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HomeMy WebLinkAboutSR - AGR-6197 - LEGAL SERVICES LEMON GROVE APARTMENTS G���°���� AGENDA ITEM *: :* ����4���,a� February 10, 2015 �� TO: Honorable Mayor and Members of the City Council Reviewed/Ver' �ed By: City Manager- THRU: John W. Sibley Finance Dir ctor City Manager To Be Prese y: Mary Ellen Laster FROM• RiCk Otto X Cons Calendar _ City Mgr Rpts . Assistant City Manager/ ,/ Council Reports _ Legal Affairs Boards/Cmtes Public Hearings Interim Community Deve t Director Admin Reports Plan/Environ 1. SUBJECT Attorney Service Agreement with the law firm of Kane, Ballmer & Berkman (KBB) to provide legal services relating to the Lemon Grove Apartments in an amount not to exceed$50,000. 2. SUMMARY The Agreement would enable KBB to provide legal services to the City relating to the proposed Lemon Grove Apartments. The developer would fund the $50,000 cost for the services. 3. RECOMMENDATION Approve and authorize the Mayor and City Clerk to execute the Agreement with KBB. 4. FISCAL IMPACT The developer would fund the cost of the legal services to be provided under the Agreement. There would be no fiscal impact on the City's budget. 5. STRATEGIC PLAN GOAL(S) Goa12: Be a fiscally healthy community. Strategy a: Expend fiscal resources responsibly. 6. GENERAL PLAN IMPLEMENTATION N/A ITEM 3. `� 1 2/10/15 �Printed on Recycled Paper N:/CDD/HOUSINCi/KBB/IenanGmve/SR2-10.15 Attorney Services Agreement-KBB Page 2 7. DISCUSSION and BACKGROUND The City has retained KBB to provide legal services with respect to housing and redevelopment matters. Services have included the preparation of Affordable Housing Loan Agreements that involve City HOME Investment Partnerships funds and Orange Redevelopment Agency Housing Set-Aside funds. While the City Attorney's Office handles most of the day-to-day legal matters, the City contracts with outside counsel when there is a need for particular expertise. The attached Attorney Services Agreement would enable KBB to provide legal services relating to the proposed Lemon Grove Apartments and.the developer's request for financial assistance from the City and Housing Successor Agency. 8. ATTACHMENT • Attorney Services Agreement ITEM 2 2/10/15 �Printed ott RecyCled Paper N:/CDD/HOUSWG/KBB/lemonGmir/SR2-1PI5 ATTORNEY SERVICES AGREEMENT This Attorney Services Agreement("Agreement") is entered into as of January 1, 2015 by and between the CITY OF ORANGE, a municipal corporation (herein referred to as"City"), and KANE, BALLMER & BERKMAN, a professional corporation (herein referred to as the "Law Firm"). WITNESSETH: WHEREAS, City desires to engage the Law Firm, in association with the City Attorney, to provide advice and assistance in connection with funding to be provided by the City for the development of an affordable rental housing project to be known as Lemon Grove, and WHEREAS, The Law Firm represents that it possesses the skills, qualifications, experience and resources necessary to render said assistance as hereinafter provided. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Section 1: Services. A. As directed by the City Attorney, the Law Firm shall provide legal representation to the City in connection with transactional matters, advice and provide legal assistance pertaining to the Lemon Grove project, for an amount not to exceed FIFTY THOUSAND DOLLARS AND NO CENTS ($50,000.00). B. The Law Firm shall not incur any expenses or costs for specialists without first obtaining authorization from the City Attorney. C. The Law Firm's service pursuant to this Agreement shall be performed in a professional, ethical manner and to the satisfaction of the City Attorney. Section 2: Pavment. A. Subject to the provisions of Paragraph B of this Section 2, and except as otherwise provided in Section 12 of this Agreement, City shall pay the Law Firm as consideration for services satisfactorily rendered pursuant to this Agreement a fee in accordance with the schedule set forth in on Exhibit"A". B. City shall be obligated to reimburse the Law Firm for any costs or expenses incurred by the Law Firm in connection with the services outlined in Paragraph A of Section 1 of this Agreement, so long as such costs and expenses do not exceed the sum of $1,500, unless otherwise authorized by the City in writing in the form of an amendment to this Agreement. Section 3: Amendment. The terms of this Agreement can only be amended by written Agreement between the parties hereto. Section 4: Assi�nment. The Law Firm shall not assign or transfer its interest in this Agreement without the prior written consent of the City Attorney. Section 5: Compliance With Applicable Laws; Licenses. In performance of this Agreement, the Law Firm shall abide by and conform to any and all applicable laws of the United States, the State of California, and the ordinances and policies of the City of Orange. The Law Firm represents that it possesses any and all licenses required under state or federal law to perform the work contemplated by this Agreement and that the Law Firm shall maintain all appropriate licenses during the performance of this Agreement. The Law Firm is required to obtain and maintain during the term of this Agreement a City of Orange business license. Section 6: Capacitv as an Indeuendent Contractor. Performance of the Law Firm's services pursuant to this Agreement shall be in the capacity of an independent contractor and not as an officer, agent, or employee of City. City shall have the right to control the Law Firm only insofar as the result of the Law Firm's services rendered pursuant to this Agreement: City shall not have the right to control the means by which the Law Firm accomplishes services rendered pursuant to this Agreement. The Law Firm shall, at it sole cost and expense, furnish all facilities, materials and equipment which may be required for furnishing services pursuant to this Agreement. Except as the City Attorney may specify in writing, the Law Firm shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. The Law Firm shall have no authority, express or implied, to bind City to any obligation whatsoever. Section 7: Conflict of Interest. It is recognized that the Law Firm may have clients who may, from time to time, have interests adverse to the City. Accordingly, the Law Firm reserves the right to represent such clients in matters not connected with case(s) assigned the Law Firm by the City or its City Attorney. Should the Law Firm represent a client who may have interests adverse to City during performance of this Agreement, the Law Firm shall immediately, but in no event more than ten (10) days, upon becoming aware of said possible adverse interest provide written notice to the City Attorney of the possible adverse interest. The Law Firm agrees to comply with any obligations pursuant to California Government Code Section 87100 et seq. Moreover, the Law Firm agrees that it shall not make, participate in the making, or in any way attempt to use its position as a Law Firm to influence any decision of the City in which the Law Firm knows or has reason to know that the Law Firm, its officers, partners, or employees have a financial interest as defined in Section 87103 of the Government Code. Section 8: Indemnification. The Law Firm agrees to indemnify, defend and hold harmless the City of Orange and its respective officers and employees for damage to property and for injury to or death of any person and from all claims, demands, actions, or damages of any kind or nature arising out of Law Firm's wrongful or negligent performance of services under the terms of this Agreement, except those claims, demands, purported liability or consequential . 2 damages which arise out of the negligence or willful misconduct of the City of Orange, or itsr respective officers or employees. Section 9: Insurance. A. Law Firm shall carry workers compensation insurance as required by law for the protection of its employees during the progress of the work. B. The Law Firm shall maintain during the life of this Agreement professional liability insurance covering errors and omissions arising out of the performance of this Agreement on an occurrence basis. Law Firm shall furnish a certificate of insurance evidencing its professional liability insurance coverage. C. Law Firm will determine its own needs in procurement of insuranee to cover liabilities other than stated above. City will not defend nor indemnify Law Firm should it be sued for any reason. D. The insurance policies maintained by Law Firm shall be primary insurance and no insurance held or owned by the City shall be called upon to cover any loss under the policy. Section 10: Notices. Notices and communications concerning this Agreement shall be sent to the following addresses: City of Orange Kane, Ballmer&Berkman 300 East Chapman Avenue 515 S. Figueroa Street, Suite 780 Orange, CA 92866 Los Angeles, CA 90071-3301 Attn: City Attorney Attn: Murray O.Kane Section 11: Equal Emnlovment Opportunitv. During the performance of this Agreement,the Law Firm agrees as follows: a. The Law Firm shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin or mental or physical disability. The Law Firm will ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, or mental or physical disability. Such actions shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. The Law Firm agrees to post in conspicuous places, available to employees and applicants for employment, a notice setting forth provisions of this non-discrimination clause. b. The Law Firm shall, in all solicitations and advertisements for employees placed by, or on behalf of the Law Firm, state that all qualified applicants will receive consideration for employment without regard for race, color, religion, sex, national origin, or mental or physical disability. 3 c. The Law Firm shall cause the foregoing paragraphs (a) and(b)to be inserted in all subcontracts for any work covered by this Agreement, provided that the foregoing provisions shall not apply to subcontracts for standard commercial supplies or raw materials. Section 12: Termination. Subject to the applicable provisions of the Rules of Professional Conduct of the State Bar of California, the City reserves the right to terminate this Agreement with or without cause at any time at City's sole discretion by giving not less than (5) days written notice of termination to the Law Firm. The Law Firm shall immediately cease all work under this Agreement upon receipt of a written notice to terminate, unless such notice provides otherwise. Should City terminate this Agreement, City shall pay the Law Firm for services satisfactorily provided and all allowable reimbursements incurred to the date of termination in compliance with the compensation section of this Agreement, unless such termination shall be for cause, in which event compensation, if any, shall be adjusted in light of the particular facts and circumstances involved in such termination. City shall not be liable for any claim of lost profits. Section 13: Miscellaneous. A. Com�liance with all Laws. The Law Firm shall be knowledgeable of and comply with all applicable local, state and federal laws, which may impact its performance of this Agreement. B. Governin� Law; Choice of Forum. The parties hereby agree that this Agreement is to be enforced in accordance with the laws of the State of California, is entered into and/or is to be performed in the City of Orange and that all claims or controversies arising out of or related to performance under this Agreement shall be submitted to and resolved in a forum within the County of Orange at a place to be determined by the rules of the forum. C. Inte agr tion. This Agreement constitutes the entire agreement of the parties. No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless such agreement is in writing and signed by both parties. Any work performed which is inconsistent with or in violation of the provisions of this Agreement, shall not be compensated. To the extent that there is any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of any Exhibit attached hereto, the terms and provisions of this Agreement shall control and govern the rights and obligations of the parties. D. Order of Precedence. In case of conflict between the terms of this Agreement and the terms contained in any document attached as an Exhibit or otherwise incorporated by reference, the terms of this Agreement shall strictly prevail. E. Authari . The Law Firm and the Law Firm's signators further represent that the signators hold the positions set forth below their signatures and that the signators are authorized to execute this Agreement on behalf of the Law Firm and to bind the Law Firm hereto. 4 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by its officers thereunto duly authorized all as of the date first above written. CITY OF ORANGE, a municipal corporation By: Teresa E. Smith,Mayor APPROVED AS TO FORM: ATTEST: Wayne W. Winthers Mary E. Murphy City Attorney City Clerk KANE,BALLMER&BERKMAN, a professional corporation By:�' " ( � � ���'-'�' Namc.�v y a .. G�-�v�6 Title: � Fi '� By: � Name: � Title: e� *NOTE: The City requires the following signature(s): -- (I) the Chairman of the Board, the President or a Vice-President, AND (2) the Secretary, the Chief Financial Officer, the Treasurer, an Assistant Secretary or an Assistant Treasurer. If only one corporate officer exists or one corporate officer holds more than one corporate office,please so indicate. OR -- The corporate officer named in a corporate resolution as authorized to enter into this Agreement. A copy of the corporate resolution, certified by the Secretary close in time to the execution of the Agreement, must be provided to the City. 5 EXHIBIT "A" LAW FIRM'5 HOUR RATES BY CLASSIFICATION [Behind this sheet.] KANE, BALLMER& BERKMAN, A Law Corporation SCHEDULE RATE Senior Principal $250/hour Of Counsel $250/hour Principal $250/hour Senior Counsel $225/hour Senior Associate $205/hour Associate $185/hour Paralegal $100/hour Case Clerk $ 85/hour CLASSIFICATION OF ATTORNEYS AND OTHER PROFESSIONALS Name Status Billable Rate Murray O. Kane Senior Principal $250/hour Royce K. Jones Senior Principal $250/hour Susan Y. Apy Principal $250/hour Kendall DeMatteo Levan Principal $250/hour Glenn F. Wasserman Of Counsel $250/hour Guillermo A. Frias Senior Counsel $225/hour Bruce Gridley Senior Counsel $225/hour Deborah L. Rhoads Senior Counsel $225/hour Todd C. Mooney Senior Associate $205/hour Gustavo Lamanna Senior Associate $205/hour Carol A. Leone Senior Associate $205/hour Edward B. Kang Associate $185/hour NOTE: The same hourly rate is applicable to Court appearances. Travel, subsistence, and other out-of pocket expenses authorized in connection with the performance of duties under the agreement would include, along with any other such authorized expenses: a. The amount of the actual cost of coach class transportation by common carrier or at the per mile rate established by the IRS, if travel is performed by privately- owned vehicle; b. Reasonable subsistence expenses, supported by detailed records in the amount of actual costs; c. Taxi fares, long distance telephone calls, postage, online legal research and similar expenditures in the amount of the actual cost; d. Duplication costs for all copies at cost of twenty-five (25) cents per page, and facsimile costs at one dollar (1.00)per page; and e. Fees and costs incurred by the firm in engaging consultants and experts approved by the client. The firm shall not be reimbursed for secretarial or typist services for normal office operating expense, with the exception of word processing fees, but only if noted in the rate schedule. The firm shall be reimbursed for actual litigation costs, fees and expenses, such as filing fees, expert witness fees, charges for service of process and costs of investigation. CITY COUNCIL MINUTES FEBRUARY 10, 2015 3. CONSENT CALENDAR(Continued) 3.10 Agreement with the law firm of Kane, Ballmer & Berkman (KBB) to provide legal services relating to the Lemon Grove Apartments in an amount not-to-exceed $50,000. (A2100.0 Agr-6197) ACTION: Approved the agreement and authorized the Mayor and City Clerk to execute on behalf of the City. 3.11 Employment Agreement with Interim City Manager Richard Otto. (A2100.0 Agr-6198) ACTION: Approved the agreement and authorized the Mayor and City Clerk to execute on behalf of the City. BIDS 3.12 Bid No. 145-33; FY 2014-15 Community Development Block Grant (CDBG) Project— Americans with Disabilities Act (ADA) Wheelchair Access Ramps at Various Locations. (54000.5.3.2) ACTION: Approved plans and specifications and authorized advertising for bids for the FY 2014-15 CDBG ADA Wheelchair Access Ramps at Various Locations. 3.13 Bid No. 145-31; Annual Concrete Replacement at Various Locations Phase 2, Fiscal Year 2014-15. (54000.5.7) ACTION: Approved plans and specifications and authorize advertising for bids for the Annual Concrete Replacement at Various Locations Phase 2, FY 2014-15 Project. 3.14 Bid No. 145-32; Concrete Street Rehabilitation at Various Locations, Fiscal Year 2014-15. (54000.5.4) ACTION: Approved plans and specifications and authorized advertising for bids for the Concrete Street Rehabilitation at Various locations, Fiscal Year 2014-15 Project. 3.15 Bid No. 145-34; Approval of plans and specifications, and authorization to advertise for bids for Construction of Katella Avenue and Wanda Road Improvements Project. (54000.5.7) ACTION: Approved plans and specifications and authorized advertising for bids for the Katella Avenue and Wanda Road Improvements Project. PAGE5