16-0621_BEST BEST & KRIEGER_Agenda Report_F12TO
FROM
PREPARED BY
DATE
SUBJECT:
612112016
F12
City of San Juan Capistrano
Agenda Report
Honorable Mayor and Members of the City Council
ffi^Siegel, City Manager
Jacob Green, Assistant City Manager
June 21,2016
Consideration of an Amendment to the Agreement for Legal
Services (Best Best & Krieger LLP)
RECOMMENDATION
By motion, approve Amendment No. 1 to the Agreement for Legal Services with Best
Best & Krieger LLP, and authorize the City Manager to execute the Amendment.
DISCUSSION/ANALYSIS:
On April 21, 2015, the City Council approved an agreement with Best Best & Krieger
LLP (BBK), for general and special legal services (including litigation,
labor/employment, environmental work, and Successor Agency work) and lobbying
services. The City Council approved this agreement following a competitive Request for
Proposal process and a review of eighteen (18) law firm responses.
The Agreement requires that the City and BBK monitor the legal services provided and
that the parties consider adjustments to the billing amount on an annual basis during the
Client's normal budget cycle. As a result of the most recent review and an examination
of comparable models, staff recommends amending the existing annual flat fee
arrangement of $35,000 per month, and adopting a fixed retainer of $10,000 per month
for up to 55 hours of basic legal service in a given month, plus an hourly billing structure
included in the revised Exhibit "8" and as follows:
Tvpe of Legal Service Attorney Provided Paralegal Provided
General Counsel $255/hr $130/hr
Special Counsel $31O/hr $145lhr
City Council Agenda Report
June 21,2016
Page 2 of 3
Special counsel rates do not include "Reimbursable" or financing work, which is paid by
applicants and out of financing proceeds, respectively. The proposed rates are
comparable to those charged by similarly-sized municipal law firms.
Other recommended contract modifications are as follows
1. CEQA updates and Public Policy and Ethics Training shall be included in the
retainer at no additional cost to the City.
2. With the written approval of the City Manager, BBK may employ additional or
different billing personnel to provide for non-lawyer expertise to assist with
project guidance.
3. Effective July 1 , 2017, the U.S. Department of Labor - All Urban Consumers
lndex Los Angeles-Riverside-Orange County area shall be utilized to implement
rate increases, not lower than zero percent (0%), with a cap of four percent (4%).
However, the Agreement may be terminated by either party prior to July 1 ,2017
upon a thirty (30) days advance written notice.
FISCAL IMPACT
The potential total increase or decrease in cost will vary depending on the number of
cases managed by BBK, the amount of specialized legal work required, and the
apportionment of work between attorneys, paralegals, and other billing personnel.
ENVIRONMENTAL REVIEW:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061(bX3), the general rule that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. An amendment of a Professional Services Agreement for legal
services would not be an activity with potential to cause significant effect on the
environment and therefore is exempt from CEQA. A Notice of Exemption (NOE) will be
posted should the project receive final approval.
PRIOR CITY COUNCIL REVIEW:
On February 3, 2015, the City Council directed the City Manager to release a
Request for Proposal for City Attorney Services.
On April 21, 2015, the City Council approved an Agreement for Legal Services
with Best Best & Krieger LLP.
COM M I SS ¡ON/COM M ITTEE/BOARD REVI EW AN D RECOM M EN DATI ONS:
a
a
Not applicable
City Council Agenda Report
June 21,2016
Paqe 3 of 3
NOTIFICATION
Best Best & Krieger LLP
ATTACHMENT(S):
Attachment 1 - Agreement for Legal Services
Attachment2 - First Amendment to Agreement for Legal Services
AGIIEË,MÐNT FOR LEGAT, SERVICES
BETWEEN
CITY OF SAN JUAN CAPISTRANO,
SAN JUAN CAPISTRÂNO HOUSING AUTTIORITY, AND
SUCCESSOR AGENCY TO TFIE SAN JUAN C,{PISTRANO COMMUNITY
RIiDTVELOPMENT AGENCY
AND
BEST BEST & KRIEGER LLP
l. PnRrrns aNp Daru.
'Ihis Agreement is made and entered into as of the 21st day of April, 2015, by and
berween rhe cITY oF sAN JIJAN CAPISTRANO ("Ciry"), rhe SAN JUAN CAPISTRANO
HOUSING AUTI{ORITY ("Housing Aurhoriry"), rhe SUCCESSOR AGENCY TO TI{E SAN
JUAN CAPISTRANO COMMIJNITY REDEVEL,OPMENT AGENCY ("Successor Agency")
(collectivelyo "Client") and BEST BEST & KRIEGER L[,P, a limited liability partnership
engaged in the practice of law ("BB&K").
2. RscrlaLs.
2.1 Client wishes to engage the sen'ices of BB&K as its legal counsel to perforrn all
necessary iegal services for the Client on the terms set forth below.
2.2 For purposes of this Agreemeut, as appropriate, the termooClient" shall inclucle the
City, the comilunity's Successor Agency, Housing Authority, and any other affiliated entities,
the term "City Attorney" shall include "L,egal Counsel" to the Successor Agenoy, Flousing
Authority, and any other afTiliated entities, ancl the term "City Council" shall include the
goveming boards of the Successor Agency, Housing Authority, and any other affiliated entitics.
3. TERMS.
3,1 ferm. 'l'he term of this Agreement shall commence on May 1,2015 and shall
corrtinue in full force and eltect until terminated in accordance with Section3.l2.
3.2 Scope qf Services. BB&K shall serve as City Attorney and shall perfbrm legal
services ("Services") as may be required fiom time to time by the Client as set forth by this
Agreernent, including those legal sçrviçes set forth in Exhibit "A", attached hereto and
incorporated by reference herein, unless otherwise agreed to by the Client and BB&K.
3,3 Desiqnated "Çity- .Att_qnrey. Jeffrey S. Ballinger shall be designated as City
Attorney and shall attend all Ciry Council meetings (unless excused), and shall be responsible for
the performance of all Services under this Agreement, including the supervision of Services
perlbrmed by other members of BB&K. Elizabeth Hull shall be designated as Assistant City
Attomey, and shall attend such meetings as may be requested by the City Attorney, No change
in these assignments shall be made without the consent of the Client.
099s9.00000,97 I 4 l 88.2 ATTACHMENT I
3.4 Time_gl,Bg¡lblrqê!99. The Services of BB&K shall be perlirrmed expeditiously
in thc time liames and as directed by the Client.
3.5 AçsiS-lance. The Client agrees to provide all infbrmation and documents
necessary f-or the attorneys at ilB&K to perform their obligations under this Agreement.
3.6 Indgpendent Çp¡tr:Actor. BB&K shall perform all legal services required under
this Agreement as an independent contractor o1'the Client and shall remain, at all times as to the
Clienl, a wholly independent contractor with only such obligations as are required under this
Agreement, Neither the Client, nor any of its employees, shall have any control over the manner,
mode or means by which BB&K, its agents or employees, render the legal services requiled
under this Agreement, exoept as otherwise set fofih. The Client shall have no voice in the
selection, clischarge, supervision or control of BB&K's errployees, representalives or agents, or
in fixing their number, compensation, or hours of service.
3,7 Fees and Costs. BB&K shall render and bill for legal services in tlie fbliowing
categories and at rates set forth in Exhibit "B" and in accordance with the llB&K Billing Policies
also set forlh in Exhibit "B", attached hereto and incorporated herein by reference. in addition,
the Client shall reimburse BB&K for reasonable and necessary expenses incurred by it in the
performance of the Services under this Agreement. Authorized reimbursable expenses shall
include, but are not limited to, printing and copying expenses, mileage expenses at the rate
allowed by the Internal Revenue Service, toll road expenses, long distance telephone and
facsimile tolls, computerized research time (e.g. Lexis or Westlaw), research services performed
by IIB&K's library staff, extraordinary mail or delivery costs (e.g. courier, overnight and express
delivery), court fees and similar costs relating to the Services that are genelally chargeable to a
client. However, no separate charge shall be made by tsB&K for secretarial or word processing
services.
3.8 Billing. tsB&K shall submit monthly to the Client a detailed statement of account
for Services. The Client shall review BB&K's monthly statements and pay BB&K tbr Services
rendered ald costs inourred, as provided for in this Agreement, on a monthly basis.
3.9 Annua!_.ßSv;þ¡U. The Client and IIB&K agree that a review of pertbrmance and
the compensation amounts rcferenced in this Agreement should occur at least annually.
3.10 lnsurance. BB&K carries errors and omissions insurance with l-loyd's of
London. After a standard deductible, this insurance provides coverage beyond what is required
by the State of California. A separate scheclule containing BB&K's insurance policies will be
availabie for inspection upon Client's request.
3.11 Attorney-Client Priyilege. Confidential communication between the Client and
BB&K shall be covered by the attorney-client priviiege. As used in this article, "confÌdential
communication" means infbrmation transmitted between the Client and BB&K in the course o1'
the relationship covered by this Agreement and in confidence by a means that, so fär as the
Client is aware, discloses the infbnr:ation to no third persons other than those who are present lo
further the interests of the Clienl in the consultation or those to whom disclosure is reasonably
2
099s9 00000\97 r4r 88.2
necessary 1Ìor the transmission of the infcrrmation or the accomplishment ol'the purpose fbr
which BB&K is consulted, and includes any legal opinion formed and advice given by BB&K in
the course of tl"ris relationship
3.12 lgrmiqation of¿gleemenl encl legalServicgs. 'fhis Agreement and the Services
rendered under it may be terminated at any time upon thirfy (30) days' prior written notice from
either pafry, with or withclut cause. In the event of such termination, BI]&K shall be paid for all
Services authorized by the Client and perfbrmed up through and including the effective date of
termination. Bts&K shall also be reimbursed for all costs associated with transitioning any files
or other data or documents to a new law firm or returning them to the Client. In the event this
Agreement is teminated, by either party, IìB&K agrees that it shall not assume representation of
any client in a matter that is adverse to the City, l{ousing Authority or Successor Agency, for a
period of'lwelve (12) months f'ollowing the effbctive date of suoh termination.
3.13 Entire Agreement. 'fhis Agreement contains the entire Agreement of the parlies
with respect to the subject matter hereo,f and supersedes all prior negotiations, understandings or
agreements.
3.|4 Governing Law. This Agreement shall be governed by the laws of the State of
California. Venue shail be in Orange County.
3,15 ÄucldrnenLÀ4gdifiqatig!. No supplement, modihcation or amendment of this
Agreement slrall be binding unless executed in writing and signed by both parties.
3. 16 Waiver. No waiver of any default shall constitute a waiver of any other defaulr or
breach, whether of the same or ofher covenant or condition. No waiver, benefìt, privilege, or
service voluntarily given or performed by a parly shall give the othet party any contractual rights
by custom, estoppel, or otherwise.
3.17 Invalid.ity_l_$ey_prability. If any portion of this Agreement is declared invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions
shall continue in fìril lbrce and eftect.
3.18 Co_ug1çrpalt$. This Agreement may be signed in countetparts, each of which shall
constitute an original.
3.19 Dçftyety_q{À9liq9$. AII notices permitted or recluired under this Agreement
notices shall be deemed macle when personally delivered or when mailed, forty-eight (48) hours
after deposit in the U.S. Mail, lirst class postage prepaid and addressed to the party at its
applicable address, Actual notice shall be deenred adequate notice on the date actual notice
occurred. regardless oll the method of service. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such other
address as the respective parties may provide in writing fbr this purpose:
J
09959.00000\97 t4r 88.2
Client:City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: City Manager
Best Best & Krieger LLP
655 West Broadway, I 5th Floor
San Diego, CA 92101
Attention: Jeffrey S. Ballinger
BB&K:
3,20 IndemniñcatiQ:r.
(A) BB&K agrees to indemnily Client, its offìcers, employees and agents against, and
will hold and save each of them hannless from, any and all actions, suits, claims, damages to
persons or property, Iosses, costs, penalties, obligations, errors, omissions or liabilities (herein
'oclaims or liabilities") that may be asserted or claimed by any person, lirm or entity arising out
of or in connection with the work, operations or activitics of BB&K, its agents, employees,
suboontractors, or invitees, provided for herein or arising from the acts or omissions of BB&K
hereuncler, or arising from BI]&K's performance of or failure to pertbrm any term, provision,
covenant or condition of this Agreement, except to the extent such claims or liabilities arise frorn
the negligence or willlul rnisconduct of Client, its officers, agents or employees.
(B) Client acknowledges BB&K is being appointed as City Attorney pursuant to the
authority of Government Clode Section 36505, ancl has the aufhority of that office. Accordingly,
the Client is responsible pursua:rt to Government Cocle Section 825 for providing a defense for
the City Attorney for actions within the scope of its engagement hereunder. 'lherefore, Client
agrees to unde¡take its statutory duty and indemnify BB&K, its ofTìcers, employees and agents
against and will hold and save each of them harmless frorn, any and all claims or liabilities that
may be asserted or claims by any person, fìnr-i or entity arising out of or in connection with the
rvork, operations or activities of BB&K within the course and scope of its performance
hereunder, but nothing hereín shall require Client to indemnify BB&K 1Ìlr liability arising from
its owr negligence or alleged negligence. ln connection herewith:
(Ð Client will promptly provide a defense and pay any judgment rendered
against the Client, its officers, agency or employees for any such claims or liabilities arising out
of or in connection with such work, operations or activities of Client hereunder; and
(ii) In the event BB&K, its ofIìcers, agents or employees is nrade a party to
any action or proceeding filed or prosecuted against Client for such damages ol other claims
solely arising out of or in connection with the work operation or activities of Client hereunder,
Client agrees to pay to BB&K, its officers, agents or employees any and all costs and expenses
incurred by attorney, its officers, agents or employees in such action or proceeding, including,
but not limited to, legal costs and attomeys' fees.
IN WITNESS WFIEREOF, the Client and BB&K have executed this Agreement for
Legal Services as ot'the date first written above.
(signatures contained on following pagc)
4
09959.00000\97 I 4 ì 88.2
AGREEMENT ['OR I,EGAL SERVICES
BETWEEI.{
CITY OF SAN JUAN CAPISTRANO,
SAN JUAN CAPISTRANO HOUSING AUTHORITY, AND
SUCCNSSOR AGENCY TO TITE SAN JUAN C,A.PISTRANO COMMUNITY
REDEVEI,OPMENT AGENCY
AND
BEST BEST & KRJEGER LLP
CI'TY OF SAN JUAN CAPISTRANO BEST'BEST & KRIEGER LLP
Derek Reeve, Mayor
Date:
Attest
Maria Morris, City Clerk
SAN JUAN CAPISTRANO HOUSING
AUTHORIT]Y
Kerry K. Iterguson, Chair
Date:
Attest:
Maria Morris, Board Secretary
SUCCESSOR AGENCY TO T'HE
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
Kemy K. Ferguson, Chair
Date:
Attest:
Maria Morris, Board Secretary
Jeffrey S. Ballinger, Partner
Date:
5
099s9.00000\97 ì4 r 88.2
EXHIBIT "A'
TO
AGREEMENT FOR LEGAL SERVICES
BETWEEN
CITY OF'S.AN JUAN CAPISTRANO,
SAN JUAN CAPISTRANO HOUSING,/\UTHORITY, ANT)
SUCCESSOR AGENCY TO THE SAN JUAN CAPISTRANO COI\IilIUNITY
REDEVELOPMI1NT AGENCY
AÌ'{Ð
BEST BEST & KRIEGER LLP
T.SERVICES,?
Gencral Counsel services include the fbllowing:
Advise the City Council, City Boards and Commissions, and all City officials on
legal matters pertaining fo municipal government, including the Brown Act and
parliamentary procedures fur running meetings.
Attend all City Council meetings (unless excused) and other meetings as requested.
Coordinate and manage the services and costs of all outside legal counsel within
budgetary limits as approved by the City Council.
On a monthly basis, provide a writlen status report of assigned projects, requests, and
litigation in order to keep the City Council infbrmed of important legal issues and to
fàcilitate the City Council's periodic evaluation of the City Attorney.
Provide legal advice to stafiupon request of the City Manager
Prepare and/or review all ordinances, resolutions, municipal contracts, joint powers
agreements, and other agreements and contracts entered into by the City.
Research and submit legal opinions on municipal or other legal matters as requested
by the City Council or City Manager.
Alert the City in a timely manner on new State or Federal legislation or judicial
decisions that may impact the City and propose appropriate action(s) to assure
compliance.
Pr<¡vidc legal work pertaining to land use issues including but not limited to property
acquisitions, propeÉy disposals, public improvements, easements, dedications and
right-of-way vacations,
H,nfbrce City codes, zoning regulations, and building standards through administrative
and judicial actions.
a
o
o
a
t
a
a
a
a
09959.00000\97 r 4 I 88.2
Exhibit A
Attend staff meetings at the request of the City Manager (currently held weekly).
Provide designated oflice hours or times of avaitability at City Hall as requested by
the City.
Communicate with the press, when aufhoriz,ed to do so, regarding City legal matters
Promptly response to calls, e-mails, and correspondence from the City Council and
staff.
r Review curent documents, policies, and forms to ensuro compliance to cur¡ent laws.
Special Counsel services include the following:
r Litigation and formal administrative or other adjudicatory hearing matters
o Prosecutorial enforcement of codes and ordinances
. Labor relations and employment matters, which include providing guidance on
personnel matters, including policy and procedures affecting employees
r Non-routine real estate matters
o Land acquisition and disposal matters
. Suçcessor Agency and housing mallers
¡ Taxes, fees and charges matters
r Public works and public construction disputes
r Non-routine contract negotiation matters
. Non-routine land use and development ntatters
r Environmenfal mat'ters, which include assisting in the preparation of Environmental
impact Reports and compliance with the Califomia Ënvironmental Quality Act
(cEQA)
o 'Ioxic substances matters
o Water law matters
¡ Telecommunications
r lJond and public finance matters
a
o
ö
a
09959.00000\97 l4 t 88.2
Exhibit A
¡
o
t
Tax and ERISA related matters
Complex public utility matters
Advocacy matters (e.g. legislative and regulatory), including state ard federal
krbbying
09959.00000\97 t,t r 88.2
Ëxhibit A
EXHIBIT (8"
TO
AGTìEEMENT FOR LAGAL SERVICES
BETWEEN
CITY OF SAN JU,,\N CAPISTRANO,
SAN JUAN CÄPISTRANO }IOUSING AUTHORITY, AND
SIJCCI]SSOR AGENCY TO THE SAN.'UAN CAPISTRANO COMMUNITY
RTI}EVELOPMENT AGENCY
AND
BEST BEST & KRIEGI,R LLP
ANNI'AL FLAT }'EE AMOUNT
BB&K shall provide all general and special counsel legal services to the Client t-or an annual flat
fèe ol Four I{undred Twenty Thousand Dollars ($420,000), billed on a monthiy basis
(fì35,000/month), 'lhe only legal services that will be billed for separately from this flat fee are
public fìnance/bond work and third party reimbursable work, which shall be billed as set fior1h
below. The Clicnt and BB&K shall monitor the legal services provided under this Agreement,
and the parties shall consider adjustmeüts to the annual amount, similar to other Client
departments, on an annual basis, during the Clierit's normal budget cycle.
rr{TRpPARTYRETMBURI4B{,p,-BTLLIN-ç.ßAI:E_$
1. IlUd party neimUurvbl.q -Lp . Third Party Reimbursable Lægal
Services shall include legal services provided to the Client for which the Client receives
reinrbursement from a developer or other thircl parfy. These reimbursable legal services typically
include review of CC&lìs; establishment of financing districts (i.e., Community Facilities
Districts; Assessment Districts; Landscape and Lighting Maintenance Districts); and land
use/environmental projects for which the Client receives reimbursement. Whenever a ne\ry
matter arises that rnay qualify as a'lhird Party Reimbursable Legal Service, BB&K and Client
shall discuss such possibility and Client shall use its best efforts to collect a deposit from the
Third parry in such amount as will be sufficient to cover the anticipated legal fees, Such deposit
shall be provided to the Client prior to BB&K incr-rning fbes for'fhird Party Reimbursable Legal
Services.
2, 'fhird. Party.R.giæþ¡¡rsable LeeaÌ Services - Rates. 'Ihe Client shall pay for Third Party
Reimbursable Legal Services at BB&K's then current published standard private client rates,.
Upon execution of this Agreement, BB&K shall provide a copy of its published rate schedule to
the Client. BB&K shall also provide annual written updates to the Client when changes are
made to the published rate schedule.
09959.00000\97 r4 l 88.2
Exhibit B
PUB-Lrc,FrNANCE & BONp-.BIITLTNG R t]r,ES
l. Public F.inancg Leeal Seryiceq - Descriptiqf.l..&_Ratqs. l'he Client shall pay for Public
Finance Legal Services at the rates set forth for Public F-inance Legal Services, below. F'or bond
counsel and eertificates of participation special counsel services in connectíon with the financing
of public facilities, Bts&K shall be compensatecl, depending upon the type of bonds, certificates
of participation or other obligations that are to be issued, based on the tbllowing schedules.
Unless otherwise mutually agreed, our fees as boncl counsel on these financings will be payable
from proceeds ofeach series ofthe bonds upon their issuance.
A. Certificates of Parlicipation and Revenue Bonds. þ'or services in connection with
the issuance and sale of certifrcates of participation and revenue bonds, RB&K shall be paid a
fbe, which will be the greater of (i) $35,000 or (ii) an amount based on the total principal amount
of the certificates of participation or bonCs to be sold, computed as follows:
.50o/o of the fìrst $10 million of the amount of the certificates or bonds issued,
plus
25o/o of the next $10 million of the amount thereof, plus
125% of the am<lunt thereof, if any, over $20 million.
Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third
parly, at BB&K's option it may proceed on a houriy basis and utilize the Third Party
Reimbursable l,egal Services category provided lor in this Agreement.
B. Community Facilities Ðistricts. For services in connection with the issuance and
sale of bonds of community facilities districts, BB&K shall be paid a fec, which will be the
greater of (i) $35,000 or (ii) an amount based on the total principal amount of the bonds to be
sold, computed as follows:
,50% of the first $10 million of the amount of the bonds issued, plus
25Ya of the next $ 10 million of the ârnount thereof, plus
.125% of the âmount thereof, if any, over $20 million.
Notwithstanding the fbregoing, in those cases where the fees are reimbursable by a third
party, at BB&K's option it may proceed on a hourly basis and utilize the Thircl Party
Reimbursable Legal Services category provided I'or in this Agreement with respect to services
rendered fbr the fbrmation of or annexation to a CF'I), as well as the uegotiation and preparation
of funding agreements and joint lìnancing &greements. I{ourìy compensation shall be payable
solely from deposits of third parties ancl bond counsel I'ees shall be payable solely from the
proceeds ofthe sale ofbonds.
09959.00000\9? l 4Ì 88.2
lixhibit B
C. Assessment l)istricts. For services in connection with the issuance and sale of
bonds of assessment districts, BB&K shall be paid a fee, which will be the greater of (i) $35,000
or (ii) an ameunt based on the total principal amount of the boncls to be sold, computed as
follows;
50% of the fìrst $6 million olthe amount of the bonds issued, plus
,25o/o of the next $10 million of the amount thereof, pius
.125% of the amount thereof, if any, over $ I 6 million.
Notwithstanding the foregoing, in those cases where the fees are reimbursable by a third
party, at BB&K's option it may proceed on a houriy basis and utilize the Third Party
Reimbursable Legal Services category provided for in this Agreement with respect to services
rendeled for the formation of or annexation to an AD, as well as the negotiation and preparation
of lbnding agreements and joint financing agreements. Hourly compensation shall be payable
solely fiom deposits of third par"ties and bond counsel fees shall be payable solely fiom the
proceeds of the sale of boncls,
D. IA¡_.Allocation Bonds. For services in connection wìth the issuance and sale of
tax allocation bonds. BB&K shall be paid a fee, which will be the greater of (i) $35,000, or (ii)
an amount based on the total principal amount of the bonds to be sold, computed as follows:
.50% of the first $6 million of the amount of bonds issued, plus
.25%o of the next $4 million of the amount of bonds issued, plus
.20Yo of thc next $5 million of the amount of bonds issued, plus
.15% of the next $5 million of the amount of bonds issued, plus
.125% of the amount thereof, if any, over $20 million.
Notwithstanding the fbregoing, in those casçs where the fees are reimbursable by a third
party, at BB&K's option it may proceed on an hourly basis and utilize the Third Party
Reimbursable Legal Services category provided for in this Agreement.
E, Inv,estr4enf and Other Agreqglgnlg, For investmcnt agreements, derivative
transactions or interest rate swaps relating to any bonci issue, a separate fre will be chargecl
depencling on the type of derivative. Generally, our Èe fbr a derivative transaction mirrors our
bond counsel fbe. Review of investment agreements will be included in the annual flat fee
amclunt set l''orth above.
F. Issuer's Counsel Op¡¡UgIl. lìor all Issuer's Counsel opinions provided by BB&K
in connection with any bond financing, fees shall be the following: (1) for opinions on fìnancings
for which llll&K does noi provide bond counsel and disclosure counsel services, $10,000; (2)
099-i9.00000\97 I 4 I 88,2
Exhibit B
firr opinions on financings fbr which BB&K provides bond counsel services only, $J,gg0; (3) for
opinions on financings for which BB&K provides disclosure counsel services only, $2,500; and
(4) lbr opiniorrs on financings for which BB&K provicles both bond and disclosure counsei
services, there will be no charge.
G. Dísclosure Counsel Services. For disclosure counsel services, fees shall be
charged at one halfofthe amounts set fodh in paragraphs A through l), above.
ADDIT'IONAL BB&K BILLING POLICIBS
Our century of experience has shown that the attorney-client relationship works best
when there is mutual unclerstanding about fees, expenses, billing and payment terms. 'lherefore,
this statement is intended to explain our billing policies and procedures, Clients are encouraged
to discuss with us any questions they have about these policies and procedures. Clients may
direct specilìc questions about a bili to the attorney with whom the client works or our
Accounting Deparlment, Any specifrc billing arrangements diffbrent from those set lbrth below
will be confirmed in a separate written agreement between the client and the frrm.
Fees for Professional Services
lJnless a fìat l'ee is set forJh in our engagement agreement with a client, our fees lbr the
legal work we will undertake will be based in substantial part on time spent by personnel in our
offlce on that client's behalf. In special circumstances which wili be disoussed with the client
and agreed upon in writing, ftes will be based upon the novelty or difficulty of the lrl&tter, or the
time or other special limitations imposed by the client.
irees For Other Services, Costs and Expe¡se$
We attempt to serve all our clients with The most effective support systems available.
Therefore, in addition to fbes for professional legal services, we also charge separately for some
other services and expenses to the extent of their use by individual clients. l"hese charges
include but are not limited to, mileage at the current IIìS approvecl rate per mile, extraordinary
telephone and doc.ument delivery charges, copying oharges, computerized research, court filing
fees and other court-relatecl expenditures including court reporter and lranscription fres. No
separate charge is made for secretarial or word.processing services; those costs a¡e included
within the above hourly rates.
We may need to advance costs and incur expenses on your behalf on an ongoing basis,
Thesç items are separate and apart flom attorneys' fees and, as they are ouç6{ipocket charges,
we need to have sufficient funds on hand flom you to pay them when due. We will advise the
client fi'om lime to time when we expect items of significant cost to be incured, and it is
required that the client send us advances to cover those costs before they are due.
Monthly lnvoices 4n4 Payment
Best Best & Krieger LLP provides our clients with monthly invoices. Invoices are due
09959,00000\9714 t 88.2
llxhibit B
and payable upon receipt. Processing of some expenses is delayed until tlie next month and
billecl thereafter.
Our fees are not contingent upon any aspect of thç matter and are due upon reoeipt. All
billings are due and payable within ten clays of presentation unless the tirll amount is covered by
the balance of an advance helcl in our trust account, Il'a bill is not paid within 45 days from the
date of receipt, a late charge of one percent per month on the unpaid invoice shall be added to the
balance owed, commencing with the next statement and continuing until paid,
It is our policy to treat every question about a bill promptly and fairly. if is also our
policy that if a client does not pay an invoice within 60 days of receipt, we assume the client is,
fbr whatevçr reason, refusing to pay. We will then advise the client by letter that the client may
pay the invoice within 14 days or the firm will take appropriate steps to withdraw as attorney of
record. lf the delay is caused by a problem in the invoice, we must rely upon the client to raise
that with us during the 14-day period. This same policy applies to fbe arrangements which
require the client to replenish fbe deposits or make deposits for anticipated costs.
From time to time clients have questions about the format of the bill or description of
work perforrned. If you have any such quesTions, please ask theur when you receive the bill so
we may acldress them on a current basis.
BEST BEST & KIUEGER LLP
09959.00000\97 r 4 l 88.2
Exhibit B
FIRST AMENDMENT TO
AGREEMENT FOR LEGAL SERVICES
BETWEEN
CITY OF SAN JUAN CAPISTRANO,
SAN JUAN CAPISTRANO HOUSING AUTHORITY, AND
SUCCESSOR AGENCY TO THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
AND
BEST BEST & KRIEGER LLP
1. P¡,nrIns nNo D¡.rs.
This First Amendment to Agreement is made and entered into as of the 21st day of June,
2016, by and between the CITY OF SAN JUAN CAPISTRANO ("City"), the SAN JUAN
CAPISTRANO HOUSING AUTHORITY ("Housing Authority"), the SUCCESSOR AGENCY
TO THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
("successor Agency") (collectively, "Client") and BEST BEST & KRIEGER LLP, a limited
liability partnership engaged in the practice of law ("BB&K").
2.Rrcrr¿,1s.
2.I Client and BB&K have previously entered in to that certain Agreement for Legal
Services, dated May 1, 2015 (the "Agreement"), to engage the services of BB&K as its legal
counsel to perform all necessary legal services for the Client on the terms set forth below.
2.2 City and BB&K wish to amend the Agreement's provisions regarding the rates for
such legal services.
3. Tnnus.
3.1 Amendment to Exhibit "B". Exhibit "B" to the Agreement is hereby amended to
read as set forth in Exhibit "B" to this Amendment.
3.2 No other Amendments. Except as specifically set forth in this Amendment, the
Agreement is not amended and shall be deemed in full force and effect.
IN V/ITNESS WHEREOF, the Client and BB&K have executed this First Amendment
to Agreement for Legal Services as of the date first written above.
6 r I 47.02 I 00\282067 63.1
(signatures contained on following page)
ATTACHIIIIENT 2
FIRST AMENDMENT TO
AGREEMENT FOR LEGAL SERVICES
BETWEEN
CITY OF SAN JUAN CAPISTRANO,
SAN JUAN CAPISTRANO HOUSING AUTHORTTY, AND
SUCCESSOR AGENCY TO THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
AND
BEST BEST & KRIEGER LLP
CITY OF'SAN JUAN CAPISTRANO SUCCESSOR AGENCY TO THE
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
Pam Patterson, Esq.
Mayor
Kerry K. Ferguson, Chair
Date:Date:
Attest:Attest:
Maria Morris, City Clerk Maria Morris, Board Secretary
SAN JUAN CAPISTRANO HOUSING BEST BEST & KRIEGER LLP
AUTHORITY
John M. Perry, Charr Jeffrey S. Ballinger, Partner
Date:Date:
Attest:
Maria Morris, Board Secretary
2
6t 1 47 .021 00u82067 63.1
EXHIBIT *B''
TO
A.GREEMENT FOR LEGAL SERVICES
BET\ryEEN
CITY OF SAN JUAN CAPISTRANO,
SAN JUAN CAPISTRANO HOUSING AUTHORITY, AND
SUCCESSOR AGENCY TO THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
AND
BEST BEST & KRIEGER LLP
Services -Basic Legal Services shall include all services
provided to Client that are not otherwise specifically identified below as either Special Legal
Services, Third Party Reimbursable Legal Services, or Public Finance Legal Services ("Basic
Legal Services"). The Client shall pay for Basic Legal Services at the flat rate monthly retainer
amount of Ten Thousand Dollars ($10,000) for up to a maximum of Fifty Five (55) hours of
Basic Legal Service in a given month. The Client shall pay for Basic Legal Services in excess of
such hours in a given month as the following rates:
Attorneys
Paralegals
$255.O0/hour
$130.00/hour
Special Legal Services - Description. Special Legal Services shall include the following types of
services, except when performed as a Third Party Reimbursable Service, below:
Litigation and formal administrative or other adjudicatory hearing matters
Labor relations and employment matters
Non-routine real estate matters (e.g. CC&R's, deed or title work)
Land aoquisition and disposal matters (including pre-condemnation)
Successor Agency and housing matters
Taxes, fees and charges matters (e.g. Prop. 218 &, Mitigation Fee Act)
Public construction disputes
Non-routine contract negotiation matters (including non-BB&K model
agreements and franchise agreements)
Non-routine land use and development matters (including general plan
updates, Williamson Act issues, annexations and development
agreements)
Environmental matters (e.g. CEQA, NEPA, endangered species)
Water law matters (e.g. water rights & quality)
Tax, ERISA and municipal bond compliance related matters
Toxic substances matters (e.g. CERCLA, RCRA)
Complex public utility matters (e.g. electric, natural gas,
telecommunications, water, rail or transit that involve state or federal
regulatory issues)
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
M
N.
6 1 147.02 I 00\282067 63.1
Exhibit B
Renewable energy and energy efficiency project contracts and power
purchase agreements
Advocacy matters (e.g. legislative and regulatory)
Other matters mutually agreed upon between BBK and the City Manager
Special Legal Services - Rates. The Client shall pay for Special Legal Services at the following
rates:
Attorney $310.00/hour
Paralegal $145.00/hour
Public Policy and Annual Subscriotion: Included under Retainer
Þrnipnf { Þrnorqm - TTnr{qfec on the California F-.ri.^--pnfol ôrrolifr¡ Ânf'Included under
o
P.
a
Retainer
Third Partv Reimbursable sal Services Descrintion. Third P arty Reimbursable Legal
Services shall include legal services provided to the Client for which the Client receives
reimbursement from a developer or other third parly. These reimbursable legal services typically
include review of CC&Rs; establishment of financing districts (i.e., Community Facilities
Districts; Assessment Districts; Landscape and Lighting Maintenance Districts); and land
use/environmental projects for which the Client receives reimbursement. Whenever a new
matter arises that may qualifi, as a Third Party Reimbursable Legal Service, BB&K and Client
shall discuss such possibility and Client shall use its best efforts to collect a deposit from the
third party in such amount as will be sufficient to cover the anticipated legal fees. Such deposit
shall be provided to the Client prior to BB&K incurring fees for Third Party Reimbursable Legal
Services.
Third Party Reimbursable Lesal Services - Rates. The Client shall pay for Third Party
Reimbursable Legal Services at BB&K's then current published standard private client rates.
Upon execution of this Agreement, BB&K shall provide a copy of its published rate schedule to
the Client. BB&K shall also provide annual written updates to the Client when changes are
made to the published rate schedule.
Public Finance & Bond Rates. BB&K will provide bond counsel, special counsel or disclosure
counsel services at the request of the Client. Such bond counsel and special counsel services
include the preparation of all legislative approvals and legal documentation relating to the
appropriate sale and delivery of the bonds, notes or other obligations. BB&K will also prepare
such closing certificates and legal opinions necessary for the delivery of the bonds. As
disclosure counsel, we will prepare the disclosure documents for the Client and conduct the
necessary due diligence related to the transaction. Our fees will be determined based upon the
type of financing and the expected involvement of the attorneys involved. V/e will provide the
Client with a detailed description of our services and our fees and reimbursable costs upon the
Client's request. Notwithstanding the foregoing, in those cases where the fees are reimbursable
by a third party, at BB&K's option it may proceed on an hourly basis and utilize the Third Party
Reimbursable Legal Services category provided for in this Amendment, including with respect to
services rendered for the formation of, or annexation to, a CFD (of either the City or other local
public agency), as well as the negotiation and preparation of funding agreements and joint
Exhibit B
6r 147.02100\282067 63.t
financing agreements. Legal services related to the Client's compliance with its continuing
disclosure covenants and provide such necessary advice on the Client's compliance shall be
billed as Special Legal Services, above.
Rate Categories. If BB&K believes ihat a matter falls within the Special Legal Services, Third
Party Reimbursable Legal Services, or Public Finance Legal Services rate categories, BB&K
shall seek approval from the City Manager or his/her designee. The City Manager's or his
designee's approval of such a request from BB&K shall not be unreasonably withheld.
Other Billing Personnel. If, as, and when BB&K employs additional or different billing
personnel, this Agreement may be supplemented by written administrative memoranda,
providing for the categories and billing rates for such personnel, which memoranda may be
approved by the City Manager.
Annual Adjustments: Other Mutual Adjustments. The rates or amounts provided for Basic and
Special Legal Services shall be automatically increased as follows. Effective July 1, 2017 and
every July I thereafter during the term of this Agreement, rates and amounts shall be increased
for the change in the cost of living for the twelve (12) month period published for the most recent
calendar year end, as shown by the U.S. Department of Labor in its All Urban Consumers Index
Los Angeles-Riverside-Orange County area; provided, however, that such adjustment shall never
be lower than zero percent (0%) nor more than four percent (4%). Third Party Reimbursable
Rates are reviewed by BB&K annually and may be increased from time to time with advanced
written notice to the Client. In addition to the automatic rate increases, either BB&K or the
Client may initiate consideration of a rate increase at any time.
The section entitled "ADDITIONAL BB&K BILLING POLICIES" in Exhibit "8" to the
Agreement remains unchanged.
6 1 t 47 .021 00U82067 63. I
Exhibit B