01-022 JG Cupertino, LLC~ ~,~2
C. NICOLE MURPHY
BRITA J. MCNAY
MADELINE K. DAVIS
Wong Center
331 J Street, Suite 200
Sacramento, California 95$14
www.m-mlaw.com
January 30, 2001
VIA FEDERAL EXPRESS
Dave Knapp
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Telephone (916) 446-6462
Facsimile (q16) 446-6489
RE: Agreement for Payment of Litigation Costs --
Cupertino Citizens for Affordable Housing, etc., et al. v.
All Persons Interested in i~he Redevelopment Plan for the
Cupertino Vallco Redevelo~~ment Project, etc., et al.;
Santa Clara County Superi~~r Court Case No. CV793260
Dear Dave:
Enclosed are four duplicate origi~lals of the Agreement for Payment of
Litigation Costs, as executed by JG Cupertino LLC. Please sign all four
originals, retain one for your files, return one to me and return two to:
Patrick J. Pauken, Assistant General C~~unsel, The Richard E. Jacobs Group,
Inc., 25425 Center Ridge Road, Cleveland, OH 44145-4122. Please let me know
if you have any questions.
Very truly yours,
(~. Nicole Murphy
Enclosures
MURPHY, McNp,Y &DAVIS, LLP
Attorneys At Law
cc: Chuck Kilian, City Attorney (w/copy of Agreement)
AGREEr/IENT
FOR
PAYMENT OF LITIGATION COSTS
This Agreement for Payment of Litigation Costs (the "Agreement") is made and
entered into as of October 1, 2000, by anti between the CITY OF CUPERTINO, a
municipal corporation (the "City") and JG C~UPERTINO LLC, an Ohio limited liability
company ("JG Cupertino").
Recitals
A. JG Cupertino is the owner of an. interest in certain real property located in
the City of Cupertino, County of Santa Clare, State of California, known as the Vallco
Fashion Park Shopping Center ("Vallco Fashion Park").
B. On August 21, 2000, the City of Cupertino adopted Ordinance No. 1850,
approving and adopting the Redevelopmentt Plan (the "Redevelopment Plan") for the
Cupertino Vallco Redevelopment Project (thE~ "Project"). Vallco Fashion Park is located
within the boundaries of the Project Area and its redevelopment is a major goal of the
Redevelopment Plan.
C. A complaint has been filed challenging the validity of the Redevelopment
Plan for the Project (Santa Clara County Superior Court Case No. CV793260; the
"Litigation"), and the City has retained the law firm of Murphy, McKay & Davis, LLP,
to provide legal services to the City in connection with the Litigation and in association
with the City Attorney. Murphy, McKay ~~ Davis, LLP, and the City Attorney are
hereinafter collectively referred to as the "Cih~'s Litigation Counsel."
D JG Cupertino desires to reimburse the attorneys' fees and costs incurred
by the City in connection with defending that Litigation.
Agreements
NOW, THEREFORE, in consideration of their mutual promises and subject to
the terms, provisions and conditions hereinafter set forth, the parties hereto agree as
follows:
Section 1. Payment of Attorneys' Fees anti Costs
In accordance with the terms and conditions of this Agreement as hereinafter set
forth, JG Cupertino agrees to reimburse to t:he City all of the attorneys' fees and costs
incurred by the City in connection with defending the Litigation, through a final
CUP/AgmtPymtLitCosts 1/24/01
adjudication, including appeal, provided, Yiowever, that JG Cupertino shall not be
obligated to reimburse attorneys' fees attributable to work performed by the City
Attorney. A copy of the Agreement for Leg;~l Services between the City and Murphy,
McKay & Davis, LLP, is attached hereto as E~:hibit A.
Section 2. Method of Payment of Costs
The City shall bill JG Cupertino monthly for the costs of services performed and
costs advanced by the City's Litigation Counsel during the preceding month, as well as
for any costs paid directly by the City. The monthly billing from the City shall include
copies of all invoices and time records recei~~ed by the City from the City's Litigation
Counsel. JG Cupertino shall pay each billing from the City within thirty (30) days of
receipt. A charge of 1 % per month will be ad~~ed to all past due amounts.
Section 3. Performance b~ ity
Provided JG Cupertino makes the payments required under this Agreement, the
City agrees to vigorously defend, and to direct the City's Litigation Counsel to
vigorously defend, the Litigation in an effort to obtain a final judicial determination of
the validity of the Redevelopment Plan for the Project, provided, however, that the City
makes no guarantees whatsoever to JG Cupertino regarding the outcome of the
Litigation. The City agrees to keep JG Cupertino advised of the status of the Litigation
on a regular basis, to provide JG Cupertino with copies of all pleadings, and to confer
with and consider the comments of JG Cupertino in connection with Litigation strategy.
The City further agrees that prior to enterin€; into any settlement of the Litigation, the
City will advise JG Cupertino of the proposed settlement terms and consider comments
and advice from JG Cupertino with respect thereto.
Section 4. Reservation of Discretion
JG Cupertino understands and agrees that the City reserves and retains full
discretion with respect to all decisions and determinations related to the Litigation.
Section 5. No Third Party Beneficiary
This Agreement is not intended nor shill it be construed to create any third party
beneficiary rights in any person or entity other than the City and JG Cupertino.
Section 6. Amendments
Any amendments to this Agreement ~~hall be in writing approved by the City
and JG Cupertino.
CUP/ AgmtPymtLitCosts 2
Section 7. Notices
Notices to the parties hereunder shall lie in writing and shall be deemed received
upon personal delivery or one (1) business clay following transmission by facsimile to
the party to whom the notice is directed ~Nith transmission receipt verified by the
sender, or, if sent by mail, three (3) busines;~ days following its deposit in the United
States mail, postage prepaid, certified mail, return receipt requested, or, if sent by
Federal Express or other reliable overnight air courier, on the next business day
following dispatch, and in any of such events addressed to the parties at the addresses
set forth below (or such other address as a party may specify by notice given pursuant
to this Section ~:
Cam:
David Knapp
City Manager
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
TG Cupertino•
James F. Eppele
Vice President, Real Estate DevE~lopment
The Richard E. Jacobs Group, Inc.
25425 Center Ridge Road
Cleveland, OH 44145-4122
with a copy to:
Patrick J. Pauken
Assistant General Counsel
The Richard E. Jacobs Group, Inc.
25425 Center Ridge Road
Cleveland, OH 44145-412
Section 8. Termination of Agreement
In the event JG Cupertino fails to make any payment required under this
Agreement at the time such payment is due, the City Manager shall have the authority
to terminate this Agreement on behalf of the City by giving thirty (30) days written
notice to JG Cupertino and to discontinue the City's defense of the Litigation. In such
event, JG Cupertino shall remain liable for reimbursement of attorneys' fees and costs
CUP/ AgmtPymtLitCosts 3
incurred prior to the City's formal withdrawal from the Litigation and for the payment
of any award of attorneys' fees or costs to th.e plaintiffs in the Litigation resulting from
the City's formal withdrawal from the Litigation.
JG Cupertino shall have the right to terminate this Agreement for any reason by
giving thirty (30) days written notice to the City. Upon receipt of a notice of
termination from JG Cupertino, the City sha~~~l promptly make a determination whether
to proceed with its defense of the Litigation. If the City elects not to proceed with its
defense of the Litigation, JG Cupertino shall remain liable for reimbursement of
attorneys' fees and costs incurred prior to its; termination of this Agreement, as well as
for attorneys' fees and costs necessarily incurred in connection with the City's formal
withdrawal from the Litigation and for the g-ayment of any award of attorneys' fees or
costs to the plaintiffs in the Litigation resulti~lg from the City's formal withdrawal from
the Litigation. If the City elects to proceed with its defense of the Litigation, JG
Cupertino shall remain liable only for attorneys' fees and costs incurred by the City
prior to the effective date of termination of this Agreement by JG Cupertino.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CIT`~C OF CUPERTINO
By: _ ~ Z.~.O
David Knapp, ity Manager
JG CUPERTINO LLC
By: _
. J. Cleary, esident
CUP/AgmtPymtLitCosts 4
EXHIBIT A. 1 OF 3
AGREEMENT FOI; LEGAL SERVICES
(Specific Litigation)
THIS AGREEMENT is entered into as of October 1, 2000, by and
between the CITY OF CUPERTINO, a California municipal corporation,
herein called the "City," and MURPHY', McNAY & DAVIS, LLP, a California
limited liability partnership, herein called "Special Counsel."
Recitals
A. The City is undertaking; redevelopment pursuant to the
California Community Redevelopment Law (Health and Safety Code Section
33000 et seq.), and on August 21, 2000, by Ordinance No. 1850, adopted the
Redevelopment Plan (the "Redevelopment Plan") for the Cupertino Vallco
Redevelopment Project (the "Project").
B• A complaint has been fi.'ed challenging the validity of the
Redevelopment Plan for the Project (thE~ "Litigation"), and the City desires to
engage Special Counsel, in association with the City Attorney, to provide legal
services to the City and the Cupertino Redevelopment Agency (the "Agency")
as required in connection with such pen~~ing Litigation.
A reem.ents
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
1• Scope of Services. Special Counsel is hereby associated with the
City Attorney to provide such legal services as may be required in connection
with the Litigation. C. Nicole Murphy, a principal member of the firm of
Special Counsel, shall be responsible for the performance of services
hereunder, and shall supervise any serv~:ces performed by other members of
Special Counsel's firm.
2. Time of Performance. The services of Special Counsel are to
commence upon the execution of this ~~greement and shall be undertaken
and completed in such sequence as to assure their expeditious completion i n
light of the purposes of this Agreement.
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11/27/00
EXHIBIT A, 2 OF 3
3• Compensation Reimbursement and Methods of Pa ment.
a• Compensation.
(1) Fee Basis. FE~es shall be charged on an hourly basis
for all legal services rendered.
(2) Amount of Fees. The hourly rate for services
performed shall be the general client rates established by Special Counsel
from time to time for litigation services. At the present time, these rates are
$190 per hour for attorneys and $65 ~~95 per hour for paralegals. Special
Counsel shall notify the City Manager of any change in rates.
b. Reimbursement. In addition to the compensation
provided above, the City will reimbur;>e Special Counsel for the following
expenses:
(1) Necessary travel and subsistence expenses, in
connection with the performance of Special Counsel's services pursuant to
this Agreement;
(2) Such printing and copying expenses, long distance
telephone calls, telegrams and similar costs relating to legal services and
generally chargeable to a client; provided, however, such expenses shall not
include normal office operating expenses. In lieu of itemizing such
chargeable expenses, Special Counsel's firm will add an administrative charge
of two percent (2%) to monthly billings;
(3) Extraordinary expenses, such as express mail,
courier services, etc.; and
(4) Court costs, filing fees and deposition and discovery
costs not paid directly by the City.
c• Methods of Payment.
(1) Monthly Statements. As a condition precedent to
any payment to Special Counsel under this Agreement, Special Counsel shall
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EXHIBIT A. 3 OF 3
submit monthly to the City a statement of account which clearly sets forth by
dates the designated items of work for which the billing is submitted.
(2) Timing of Pit ment. The City shall review Special
Counsel's monthly statements and pay Special Counsel for services rendered
and costs incurred hereunder, at the rates and in the amounts provided
hereunder, within thirty (30) days after the date of the monthly statement.
4. Employment of Other Counsel, Specialists or Experts. Special
Counsel will not employ or otherwise incur an obligation to pay other
counsel, specialists or experts for services in connection with this Agreement
without prior approval of the City Man,~ger.
5. Termination of Agreement: and Legal Services. This Agreement
and all legal services to be rendered her.=under may be terminated at any time
by written notice from either party, witl^. or without cause. In such event, all
finished and unfinished documents, project data and reports shall become the
property of the City and shall be delivered to it or to any party it may
designate. In the event of such termination, Special Counsel shall be paid for
all satisfactory work, unless such termination is made for cause, in which
event compensation, if any, shall be adjusted in light of the particular facts
and circumstances involved in such termination.
IN WITNESS WHEREOF, the City and Special Counsel have executed
this Agreement as of the date first above written.
CITY OI~ CUPERTINO
B ~G%.JLy C~J
Y - ~,
City Manager
"CITY"
MURPHY, McNAY & DAVIS, LLP
B ~~
Y
C. Nicole Murphy
"SPECIAL COUNSEL"
CUP/AgmtLitSvcs 3
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