be deemed to have been given as of the date of such personal service. Notices given by deposit with the United States Postal Service shall be deemed to have been given two (2) consecutive business days following the deposit of the same in the custody of said Postal Service. Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. SECTION 7. Indemnification. GCR does hereby agree to hold RHDC, and its elected and appointed officers and officials, employees and other agents free and harmless from any claim, demand or judgment which may arise based upon personal injury or damage to property to a third party arising out of the performance of services by GCR hereto. SECTION 8. Insurance. Not in derogation of the provisions of Paragraph 7 hereof, GCR does hereby agree to take out and maintain in full force and effect under the terms of this Agreement the following insurance coverage: . LA Doc. # 4816-5542-2977 4 Of~ G:ini, lkic.mn kui~ „ , _ , • • A. Such insurance coverage as is required pursuant to the Workers' Compensation Laws of the State of California; and, B. A liability policy with coverage of not less than $1,000,000.00; and, C. Professional Liability (errors and omissions) insurance in an amount of not less than 51,000,000.00. SECTION 9. General Provisions. A. GCR shall not assign this Agreement, or any of the rights, duties or obligations hereunder. It is understood and acknowledged by the parties that GCR is uniquely qualified to perform the services provided for in this Agreement. B. GCR is and shall at all times remain as to the RHDC a wholly independent contractor. Neither the RHDC nor any of its officers, employees, servants or agents shall have control over the conduct of GCR or any of GCR's officers, employees or agents. GCR shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner employees of the RHDC. RHDC acknowledges and agrees that the General Counsel, Assistant General Counsel and attorneys representing the RHDC will need to represent to others their capacity and relationship to the RHDC. C. In the performance of this Agreement, GCR shall not engage in discrimination in employment of persons because of the age, race, color, sex, national origin or ancestry or religion of such persons. D. Nothing contained in this Agreement shall be deemed, construed or represented by the RHDC or GCR to any third person to create the relationship of principal or agent, or of a partnership, or of a joint venture, or of any other association of any kind or nature between the RHDC and GCR. E. This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended in any way except by a writing expressly purporting to be such an amendment, signed and acknowledged by both of the parties hereto. F. Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. ` LA Doc. r 4816-5542-2977 5 C 0 G. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision. whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless executed in writing by the party making the waiver. H. The law of the State of California will govern the validity of this Agreement, its interpretation and performance. Any litigation arising in any way from this Agreement shall be brought in Los Angeles County, California. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their representatives as follows: Dated: May g, 2007 Dated: May, 2007 LA Doe. k 4816-5542-2977 ROSEMEAD HOUSING DEVELOPMENT CORPORATION By: l 7~- Executive Director 6 Gnrcia (,:adcrim liui= GARCIA CALDERON RUIZ, LLP A Limited Liability Partnership KOM Oliver Chi Interim City Manager City of Rosemead City Hall 8838 East Valley Boulevard Rosemead, CA 91770 Re: City of Rosemead Special Counsel Services, Rosemead Community Development Commission Agency Counsel and Rosemead Housing Development Corporation General Counsel Retainer Agreement Dear Mr. Chi: This letter is a written retainer agreement of the terms under which Burke, Williams & Sorensen, LLP ('Burke') has been retained by the City of Rosemead ("City") for Special Counsel services (as described herein), by the Rosemead Community Development Commission ("CDC') to serve as its Agency General Counsel and the Rosemead Housing Development Corporation ("HDC") as its General Counsel. The City, HDC and the CDC are collectively referred to herein as "Client." California Business and Professions Code Section 6148 requires a written fee agreement between attorneys and their clients setting forth the scope of services and fees to be charged. When executed by you below and delivered to us, this agreement shall satisfy the requirements of Section 6148. If this agreement fully sets forth your understanding of the terms and conditions of our representation, please execute four copies and return one to the undersigned in the self-addressed envelope provided. The other three copies are to be retained by the City, HDC and the CDC. 1. Scope of Representation for the CDC. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the CDC as our client, as its General Counsel. Such representation includes, but is not limited to, providing advice on Redevelopment Projects and operation of the Agency, drafting of required legal documents, attendance at CDC meetings, prosecution of actions on behalf of the CDC to implement redevelopment projects undertaken by the CDC, or defend challenges to same and such other matters as the CDC may request from time to time. 2. Scope of Representation for the HDC. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the HDC as our client, as its General Counsel. Such representation includes, but is not limited to, providing advice on housing projects and operation of the HDC, drafting of required legal documents, attendance at HDC meetings, prosecution of actions on behalf of the HDC to implement projects undertaken by the HDC, or defend challenges to same and such other matters as the HDC may request from time to time. 3. Scope of Representation for the City. By this agreement, Burke, Williams & Sorensen LLP, has undertaken responsibility to represent the City of Rosemead as LA #4842-9634-9697 v1 • • our client with respect to Special legal services as described hereafter. Such special services shall include representation of the City with respect to land use, housing and economic development matters, and other matters as the City may request from time to time. It is anticipated that such special services may include, but not be limited to, advice on transactional matters, preparation of documents and agreements, drafting of legislation, attendance at City commission and Council meetings (as requested), defense of litigation and prosecution of litigation on behalf of the City. In its role as Special Counsel to the City, Burke agrees to coordinate with the City's City Attorney when appropriate to ensure the interests of the City are not compromised. 4. Client's Obligations. Client agrees to be truthful, to cooperate, and to keep Burke advised of information and developments pertaining to this engagement. Client also agrees to keep Burke informed of Client's current address and telephone number and to pay the fees, costs and other sums incurred when due. 5. Fees. Fees for this engagement are computed on an hourly basis in accordance with the rates assigned to the particular attorneys performing the work. The rates of the attorneys for this engagement will be $275.00 for partners and $225.00 per hour for associates and $150 per hour for paralegal and law clerk time. Notwithstanding the foregoing, Burke agrees that the first 15 hours of attorney time billed to the City each month, the first 15 hours of attorney time billed to the HDC each month and the first 15 hours of attorney time billed to the CDC each month shall be billed at the associate rate (currently $225) regardless of whether the work is performed by an associate or a partner. The firm's billing rates are subject to revision from time to time in the ordinary course of business, but under no circumstances will a rate increase for this engagement prior to January 1, 2008. Client will be notified in writing in the event of a rate increase. Additionally, City, HDC and CDC agree that Burke may charge its standard private client (as opposed to public entity client) rates for work that is reimbursed by private parties pursuant to litigation, conditions of approval, etc. 6. Costs. Burke will bill Client for costs and expenses incurred in connection with this engagement. These currently include, but are not limited to, expenses away from the office on Client's behalf, automobile mileage at the standard rate for business use as announced from time to time by the Internal Revenue Service, the actual cost of other travel, long distance telephone charges, facsimile transmissions, computer research, copying charges, the cost of producing or reproducing photographs, documents or other things, filing fees, and similar expenses. 7. Billin . Burke's attorneys bill in 1/10th of one hour increments: The firm's billing cycle typically runs from the first day of the month to the last day of the month. The HDC, City and the CDC will each receive separate statements each month for services rendered and costs incurred during the immediately prior month. Bills are due and payable within thirty (30) days of presentation. Payment is not contingent upon any aspect of this engagement. 8. Experts. Should Burke deem it necessary to engage an expert in any matter, Client will be directly responsible for the hiring and payment of all fees for such LA #4842-9634-9697 v1 p. 2 of 5 expert services. Burke will not undertake to engage any such expert without prior consultation with Client and then only with Client's consent. 9. Attorney's Lien. Client agrees that Burke may deduct all fees and costs not previously paid from any sums coming into Burke's possession by way of settlement, judgment, execution or otherwise. 10. Conflicts. The California Rules of Professional Conduct, as promulgated by the California State Bar, require that an attorney receive informed written consent from a client prior to undertaking work where there is a potential for conflicts between existing or future clients (Rule 3-310). Burke represents numerous cities, school districts and public agencies which from time to time may be adverse to Client. By signing below, Client represents that it is fully informed regarding the potential conflict of interests between it and existing and future clients of the firm, and it waives all rights regarding such conflicts and consents to the firm's representation in this regard. 11. Document Retention. Client is entitled upon written request to any files in our possession relating to the legal services performed by us for Client, excluding our internal accounting records and other documents not reasonably necessary to your representation, subject to our right to make copies of any files withdrawn by you. Once your matter is concluded, we will close your file, and you will receive notice thereof. Your physical files may be sent to storage offsite, and thereafter there may be an administrative cost for retrieving them from storage. Thus, we recommend that you request the return of your file at the conclusion of your matter. Please be advised that the firm will destroy Client's files at three years after this matter is closed, unless other arrangements are made with Client, and Client hereby authorizes the firm to do so. The firm and the Client agree that all Client-supplied materials and all attorney end product (referred to generally as "client material") are the property of the Client. Attorney end product includes, for example, finalized contracts, pleadings, and trust documents. The firm and the Client agree that attorney work product is the property of the firm. Attorney work product includes, for example, drafts, notes, internal memoranda and electronic files, and attorney representation and administration materials, including attorney-client correspondence and conflicts materials. 12. Fee Disputes. If a dispute between Client and Burke arises over fees or other amounts charged to Client for services, the controversy will be submitted to binding arbitration in accordance with the rules of the California State Bar Fee Arbitration Program, set forth in California Business and Professions Code, Sections 6200 through 6206. The arbitrator or arbitration panel shall have the authority to award to the prevailing party in such arbitration attorney's fees, costs and interest incurred. Any arbitration award may be served by mail upon either side and personal service shall not be required. 13. Termination of Representation. Client has the right to terminate Burke's services upon written notice at anytime. Burke also has the right to terminate this engagement to Client upon written notice in the event Client fails to make any payment LA #,4942-9634-9697 v1 p. 3 of 5 • • when due, or to cooperate on a reasonable request, or in the event that Burke determines, that to continue services to Client would be unethical, impractical, or improper. 14. Notices. Any notices required under this agreement shall be in writing and shall be deemed to have been duly served if delivered in person to the party for whom it is intended or if delivered at or sent by registered or certified mail, or overnight courier service with signature required from the receiving party, to the residential or business address of the party for whom intended, provided that notices to Client may be sent to Client's last known address as shown on Burke's records. 15. Miscellaneous. The effective date of this agreement shall be retroactive to the date Burke first performs services for Client. This agreement shall be governed by the laws of the State of California, without regard to the doctrine of conflicts of law. The terms of this engagement agreement are not set by law but are the result of negotiation between the parties. Client has the right to consult with another attorney regarding this agreement before signing it. This agreement constitutes the entire agreement between the parties. We are pleased that the City, HDC and the CDC have decided to retain our firm and we look forward to serving you. Please contact Joe Montes or the undersigned if, at anytime, you have questions. Very truly yours, BURKE, WILLIAMS & SORENSEN, LLP JOHN J. WELSH MANAGING PARTNER I/we have read and understand the foregoing terms and provisions and agree to,same as of the date Burke, Williams & Sorensen, LLP first provided services. CITY OF ROSEMEAD By: Its: Date: LA #4842-9634-9697 v1 p. 4 of 5 0 ROSEMEAD HOUSING DEVELOPMENT CORPORATION By: Its: Date: ROSEMEAD COMMUNITY DEVELOPMENT COMMISSION By: Its: Date: 0 LA #4842-9634-9697 vt p. 5 of 5