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HomeMy WebLinkAboutItem No. 4OVERSIGHT BOARD TO THE SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE TO: MEMBERS OF THE OVERSIGHT BOARD FROM: BARBARA LEIBOLD, SUCCESSOR AGENCY COUNSEL DATE: MAY 28, 2413 SUBJECT: OVERSIGHT BOARD LEGAL COUNSEL Backaround The Oversight Board previously directed staff to issue a Request for Proposal (RFP) for Oversight Board counsel through the League of California Cities website and the California City Attorney's "listserv". Staff received seven proposals, and, at its August 26, 2012 meeting, the Board selected a two member subcommittee consisting of Board Member Williams and Board Member Kelley to review responses to the RFP, conduct interviews with the most qualified candidates (as needed) and return to the full Board with a recommendation on legal representation. On February 26, 2013, the Oversight Board selected Phillip Barry Greer as legal counsel and directed staff to prepare a Legal Services Agreement to be presented for approval at the next Oversight Board Meeting Discussion The Oversight Board may in furtherance of its duties under the Dissolution Act direct the Successor Agency to provide additional legal advice beyond what is given by the Successor Agency staff. However, the Dissolution Act does not prescribe authorization, requirements, process or a funding source for the Oversight Board to retain outside legal counsel. The ROPS 13 -14A approved by the Successor Agency and the Oversight Board included a line item for Oversight Board Legal Counsel. While DOF approved the Successor Agency ROPS 13 -14A, it denied Oversight Board Legal Counsel as an enforceable obligation "project cost' payable from a distribution of Real Property Tax Trust Funds and instead required that Oversight Board Legal Services be reclassified as an administrative cost payable from the Successor Agency's administrative cost allowance. The administrative allowance is capped by statute at 3% of the Successor Agency's allocation of RPTTF for enforceable obligations. In light of this limitation and in an effort to mitigate the impacts on other administrative expenses, the Successor Agency Legal Counsel consulted with Phillip Barry Greer proposing a modification to the proposed fee structure that would reduce the retainer amount for general services from $2000 per month to $1000 for months in which the AGENDA ITEM 4 Page 1 Oversight Board Legal Counsel May 28, 2013 Board cancels one or both regularly scheduled meetings. Mr. Greer has consented to this modification. Litigation services will be provided on an hourly basis at $250 per hour as proposed; provided, however, that such services must be first approved by the Board based on a Litigation Budget which shall not exceed $15,000 without a written amendment to the Legal Services Agreement. It is recommended that the funds for such litigation services be included on future ROPS as an enforceable obligation "project cost ". Recommendation It is recommended that the Oversight Board adopt Resolution No. OB -2013 -005 approving a Legal Services Agreement with Phillip Barry Greer in substantially the form submitted with the staff report and in such final form as directed by the Board. Prepared and approved by: Barbara Leibold, City Attorney /Successor Agency Counsel Attachments: 1. Resolution No. OB- 2013 -005 2. Agreement for Legal Services AGENDA ITEM 4 _ —� � -- �� �� Page 2 RESOLUTION NO. OB- 2013 -005 A RESOLUTION OF THE OVERSIGHT BOARD TO THE SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE APPROVING A LEGAL SERVICES AGREEMENT WHEREAS, the Oversight Board to the Successor Agency of the Redevelopment Agency of the City of Lake Elsinore ( "Oversight Board ") has been established to direct the Successor Agency to take certain actions to wind down the affairs of the former Redevelopment Agency of the City of Lake Elsinore in accordance with the California Health and Safety Code; and WHEREAS, pursuant to Health and Safety Code Section 34179(n), the Oversight Board may in furtherance of its duties under the Dissolution Act direct the Successor Agency to provide additional legal advice beyond what is given by the Successor Agency staff; and WHEREAS, the Oversight Board desires to retain independent legal counsel; _-."iii i WHEREAS, the sole source of funds available to pay for legal services to the Oversight Board is and shall be limited to real property tax trust funds ( "RPTTF ") allocated to the Successor Agency either as a project cost permitted as an enforceable obligation on the ROPS as approved by the Successor Agency, Oversight Board and the DOF or as part of the Successor Agency's administrative cost allowance; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, THE OVERSIGHT BOARD TO THE SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. The Recitals set forth above are true and correct and incorporated herein by reference. SECTION 2. Based on the Recitals set forth above and consistent with the legislative authorization contained in AB 1484 allowing the Oversight Board to direct the Successor Agency to provide additional legal advice beyond what is given by the Successor Agency staff, the Oversight Board hereby approves the Legal Services Agreement with Phillip Barry Greer in substantially the form attached to the staff report in the Oversight Board's Agenda for its May 28, 2013 meeting and authorizes the Chairman to execute the Legal Services Agreement in such final form as approved by the Oversight Board. AGENDA ITEM 4 OVERSIGHT BOARD RESOLUTION NO. OB 2013 -005 Page 2 SECTION 3. The Oversight Board authorizes and directs the Successor Agency to list the estimated costs of general legal services pursuant to the Legal Services Agreement as part of its administrative cost allowance and to present an updated administrative budget to the Oversight Board for approval. The Oversight Board further authorizes and directs the Successor Agency to list the estimated cost of litigation services, if any, pursuant to the Legal Services Agreement on future ROPS or amended ROPS as an enforceable obligation "project cost' payable from RPTTF to be allocated to the Successor Agency. SECTION 4. If any provision of this Resolution or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution which can be given effect without the invalid provision or application, and to this end the provisions of this resolution are severable. The Oversight Board hereby declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion thereof. SECTION 5. This Resolution shall take effect from and after the date of its passage and adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the Oversight Board to the Successor Agency of the Redevelopment Agency of the City of Lake Elsinore, held this 28th day of May, 2013 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Chairperson, Oversight Board to the Successor Agency of the Redevelopment Agency of the City of Lake Elsinore Oversight Board Clerk AGFNDA ITEM 4 AGREEMENT FOR LEGAL SERVICES This Agreement for Legal Services (the "Agreement ") is made and entered into as of the 1st day of June 2013 ( "Effective Date"), by and between the Oversight Board to the Successor Agency of the Redevelopment Agency of City of Lake Elsinore created pursuant to Health & Safety Code Section 34179 (the "Board ") and Phillip Barry Greer, Attorneyat Law( "Greer"). The Board and Greer are collectively referred to as the "Parties ". RECITALS WHEREAS, the California Legislature enacted Assembly Bill x1 26 to dissolve redevelopment agencies formed under the Community Redevelopment Law (Health & Safety Code Section 33000 et seq.), as amended by Assembly Bill 1484 (collectively, the "Dissolution Act "); and WHEREAS, by the adoption of Resolution No. 2012 -001 on January 10, 2012, the City Council of the City of Lake Elsinore elected the City to serve as the Successor Agency of the Redevelopment Agency of the City of Lake Elsinore under the Dissolution Act; and WHEREAS, the Oversight Board has been established to direct the wind down of the affairs of the former Redevelopment Agency of the City of Lake Elsinore in accordance with the Dissolution Act; and WHEREAS, the Oversight Board may in furtherance of its duties under the Dissolution Act direct the Successor Agency to provide additional legal advice beyond what is given by the Successor Agency staff; and WHEREAS, the Oversight Board desires to retain independent legal counsel; and WHEREAS, Greer possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement on the terms and conditions described herein. NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises contained herein, the Board and Greer desire to enter into this Agreement. 1. Scope of Services. By this Agreement, the Board appoints Greer as its General Counsel to provide the legal services, advice and representation to the Board as described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference. 2. Term of Agreement. The terms and conditions underthis Agreement shall commence on June 1, 2013 and shall continue thereafter unless amended or terminated until May 31, 2014. 3. Compensation. Compensation to be paid to Greer shall be in accordance with the Schedule of Charges set forth in Exhibit B, which is attached hereto and incorporated herein by reference. 4. Billing and Payment. Greer shall submit monthly billings to the Board at the address set forth in Section 14 of this Agreement describing the work performed during the preceding AGENDA ITEM 4 month. For general services as described in the Scope of Work, Greer's bills shall include a brief description of the services performed and the date the services were performed. For Litigation Services as described and approved by the Board in accordance with the Scope of Work, Greer's bills shall include a detailed description of the services performed, the date the services were performed, the number of hours spent and by whom, and the amount remaining under the approved litigation budget. Litigation services will be billed in increments of one -tenth (1110"') of an hour. Following Board approval, the Board shall submit Greer's bills to the Successor Agency and direct payment as part of the Successor Agency's administrative allowance or in accordance with the project costs provided in an updated ROPS. 5. Termination. This Agreement maybe terminated by the Board immediately for cause or by either party without cause upon thirty (30) days' written notice of termination. Upon termination, Greer shall be entitled to compensation for services performed up to the effective date of termination. 6. Ownership of Documents. All writings prepared by Greer in the course of implementing this Agreement, except working notepad, preliminary draft and internal documents, are the property of the Board. 7. Greer's Books and Records. a. Greer shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records ordocuments evidencing or relating to charges for services, or expenditures and disbursements charged to Board for a minimum period of three (3) years, or for any longer period required by law, from the date of payment to Greer under this Agreement. b. Greer shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (31 years, or for any longer period required by law, from the date of termination of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit by the Board, the Executive Director of the Successor Agency or his or her designee, and the Successor Agency's Auditor, at any time during regular business hours, upon written request by the Board or the Successor Agency Executive Director. Nothing herein shall require or permit the release or inspection of any privileged document without the express written waiver of such privilege by the Board. d. Where the Board has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Greer's law firm, the Board may, by written request, require that custody of the records be given to the Board and that the records and documents be maintained by the Clerk of the Board at the Lake Elsinore City Hall. 8. Independent Contractor. It is understood that Greer, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the Board. Greer shall obtain no rights to retirement benefits or other benefits, and Greer hereby expressly waives any claim it may have to any such rights. 9. Interests of Greer. Greer (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in AGENDA ITEM 4 any manner or degree by the performance of Greer's services hereunder. Greer further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. 10. Professional Ability of Greer. The Board has relied upon the professional training and ability of Greer to perform the services hereunder as a material inducement to enter into this Agreement. Greer shall therefore provide properly skilled professional services under this Agreement. 11. Compliance with Laws. Greer shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 12. Indemnity. Greer agrees to defend, indemnify and hold harmless the Board, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, director indirect (including anyand all costs and expenses in connection therein), arising out of the performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the Board, its officers, agents, employees or volunteers. 13. Professional Liability Coverage. Greer shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Greer's operations under this Agreement, whether such operations by the Greer or by its employees, subcontractors, or subconsultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims -made annual aggregate basis, or a combined single limit per occurrence basis. 14. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to Board: Oversight Board to the Successor Agency of the Redevelopment of the City of Lake Elsinore Attn: Successor Agency Executive Director 130 South Main Street Lake Elsinore, CA 92530 If to Greer: Phillip Barry Greer, Attorney at Law 1300 Bristol Street North, Suite 100 Newport Beach, CA 92660 15. Entire Agreement. This Agreement is an amendment and restatement of the Existing Agreement and constitutes the complete and exclusive statement of Agreement between the Board and Greer. All prior written and oral communications, including the Existing Agreement, correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 16. Amendments. This Agreement maybe modified or amended only bya written document executed by both Greer and Board and approved as to form by the Board Attorney. AGENDA ITEM 4 17. Assignment and Subcontracting. The parties recognize that a substantial inducement to Board for entering into this Agreement is the professional reputation, experience and competence of Greer. Greer shall be fully responsible to Board for all acts or omissions of any subcontractors. Assignments of any or all rights, duties or obligations of the Greer under this Agreement will be permitted only with the express consent of the Board. Greer shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of the Board. If Board consents to such subcontract, Greer shall be fully responsible to Board for all acts or omissions of those subcontractors. Nothing in this Agreement shall create any contractual relationship between Board and any subcontractor nor shall it create any obligation on the part of the Board to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 18. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 19. Severabilitv. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 20. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 21. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 22. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. It the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS /ENDISPUTE ( "JAMS ") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 23. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 24. Authority to Enter Agreement. Greer has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 25. Prohibited Interests. Greer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Greer, to solicit or secure this Agreement. Further, Greer warrants that it has not paid nor has it agreed to pay any AGENDA ITEM 4 company or person, other than a bona fide employee working solely for Greer, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, Board shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of Board, during the term of his or her service with Board, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 26. Equal Opportunity Employment. Greer represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. Greer shall also comply with all relevant provisions of Board's Minority Business Enterprise program, Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted. IN WITNESS WHEREOF the Parties have caused this Agreement to be executed on the date first written above. OVERSIGHT BOARD TO THE PHILLIP BARRY GREER, Attorney at Law SUCCESSOR AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF LAKE ELSINORE By: Phil Williams, Board Chairman By Phillip Barry Greer ATTEST: Virginia J. Bloom, Board Clerk AGENDA ITEM 4 EXHIBIT "A" SCOPE OF SERVICES Phillip Barry Greer is hereby designated as General Counsel to the Oversight Board to the Successor Agency of the Redevelopment Agency of the City of Lake Elsinore. General Legal Services. The scope of the services of the General Counsel shall include, but is not limited to, the following: • Attend regularly scheduled and special meetings of the Board, unless attendance is excused. • Advise the Board on legal authority and liability for actions taken in the ordinary course of business and in the implementation of the Dissolution Act, the powers and duties of the Board under the Dissolution Act, compliance with the Brown Act, Public Records Act and the Political Reform Act in the performance of such powers and duties.. • Review and advise the Board on the recommendations from Successor Agency staff regarding contracting issues. • Review and advise the Board on recommendations from Successor Agency staff on refinancing matters, overseeing completion of redevelopment projects, and disposition of property and other assets. • Provide advice on legislative matters which may affect the Board (exclusive of lobbying). • Represent the Board in connection with any inquiry, investigation, auditorother proceedings of state regulatory agencies. • Engage in any other legal matter reasonably requested by the Board. Litigation Services. In addition to the provision of General Legal Services, Phillip Barry Greer shall represent the Board in any litigation brought by or against or otherwise involving the Board in accordance with an approved Litigation Budget as described in the Schedule of Charges (Exhibit B). AGENDA ITEM 4 EXHIBIT "B" SCHEDULE OF CHARGES General Legal Services. Greer shall be compensated for the performance of General Legal Services by way of a retainer in the amount of $2,000 per month; provided, however, in the event the Board cancels one or both of its regularly scheduled meetings in any month, the retainer for that month shall be reduced to $1,000. In the event the Board changes its regularly scheduled meetings to a quarterly basis, the Parties agree to engage in good faith negotiations to reevaluate and establish an appropriate and fair retainer to be paid for General Legal Services. Litigation Services. In the event of litigation and prior to providing Litigation Services hereunder (except as required in the judgment of Greer to protect the Board against adverse legal consequences), Greer shall prepare a litigation budget to be presented to the Board for approval outlining projected attorney time for investigation, research, discovery, preparation of pleadings and motions and other services necessary up to but not including trial. In no event shall any Litigation Budget in excess of $15,000 be approved without written amendment to this Agreement. Legal services for litigation matters shall be compensated at a rate of $250 per hour. AGENDA ITEM 4