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HomeMy WebLinkAbout2007/08/14 Item 1 ~If?- C1TYOF '1l (HUlA VISTA AUGUST 14,2007, ItemL ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO THE RETENTION AGREEMENT FOR LEGAL SERVICES WITH FOX & SOHAGI LLP AND AUTHORIZING PAYMENT OF $9,262.40 FOR LEGAL SERVICES CITY A TTORNEYt2o-c CITY ATTORNEY ~ SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES D NO 0 BACKGROUND On October 28, 2004, the City of Chula Vista entered into a Retention Agreement for Legal Services with the law firm of Fox & Sohagi, LLP [Attorney], for legal services in connection with the Environmental Impact Report [ErR] for the General Plan Update [Agreement]. (Exh. B.) This action approves the Second Amendment to the Retention Agreement for Legal Services between the City of Chula Vista and Fox & Sohagi, LLP [Second Amendment] and authorizes payment of $9,262.40 that is due to Fox & Sohagi, LLP. (Exh. A.) ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act [CEQA] and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it involves only approval of a contract amendment for legal services; therefore, pursuant to Section l5060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION That Council approve the Resolution approving the Second Amendment to the Agreement with Fox & Sohagi, LLP and authorizing payment of $9,262.40 to Fox & Sohagi, LLP for legal work performed on the ErR for the General Plan Update. 1-1 AUGUST 14, 2007, Item~ Page 2 of2 BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION On October 28, 2004, the City of Chula Vista entered into a Retention Agreement with Fox & Sohagi, LLP, for legal services in connection with the EIR for the General Plan Update. The compensation for the Agreement was for an initial amount of $40,000, and was signed by the Purchasing Agent. During the formal public review and comment period for the Draft EIR, City staff received substantially more comments than was originally anticipated. As a result, staffrequired additional services from the Attorney to provide input on those comments and assist in the preparation of the Final EIR. The Attorney estimated that the additional work would cost approximately $71,685. The City Council approved a First Amendment to Retention Agreement [First Amendment], pursuant to Resolution 2005-216, on June 28, 2005. (Exh. C.) The First Amendment authorized an estimated additional amount of $71,685. At the conclusion of the project, Attorney billed the City a total of $127,901. The City has paid $118,639 to Attorney, leaving $9,262.40 outstanding. (Exh. D.) DECISION-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific so, consequently, the 500-foot rule found in California Code of Regulations section I 8704.2(a)(l ) is not applicable to this decision. FISCAL IMPACT No appropriation is required at this time because there are sufficient funds available in the Fiscal Year 2007/2008 General Fund. ATTACHMENTS Exhibit A: Proposed Second Amendment to the Retention Agreement for Legal Services between the City of Chula Vista and Fox & Sohagi, LLP Exhibit B: Retention Agreement for Legal Services dated October 28,2004 Exhibit C: First Amendment to the Retention Agreement for Legal Services (Draft) Exhibit D: Invoice from Fox & Sohagi, LLP, for $9,262.40, dated November 30, 2005 Prepared by: Elisa A. Cusato, Deputy City Attorney, Attorney's Office 1-2 RESOLUTION NO. 2007- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SECOND AMENDMENT TO THE RETENTION AGREEMENT FOR LEGAL SERVICES WITH FOX & SOHAGI, LLP AND AUTHORIZING PAYMENT OF $9,262.40 TO FOX & SOHAGI, LLP FOR LEGAL SERVICES WHEREAS, on October 28, 2004, the City of Chula Vista entered into a Retention Agreement for Legal Services with the law firm of Fox & Sohagi, LLP, for legal services in connection with the Environmental Impact Report [EIR] for the General Plan Update for a contract amount not to exceed $40,000 [Agreement]; and, WHEREAS, the City Council approved a First Amendment to the Agreement [First Amendment], pursuant to Resolution 2005-216, on June 28, 2005; and, WHEREAS, the First Amendment authorized an additional amount of $71,685, bringing the total compensation for the Agreement to $111,685; and, WHEREAS, Fox & Sohagi performed the work and billed the City for a total of $127,901, which is $16,216 over the total compensation for the Agreement; and, WHEREAS, the City has paid $118,639 to Fox & Sohagi, leaving $9,262.40 outstanding. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Chu1a Vista that it approves the Second Amendment to the Retention Agreement for Legal Services with Fox & Sohagi, LLP. BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista that it authorizes payment of $9,262.40 to Fox & Sohagi, LLP for legal services. Presented by: Approved as to form by: Ann Moore City Attorney "-IL~ t~ ve:~ Ann Moore City Attorney J:\AllomeyIELlSA\RESOS\Reso - Fox & Sohagi Second Amendmenl.do<; 1-3 THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~C<- (j ~ Ann Moore City Attorney Dated: , I / ~ I D '7 Second Amendment to Retention Agreement for Legal Services Between The City of Chula Vista and Fox & Sohagi, LLP 1-4 SECOND AMENDMENT TO RETENTION AGREEMENT FOR LEGAL SERVICES BETWEEN THE CITY OF CHULA VISTA AND FOX & SOHAGI, LLP This SECOND AMENDMENT TO RETENTION AGREEMENT FOR LEGAL SERVICES is entered into this day of August 2007, by and between the City of Chula Vista [CITY] and Fox & Sohagi, a Limited Liability Partnership [A TTORNEYSj. RECITALS The following recitals are a substantive part of this Second Amendment to Retention Agreement for Legal Services: A. CITY and ATTORNEYS entered into a Retention Agreement for Legal Services dated October 28, 2004 for legal services in connection with the Environmental Impact Report [EIR] for the General Plan Update for a contract amount not to exceed' $40,000. B. City Council approved a First Amendment to the Retention Agreement for Legal Services on June 28, 2005, pursuant to Resolution 2005-216, which added $71,685 to the contract amount for a total of$III,685. C. ATTORNEYS billed the CITY for a total of $127,901 for work performed pursuant to the Retention Agreement for Legal Services and the First Amendment to the Retention Agreement for Legal Services, which is $16,216 over the approved contract amount. D. The CITY has paid ATTORNEYS $118, 639, E. ATTORNEYS desire to receive the remaining $9, 262 for work performed. THE PARTIES MUTUALLY AGREE AS FOLLOWS: AGREEMENT Exhibit CI of the Retention Agreement for Legal Services is amended as follows: The Authorization Limit in the Section entitled "Limitation without Further Authorization on Time and Materials Arrangement" is $127,901. All other terms of the Retention Agreement for Legal Services as modified by the First Amendment to the Retention Agreement for Legal Services and this Second Amendment to the Retention Agreement for Legal Services shall remain in full force and effect. EXH.A 1-5 IN WITNESS WHEREOF, the parties have executed this Second Amendment to Retention Agreement for Legal Services on the day and year shown on the first page of this Agreement. CITY OF CHULA VISTA FOX AND SOHAGI, LLP By: By: Cheryl Cox Mayor Margaret Sohagi ATTEST By: Susan Bigelow City Clerk Approved as to Form: By: Ann Y. Moore City Attorney Attachments: Retention Agreement for Legal Services dated 10/28/04 First Amendment to Retention Agreement for Legal Services (Draft) EXH.A 1-6 RETENTION AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT is entered into this of , 2004, by and between the City of Chula Vista, (hereinafter "City") and the law firm of Fox and Sohagi LLP (hereinafter "Attorney"). RECITALS 1. Recitals 1.1 The City is currently processing a General Plan Update which includes, among other things, a Land Use and Transportation Element, an Economic Development Element, a Public Facility and Services Element, a Growth Management Element, and an Environmental Element. In addition, the General Plan Update will include a new land use map as well as a number of additional discretionary actions. The General Plan Update and associated implementing actions are referred to herein as the "Project." 1.2 In compliance with the California Environmental Quality Act [CEQA], the City is preparing a Draft Enviromnental Impact Report to analyze the impacts associated with the proposed Proj ecL 1.3. City does not presently have the "in-house" staff or resources to review the DEIR for compliance with CEQA, the CEQA Guidelines, and the Environmental Review Procedures of the City of Chula Vista within the time frame required for the timely processing of the Project. Attorney possesses unique qualitlcations to provide legal analysis of the adequacy of the Draft Environmental Impact Report for the Project and has gained knowledge and familiarity of the Project based upon past services provided to the City. These factors make the competitive bidding process impractical.i I 1-7 EXH.B 1.4. This Agreement proposes an arrangement by which City shall retain Attorney who shall perform the services required by this Agreement under the direction of the City. AGREEMENT THE PARTIES MUTUALLY AGREE AS FOLLOWS: 2. Term of Agreement. This Agreement shall cover services rendered from the 'above-referenced date of entry of this Agreement until the date of City Council final action on environmental documents, or completion of all tasks to the satisfaction ofthe City Attorney, whichever is later. 3. Services to be Provided bv Attornev to the City. Attorney is hereby engaged by the City, to perform solely at City's direction, all of the services described on the attached Exhibit AI, Paragraph 4, entitled "General Nature of Consulting Services" ("General Services"), all of the services described in Exhibits AI, Paragraph 5, entitled "Detailed Scope of Work", ("Detailed Services"), and all services reasonably necessary to accomplish the General Services and Detailed Scope of Work. Attorney shall deliver documents required under this Agreement ("Deliverables") within the time frames set forth in Exhibits AI, Paragraph 6. If no time frames are set forth, Attorney shall deliver documents within a reasonable period of time for the diligent execution of Attorney's duties. Time is of the essence in the performance of this' covenant. Attorney agrees to perform the General and Detailed Services tor the compensation defined in Section 4 of this Agreement. Attorney shall perform services in a good, professional manner consistent with that level of care and skill ordinarily exercised by members of the EXH.B 2 1-8 profession currently practicing under similar conditions and In similar locations for the compensation provided in this Agreement. 4. Compensation - Attorney shall be compensated as follows: 4.1 Amount. Attorney shall be compensated for services rendered without regard to the conclusions reached according to the terms and conditions set forth in Exhibit Cl. , 4.2 Billing. In addition to the requirements set forth in Exhibit Cl, all charges must be itemized by attorney, showing in detail the work task performed for the billing entry. All charges must be presented in a line item format and in a manner such that each task is separately explained in reasonable detail, and with a specific time allocation recorded, for each task. The invoice shall include the amount, billing rate and basis for calculation of all fees and costs. The City will not accept, and will not be responsible for block or cumulative invoice entries. Attorney shall not charge the City for more than one Attorney's time when appearing at a meeting or for performing any task unless the City has expressly authorize the use of two or more Attorneys for the appearance or task. 5. Non-Service Related Duties of Attornev. 5.1. Insurance. Attorney represents that it and its agents, staff and sub-Attorneys employed by it in connection with the Services required to be rendered, are protected against the risk ofloss by the following insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: 3 1-9 EXH. B 5.1.1. Statutory Worker's Compensation Insurance and Employer's liability Insurance coverage in the amount set forth in the attached Exhibit A1, Paragraph 10. 5.1.2. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A1, Paragraph 10, combined single limit applied separately to each project away from premises owned or rented by Attorney, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats ,the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). 5.1.3. Errors and Omissions insurance;in the amount set forth in Exhibit AI, Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy. 5.2. Proof of Insurance Coverage. 5:2.1. Certificates of Insurance. Attorney shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. 5.2.2. Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Attorney's Commercial General Liability Insurance Policy, Attorney shall deliver a policy endorsement to the City. 5.3. Public Statements. 4 1-10 EXH.B All public statements and releases to the news media shall be the responsibility of the City. Attorney shall not publish or release news items, articles or present lectures on the Project, either during the course of the study or after its completion, except on written concurrence of the . City. 5.4 Administrative Representatives. Each party designates the individuals ("Administrators") indicated III Exhibit AI, Paragraph 8, as its contract administrator who is authorized to represent them in the routine administration of this Agreement. 6. Conflicts of Interest. 6.1. Attornev is Designated as an FPPC Filer. If Attorney is designated on Exhibits Al and A2, Paragraph 9, as an "FPPC filer", Attorney is deemed to be a "Consultant" for the pUIJloses of the Political Reform Act conflict of interest and disclosure provisions, and shall report his economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified III Paragraph 9 of Exhibit AI, or ifnone are specified, then as determined by the City Attorney. 6.2. Decline to Participate. Regardless of whether Attorney is designated as an FPPC Filer, Attorney shall not make, or participate in making or in any way attempt to use Attorney's position to influence a governmental decision in which Attorney knows or has reason to know Attorney has a financial interest other than the compensation promised by this Agreement. 6.3. Search to Determine Economic Interests. 5 1-11 EXH.B Regardless of whether, Attorney is designated as an FPPC Filer, Attorney warrants and represents that Attorney has diligently conducted a search and inventory of Attorney's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Attorney does not, to the best of Attorney's knowledge, have an economic interest which would conflict with Attorney's duties under this agreement. 6.4. Promise Not to Acquire Conflicting Interests. Regardless of whether Attorney is designated as an FPPC Filer, Attorney further warrants and represents that Attorney will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the. Fair Political Practices Act. Regardless of whether Attorney is designated as an FPPC Filer, Attorney further warrants and represents that Attorney will immediately advise the City Attorney of City if Attorney learns of an economic interest which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. 6.5. Specific Warranties Against Economic Interests. Attorney warrants and represents that neither Attorney, nor Attorney's immediate family members, nor Attorney's employees or agents ("Attorney Associates") presently have any interest, directly or indirectly, whatsoever in the property which is the subject matter of the Project, or in any property within 10 radial miles from the exterior boundaries of the property which is the subject matter of the Project, or ("Prohibited Interest"). Attomey further warrants and represents that no promIse of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Attorney or EXH.B 6 1-12 Attorney Associates by Applicants or by any other party as a result of Attorney's performance of this Agreement. Attorney promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Attorney agrees that Attorney Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement. 7. Default of the Attornev for Breach. This Agreement may be terminated by the City for default if the Attorney breaches this Agreement or if the Attorney refuses or fails to pursue the work under this Agreement or any phase of the work with such diligence which would assure its completion within a reasonable period of time. Termination of this Agreement because of a default of the Attorney shall not relieve the Attorney from liability of such default. 8. Citv's Right to Terminate Payment for Convenience. Documents. 8.1. Notwithstanding any other section or provision of this Agreement, the City shall have the absolute right at any time to terminate this Agreement or any work to be performed pursuant to this Agreement. 8.2. In the event of termination of this Agreement by the City in the absence of default of'the Attorney, and subject to section 4.1 of this Agreement, the City shall pay the Attorney for the reasonable value of the services actually performed by the Attorney up to the date of such termination, less the aggregate of all sums previously paid to the Attorney for services performed after execution of this Agreement and prior to its termination. 7 1-13 EXH. B 8.3. The Attorney ,hereby expressly WaIves any and aU claims for damage or compensation arising under this Agreement, except as set forth herein, in the event of such termination. 8.4. In the event of termination of this Agreement, and upon demand of the City, the Attorney shall deliver to the City, all field notes, surveys, studies, reports, plans, drawings and all other materials and documents prepared by the Attorney in performance of this Agreement, and all such documents and materials shall be the property of the, City, provided however, that the Attorney may retain copies for their own use. 9. Administrative Claims Requirement and Procedures. No suit shall be brought arising out of this Agreement, against the City, unless a claim has first been presented in writing and filed with the City of Chula Vista and acted upon by the City of Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, the provisions of which are incorporated by this reference as if set fuUy set forth herein. 10. Hold Harmless and Indemnification. 10.1. Attornev to Indemnify Citv and Applicant re Iniuries. Attorney shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against aU claims for damages, liability, cost and expense (including without limitation attorneys fees) arising out of or alleged by third parties to be the result of the negligent acts, errors or omissions or the willful misconduct of the Attorney, and Attorney's employees, subcontractors or other persons, agencies or firms for whom Attorney 8 1-14 EXH. B is legally responsible in connection with the execution of the work covered by this Agreement, except only for (i) those claims, damages, liability, costs and expenses (including without limitation, attorney fees) arising from the sole negligence or sole willful misconduct of the City. its officers, employees, or (ii) with respect to losses arising from Attorney's professional errors or omissions, those claims arising from the negligence or willful misconduct of City its officers or employees. Attorney's indemnification shall include any and all costs, exp~ses, attorneys' fees and liability incurred by the City, its officers, agents or employees in defending against such claims, whether the same proceed to judgment or not. Attorney's obligations under this Section shall survive the termination of this Agreement. II. Miscellaneous. 11.1. Attomev Not Authorized to Represent Citv. Unless specifically authorized in writing by City, Attorney shall not have authority to act as City's agent to bind City to any contractual agreements whatsoever. 11.2. Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United , States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified for the parties in Exhibits A 1 and A2. 11.3. Entitlement to Subsequent Notices. 9 1-15 EXH. B No notice to or demand on the parties for notice of an event not herein legally required to be given shall in itself create the right in the parties to any other or further notice or demand in the same, similar or other circumstances. 11.4. Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties. This Agreement supersedes any previous Agreements, oral or written. 11.5. Capacity of Parties. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement; that all resolutions or other actions have been taken so as to enable.it to enter into this Agreement. 11.6. Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 11. 7. Modification. This Agreement may not be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. 10 1-16 EXH.B 11. 8. Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original but all of which, when taken together shall constitute but one instrument. 11.9. Severabilitv. In the event that any provision of this Agreement shall for any reason, be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements to this Agreement or such other appropriate action as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein. 11.1 O. Headings. The captions and headings in this Agreement are for convenience only and shall not defme or limit the provisions hereof. 11.11. Waiver. No course of dealing or failure or delay, nor the single failure or delay, or the partial exercise of any right, power or privilege, on the part of the parties shall operate as a waiver of any rights herein contained. The making or the acceptance of a payment by either party with knowledge of the existence of a breach shall not operate or be construed to operate as a waiver of any such breach. 11 1-17 EXH. B , 11.12. Remedies. The rights, of the parties under this Agreement are cumulative and not exclusive of any rights or remedies which the parties might otherwise have unless this Agreement provides to the contrary. 11.13. No Additional Beneficiaries. Despite the fact that the required performance under this Agreement may have an affect upon persons not parties hereto, the parties specifically intend no benefit therefrom, and agree that no performance hereunder may be enforced by any person not a party to this Agreement. 11.14. Compliance with Law. Attorney shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments. In addition, Attorney agrees to abide by all ethical and moral standards established in the Rules of Professional Conduct as applied to the California State Bar. 11.15 Limitations Upon Assignment/Subcontracting. Attorney agrees that no portion of its performance or services rendered under this Agreement shall be assigned by Attorney or subcontracted to any other without prior written authorization and approval of the City. 11.16 Non-Discrimination. Attorney covenants there shall be no discrimination based upon race, color, creed, religion, sex, marital status, age, handicap, national origin, or ancestry, in any activity pursuant to this Agreement. 12 1-18 EXH.B 11.17 Governing Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of California. Venue for any action commenced regarding this Agreement shall be in the City ofChula Vista. 11.18. Interoretation. This Agreement shall be interpreted as though prepared by both parties. 11.19. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the City and Attorney survive the termination of this AgreemenL 12. Ownership. Publication. Reproduction and Use of Materia! All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Attorney in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. (End of Page. Next Page is Signature Page.) 13 EXH.B 1-19 Signature Page To Two-Party Agreement Between City of Chula Vista, and Fox and Sohagi, LLP, For Attorney Services to be Rendered with Regard to the General Plan Update NOW THEREFORE, the parties hereto, having read and understood the terms and conditions of this agreement, do hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto. Dated: City ofChula Vista By: Attest ~ O-L.1~'-O C Susan Bigelow, City Clerk ApJ?foved as to Form: ,II 0 . II-.", l Moore, City Attorney Dated: \ q2.;() \ \)'1 Attorney: Fox and Sohagi I LL.,o By: L~(AL4J / Margaret Sohagi 14 EXH.B 1-20 Exhibit Al Reference Date of Agreement: Effective Date of Agreement Effective Date of Agreement: Date of the Purchasing Agent's Signature CitY: City ofChula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Attorney: Fox and Sohogi Business Form of Attorney: ( ) Sole Proprietorship (X) Partnership ( ) Corporation Fox & Sohagi, LLP 10960 Wilshire Blvd., Suite 1270 Los Angeles, California 90024 (310) 444-7805 Phone (310) 444-7813 Fax 15 1-21 EXH.B 1. Property (Commonly known address or General Description): The prop~x subject to the General Plan Update includes those lands within the jurisdictional boundaries of the City of Chula Vista, property subject to the City's Sphere of Influence, and additional property outside the City limits. These areas are more particularly described in Figures 2-1 and 2-2 of the DEIR. 2. Project Description ("Project"): The General Plan Update generally includes a Land Use and Transportation Element, an Economic Development Element, a Public Facility and Services Element, a Growth Management Element, and an Environmental Element. In addition, the General Plan Update will include a new land use map as well as a number of additional discretionary actions more particularly described in the DEIR. 3. Entitlements applied for: N/A 4. General Nature of Attorney Services ("Services--General"): Attorney shall provide general legal services pertaining to compliance with the California Environmental Quality Act (CEQA). 5. Detailed Scope of Work ("Detailed Services"): Attorney shall be available to conduct all tasks related to the preparation, publication and certification of the EIR for the subject project (described in section 2 above), including but not limited to: . Be available for and respond to City staffs questions; . Review and comment on the screencheck draft EIRs; . Review and comment on the final draft EIR prior to release for public review; 16 EXH.B 1-22 . Review public comments received during public review and provide suggestions for responses; Review responses to comments; Review Findings and Statement of Overriding Considerations; and Attend public hearings, if requested by City Attorney. . . . 6. Schedule, Milestone, Time-Limitations within which to Perform Services. Date for Commencement of Attorney Services: (X) Same as Effective'Date of Agreement Dates or Time Limits for Delivery of Deliver abies: N/A Dates for Completion of all Attorney Services: Date of City Council final action on environmental documents, or completion of all tasks to the satisfaction of the City Attorney, whichever is later. 7. Documents to be provided by Applicant to Attorney: ( ) site plans () grading plans ( ) architectural elevations ( ) project description. (X) other: Screencheck Drafts of EIR, Technical Appendices, comment letters received during public review, draft responses to public comments, draft Findings and Statement of Overriding Considerations, Final EIR. 8. Contract Administrators. City: Marilyn R.F. Ponseggi, Environmental Review Coordinator Attorney: Margaret Sohagi, Attorney, Fox and Sohagi, LLP 9. Statement of Economic Interests, Attorney Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. ( ) Category No. I. Investments and sources of income. ( ) Category NO.2. Interests in real property. ( ) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. 17 1-23 EXH. B ( ) Category No.4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale 'of real property. ( ) Category No.5. Investments in business entities 'and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No.6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ' ( ) Category No.7. Business positions. 10. Insurance Requirements: ex) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,dOO,OOO. (X) Automobile Liability Insurance: $1,000,000 () Errors and Omissions insurance: None Required (included III Commercial General Liability coverage). 18 1-24 EXH.B (X) Errors and Omissions insurance: $500,000 each occurrence, $1,000,000 policy aggregate. 11. Permitted SubAttorneys: N/A 19 1-25 EXH.B Exhibit CI Compensation Schedule and Deposit: Terms and Conditions. ( ) Single Fixed Fee Arrangement. F or performance of all of the General and Detailed Services of Attorney as herein required, Applicant shall pay a single fixed fee in the amounts and at the times or milestones set forth below: ( ) Single Fixed Fee Amount: $ ( ) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the General and Detailed Services of Attorney as are separately identified in Exhibit Cl, under the category labeled "Phased Fixed Fee Arrangement", Applicant shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones set forth hereinbelow ("Phase Fixed Fee Arrangement"). Attorney shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless Applicant shall have issued a notice to proceed to Attorney as to said Phase. 20 1-26 EXH. B (X) Time and Materials For performance of the General and Detailed Services of 'Attorney as herein required, Applicant shall pay Attorney for the productive hours of time and material spent by Attorney in . the performance of said Services, at the rates or amounts set forth hereinbelow according to the following terms and conditions: () Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Attorney of time and materials in excess of said Maximum Compensation amount, Attorney agrees that Attorney will perform all of the General and Detailed Services herein required of Attorney for including all Materials and other "reimbursab1es" ("Maximum Compensation"). The City will.also receive a standard administrative fee amounting to 10% of the contract. (X ) Limitation without Further Authorization on Time and Materials Arrangement At such time as Attorney shall have incurred time and materials equal to $40,000 ("Authorization Limit"), Attorney shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Attorney from providing additional Services at Attorney's own cost and expense. Rate Schedule Category ofEmplovee Name Hourly Rate Margaret Sohagi Attorney $295 *Other individuals from the Attorney firm may be substituted in place of the names listed solely at the discretion of the City Attorney. The billing rate for other attorneys and paralegals at Fox and Sohagi is as follows: Deborah J. Fox $295 Helene V. Srnookler 295 Philip A. Seymour 275 Dawn A. McIntosh 275 Theresa E. Fuentes 250 Margaret W. Rosequist 225 Law Clerk 140 Paralegals 120 21 EXH.B 1-27 () Attorney's hourly rates may increase by 6% for services rendered after Materials Separatelv Paid For bv Applicant ( ) Materials Reports Copies ( ) Travel ( ) Printing ( ) Postage ( ) Delivery ( ) Long Distance Telephone Charges ( ) Other Actual Identifiable Direct Costs o Other Cost or Rate None. Included in Cost. None. Included in Cost. None. Included in Cost. None. Included in Cost. None. Included in Cost. None. Included in Cost. None. Included in Cost. Deposit () Deposit Amount: N/A () Use of Deposit to Pay Attorney. N/A () Use of Deposit as Security Only. N/A ---------------------------------- (X) Bill Processing: A. Attorney's Billing to be submitted for the following period of time: ( X ) Monthly ( ) Quarter! y ( ) Other: In accordance with milestones identified herein. B. Day of the Period for submission of Attorney's Billing: (X ) First of the Month ( ) 15th Day of each Month ( ) End of the Month ( ) Other: Upon completion of the milestones identified herein. 22 EXH.B 1-28 C. City's Account Number: To be assigned after agreement is processed. D. Security for Performance ( ) Performance Bond, $ ( ) Letter of Credit, $ ( ) Other Security: Type: Amount $ ( )Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation t<;, the Attorney sooner, the City shall be entitled to retain, at their option, the following Retention Percentage until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: _ ( ) Retention Amount: $ Retention Release Event ( )Completion of All Attorney Services to the satisfaction of the City's Environmental Review Coordinator ( ) Other: 23 EXH.B 1-29 DRAFT FIRST AMENDMENT TO RETENTION AGREEMENT FOR LEGAL SERVICES TIllS AGREEMENT is entered into this of . 2005, by and between the City of Chula Vista, (hereinafter "City") and the law firm of Fox and Sohagi LLP (hereinafter "Att=ey"). RECITALS 1. Recitals 1.1 The City is ctmently processing a General Plan Update which includes, among other things, a Land Use and TranSportation Element, an Economic Development Element, a Public Facility and Services Element, a Growth Management Element, and an Environmental Element. In addition, the General Plan Update will include a new land use map as well as a number of additional discretionary actions. The General Plan Update and associated implementing actions are refeII'ed to herein as the "Project." 1.2 In compliance with the California Environmental Quality Act [CEQA], the City is preparing a Draft Environmental Impact Report to analyze the impacts associated with the proposed Project. 1.3. City does not presently have the "in-house" staff or resources to rMew the DEIR for compliance with CEQA, the CEQA Guidelines, and the Environmental RMew Procedures of the City of Chula Vista witbiil the time frame required for the timely processing of the Pioject. Attorney possesses unique qualifications to provide legal analysis of the adequacy of the Draft Environmental Impact Report for the Project and has gained knowledge and f.miliar\ty of the Project ba:;:ed 'lpcn p<lSt services provided to the City. These factors make the competitive bidding process impractical. I 1t~80 EXH.C DRAFT 1.4. In October 2004, the City and Attorney entered into a Retention Agreement For Legal Senices ("Original Agreement") to provide legal services regarding the preparation of an EIR for the Project. During the review of the Project, numerous issues have arisen reqciring additional legal services not aUthorized in the Original Agreement. AGREEMENT THE PARTIES MUTUALLY AGREE AS FOLLOWS: 2.0 Comllensation - Attorney sball be compensated as follows: 2.1 Amount. Attopu:y shall be compensated for services rendered without regard to the conclusions reached according to the terms and conditions set forth in Exhibit C2. 2.2 Billing. In addition to the requirements set forth in Exhibit C2, all charges must be itemized by attorney, showing in detail the work task performed for the billing entry. All charges must be presented in a line item format and in a maDIler such that each task is separately explained in reasonable detail, and with a specific time allocation recorded, for each task. The invoice shall include the amo~t, billing rate and basis for calculation of all fees and costs. The City will not accept, and will not be responsible for block or cumulative invoice entries. Attorney shall not charge the City for more than oue Attorney's time when appearing at a meeting or for performing any task unless the City has expressly authorize the use of two Or more Attorneys for the appearance or task. 3.0 All other terms and conditions of the original Agreement sball remain in full force and effect. (End of Page. Next Page is Signature Page.) 2 1-37-31 EXH.C DRAFT Signature Page To Two-Party Agreement Between City of Chula Vista., and Fox and Sohagi, LLP, For Attorney Services to be Rendered with Regard to the General Plan Update NOW TIIEREFORE, the parties heretc, having read and understood the telms and conditions of this agreement, do hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto. Dated: City of Chula Vista By: Steve Padilla, Mayor Attest: Susan Bigelow, City Clerk Approved as to Form: Ann Moore, City Attorney Dated: Attomey: Fox and Sohagi BY:~~~ Margaret Sohagi 3 1+9'12 EXH. C "" i;; LAW OFFICES FIO NO. 95-4594181 FOX & SOHAGI, LLP A REGISTERED LIMITED LIABILITY PARTNERB~IP SUITE 1270 10960 WILSHIRE BOULEY ARD LOS ANGEp,~I~~0024-3702 (310)444-1813 TELEPHONE (310) 444-7805 STATEMENT OF ACCOUNT WITH: AnnY. Moore, City Attorney 276 Fourth Avenue Chula Vista CA 91910 Page 1 November 30, 2005 General Plan Update EIR Our Account No: 70321.002 Invoice No: 6914 Professional Services HrslRate Amount 11/10/2005 MMS Review and finalize findings. 0.90 265.50 295.00/hr MMS Conference with H. Smookler re same. 0.30 88.50 295.00/hr HVS Conference with M. Sohagi re same. 0.30 88.50 295.00/hr 11/11/2005 NGH Research findings. 0.20 28.00 140.00/hr HVS Review and revise response to comments and findings. 1.80 531.00 295.00/hr 11/14/2005 NGH Research for findings. 0.40 56.00 140.66ihr NGH Review general plan update (Chapters I - VII). 0.50 70.00 140.00/hr NGH Review general plan update (land use). 1.20 168.00 140.00/hr HVS Draft EI Dorado case summary. 0.30 88.50 295.00/hr 11/15/2005 NGH Research fmdings. 0.80 112.00 140.00/hr NGH Review adequacy of findings. 1.90 266.00 . 140.00/hr MMS Review proposed findings. 0.80 236.00 295.00/hr 1-33 EXH,D General Plan Update EIR Page 3 Our Account No: 70321.002 Statement. 6914 Ann Y. Moore, City Attorney HrslRate Amount 11/21/2005 HVS Telephone conference with John Mullen re preferred Plan v. Alternatives Statement of Findings. 0.20 59.00 295.001hr For Current Services Rendered Expenses 36.90 $9,041.00 11/30/2005 Photocopying 221.40 Total Expenses $221.40 Total Amount of this Bill $9,262.40 Balance Due $9,262.40 Professional Summary Name Helene V. Smookler Margaret M. Sohagi Nicole G. Hoeksma Hours 11.00 14.00 11.90 Rate 295.00 295.00 140.00 Amount $3,245.00 $4,130.00 $1,666.00 1-34 EXH.D