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HomeMy WebLinkAbout03. OB Reso Legal Services 12-20-2012 MtgOVERSIGHT BOARD MEMORANDUM DATE: December 20, 2012 TO: Chair and Members of the Oversight Board FROM: Gilbert A. Livas, Executive Director to the Downey Successor Agency SUBJECT: ADOPTION OF RESOLUTION APPROVING THE RETAINER AGREEMENT WITH THE LAW OFFICE OF JONES & MAYER TO PROVIDE LEGAL SERVICES FOR THE OVERSIGHT BOARD RECOMMENDATION That the Oversight Board adopt the following Resolution: A RESOLUTION OF THE OVERSIGHT BOARD TO THE DOWNEY SUCESSOR AGENCY APPROVING THE RETAINER AGREEMENT WITH THE LAW OFFICE OF JONES & MAYER TO PROVIDE LEGAL SERVICES FOR THE OVERSIGHT BOARD SUMMARY The Oversight Board had requested the retainer of legal counsel to support its responsibilities and fiduciary duties as the oversight body to the Downey Successor Agency. The Oversight Board decided to utilize outside legal counsel on an as- needed basis for questions, legal clarification and advice on Oversight Board issues. The Board established a subcommittee consisting of board members Fred Latham, Donald LaPlante, and Brian Saeki, and directed the Downey Successor Agency staff to support its ad hoc subcommittee tasked with selecting legal counsel. DISCUSSION Under the direction of the subcommittee, staff sent out Request for Proposals to four law offices and /or attorneys. Through this effort, the subcommittee received two proposals expressing interest. One proposal was received from the law office of Jones & Mayer, and the second from Attorney Steven Skolnik. The criteria used in evaluating the proposals included qualifications, experience and service compensation rates. Of the two proposals, the subcommittee selected the Chair and Members of the Oversight Board Resolution Approving the Retainer Agreement with the Law Office of Jones & Mayer to Provide Legal Services for the Oversight Board December 20, 2012 Page 2 proposal from Jones & Mayer. Jones & Mayer's proposal demonstrated desired qualifications and experience, and also submitted a more favorable compensation rate, which was 20 -26 percent lower than Attorney Steven Skolnik's hourly rate. Under AB1X 26 and AB 1484, the Downey Successor Agency is required to pay for reasonable administrative expenses of the Oversight Board, including costs of its direct legal representation. The Legislation provides the Downey Successor Agency with an administrative allowance of $250,000, during the current Fiscal year, for administrative expenses, which include those incurred by the Oversight Board for legal counsel. At its Board meeting of December 11, 2012, the Downey Successor Agency took action approving payment of legal service charges incurred by the Oversight Board. Enclosure: Retainer Agreement Resolution RETAINER AGREEMENT FOR AS- NEEDED ATTORNEY SERVICES FOR THE OVERSIGHT BOARD TO THE DOWNEY SUCCESSOR AGENCY This Retainer Agreement for As- Needed Attorney Services for the Oversight Board to the Downey Successor Agency ( "Agreement ") is made and entered into by and between the LAW OFFICES OF JONES & MAYER ( "Jones & Mayer ") and the OVERSIGHT BOARD TO THE DOWNEY SUCCESSOR AGENCY (the "Oversight Board ") and the DOWNEY SUCCESSOR AGENCY (the "Successor Agency ") as the responsible party for payment of services performed under this Agreement. RECITALS A. Jones & Mayer is a firm in the general practice of law with extensive municipal experience, including in matters relating to Redevelopment Dissolution and is fully able to carry out the duties described in this Agreement. B. The Oversight Board directed the staff of the Successor Agency to issue requests for proposals for Oversight Board consideration to provide as- needed legal services to the Oversight Board. The Oversight Board desires to contract with Jones & Mayer to provide contract legal services to the Oversight Board. C. Because AB1X 26 and AB 1484 require that all administrative costs of the Oversight Board, including costs for its direct legal representation, are the responsibility of the Successor Agency, the Successor Agency is included as a party to this Agreement as the responsible entity for the payment of legal services to the Oversight Board. AGREEMENT NOW, THEREFORE, in consideration of the mutual terms and conditions set forth in this Agreement, Jones & Mayer, the Successor Agency, and the Oversight Board agree as follows: APPOINTMENT OF CONTRACT OVERSIGHT BOARD ATT A. Kimberly Hall Barlow is hereby designated and appointed as Contract Board Attorney of the Oversight Board ( "Oversight Board Attorney ") and shall serve and be compensated as provided by this Agreement. It is expressly understood that the experience, knowledge, capability, and reputation of the designated and appointed Oversight Board Attorney are a substantial inducement for the Oversight Board to enter into this Agreement. The Oversight Board Attorney shall be responsible during the term of this Agreement for directing all activities of Jones & Mayer on behalf of the Oversight Board and devoting such time as necessary to personally supervise such services. Yolanda M. Summerhill of Jones & Mayer is designated and appointed to serve in Kimberly Hall Barlow's absence. B. All attorneys of Jones & Mayer assigned to perform approved Oversight Board business shall, at all times while this Agreement is in effect and at their sole cost and expense, be fully qualified and licensed to practice law in the State of California and before all appropriate federal courts and other bodies and tribunals. All attorneys assigned to represent the Oversight Board must notify the Oversight Board of any complaints or proposed discipline by the State Bar of California within 30 days of receipt of complaint or proposed discipline. C. The term of this Agreement shall commence on December 21, 2012 and shall continue unless it is terminated or amended or until the Successor Agency and the Oversight Board are disestablished pursuant to law. 2. SCOPE OF WORK A. Jones & Mayer shall perform all necessary legal services as Contract Oversight Board Attorney, as provided for by Health & Safety Code section 34179(n), as it may be amended or recodified. This includes helping the Oversight Board oversee the wind down of the activities of the former Community Development Commission of the City of Downey, as defined by Health & Safety Code section 34177.3(b), as it may be amended or recodified, and any other relevant law. The services to be provided shall include, but are not limited to, the following activities: 1. At the request of the Oversight Board, attend regularly scheduled and special Oversight Board meetings and Oversight Board study sessions as may be deemed necessary by the Oversight Board. Attend meetings of the Successor Agency as may be deemed necessary by the Oversight Board. 2. Attend other meetings of the Oversight Board as required by the Oversight Board. 3. Advise the Oversight Board and other Oversight Board officials on all legal matters pertaining to Oversight Board business. 4. Prepare, review, and approve as to form, contracts, agreements, resolutions, and all other standard Oversight Board documents. 5. Prepare such written and oral legal opinions as shall, from time to time, be requested by the Oversight Board. 6. Perform such other routine legal services as are required, from time to time, by the Oversight Board. 7. Represent the Oversight Board and the Oversight Board's officials, officers, and employees in litigation and administrative proceedings as directed by the Oversight Board, or any other relevant authority. 8. At the request of the Oversight Board, Jones & Mayer may be asked to provide an estimate of hours and cost to complete a project or task assigned by the Oversight Board or its designee. 3. COMPENSATION Jones and Mayer shall be compensated under the terms of this Agreement as follows: A. Basic Legal Services The Successor Agency shall pay Jones & Mayer (as provided in Health & Safety Code sections 34179(n) and 34177.3(b)) for non - litigation Basic Legal Services provided to the Oversight Board, as described above, at the rate of $185.00 per hour. Paralegal services, for non - litigation legal services not included in the retainer only shall be billed at the rate of $100 per hour. All costs and expenses, except for those as set forth in Section 3.13 below shall be deemed included in the foregoing hourly billing rates. B. Litigation Services Litigation matters approved by the Oversight Board shall be billed separately from Basic Legal Services, as described in Section 3.A above. Litigation legal services shall be billed at the rate of $200.00 per hour. Paralegal services shall be billed at the same rate as for Basic Legal Services as described in Section 3.A above. All costs and expenses, except for those as set forth in Section 3.E below shall be deemed included in the foregoing hourly billing rates. C. Billinq and Rate Increases Jones & Mayer shall provide a monthly billing report indicating actual time spent under the Basic Legal Services, litigation matters, and additional specialized projects. With prior approval of the Oversight Board and the Successor Agency, the foregoing rates may be adjusted annually (as of the anniversary date of this Agreement) to reflect any increase in the cost of living based on the consumer price index increase for the prior year utilizing the standard as established by the Bureau of Labor Statistics of the U.S. Department of Labor for all urban consumers in the Los Angeles - Anaheim - Riverside area, or another mutually agreed upon index based on comparable data should the consumer price index established by the Bureau of Labor Statistics be unavailable. D. Counsel Billable Activities for Basic Leqal Services Jones & Mayer does not bill mileage, fax, word processing, small reproduction matters (under 100 pages), or simple computer legal research costs. Additionally, it is agreed that the cost for administrative staff to perform clerical duties including but not limited to reviewing emails, scheduling meetings or general office filing will not be billable expenditures. Legal research for a particular issue that is over five hours requires pre - approval. When billing for legal research, the entry must reflect a description of the topic researched and its relevance to the effort. E. Out of Pocket and Litigation Expenses Jones & Mayer shall be reimbursed for direct out -of- pocket expenses actually and necessarily incurred in the course of providing legal services under this Agreement, including in preparation for and maintaining the prosecution or defense of litigation, including without limitation: court costs, jury fees, service costs, witness fees, parking fees, deposition costs, reporters' fees, title reports, photographs, diagrams, maps, and similar expenses. Generally, no more than one attorney's time should be billed for depositions, hearings, motions, case meetings (including intra -firm meetings)', etc., unless approved by the Oversight Board. It is expected that counsel will appropriately apportion court time (including travel costs) to each case in which counsel is appearing in court if one or more matter is handled. Legal research for a particular issue that is over five hours requires pre - approval. When billing for legal research, the entry must reflect a description of the topic researched and its relevance to the effort. A copy of the research memo shall be sent to the Oversight Board. F. Monthlv Statements Jones & Mayer shall submit statements of all payments due under this Agreement on a monthly basis to the Executive Director of the Successor Agency. All work performed by Jones & Mayer shall be billed in increments of tenths of an hour. The statement shall be in a form approved by the Oversight Board, and shall set forth a description of all work performed, the hours worked, the identity of each person performing the work, the rate charged, the identity of the person requesting work, and any litigation costs or expenses eligible for reimbursement. G. Payment All hours shall be billed by the 15th day of each month following the close of the month for which hours are being provided. Payment for hours shall be due and payable after review and approval by the Executive Director of the Successor Agency. 4. PROHIBITION AGAINST SUBCONTRACTING DELEGATING OR ASSIGNMENT Jones & Mayer shall not contract with or delegate to any individual or other entity to perform on the Oversight Board's behalf, in whole or in part, any of the services required under this Agreement without the prior express approval of the Oversight Board. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior express approval of the Oversight Board. 5. CONFLICT OF INTEREST Jones & Mayer shall at all times avoid conflicts of interest in the performance of this Agreement. In the event that a conflict arises, Jones & Mayer shall immediately notify Oversight Board. Within thirty (30) days following execution of this Agreement, Jones & Mayer shall file a conflict of interest disclosure statement setting forth any information related to potential conflicts of interest to the extent such disclosure is required by law, including Oversight Board's adopted conflict of interest code. 6. INDEPENDENT CONTRACTOR Jones & Mayer shall perform all services required under this Agreement as an independent contractor of the Oversight Board and the Successor Agency, and shall remain at all times as to Oversight Board and the Successor Agency a wholly independent contractor with only such obligations as are consistent with that role. Jones & Mayer shall not at any time or in any manner represent that it or any of its employees or agents are Oversight Board or Successor Agency employees. 7. DISPUTE RESOLUTION If any dispute or disagreement arises between the Oversight Board and Jones & Mayer as to any matter relating to this Agreement, including but not limited to the scope of services, the performance of the respective responsibilities of the Oversight Board and Jones & Mayer, the quality of the services rendered, and the billing of such services, the Oversight Board and Jones & Mayer agree to confer and attempt to resolve the matter informally. If the parties cannot agree, they agree that they will refer the dispute for resolution to mediation to the fullest extent permitted by law. The parties are aware that mediation is a voluntary process and pledge to cooperate fully and fairly with the mediator in an attempt to reach a mutually satisfactory compromise of any dispute or disagreement. The mediator shall be chosen by mutual agreement of the parties, and mediation shall commence within thirty (30) days of either party's written request to the other for mediation. Any agreement reached by the mediation shall be reduced to writing, be signed by the parties, and be binding on them. This provision for mediation is an effort to protect, preserve, and respect the requisites of a productive attorney - client relationship, but shall be without prejudice to either party pursuing its other lawful remedies. 8. INSURANCE AND INDEMNIFICATION A. Insurance 1. Jones & Mayer shall procure and maintain, at its cost: a. Commercial General Liability insurance with limits not less than $1 million per occurrence. Such insurance shall designate Oversight Board and Successor Agency, their elected and appointed officials, employees, and volunteers as additional insureds. Such insurance shall be primary and not contribute with any insurance or self- insurance maintained by Successor Agency or Oversight Board. b. Professional liability insurance with limits not less than $2,000,000 per occurrence. c. Workers' compensation insurance as required by California law and Employer's Liability insurance with limits not less than $1 million per accident for bodily injury or disease. 2. All such policies shall provide Successor Agency and Oversight Board 30 days' notice of cancellation. 3. Prior to commencement of work, and throughout the term of this Agreement, Jones & Mayer shall furnish Successor Agency and Oversight Board with certificates evidencing compliance with the insurance requirements above. Jones & Mayer agrees to provide complete, certified copies of all required insurance policies if requested by the Successor Agency or Oversight Board. 4. Insurance shall be placed with insurers that maintain an A.M. Best rating of A -, VII or better, or otherwise meet the written approval of the Successor Agency or Oversight Board. B. Indemnification Jones & Mayer shall defend, indemnify, and hold harmless the Oversight Board, and its officers and employees, from and against any and all actions, suits, proceedings, claims, demands, losses, costs and expenses, including legal costs and attorneys' fees, for injury to person(s) or damages to property (including property owned by the Oversight Board), and for errors and omissions committed by Jones & Mayer, its officers, employees, and agents, arising out of or relating to Jones & Mayer's performance under this Agreement, except where such injury, damage, error(s) or omission(s) may be caused by Oversight Board's sole negligence, active negligence, or willful misconduct or that of the Oversight Board's officers or employees. 9. RECORDS AND REPORTS A. Records. Jones & Mayer shall keep such books and records as shall be necessary to perform the services required by this Agreement and to enable the Oversight Board to evaluate the performance of - the required services. The Oversight Board shall have full and Free access to such books and records that deal specifically with the services performed by Jones & Mayer for Oversight Board at all reasonable times, including the right to inspect, copy, audit, and make summaries and transcripts from such records. B. Ownership of Documents. All reports, records, documents, and other materials prepared by Jones & Mayer, its employees and agents in the performance of this Agreement shall be the property of the Oversight Board and shall be delivered to the Oversight Board upon request by the Oversight Board or upon termination of this Agreement. Jones & Mayer shall have no claim for further or additional compensation as a result of the exercise by the Oversight Board of its full rights of ownership of the documents and material hereunder. Jones & Mayer may retain copies of such documents for its own use. 10. TERMINATION A. Termination By Oversight Board Jones & Mayer shall at all times serve under the terms of this Agreement at the pleasure of the Oversight Board, and the Oversight Board hereby reserves the right to terminate this Agreement at will, with or without cause, by providing written notice to Jones & Mayer. Upon receipt of any notice of termination, Jones & Mayer shall cease all services under this Agreement except as may be specifically approved by the Oversight Board. At that time, all further obligations of the Successor Agency, on behalf of the Oversight Board, to pay Jones & Mayer for services rendered under this Agreement shall thereupon cease, except as set forth in Section 12.0 below; provided, however, that the Successor Agency, on behalf of the Oversight Board, shall be obliged to pay for all services, costs, and expenditures lawfully incurred by Jones & Mayer prior to the effective date of such termination. B. Termination By Jones & Mayer Jones & Mayer reserves the right to terminate this Agreement by giving ninety (90) days' advance written notice to Oversight Board. C. Mutual Obliqations Upon Termination By Either Partv In the event of termination, Jones & Mayer shall cooperate with the Oversight Board in transferring the files and assignments to the Oversight Board Secretary or other person designated by Oversight Board pending the hiring of another Oversight Board Attorney. Jones & Mayer shall be compensated at the hourly rates set forth in Section 3.A of this Agreement should Jones & Mayer be called upon to perform any services after the effective date of termination, including the transfer of files and assignments. 12. NOTICES Notices shall be personally delivered, or sent by U.S. Mail or overnight delivery, to the parties at the following addresses: To the Successor Agency: Downey Successor Agency 11111 Brookshire Avenue Downey, CA 90241 Attn: Gilbert A. Livas, Executive Director Oversight Board to the Downey Successor Agency for the City of Downey 11111 Brookshire Avenue Downey, CA 90241 Attn: Brian Saeki, Chairperson Jones & Mayer 3777 North Harbor Boulevard Fullerton, CA 92835 Attn: Kimberly Hall Barlow, Esq. 13. AMENDMENT OF AGREEMENT This Agreement contains all of the agreements of Jones & Mayer, the Successor Agency and the Oversight Board concerning the subject matter hereof. This Agreement may be amended at any time by mutual consent of all of the parties by an instrument in writing. IN WITNESS WHEREOF, the duly authorized representatives of the parties have executed this Agreement in duplicate the day of 2012.Oversight Board to the Downey Successor Agency. Brian Saeki, Oversight Board Chairperson ATTEST: Secretary to the Oversight Board to the Downey Successor Agency On Behalf of the Downey Successor Agency, I hereby agree to: (i) the retention of Jones & Mayer (the "firm ") by the Oversight Board; and (ii) that the Successor Agency will be responsible for the payment of such legal services, but will not be a client of the firm with respect to the services provided to the Oversight Board. Downey Successor Agency la Mario A. Guerra, Chairman ATTEST: Adria M. Jimenez Secretary to the Downey Successor Agency APPROVED AS TO FORM: Yvette M. Abich Garcia Counsel to the Downey Successor Agency JONES & MAYER Richard D. Jones, Owner OVERSIGHT BOARD RESOLUTION NO. A RESOLUTION OF THE OVERSIGHT BOARD TO THE DOWNEY SUCCESSOR AGENCY APPROVING THE RETAINER AGREEMENT WITH THE LAW OFFICE OF JONES AND MAYER FOR AS- NEEDED ATTORNEY SERVICIES WHEREAS, the Oversight Board to the Successor Agency (Downey Successor Agency) to the dissolved redevelopment functions of the Downey Community Development Commission has been appointed pursuant to the provisions of Health & Safety Code Section 34179; and WHEREAS, pursuant to Health and Safety Code section 34179(n) the oversight board may direct a successor agency to provide additional legal or financial advice other than what is given by the successor agency. WHEREAS, the Downey Successor Agency approved the Retainer Agreement between the Oversight Board and the law office of Jones and Mayer at the Successor Agency Board meeting of December 11, 2012 NOW, THEREFORE, BE IT RESOLVED BY THE OVERSIGHT BOARD AS FOLLOWS: herein. SECTION 1. The foregoing Recitals are true and correct and are incorporated SECTION 2. The Oversight Board directed the staff of the Successor Agency to issue requests for proposals for Oversight Board consideration to provide as- needed legal services to the Oversight Board. The Oversight Board desires to contract with Jones & Mayer to provide contract legal services to the Oversight Board. SECTION 3. Jones & Mayer is a firm in the general practice of law with extensive municipal experience, including in matters relating to Redevelopment Dissolution and is fully able to carry out the duties described in the Retainer Agreement. SECTION 4. Because AB1X26 and AB 1484 require that all administrative costs of the Oversight Board, including costs for its direct legal representation, are the responsibility of the successor agency, the Downey Successor Agency is included as a party to this Agreement as the responsible entity for the payment of legal services to the Oversight Board. SECTION 5. The Secretary shall certify to the adoption of this Resolution. PASSED AND ADOPTED by the Oversight Board at a meeting held on the day of 2012. CHAIR, OVERSIGHT BOARD OVERSIGHT BOARD RESOLUTION NO. PAGE TWO ATTEST: SECRETARY, OVERSIGHT BOARD STATE OF CALIFORNIA COUNTY OF ) SS CITY OF ) I, , Secretary to the Oversight Board, hereby certify that the foregoing resolution was duly adopted at a meeting of the Oversight Board, held on the day of , 2012. AYES: BOARD MEMBERS: NOES: BOARD MEMBERS: ABSENT: BOARD MEMBERS: ABSTAIN: BOARD MEMBERS: SECRETARY, OVERSIGHT BOARD