AGENDA ITEM NO. 24
Meeting Date: June 26, 2007
Subject/Title: Approve and Authorize the Executive Director to execute a
Professional Services Agreement for Legal Services with McDonough Holland &
Allen in an amount not to exceed $55,000 for the 2007-2008 fiscal year.
Prepared by: Gina Rozenski, Redevelopment Manager
Submitted by: Howard Sword, Director of Community Development
Approve and Authorize the Executive Director to execute a Professional
Services Agreement for Legal Services with McDonough Holland & Allen in an
amount not to exceed $55,000 for the 2007-2008 fiscal year.
On June 10, 2003, the Redevelopment Agency authorized the Executive Director
to execute a Professional Services Agreement for Legal Consulting Services
with McDonough Holland & Allen in an amount not to exceed $70,000 for the
2003-2004 fiscal year.
On June 22, 2004, the Redevelopment Agency authorized the Executive Director
to execute a Professional Services Agreement for Legal Consulting Services
with McDonough Holland & Allen in an amount not to exceed $50,000 for the
2004-2005 fiscal year.
On June 14, 2005, the Agency authorized the Executive Director to execute a
Professional Services Agreement for Redevelopment Legal Consulting Services
with McDonough Holland & Allen in an amount not to exceed $66,250 for the
2005-2006 budget year.
On June 27, 2006, the Agency authorized the Executive Director to execute a
Professional Services Agreement for Redevelopment Legal Consulting Services
with McDonough Holland & Allen in an amount not to exceed $62,500 for the
2006-2007 budget year.
McDonough Holland & Allen has been the Brentwood Redevelopment Agency’s
legal counsel for almost a decade, and is highly specialized in practicing
redevelopment law. MHA is knowledgeable and experienced with our Agency’s
policies, procedures and needs, and most importantly, has been greatly
involved in all of the Agency’s recent programs and projects. Considering
the specialized legal services delivered by MHA, as well as the level of
responsiveness, staff believes the Agency has received a very good value
over the past several years.
The Agency will utilize comprehensive and intensive legal services related
to the Merged Project Areas and Redevelopment Housing as we embark on
developing and implementing long-term strategies and policies in these
areas. Also, as the Agency furthers its planning and potential acquisition
phases for a parking structure in the Downtown Project Area, considers
developer selection and agreement negotiations for development opportunities
in the Downtown, and embarks on implementing the Brentwood Boulevard
Specific Plan, additional legal services will be required.
Staff recommends the services of MHA be renewed for an amount not to exceed
$55,000 for the 2007-2008 fiscal year. This amount will allow the Agency to
continue to use MHA’s legal services without disruption over the next year.
Funding for these legal services is budgeted in the 2007-2008 fiscal year
and will be shared between the Downtown Administration Fund 301 and Housing
Professional Services Agreement
AGREEMENT FOR SPECIAL COUNSEL SERVICES
[McDonough Holland and Allen PC]
THIS AGREEMENT is made and entered into as of the day of , 2007, by and
between the Redevelopment Agency of the City of Brentwood, a public body
corporate and politic ("Agency") and McDonough Holland and Allen PC
("Special Counsel") (collectively, the “Parties”).
A. Agency requires the professional services of attorneys who are
experienced in redevelopment matters.
B. Special Counsel has the necessary experience and history in providing
professional services and advice related to redevelopment law.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, the Parties agree as follows:
1. Scope of Work. Agency retains Special Counsel to represent the Agency in
connection with its redevelopment activities, including, but not limited to,
advice, consultation, legal research and opinions regarding redevelopment
activities (the "Services") in accordance with this Agreement’s terms and
conditions. The Services do not include any litigation services.
2. Standard of Performance. While performing the Services, Special Counsel
will exercise the reasonable professional care and skill customarily
exercised by reputable members of the California State Bar practicing in the
Metropolitan Northern California Area, and will use reasonable diligence and
best judgment while exercising its professional skill and expertise.
3. Term. Unless earlier terminated or extended, the term of this Agreement
will be for one year from the date first above written.
4. Time is of the Essence. Time is of the essence for each and every
provision of this Agreement.
5. Compensation. Agency shall compensate Special Counsel for the performance
of the Services at the rates shown on Exhibit “A.” No other compensation for
the Services will be allowed except for items covered by subsequent
amendments to this Agreement.
6. Reimbursable Expenses. In lieu of itemizing reimbursable charges, Special
Counsel may charge Agency an administrative fee of four percent of hourly
billings which compensates the cost of normal photocopying, long distance
telephone calls, regular mail postage, telecopy charges and other expenses
as to which individual itemization is impractical. Special Counsel shall be
entitled to reimbursement for all reasonable and necessary expenses incurred
from outside vendors related to extraordinary costs not covered by the four
percent administrative fee.
7. Advancement of Costs. Special Counsel will advance expenses and costs
incurred on behalf of the Agency under this Agreement in an amount not
exceeding $450 per month. If costs will exceed $450 per month, costs in
excess of this total shall be paid directly by the Agency or shall be
advanced to Special Counsel pursuant to a separate letter agreement which
the Agency Counsel is authorized to execute on behalf of the Agency.
8. Payment for Services. Special Counsel shall submit itemized monthly
invoices to the Agency accounting for the Services provided and costs
incurred pursuant to the terms of this Agreement. Each monthly invoice shall
bill in six-minute increments and shall include the total hours performed to
date. Minimum billing requirements are unacceptable to the Agency and
invoice shall charge only for actual time spent. Payment will occur only
after receipt by Agency of invoices sufficiently detailed that clearly set
forth by date, the type of work performed, the specific subject of work
performed or legal research performed, and the time spent on a task. Agency
shall make payment to Special Counsel within thirty (30) days of receipt of
the invoice, except for those specific items on the invoice which are
contested or questioned and returned by Agency, with written explanation,
within thirty (30) days of receipt of the invoice. Special Counsel shall
provide to Agency, a written response to any statement contested or
questioned and further, upon request of Agency, provide Agency with any and
all documents related to the service or costs. No charge shall be made for
time expended in providing this information to the Agency.
Special Counsel shall invoice Client monthly for the Services and costs
incurred. The form of invoice shall include a cover summary sheet containing
only the “attorney services” and the amount being billed therefore; the
“costs advanced” and the amount being billed therefore; and a total for all
services and costs invoiced. Attached to the summary sheet shall be the
detailed backup information which, as to “attorney services”, sets forth the
dates services were performed; the initials of the attorney performing said
services; the hourly rate attributable thereto; the hours or minutes being
invoiced, and the total invoiced costs of attorney services. As to “costs
advanced’, the detailed back up information shall set forth the dates costs
were incurred, the type of cost incurred; and the total of advance costs
9. Status of Special Counsel. Special Counsel will perform the Services in
Special Counsel's own way as an independent contractor and in pursuit of
Special Counsel's independent calling, and not as an employee of Agency. The
persons used by Special Counsel to provide services under this Agreement
will not be considered employees of Agency for any purposes.
The payment made to Special Counsel pursuant to the Agreement will be the
full and complete compensation to which Special Counsel is entitled. Agency
will not make any federal or state tax withholdings on behalf of Special
Counsel or its agents, employees or subcontractors. Agency will not be
required to pay any workers' compensation insurance or unemployment
contributions on behalf of Special Counsel or its employees or
subcontractors. Special Counsel agrees to indemnify Agency within thirty
(30) days for any tax, retirement contribution, social security, overtime
payment, unemployment payment or workers' compensation payment which Agency
may be required to make on behalf of Special Counsel or any agent, employee,
or subcontractor of Special Counsel for work done under this Agreement. At
the Agency’s election, Agency may deduct the indemnification amount from any
balance owing to Special Counsel.
10. Subcontracting. Special Counsel will not subcontract any portion of the
Services without prior written approval of Agency Counsel or his/her
designee. If Special Counsel subcontracts any of the Services, Special
Counsel will be fully responsible to Agency for the acts and omissions of
Special Counsel's subcontractor and of the persons either directly or
indirectly employed by the subcontractor, as Special Counsel is for the acts
and omissions of persons directly employed by Special Counsel. Nothing
contained in this Agreement will create any contractual relationship between
any subcontractor of Special Counsel and Agency. Special Counsel will be
responsible for payment of subcontractors. Special Counsel will bind every
subcontractor and every subcontractor of a subcontractor by the terms of
this Agreement applicable to Special Counsel's work unless specifically
noted to the contrary in the subcontract and approved in writing by Agency.
11. Other Attorneys. The Agency reserves the right to employ other attorneys
in connection with the Services.
12. Indemnification. Special Counsel will indemnify and hold harmless Agency
and the City of Brentwood (“City”) and its and their officers, agents,
employees and volunteers from and against all claims, damages, losses and
expenses including attorney fees arising out of the performance of the
Services to the extent they are caused by the willful misconduct or
negligent act or omission of the Special Counsel, any subcontractor, anyone
employed by any of them or anyone for whose acts any of them may be liable.
The Parties expressly agree that any reasonable payment, attorney's fee,
cost or expense Agency or City incurs or makes to or on behalf of an injured
employee under the City's or Agency’s self-administered workers'
compensation is included as a loss, expense or cost for the purposes of this
section to the extent such injury is caused by willful misconduct or
negligent act or omission of Special Counsel, and that this section will
survive the expiration or early termination of the Agreement.
13. Insurance. Special Counsel will obtain and maintain for the duration of
the Agreement and any and all amendments, insurance against claims for
injuries to persons or damage to property which may arise out of or in
connection with performance of the Services by Special Counsel or Special
Counsel’s agents, representatives, employees or subcontractors. The
insurance will be obtained from an insurance carrier admitted and authorized
to do business in the State of California. The insurance carrier is required
to have a current Best's Key Rating of not less than "A-:V."
13.1 Coverages and Limits. Special Counsel will maintain the types of
coverages and minimum limits indicated below, unless Risk Manager or
Executive Director, in consultation with the Agency Counsel approves a lower
amount. These minimum amounts of coverage will not constitute any
limitations or cap on Special Counsel's indemnification obligations under
this Agreement. Agency, its officers, agents, volunteers and employees make
no representation that the limits of the insurance specified to be carried
by Special Counsel pursuant to this Agreement are adequate to protect
Special Counsel. If Special Counsel believes that any required insurance
coverage is inadequate, Special Counsel will obtain such additional
insurance coverage, as Special Counsel deems adequate, at Special Counsel's
13.1.1 Commercial General Liability Insurance. $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property
damage. If the submitted policies contain aggregate limits, general
aggregate limits will apply separately to the work under this Agreement or
the general aggregate will be twice the required per occurrence limit.
13.1.2 Automobile Liability. $1,000,000 combined single-limit per accident
for bodily injury and property damage.
13.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation
limits as required by the California Labor Code and Employer's Liability
limits of $1,000,000 per accident for bodily injury. Workers' Compensation
and Employer's Liability insurance will not be required if Special Counsel
has no employees and provides, to Agency's satisfaction, a declaration
13.1.4 Professional Liability. Errors and omissions liability appropriate to
Special Counsel’s profession with limits of not less than $1,000,000 per
13.2 Additional Provisions. Special Counsel will ensure that the policies of
insurance required under this Agreement contain, or are endorsed to contain,
the following provisions:
13.2.1 For Commercial General Liability Insurance and Automobile Liability
Insurance, Agency and City and its and their officers, agents, volunteers
and employees will be named as additional insureds.
13.2.2 Special Counsel will obtain occurrence coverage, excluding
Professional Liability, which will be written as claims-made coverage.
13.2.3 This insurance will be in force during the life of the Agreement and
any extensions of it and will not be canceled without thirty (30) days prior
written notice to Agency sent pursuant to the notice provisions of this
13.3 Providing Certificates of Insurance and Endorsements. Prior to Agency's
execution of this Agreement, Special Counsel will furnish certificates of
insurance and endorsements to Agency.
13.4 Failure to Maintain Coverage. If Special Counsel fails to maintain any
of these insurance coverages, then Agency will have the option to declare
Special Counsel in breach, or may purchase replacement insurance or pay the
premiums that are due on existing policies in order to maintain the required
coverages. Special Counsel is responsible for any payments made by Agency to
obtain or maintain insurance and Agency may collect these payments from
Special Counsel or deduct the amount paid from any sums due Special Counsel
under this Agreement.
13.5 Primary Coverage. For any claims related to the Services and this
Agreement, the Special Counsel’s insurance coverage will be primary
insurance with respect to Agency and City and its and their officers,
agents, volunteers and employees. Any insurance or self-insurance maintained
by Agency and City, for themselves or their officers, agents, volunteers and
employees, will be in excess of Special Counsel’s insurance and not
contributory with it.
13.6 Reduction in Coverage/Material Changes. Special Counsel will notify
Agency thirty (30) days prior to any reduction in any of the insurance
coverage required pursuant to this Agreement or any material changes to the
respective insurance policies.
14. Conflict Waiver. Actual or possible conflict sometimes arises between
existing or potential clients. Special Counsel may be required to ask for a
conflict waiver in that event. Special Counsel asks for Agency’s
understanding and cooperation if Special Counsel requests a conflict waiver
in order to undertake or continue representation of another client in manner
that will not be specifically detrimental or adverse to Agency.
15. Maintenance of Records. Special Counsel will maintain complete and
accurate records with respect to costs incurred under this Agreement. All
such records will be clearly identifiable. Special Counsel will allow a
representative of Agency during normal business hours to examine, audit, and
make transcripts or copies of such records and any other such documents
created pursuant to this Agreement. Special Counsel will allow inspection of
all work, data, documents, proceedings, and activities related to the
Agreement for a period of three (3) years from the date of final payment
under this Agreement.
16. Ownership of Documents. All work product produced by Special Counsel or
its agents, employees, and subcontractors pursuant to this Agreement is the
property of Agency. Special Counsel will provide Agency with the final
version of all briefs, filings, legal memos and work product produced by
Special Counsel within a reasonable time, not to exceed ten (10) days, after
the work product is made final. In the event this Agreement is terminated,
all work product produced by Special Counsel or its agents, employees and
subcontractors pursuant to this Agreement will be delivered to Agency
pursuant to the termination clause of this Agreement. Special Counsel will
have the right to make copies of the work product for Special Counsel’s
17. Copyrights. Special Counsel agrees that all copyrights that arise from
the Services will be vested in Agency and Special Counsel relinquishes all
claims to the copyrights in favor of Agency.
18. Notices. The name of the persons who are authorized to give written
notices or to receive written notice on behalf of Agency and on behalf of
Special Counsel under this Agreement.
Redevelopment Agency of the City of Brentwood
Attn: Damien Brower
150 City Park Way
Brentwood, CA 94513
(925) 516-5440 For Special Counsel:
McDonough Holland and Allen PC
Attn: Brent Hawkins
555 Capitol Mall, 9th Floor
Sacramento, CA 95814-4692
Except as otherwise stated, all notices to be provided or that may be
provided under this Agreement must be in writing and delivered by regular or
certified mail. Each party will notify the other immediately of any changes
of address that would require any notice or delivery to be directed to
19. Conflict of Interest. Agency will evaluate Special Counsel’s duties
pursuant to this Agreement to determine whether disclosure under the
Political Reform Act and Agency’s Conflict of Interest Code is required of
Special Counsel or any of Special Counsel’s employees, agents, or
subcontractors. Should it be determined that disclosure is required, Special
Counsel or Special Counsel’s affected employees, agents, or subcontractors
will complete and file with the Secretary those schedules specified by
Agency and contained in the Statement of Economic Interests Form 700.
Special Counsel warrants that it has no financial interest in the subject
matter of this Agreement, other than the compensation to be provided for the
Services. Special Counsel further warrants that it will comply with all
California State Bar Rules of Professional Conduct, including those relating
to interests adverse to a client (Rule 3-300) and representing adverse
interests (Rule 3-310).
20. General Compliance with Laws. Special Counsel will keep fully informed
of federal, state and local laws and ordinances and regulations which in any
manner affect those employed by Special Counsel, or in any way affect the
performance of the Services by Special Counsel. Special Counsel will at all
times observe and comply with these laws, ordinances, and regulations and
will be responsible for the compliance of the Services with all applicable
laws, ordinances and regulations.
21. Discrimination and Harassment Prohibited. Special Counsel will comply
with all applicable local, state and federal laws and regulations
prohibiting discrimination and harassment.
22. Termination of Services. Agency may terminate Services at any time by
written notice. After receiving such notice, Special Counsel will cease
providing the Services. Special Counsel will cooperate with Agency in the
orderly transfer of all related files and records to Agency’s new counsel.
Special Counsel may terminate the Services at any time with Agency’s consent
or for good cause. Good cause exists if (a) any statement is not paid within
sixty (60) days of its date; (b) Agency fails to meet any other obligation
under this Agreement and continue in that failure for fifteen (15) days
after Special Counsel send written notice to Agency; (c) Agency has
misrepresented or failed to disclose material facts to Special Counsel,
refused to cooperate with Special Counsel, refused to follow Special
Counsel’s advice on a material mater, or otherwise made Special Counsel’s
representation unreasonably difficult; or (d) any other circumstance exists
in which ethical rules of the legal profession mandate or permit
termination, including situations where a conflict of interest arises. If
Special Counsel terminates the Services, Agency agrees to execute a
substitution of attorneys promptly and otherwise cooperate in effecting that
Termination of the Services, whether by Agency or by Special Counsel, will
not relieve the obligation to pay for the Services rendered and costs
incurred before the Services formally ceased.
23. Covenants Against Contingent Fees. Special Counsel warrants that Special
Counsel has not employed or retained any company or person, other than a
bona fide employee working for Special Counsel, to solicit or secure this
Agreement, and that Special Counsel has not paid or agreed to pay any
company or person, other than a bona fide employee, any fee, commission,
percentage, brokerage fee, gift, or any other consideration contingent upon,
or resulting from, the award or making of this Agreement. For breach or
violation of this warranty, Agency will have the right to annul this
Agreement without liability, or, in its discretion, to deduct from the
Agreement price or consideration, or otherwise recover, the full amount of
the fee, commission, percentage, brokerage fees, gift, or contingent fee.
24. Claims and Lawsuits. By signing this Agreement, Special Counsel agrees
that any Agreement claim submitted to Agency must be asserted as part of the
Agreement process as set forth in this Agreement and not in anticipation of
litigation or in conjunction with litigation. Special Counsel acknowledges
that if a false claim is submitted to Agency by Special Counsel, it may be
considered fraud and Special Counsel may be subject to criminal prosecution.
Special Counsel acknowledges that California Government Code sections 12650
et seq., the False Claims Act applies to this Agreement and, provides for
civil penalties where a person knowingly submits a false claim to a public
entity. These provisions include false claims made with deliberate ignorance
of the false information or in reckless disregard of the truth or falsity of
information. If Agency seeks to recover penalties pursuant to the False
Claims Act, it is entitled to seek to recover its litigation costs,
including attorney's fees. Special Counsel acknowledges that the filing of a
false claim may subject Special Counsel to an administrative debarment
proceeding as the result of which Special Counsel may be prevented to act as
a Special Counsel on any public work or improvement for a period of up to
five (5) years.
25. Jurisdiction and Venue. Any action at law or in equity brought by either
of the Parties for the purpose of enforcing a right or rights provided for
by this Agreement will be tried in a court of competent jurisdiction in the
County of Contra Costa, State of California, and the Parties waive all
provisions of law providing for a change of venue in these proceedings to
any other county.
26. Successors and Assigns. It is mutually understood and agreed that this
Agreement will be binding upon the Parties and their respective successors.
Neither this Agreement nor any part of it nor any monies due or to become
due under it may be assigned by Special Counsel without the prior consent of
27. Paragraph Headings. Paragraph headings as used herein are for
convenience only and will not be deemed to be a part of such paragraphs and
will not be construed to change the meaning thereof.
28. Entire Agreement. This Agreement embodies the entire Agreement and
understanding between the Parties relating to the subject matter of it. As
of its effective date it will replace in its entirety the Agreement dated
June 27, 2006. In case of conflict, the terms of the Agreement supersede any
and all prior written or oral agreement, order or understanding. Neither
this Agreement nor any of its provisions may be amended, modified, waived or
discharged except in writing signed by both Parties.
29. Authority. The individual executing this Agreement and the instruments
referenced in it on behalf of Special Counsel represents and warrants that
he has the legal power, right and actual authority to bind Special Counsel
to the terms and conditions of this Agreement.
MCDONOUGH HOLLAND AND ALLEN PC
Jeffry R. Jones, Esq.
REDEVELOPMENT AGENCY OF THE CITY OF BRENTWOOD, a public body, corporate and
Damien B. Brower, Agency Counsel
Margaret Wimberly, Agency Secretary
APPROVED AS TO FORM:
Damien B. Brower, Agency Counsel
[to be inserted]