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HomeMy WebLinkAboutSA28881 - AMND1 - Richards Watson & GershonCONTRACT NO. SA28881 CITY OF PALM DESERT/SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY JOINT CONSIDERATION STAFF REPORT REQUEST: APPROVE AMENDMENT NO. 1 TO CONTRACT NO. SA28881 FOR LEGAL SERVICES WITH RICHARDS, WATSON AND GERSHON AMENDING THE FEE CALCULATION FOR BOND COUNSEL SERVICES SUBMITTED BY: Janet Moore, Director of Finance DATE: September 8, 2016 CONTENTS: Draft Amendment No. 1 to Contract SA28881 Redline version of amended sections to Contract SA28881 Original and extension of Contract R28880, SA28881 Recommendation By Minute Motion that the City Council and the Successor Agency to the Palm Desert Redevelopment Agency Board, approve Amendment No. 1 to Contract No. SA28881 for legal services with Richards, Watson and Gershon amending the fee calculation for bond counsel services. Strateqic Plan Obiective Not applicable Background In January 2016, the Attorney General, Kamala Harris, issued a legal opinion which concluded that certain contracted attorney's compensation for bond counsel services may not be based on a percentage of the total bond issuance. Amendment No. 1 amends the language within the current contract (SA28881) to address the Attorney General's opinion related to bond counsel services and how fees are calculated for public financing legal services. The fee will now be based on an hourly rate up to a maximum amount which the City Manager and Finance Director deem fair and reasonable. Staff does not expect that this change will result in an increase or decrease in the amount of fees charged for this service. Staff Report Approve Amendment No. 1 to Contract SA28881, legal services with Richards, Watson and Gershon September 8, 2016 Page 2 of 2 Fiscal Analysis There is no fiscal impact to the General Fund for this amendment. If a bond is issued or refunded, the fee will be paid directly from the costs of the bond issuance. Submitted by: Jane M. Moore, Director of Finance 4. "InterimExec J tin McCarthe Director G Finance Niamh Ortega Staff Reports` Successor Agency staffreports'.SR SARDA RWG 9-8-I6 doca Contract No. SA28881 Amendment No. 1 FIRST AMENDMENT TO AGREEMENT FOR LEGAL SERVICES BY AND AMONG THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, THE CITY OF PALM DESERT, AND RICHARDS, WATSON & GERSHON, A PROFESSIONAL CORPORATION THIS FIRST AMENDMENT ("Amendment") to the AGREEMENT FOR LEGAL SERVICES, Contract No. SA28881, (the "Agreement") is made as of September 8, 2016, ("Effective Date") by and between the SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, (the "Successor Agency"), the CITY OF PALM DESERT, (the "City"), and RICHARDS, WATSON & GERSHON, A PROFESSIONAL CORPORATION ("RWG"). The Successor Agency, the City and RWG may be referred to herein individually as a "Party" and collectively as the "Parties." The Parties agree to amend the Agreement as follows: Section 1. D. Compensation for Soecial Legal Services. For providing the special legal services set forth above, the Agency shall pay to RWG (i) a composite blended hourly rate of $190 per hour for any attorney, and $125 per four for any paralegal or legal assistant, for matters described in items number 1 through 3 above; (ii) a composite blended hourly rate of $250 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for matters described in item number 5, but the total fee for any issue or series of bonds shall not exceed an amount which the Executive Director or Finance Officer deems fair and reasonable. 2. Section 2. B. Compensation for Legal Services to the Citv. RWG shall be compensated by the City for requested legal services as follows: (i) a composite blended hourly rate of $250 per hour for any attorney and $125 per hour for any paralegal or legal assistant for either litigation in which RWG files a court pleading on behalf of the City, as well as any non - judicial adversarial matter such as arbitrations and administrative law matters, proceedings, or hearing or for public finance matters; (ii) a composite blended hourly rate of $315 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for bond counsel or disclosure counsel services, but the total fee for any issue or series of bonds shall not exceed an amount which the City Manager and Finance Director deem fair and reasonable; and (iii) a composite blended hourly rate of $225 per hour for any attorney and $125 per hour for any paralegal or legal assistant for any other legal services. All other terms of the Agreement to remain unchanged and in full force and effect. Contract No. SA28881 Amendment No. 1 IN WITNESS THEREOF, the Parties have executed this First Amendment on the date first above written. RWG: AGENCY: RICHARDS, WATSON & GERSHON, a SUCCESSOR AGENCY TO THE PALM DESERT professional corporation REDEVELOPMENT AGENCY, a public body, corporate and politic By: By: Title: JUSTIN MCCARTHY, INTERIM EXECUTIVE DIRECTOR By: Title: ATTEST: RACHELLE D. KLASSEN, SECRETARY SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY CITY: CITY OF PALM DESERT, a municipal corporation By: JUSTIN MCCARTHY, INTERIM CITY MANAGER ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA EXCERPT FROM AGREEMENT FOR LEGAL SERVICES BY AND AMONG THE PALM DESERT REDEVELOPMENT AGENCY, THE CITY OF PALM DESERT AND RICHARDS, WATSON & GERSHON, A PROFESSIONAL CORPORATION, CONTRACT NO. R28880, SA28881 D. Compensation for Special Legal Services. For providing the special legal services set forth above, the Agency shall pay to RWG (i) a composite blended hourly rate of $190 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for matters described in items numbered 1 through 3, above; (ii) a composite blended hourly rate of $250 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for matters described in item number 4, above; and (iii) a flat feecomnosite blended hourly rate of $315 per hour for any attorney, and $125 per hour for any paralegal or legal assistant for matters described in item number 5, whieh shall be, detefn4aed in acc3r4anee with the size an eafnple*ity of the bonFawiag and 1 be r/j-Jeef to appFeN,al bybut the total fee for any issue or series of bonds shall not exceed an amount which the Executive Director or Finance Dir-eetefQ fficer deems fair and reasonable. B. Compensation for Legal Services to the City. RWG shall be compensated by the City for requested legal services as follows: (i) a composite blended hourly rate of $250 per hour for any attorney and $125 per hour for any paralegal or legal assistant for either litigation in which RWG files a court pleading on behalf of the City, as well as any non -judicial adversarial matter such as arbitrations and administrative law matters, proceedings, or hearings or for public finance matters; (ii) a r~i r; pfcseffN*iaa-ascymnosite blended hourly rate of $315 per hour for any attorney, and S 125 per hour for any paralegal or legal assistant for bond counsel or disclosure counsel, 11- "••" "040tcrrninoi eemplcxity f `'' " ' `• " " , . " t t - "� „ ' " services, but the total fee for any b a Fr' issue or series of bonds shall not exceed an amount which the City Manager andef Finance Director deems fair and reasonable; and (iii) a composite blended hourly rate $225 per hour for any attorney and $125 per hour for any paralegal or legal assistant for any other legal services. 99904-61731E96383kv1.doc E I I y 01 P H L.- M 9ESERi 1 73-51 O FRGn WAR INC. DRIVE I VAIN Dl:srar'r, CALIFORNIA 92z6o-2578 TEL: 760 346-o6 i i inlir(,,Icityu(p;tlmticacrLnrg February 10, 2015 William L. Strauz, Esq. Richards, Watson & Gershon 355 South Grand Avenue, 401h Floor Los Angeles, California 90071-3101 Dear Bill: Subject: Contract No. SA28881 - Extension of the Agreement for Legal Services by and Amona the Successor Aaencv to the Palm Desert Redevelopment Aaencv. Palm Desert Housina Authority. and Citv of Palm Desert, and the Firm of Richards Watson & Gershon At its regular meeting of August 28, 2014, the Palm Desert City Council in joint consideration with the Successor Agency to the Palm Desert Redevelopment Agency and the Palm Desert Housing Authority, by Minute Motion, approved extension of Contract No. SA28881 (formerly known as Contract No. R28880) — Agreement for Legal Services to the City of Palm Desert, Successor Agency to the Palm Desert Redevelopment Agency, and Palm Desert Housing Authority with Richards, Watson & Gershon. Enclosed for your records is a copy of the staff report with City Council Action stamp affixed thereto. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, RACHELLE D. KLASSEN, MMC CITY CLERK/SECRETARY SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY RDK:mgs Enclosure (as noted) cc/enc: Rudy Acosta, Assistant City Manager Finance Department ��� nwnown;nua ruu 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL: 760 346-o6i r FAX:760 340-0574 info@palm-desert.org October 5, 2009 Kayser O. Sume, Esq. Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 Dear Mr. Sume: Subject: Contract No. R28880 - Agreement for Legal Services by and Among the Palm Desert Redevelopment Agencv, the Citv of Palm Desert, and Richards, Watson & Gershon At its regular meeting of August 27, 2009, the Palm Desert City Council in joint consideration with the Palm Desert Redevelopment Agency, by Minute Motion: 1) Approved the subject contract for Legal Services to the Palm Desert Redevelopment Agency, the Palm Desert Housing Authority, and the City of Palm Desert with Richards, Watson, & Gershon; 2) authorized the Mayor/Chairman to execute the finalized agreement. Enclosed is a copy of the fully executed Agreement for your records. If you have any questions or require additional information, please do not hesitate to contact us. Sincerely, RACHELLE D. KLASSEN, CMC CITY CLERK/SECRETARY TO THE PALM DESERT REDEVELOPMENT AGENCY RDK:mgm Enclosure (as noted) cc/enc-. Stephen Aryan, Assistant to the City Manager Finance Department Contract No. R28880 AGREEMENT FOR LEGAL SERVICES BY AND AMONG THE PALM DESERT REDEVELOPMENT AGENCY, THE CITY OF PALM DESERT AND RICHARDS, WATSON & GERSHON, A PROFESSIONAL CORPORATION THIS AGREEMENT FOR LEGAL SERVICES ("Agreement') is entered into by and among the Palm Desert Redevelopment Agency (the "Agency"), the City of Palm Desert (the "City") and Richards, Watson & Gershon, A Professional Corporation ("RWG") RECITALS: A. The Agency wishes to retain RWG to provide general counsel legal services to the Agency. B. The City wishes to retain RWG to provide certain special legal services to the City from time to time. C. RWG wishes to provide general counsel legal services to the Agency and certain special legal services to the City. NOW THEREFORE, the parties agree as follows: Secton 1. Legal Services to Aaencv. RWG shall provide the following legal services to the Agency: A. General Counsel Legal Services. RWG shall provide general counsel legal services to the Agency. General counsel legal services shall include matters related to the selection of project areas, adoption and amendment of redevelopment plans; adoption and amendment of implementation plans; preparation of disposition and development agreements, exclusive negotiation agreements and owner participation agreements; property acquisitions, property dispositions, public improvements, easement dedications, rights -of -way acquisitions and abandonment; consulting agreements; affordable housing; conflicts of interest; monitoring and reporting of pending and current State and Federal legislation as well as court decisions as appropriate; attending Agency Board meetings upon request; and providing office hours at City Hall upon request. 99904-0173\1149932v6.doc contract No. R28880 B. Compensation for General Counsel Legal Services. For providing the general counsel legal services set forth above, the Agency shall pay to RWG a flat retainer fee of $15,000 per month. C. Special Legal Services. RWG shall provide special legal services to the Agency, which services shall be compensated separately as set forth below. Special legal services shall mean all matters related to the following: l . public works contracts and public contracting disputes; 2. any matter that RWG and the Executive Director agree will take more than ten billable hours for an attorney or combination of attorneys to complete; 3. public finance matters; 4. litigation in which RWG files a court pleading on behalf of the Agency, as well as any non judicial adversarial matter such as arbitrations and administrative law matters, proceedings, or hearings; 5. bond counsel and disclosure counsel services. D. Compensation for Special Legal Services. For providing the special legal services set forth above, the Agency shall pay to RWG (i) a composite blended hourly rate of $190 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for matters described in items numbered 1 through 3, above; (ii) a composite blended hourly rate of $250 per hour for any attorney, and $125 per hour for any paralegal or legal assistant, for matters described in item number 4, above; and (iii) a flat fee for matters described in item number 5, which shall be determined in accordance with the size and complexity of the borrowing and shall be subject to approval by the Executive Director or Finance Director. E. Out -of -Pocket Expenses. In addition to other payments provided above, RWG shall be reimbursed for out-of-pocket expenses incident to services performed, including long-distance telephone charges (but not to and from City Hall), extraordinary reproduction 99904-0173\1149832v6.doc 2 Contract No. R28880 costs, specialized delivery requirements, mileage (but not for travel to and from City Hall), and non -automobile travel expenses in the event attorneys are required to travel other than in the Riverside, San Bernardino, Los Angeles and Orange County areas on behalf of the Agency. F. Automatic Increase. The hourly rates for special counsel legal services shall automatically increase on the annual anniversary of the commencement date of this Agreement by a percentage amount that is equal to the increase in the prior year, if any, in the cost of living index for Los Angeles -Riverside -Orange County. Secton 2. Legal Services to Citv A. Legal Services to the City. RWG shall provide legal services to the City on an as needed based upon request to, and agreement of, RWG. B. Compensation for Legal Services to the City. RWG shall be compensated by the City for requested legal services as follows: (i) a composite blended hourly rate of $250 per hour for any attorney and $125 per hour for any paralegal or legal assistant for either litigation in which RWG files a court pleading on behalf of the City, as well as any non judicial adversarial matter such as arbitrations and administrative law matters, proceedings, or hearings or for public finance matters; (ii) a flat fee for representation as bond counsel or disclosure counsel, which shall be determined in accordance with the size and complexity of the borrowing and shall be subject to approval by the City Manager or Finance Director; and (iii) a composite blended hourly rate $225 per hour for any attorney and $125 per hour for any paralegal or legal assistant for any other legal services. C. Automatic Increase. The hourly rates for legal services provided to the City shall automatically increase on the annual anniversary of the commencement date of this Agreement by a percentage amount that is equal to the increase in the prior year, if any, in the cost of living index for Los Angeles -Riverside -Orange County. Secton 3. Statements. RWG shall send Agency and City a statement of services rendered and expenses incurred in each month on the Agency and City's respective accounts. The statement shall describe the nature of the work performed, the attorney performing the work and the time spent for each task as well as the nature of any fees and expenses incurred. 99904-0173\1149832v6.doe 3 Contract No. R28880 Secton 4. Term. The term of this Agreement shall be five (5) years, commencing on September 1, 2009. This Agreement may be terminated in accordance with the terms of Section 8. Secton 5. Insurance. RWG shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or physical damage to property which may arise from or in connection with the performance of the work by RWG, its agents, representatives, or employees. Additionally, RWG shall procure and maintain for the duration of the Agreement, professional liability insurance. Insurance shall be of the type, in the amounts, and subject to, the provisions described below. A. Commercial general liability coverage with a minimum limit of $1,000,000 per occurrence. B. Workers' Compensation insurance as required by the State of California. C. Professional Liability Insurance with a minimum limit of $5,000,000. Such insurance may be subject to a self -insured retention or deductible to be borne entirely by RWG. D. Evidence of Coverage: 1. Within 14 days after approval of this Agreement by the Agency and the City, RWG shall file with the Agency and the City certificates of insurance with original endorsements evidencing coverage in compliance with this Agreement. 2. RWG shall make the insurance policies required by this Agreement, including all endorsements and riders, available to the Agency and the City for inspection at RWG's office during regular business hours. 3. During the term of this Agreement, RWG shall maintain with the Agency and the City current valid certificates of insurance. Certificates evidencing renewals of coverage shall be filed prior to expiration of any required coverage. 99904-0173\1149832v6.doc 4 Contract No. R28880 4. All insurance coverage shall be provided by insurers with a rating of B+;VII or better in the most recent edition of Best's Key Rating Guide, Property -Casualty Edition. 5. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided or canceled and shall not be reduced in coverage or limits except after thirty days prior written notice provided to the Agency and the City. Upon prior request of the carrier, the notice period may be reduced to 10 days in the event of non-payment of premium. 6. RWG's insurance and any insurance provided in compliance with this Agreement, shall be primary with respect to any insurance or self-insurance programs covering the Agency and the City. Agency and the City. 7. Any deductibles or self -insured retentions shall be disclosed to the 8. All commercial general liability insurance coverage required to be maintained pursuant to this Agreement by RWG shall name the Agency and the City, the City Council, the Agency Board, and every officer, agent, and employee of the Agency and the City as additional insureds with respect to work under this Agreement. Secton 6. Successors and Assigns. This Agreement may not be assigned by RWG. Secton 7. Facilities and Equipment. RWG shall, at its own cost and expense, provide all facilities and equipment at its offices which may be required for performance of services required by this Agreement. Secton 8. Termination. This Agreement may be terminated by either the Agency (or the City, as the case may be) or by RWG, with or without cause, upon 30 days written notice; provided, however, that RWG further agrees that it shall exercise is right to terminate this Agreement only in a manner that is consistent with any obligations that it may have under applicable rules of professional conduct. RWG shall be compensated for all services provided, and shall be reimbursed for all expenses incurred, through the effective date of termination as noticed by the terminating party. In the event of a termination of this Agreement, both the 99904-0173\1149832v6.doc Contract No. R28880 Agency (or the City, as the case may be) and RWG shall cooperate to promptly accomplish the transfer of the Agency's (or the City, as the case may be) legal representation for any pending matters. Secton 9. Files. RWG shall maintain one or more client files in connection with providing services in accordance with this Agreement. In such client files, RWG may place correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to its representation of the Agency and the City. Such client files shall be and remain the property of the entity for which they are prepared. RWG shall control the physical location of such client files during the term of this Agreement. RWG may also place in such client files documents containing RWG's attorney work product, mental impressions or notes. The work product shall be and remain RWG's property. In addition, electronic documents such as e-mail and documents prepared on RWG's word processing system, but which have not been printed in hard copy, shall be and remain RWG's property and shall not be considered part of the client files, but copies of any such documents or emails prepared in connection with services to the entity (other than attorney work product) shall be provided to the entity upon request. RWG may enact and implement reasonable retention policies for such electronic documents and RWG has discretion to delete such documents. At the termination of this Agreement, the original client files for each entity (but not including the work product) shall be made available to that entity, and each entity shall have the right to take possession of its respective client files. RWG will be entitled to make copies of the client files and each entity will be entitled to make copies of the work product prepared for the entity. At the conclusion of this Agreement, (whether or not any entity takes possession of the client files) the Agency and the City shall take possession of any and all original contracts, certificates, and other such important documents that may be in the client files and RWG shall have no further responsibility with regard to such documents. If any entity does not take possession of the client files at the conclusion of the Agreement, RWG shall store such client files for a period of at least one year. During the entire time that RWG stores the client files, each entity shall have the right to take possession of its files at any time. At the conclusion of such one year period, RWG shall send to the entities a 99904-0173\1149832v6.doc 6 Contract No. R28880 notice advising of RWG's intention to dispose of the client files. The Agency and the City shall have 60 days from the date of such notice to take possession of the client files. If the Agency and the City do not take possession of the client files during that time, the Agency and the City agree that RWG may dispose of the client files without further notice. RWG shall have no obligation to abide by any entity's document retention schedule or to take any steps except as outlined above. Secton 10. Extent of Agreement. This Agreement represents the entire and integrated Agreement among the Agency, the City and RWG, and supersedes any and all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by the parties affected by the amendment. Secton 11. Severability. Invalidation of any provision contained herein or the application thereof to any person or entity by judgment or court order shall in no way affect any of the other covenants, conditions, restrictions, or provisions hereof, or the application thereof to any other person or entity, and the same shall remain in full force and effect. Secton 12. Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of California. Secton 13. Independent Contractor. No employment relationship is created by this Agreement. RWG shall be an independent contractor of the Agency and the City. 99904-0173\1149832v6.doc 7 -Contract No. R28880 Executed this - 2nd day of _ October ATTEST: '!� ��~sue-/•� City Clerk ATTEST: Palm Deserf 2009, at' , California. PALM DESERT REDEVELOPMENT AGENCY By A,Ke�&- f*IChairman CITY OF PALM DESERT By: � � Mayor if RICHARDS, WATS N & GERSHON A Professions) Co ation By: YSER S WE Chairman of the Board 99904-0173\1149832v6.doc 8 CALIFORNIA ALL-PURPO�' ACKNOWLEDGMENT STATE OF CALIFORNIA COUNTY OF LOS ANGELES On September 21, 2009 before me, Leslie Ericson, Notary Public personally appeared Kayser Sume OrI11M 111�iNrLM�� a" K a°�' � w iliA. IIh -M Mw1 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Agreement for Legal Services By and Among the Palm Desert Redevelopment Agency, the City of Palm Desert and Richards, Watson & Title or Type of Document: Gershon, A Professional Corporation Document Date: Not Dated Number of Pages: 8 Signer(s) Other Than Named Above: Chairman of Palm Desert RDA and Mavor of City of Palm Desert Capacity(ies) Claimed by Signer(s) Signer's Name: Kayser Sume ❑ Individual ■ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing Chairman of the Board General Richards. Watson & Gershon, A Professional Corporation RIGHT THUMAPRINT OF SIGNER Top of thumb here 99999\9999M 74808