CDC - Item 4A - CDC Attorney Contract Agreement•
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COMMUNITY DEVELOPMENT COMMISSION
STAFF REPORT
TO: THE HONORABLE CHAIRMAN AND COMMISSIONERS
FROM: OLIVER C. CHI, INTERIM EXECUTIVE DIRECTOR
DATE: AUGUST 28, 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. Later, on May 8, 2007, the Community
Development Commission approved a contract agreement with GCR to perform legal counsel
services for the City's redevelopment agency (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 Commission 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 to the CDC. In addition, it is important to note that under the proposed agreement, the
first 15 hours of attorney time charged to the CDC each month shall be billed at the associate rate
of $225 regardless of whether the work is performed by an associate or a partner.
Staff Recommendation
Staff recommends that the Community Development Commission take the following action:
• Terminate the agreement for CDC Attorney services with GCR (Attachment A).
• Approve the agreement for CDC Attorney services with BWS (Attachment B).
PUBLIC NOTICE PROCESS
This item has been noticed through the regular agenda notification process.
Attachment A: GCR CDC Contract Agreement
Attachment B: Proposed BWS CDC Contract Agreement
APPROVED FOR COMMUNITY DEVELOPMENT COMMISSION AGENDA: 0.
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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. GCR 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their representatives as follows:
F ~T-
Dated:
ROSEMEAD
COMMUNITY DEVELOPMENT COMMISSION
By:
Dated: U~
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Executive Director
GARCIA CALDERON RUIZ, LLP
A Limiteo, Liability Partnership
arcia
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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
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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
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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
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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:
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C
ROSEMEAD.HOUSING DEVELOPMENT CORPORATION
By:
Its:
Date:
ROSEMEAD COMMUNITY DEVELOPMENT COMMISSION
By:
Its:
Date:
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