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HomeMy Public PortalAbout2016.181 (08-16-16)RESOLUTION NO. 2016.181 RESOLUTION NO. 2016.010 A JOINT RESOLUTION OF THE CITY OF LYNWOOD AND THE CITY OF LYNWOOD AS SUCCESSOR TO THE LYNWOOD REDEVELOPMENT AGENCY APPROVING THE FORTH AMENDMENT TO THE AGREEMENT WITH COX, CASTLE & NICHOLSON, LLP FOR CONSULTING SERVICES REGARDING PROJECTS RELATED TO SOIL CONTAMINATION NOT TO EXCEED $350,000, WHICH SERVICES ARE TO BE FUNDED BY THE LYNWOOD SUCCESSOR AGENCY THROUGH THE ROPS PROCESS WHEREAS, the former Lynwood Redevelopment Agency ( "Agency') engaged in environmental clean -up activities necessary to carry out and implement the Redevelopment Plan for Project Area "A; and WHEREAS, in implementing such Redevelopment Plan and the Implementation Plan, the City of Lynwood, as Successor Agency to the former Redevelopment Agency ( "Successor Agency ") is desirous of continuing using the services of Cox, Castle & Nicholson, LLP ( "CCN ") to work with Agency Staff and Agency Counsel in compelling responsible parties in the proposed Imperial Highway Brownfield Area and other projects to remediate contaminated properties, including resolving outstanding post settlement issues regarding the matter of Lynwood Redevelopment Agency, et al, v. Barry Ross, et al, U.S. District Court Case No. CV11- 02207 -MMM (AGRx); and WHEREAS, On December 21, 2010, Consultant was approved by way of a service retainer agreement for up to $100,000 to provide certain consulting and litigation services, as needed, to the former Lynwood Redevelopment Agency on projects with soil, groundwater and /or soil gas contamination; and WHEREAS, that 2010 retainer agreement was replaced with a Consulting Services Agreement (the "Agreement') by and between the former Lynwood Redevelopment Agency and Consultant, which Agreement was dated December 5, 2011 and increased the not to exceed amount to $240,000; and WHEREAS, following the commencement of litigation and related services by Consultant, as provided for in the Agreement, the California Supreme Court, on December 29, 2011, issued a ruling on the constitutional validity of two 2011 legislative budget trailer bills, ABX1 26 (Chapter 5, Statutes of 2011) and ABX1 27 (Chapter 6, Statutes of 2011), which resulted in the outright elimination of all 425 redevelopment agencies in the State of California; and WHEREAS, subsequent legislation, AB 1484 (Chapter 26, Statutes of 2012), which was passed, signed, and enacted on June 28, 2012, made significant changes to the provisions of ABX1 -26, including the process for 1 administering the enforceable obligations of the former redevelopment agencies (collectively, "Dissolution Act "); and WHEREAS, the Successor Agency has designated the services provided by Consultant, as described in the Agreement, to be an enforceable obligation under the Dissolution Act, and the Department of Finance (DOF) has not objected to such designation; and WHEREAS, the Agreement contained a scheduled expiration on March 5, 2013, but also authorized extensions per Section 2 of the Agreement and was intended to be extended so that Consultant could continue to litigate and provide related services that were ongoing before ABX1 26 became law; and WHEREAS, Consultant has continued to provide litigation and related services to the Successor Agency, and the Parties therefore executed an Amendment to the Agreement dated November 25, 2013, which extended the term of the Agreement (to December 5, 2014); and WHEREAS, the litigation resulted in settlements pursuant to which the Successor Agency in conjunction with the City of Lynwood (collectively the "Agency ") holds settlement payments, which have ongoing remediation issues, among others, and consequently has determined that Consultant's services are still needed in order to implement the settlements and fulfill the Successor Agency's obligations under the Dissolution Act; and WHEREAS, Consultant may at times require to utilize the services of environmental specialist to provide needed geotechnical information in the performance of the obligatory duties of this Agreement when pursuing parties responsible for contamination at Brownfield sites covered under this Agreement; and WHEREAS, in order to continue providing litigation and related services to the Successor Agency, the Parties therefore executed a Second Amendment to the Agreement which extended the term of the Agreement to June 30, 2015 and a third amendment, which extended the Agreement to June 30, 2016; and WHEREAS, during the term of the third amended agreement, unforeseen circumstances disabled the Agency's ability to pay for consultant's services and therefore said services were temporarily suspended and Invoices for work performed on projects by consultant solely funded by Successor Agency funds were not paid during the 15 -16B Recognized Obligation Payment Schedule (ROPS) period; and WHEREAS, the DOF approved Successor Agency's ROPS 16 -17 (for the period July 1, 2016 through June 30, 2017) will provide budgetary resources to the Redevelopment Property Tax Trust Fund (RPTTF) to reactivate Consultant's services and be utilized for the Consultant's ongoing work assisting the 2 Successor Agency with implementation of the settlement and costs related to potential litigation at other Brownfield sites covered by the Agreement including partial cost for geotechnical support as it relates to remediation efforts and reimburse Consultant for work performed during the 15 -16B ROPS period (January 1, 2016 through June 30, 2016); and WHEREAS, the settlement proceeds provide budgetary resources for resolving the balance of the Successor Agency's litigation expenses, and legal fees through June 30, 2017 if the DOF makes findings against the use of additional RPTTF funds if needed during the ROPS 16 -17 period; and WHEREAS, the Agency finds this fourth Amendment to the Agreement is appropriate to provide for the Consultant's ongoing services which also covers partial compensation of environmental subconsultants which provide vital geotechnical data as needed. NOW, THEREFORE, THE AGENCY BOARD AND CITY COUNCIL DO' HEREBY DETERMINE AND RESOLVE AS FOLLOWS: Section 1. Pursuant to authority provided under Health & Safety Code subsections 34171(d)(1)(F), 34177.3(a), and 34180(a) and (h) that the Successor Agency hereby authorizes the continued use of CCN to provide supportive professional litigation and environmental services for current projects of the Agency using ROBS 16 -17 RPTTF. The fourth amendment not to exceed contract amount recommended is $350,000. Section 2. That the City and Successor Agency hereby approve the use of settlement proceeds from Settlement Agreement of Lynwood Redevelopment Agency, et al, v. Barry Ross, et al, U.S. District Court Case No. CV11- 02207- MMM (AGRx) in any balance of the Successor Agency's litigation expenses and legal fees through June 30, 2017 if the DOF makes findings against the use of additional RPTTF funds if needed during the ROPS 16 -17 period (July 1, 2016 - June 30, 2017). Section 3. That the Successor Agency hereby approves the draft fourth amendment of the subject agreement as submitted to the Agency and agreed herein subject to final review and execution by all parties thereto. Section 4. That the City and Successor Agency authorize the Chairperson, Executive Director or appointed designee to execute a fourth amendment to the agreement with CCN in a not to exceed amount of $350,000, in a form approved by the Agency Counsel. The appropriations for said amendment will not exceed $350,000 for the period beginning January 1, 2016 ending June 30, 2017 unless otherwise amended. Section 5. That this resolution shall take effect immediately upon approval by majority vote of the members of the Successor Agency Board. 3 PASSED, APPROVED, AND ADOPTED THIS 16th DAY OF AUGUST, 4111.1 ATTEST: 4 Maria Quinonez City Clerk/Secretary APPROVED AS TO FORM: vjj.t�/XJ" ( David A. Garcia, City Attorney /Agency Counsel Edwin Hernandez, Mayor /Chair J. Arnoldo Beltran, City Manager /Executive Director APPROVED AS TO CONTENT: Erika Ramirez, Development, Comp ance and Enforcement Director STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, as City Clerk/Secretary of the City of Lynwood as Successor Agency to the Lynwood Redevelopment Agency, do hereby certify that the foregoing Resolution was passed and adopted by the City Council of the City of Lynwood at a regular meeting held on the 16th day of August, 2016, and passed by the following vote. AYES: COUNCIL MEMBERS ALATORRE, SANTILLAN -BEAS, SOLACHE, CASTRO AND MAYOR HERNANDEZ NOES: NONE ABSENT: NONE ABSTAIN: NONE Maria Quinonez, Oily Clerk/Secret STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) I, Maria Quinonez, the undersigned, as City Clerk/Secretary of the City of Lynwood as Successor Agency to the Lynwood Redevelopment Agency, do hereby certify that the above foregoing is a full, true and correct copy of Resolution No. 2016.181 and Resolution No. 2016.010 on file in my office and that said Resolution was adopted on the date and by the vote therein stated. Dated this 16th day of August, 2016.