CDC - Item 2E - CDC Attorney Contract AgreementPi
COMMUNITY DEVELOPMENT COMMISSION
STAFF REPORT
TO: THE HONORABLE CHAIRMAN AND COMMISSIONERS
FROM: ANDREW C. LAZZARETTO, EXECUTIVE DIRECTOR
DATE: MAY 8, 2007
SUBJECT: CDC 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. Based on that action, staff has received a
revised contract agreement from GCR to perform legal counsel services for the Community
Development Commission (Attachment A).
Under the proposed contract, the Community Development Commission would compensate GCR
for any basic legal services not included in the monthly retainer, including travel time, at the hourly
rate of $215/hour for partners and associates, $150/hour for law clerks, and $125/hour for
paralegals.
Staff Recommendation
Staff recommends that the Community Development Commission approve the proposed
agreement for Attorney services with GCR (Attachment A).
LEGAL REVIEW
The CDC Attorney has reviewed and approved the proposed agreement.
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Submitted by:
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Oliver Chi
Deputy City Manager
Attachment A: CDC Attorney Contract Agreement
APPROVED FOR CITY COUNCIL AGENDA: Oz- - -
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AGREEMENT FOR COMMUNITY DEVELOPMENT COMMISSION
ATTORNEY SERVICES
THIS AGREEMENT, is made and entered into by and between the ROSEMEAD
COMMUNITY DEVELOPMENT COMMISSION, a California public entity (hereinafter
"CDC") 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 CDC. 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. CDC desires to engage the services of GCR to act as General Counsel
and to perform all legal services which are needed by the CDC; 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 CDC 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 CDC which shall include, but are not limited to, the following:
A. GCR shall attend all meetings of the CDC unless excused by the Chair of
the CDC or the Executive Director, as well as attend any other meetings as so
requested by the Chair of the CDC or the Executive Director;
B. Provide legal advice and opinions on all matters affecting the CDC when
requested by the Chair of the CDC or the Executive Director, and represent the CDC in
administrative proceedings and litigation involving the CDC 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 CDC in
administrative proceedings and litigation involving the CDC which may arise from those
matters upon which such advice has been given; and,
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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. G.CR shall be compensated by CDC 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 CDC'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 $5 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.
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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 CDC
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 CDC 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 CDC,
with written explanation, within thirty (30) days of receipt of the statement. GCR shall
provide to CDC a written response to any statement contested or questioned and
further, upon request of CDC, provide CDC 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 CDC.
SECTION 4. Term. The term of this Agreement shall commence on April 3,
2007 and shall continue thereafter unless terminated by either party hereto pursuant to
the terms of this Agreement. The CDC may terminate this Agreement at any time.
GCR may terminate this Agreement on the giving of thirty (30) days written notice to the
CDC 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. CDC is entitled, upon written request, to
any files in our possession relating to the legal services performed by GCR for CDC,
excluding our internal accounting records and other documents not reasonably
necessary to CDC representation, subject to our right to make copies of any files
withdrawn by CDC. Upon termination of services under the Agreement, GCR will close
CDC's file. CDC'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 CDC request the return of CDC 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 CDC agree that all client-supplied materials and all attorney end
produce (referred to generally as "client material") are the property of the CDC.
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.
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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 CDC will be invited to retrieve these materials within
45 days of notice, or the CDC may direct GCR to forward the materials to the CDC, at
the CDC's expense. If within 45 days of this notice CDC fails to retrieve the materials or
request GCR to forward them, the CDC 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 CDC 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:
CDC: Rosemead Community Development Commission
8838 East Valley Boulevard
Rosemead, California 91770
Attention: City Manager
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 CDC, 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:
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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 $1,000,000.00.
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 CDC a wholly independent
contractor. Neither the CDC 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 CDC. CDC acknowledges
and agrees that the General Counsel, Assistant General Counsel and attorneys
representing the CDC will need to represent to others their capacity and relationship to
the CDC.
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 CDC 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 CDC 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.
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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:
ROSEMEAD
COMMUNITY DEVELOPMENT COMMISSION
Executive Director
By:
GARCIA CALDERON RUIZ, LLP
A Limited Liability Partnership
Dated: By:
Bdnifacio Bonny Garcia
Partner
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