RPVCCA_CC_SR_2015_04_21_J_Contract_with_Daley_and_HeftCITYOF
MEMORANDUM
RANCHO
PALOS VERDES
TO: HONORABLE MAYOR AND CITY COUNCIL ,
, ,
FROM: DOUG WILLMORE, CITY MANAGER, AND � /'--
CAROL W. LYNCH, CITY ATTORNEY
DATE: APRIL 21, 2015
SUBJECT: APPROVE AN AGREEMENT WITH DALEY & HEFT, LLP
RECOMMENDATION
Approve the attached agreement with Daley & Heft, LLP, to allow that firm to continue to
provide legal services to the City in connection with the upcoming appeal hearing regarding
Green Hills Memorial Park, which currently is scheduled to occur on June 2, 2015.
BACKGROUND
Prior to the Green Hills Memorial Park appeal hearing, which was to occur on January
20, 2015, the Acting City Manager retained Scott Noya, Esq., a partner at the law firm
of Daley & Heft, LLP, to advise the City Council at the hearing. This action was taken in
response to correspondence from Ms. Ellen Berkowitz, counsel for Green Hills,
contending that a different law firm should be retained to advise the City Council
regarding the appeal hearing because the City Attorney had advised the Planning
Commission at its hearings regarding the compliance review of the operation of Green
Hills Memorial Park. The upcoming hearing in June before the City Council is an
appeal from the Planning Commission's decision. Staff and the City Attorney
recommend that the City Council approve an agreement with Daley & Heft, LLP, so Mr.
Noya will be able to continue to provide advice to the City Council at the appeal
hearing.
DISCUSSION
Due process requires an impartial decision maker review the Planning Commission's
decision on the compliance review. To avoid having an extraneous issue detract from
1
Agreement with Daley & Heft, LLP
April 21, 2015
Page 2
the primary issues raised by the Green Hills appeal, the Acting City Manager retained
the Daley & Heft, LLP, to advise the City Council on the appeal. Scott Noya, Esq., a
partner at Daley & Heft who specializes in a variety of public law issues, including land
use and eminent domain, reviewed the extensive amount of documentation pertaining
to the Green Hills appeal and was prepared to advise the City Council at the public
hearing on January 20th. However, the City Council continued the public hearing on the
appeal in order to review the additional documentation that had been submitted to the
City on the day that the public hearing was to have commenced.
Pursuant to the Municipal Code (Section 2.14.010 A), there is a monetary cap of
$25,000 regarding a contract that is approved by the City Manager. The agreement
that was approved by the Acting City Manager in January included the monetary cap
set forth in the Municipal Code. In order for Mr. Noya to provide advice to the City
Council in connection with the Green Hills appeal, it is recommended that the City
Council approve the attached agreement with Daley & Heft. The agreement is identical
to the Agreement that the City Council approved previously with that firm in connection
with the litigation regarding the City's Utility User Tax on telecommunications services.
CONCLUSION
Staff recommends the City Council approve the attached agreement with Daley & Heft,
LLP.
ALTERNATIVE
The City Council could choose another law firm to advise the City Council at the appeal
hearing. However, Mr. Noya already has expended significant time to review the record
and documentation pertaining to the Green Hills appeal. If a different law firm is retained to
advise the City Council at the upcoming appeal hearing, that firm will need to perform that
same work that already was performed by Mr. Noya, which would be an unnecessary
expenditure of City funds.
Attachment -
Proposed Agreement with Daley & Heft, LLP (page 3)
2
DALEY & HEFT, LLP
462 Stevens Avenue, Suite 201
Solana Beach, CA 92075
(858) 755-5666
This is the written retainer agreement ("Agreement") that California law requires
attorneys to have with their clients. Daley & Heft ("Attorney") will provide legal services to
City of Rancho Palos Verdes ("Client") on the terms set forth below.
1. CONDITIONS. This Agreement will not take effect, and Attorney will have no
obligation to provide legal services, until client returns a signed copy of this Agreement.
2. SCOPE OF SERVICES. Client hires Attorney to advise and represent City in
connection with Green Hills Memorial Park's Appeal of Planning Commission Decision
Regarding Annual Compliance Review (Case No. ZON20030086); Location: 27501 S. Western
Avenue, Rancho Palos Verdes, CA 90275
3. RETENTION OF FIRM RATHER THAN PARTICULAR ATTORNEY.
Client is retaining the law firm of Daley & Heft, LLP. The partner primarily responsible for
Client's matter(s) is Scott Noya. However, Client is retaining Daley & Heft, LLP and not any
particular attorney, and the attorney services to be provided will not necessarily be performed by
any particular attorney.
4. INSURANCE DISCLOSURE. Attorney maintains errors and omissions
(malpractice) insurance coverage.
5. CLIENT'S DUTIES. Client agrees to be truthful with Attorney, to cooperate, to
keep Attorney informed of any information or developments which may come to Client's
attention, to abide by this agreement, and to pay Attorney's bills. Client will assist Attorney in
providing information and documents necessary for the representation in the described matter(s).
6. LEGAL FEES AND BILLING PRACTICES. You agree to pay by the hour at
our prevailing rates for time spent on your matter by our legal personnel. Our current hourly
rates for legal personnel (and other billing rates) are set forth on the attached Rate Schedule.
We will charge you for the time we spend on telephone calls relating to your matter,
including calls with you, opposing counsel, or court personnel. The legal personnel assigned to
your matter will confer among themselves about the matter, as required. When they do confer,
each person will charge for the time expended. Likewise, if more than one of our legal personnel
attends a meeting, court hearing, or other proceeding, each will charge for the time spent. We
will charge for waiting time in court and elsewhere and for travel time, both local and out of
town.
1
3
7. COSTS AND OTHER CHARGES.
(a) In General. We will incur various costs and expenses in performing legal services
under this agreement. You agree to pay for those costs and expenses in addition to the hourly
fees. The costs and expenses commonly include process servers' fees, fees fixed by law or
assessed by courts and other agencies, court reporters' fees, jury fees, private investigation fees,
photographer/graphic artist fees, mediator, arbitrator or special master fees, long distance
telephone calls, messenger and other delivery fees, postage, parking and other local travel
expenses, photocopying and other reproduction costs, clerical staff overtime, word processing
charges, charges for computer time, and other similar items. Except for the items listed on the
Rate Schedule, all costs and expenses will be charged at our cost.
(b) Out of Town Travel. Client agrees to pay transportation, meals, lodging and all
other costs of any necessary out of town travel by Attorney's personnel. Client will also be
charged the hourly rates for the time legal personnel spent traveling.
(c) Consultants and Investigators. To aid in the representation in Client's matter, it
may become necessary to hire consultants or investigators. Client agrees to pay such fees and
charges. Attorney will select any consultants or investigators to be hired and Client will be
informed of persons chosen and their charges.
(d) Client's Responsibility re Costs. Attorney may advance such costs and expenses on
Client's behalf, but is not obligated to do so. Client agrees to reimburse Attorney upon demand
for any such advances. Client is responsible for such reimbursement regardless of the status or
outcome of the litigation, or the amount of any recovery.
(e) Client Further Agrees. That if monies are maintained in Attorney's trust account for
the purpose of paying fees and costs as incurred, Attorney is authorized without the prior consent
of Clients to transfer sufficient funds from trust to pay current as well as past due fees and costs
upon mailing of bills for fees and costs in the ordinary course of business.
(f) Court Ordered Sanctions. Client agrees to pay all court ordered sanctions levied as
a result of legal positions taken in the action by counsel on Client's behalf where counsel has
apprised Client of a potential risk that sanctions could be awarded as a result of a particular legal
position taken. Examples of such legal positions could be, but are not limited to, causes of action
asserted, assertion of privileges on behalf of client or assertions of legal objections to disclosure
or production of evidence. Client is not responsible for sanctions awarded specifically against
counsel for counsel's personal misconduct or actions.
8. BILLING STATEMENTS. Attorney will send Client periodic statements for
fees and costs incurred. Each statement will be payable within 60 days of its mailing date and
Client agrees to make its best efforts to make payment within that time. Client may request a
statement at intervals of no less than 30 days. If client so requests, Attorney will provide one
within 10 days. The statements shall include the amount, rate, basis of calculation or other
method of determination of the fees and costs, which costs will be clearly identified by item and
amount. If Client does not object in writing to specific charges within 60 days of the date of an
invoice, the charges will be deemed reasonable and necessary.
2
0
9. DISCHARGE AND WITHDRAWAL. Client may discharge Attorney at any
time. Attorney may withdraw with Client's consent or for good cause. Good cause includes
Client's breach of this agreement, refusal to cooperate or to follow Attorney's advice on a
material matter or any fact or circumstance that would render Attorney's continuing
representation unlawful or unethical. When Attorney's services conclude, all unpaid charges will
immediately become due and payable. After services conclude, Attorney will, upon Client's
request, deliver Client's file and property in Attorney's possession, whether or not Client has paid
for all services.
10. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this
agreement and nothing in Attorney's statements to Client will be construed as a promise or
guarantee about the outcome of any matter. Attorney makes no such promises or guarantees.
Attorney's comments about the outcome of any matter are expressions of opinion only. Any
estimate of fees given by Attorney shall not be a guarantee. Actual fees may vary from estimates
given.
11. LIEN. You hereby grant us a lien on any and all claims or causes of action that
are the subject of our representation under this agreement. Our lien will be for any sums owing
to us at the conclusion of our services. The lien will attach to any recovery you may obtain,
whether by arbitration award, judgment, settlement or otherwise.
12. ENTIRE AGREEMENT. This Agreement contains the entire Agreement of the
parties. No other agreement, statement, or promise made on or before the effective date of this
Agreement will be binding on the parties.
13. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision
of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of
that provision and of the entire Agreement will be severable and remain in effect.
14. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may
be modified by subsequent Agreement of the parties only by an instrument in writing signed by
both of them or any oral agreement only to the extent that the parties carry it out.
15. ARBITRATION OF DISPUTES. If a dispute arises between Client and
Attorney regarding fees/costs due or legal services in connection with the claim(s) covered by
this Agreement, such dispute shall be submitted to binding arbitration. This includes any claim
against Attorney for breach of contract, negligence, breach of fiduciary duty or other
wrongdoing. Such arbitration shall be conducted in accordance with the rules of the American
Arbitration Association.
YOUR INITIALS BELOW SIGNIFY YOUR ACKNOWLEDGMENT OF
THE FOLLOWING EXPLANATION:
You acknowledge that Attorney has explained to you that such binding arbitration
may deprive you of various rights that you otherwise might have in a legal action,
including, without limitation, the right to a jury trial, the right to appeal, and full
discovery rights.
(Client's initials)
3
,6i
16. EFFECTIVE DATES. This Agreement will take effect when you have
performed the conditions stated in Paragraph 1, but its effective date will be retroactive to the
date we first performed services. The date at the beginning of this agreement is for reference
only. Even if this agreement does not take effect, you will be obligated to pay us the reasonable
value of any services we may have performed for you.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND
AGREE TO THEM AS OF THE DATE ATTORNEY FIRST PROVIDED SERVICES. IF
MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE,
JOINTLY AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS
AGREEMENT. THE CLIENT SHALL RECEIVE A FULLY EXECUTED DUPLICATE
OF THIS AGREEMENT.
Dated: April , 2015 By:
Jim Knight
Mayor
Rancho Palos Verdes City Hall
30940 Hawthorne Blvd.
Rancho Palos Verdes, CA 90275
Dated: April , 2015 DALEY & HEFT, LLP
Scott Noya, Esq.
462 Stevens Avenue, Suite 201
Solana Beach, CA 92075
Tel: (858) 755-5666, Ext. 7222
Email: SNoya@daleyheft.com
2
RATE SCHEDULE
A. Identification
Client: City of Rancho Palos Verdes
Matter: Client hires Attorney to advise and represent City in connection with Green Hills
Memorial Park's Appeal of Planning Commission Decision Regarding Annual
Compliance Review (Case No. ZON20030086); Location: 27501 S. Western Avenue,
Rancho Palos Verdes, CA 90275
B. Hourly rates for legal personnel
Partners
$250/hour
Associates
$225/hour
Paralegals
$110/hour
C. Standard charges
We charge for our time in minimum units of .10 hours.
D. Costs and expenses
In -office photocopying 10/page
Mileage Applicable current I.R.S. rate
E. Subject to change
The rates on this schedule are subject to change on 30 days' written notice, subject to
Client approval/acceptance.
5
7