HomeMy Public PortalAboutC-20-036 - BURHENN & GEST LLPBURHENN & GEST LLP
624 SOUTH GRAND AVENUE
SUITE 2200
Los ANGELES, CALIFORNIA 90017
TELEPHONE (213) 688-7715
FACSIMILE (213) 688-7716
WRITER'S DIRECT NUMBER
(213) 629-8787
September 25, 2007
Jerome G. Groomes
City Manager
City of Carson
P.O. Box 6234
Carson, CA 90749
REC"EIVED
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CITY r/L,r---RK
2007 OCT -2 PM 5: 21
CITY OF CARSON
WRITER'S E-MAIL ADDRESS
hgest@burhenngest.com
Re: Proceedings Before The Commission on State Mandates For
Recovery of Inspection and Trash Receptacle Costs Imposed By The
Los Angeles County Municipal Stormwater Permit
Dear Mr. Groomes:
Thank you very much for deciding to retain Burhenn & Gest LLP ("Burhenn &
Gest"). This letter will formalize the City of Carson's engagement of Burhenn & Gest
and set forth the terms of that engagement. If the terms set forth below are acceptable,
please sign the original of this letter and return it to my attention.
I . Client; Scope of Representation. The client in this matter will be the City
of Carson (the "City"). Burhenn & Gest will advise the City in connection with, and the
scope of Burhenn & Gest's engagement and duties will relate solely to, the representation
of the City before the Commission on State Mandates regarding reimbursement for the
cost of industrial inspections and the installation of trash receptacles imposed by the Los
Angeles County Municipal Stormwater Permit. The City may limit or expand the scope
of this representation from time to time, provided that Burhenn & Gest must agree to any
substantial expansion.
2. Tenn of Engagement. The City's engagement of Burhenn & Gest shall
commence upon the City's execution and return of this letter. Either the City or Burhenn
& Gest may terminate this engagement at any time for any reason by written notice,
subject on Burhenn & Gest's part to the applicable rules of professional responsibility. In
the event that Burhenn & Gest terminates the engagement, Burhenn & Gest will take
such steps as are reasonably practicable to protect the City's interests in the above matter.
BURHENN & GEST LLP
Jerome G. Groomes
City Manager
September 25, 2007
Page 2
Unless previously terminated, Burhenn & Gest's representation of the City will
terminate upon Burherm & Gest sending its final statement for services rendered.
Following such termination, any otherwise nonpublic information that the City may have
supplied to Burhenn & Gest, which is retained by it, will be kept confidential in
accordance with applicable rules of professional responsibility. If, upon such
termination, the City wishes to have any documents delivered to it, the City shall advise
Burhenn & Gest within ten days. Otherwise, all such documents will be transferred to the
person responsible for administering Burhenn & Gest's record retention program. For
various reasons, including the minimization of storage, Burhenn & Gest reserves the right
to destroy or otherwise dispose of any such documents retained by it.
The City is engaging Burhenn & Gest to provide legal services in connection with
the above referenced matter. After the completion of this matter, changes may occur in
the applicable laws or regulations that could have an impact upon the City's future rights
and liabilities. Unless the City actually engages Burhenn & Gest after the completion of
this matter to provide additional advice on issues arising from them, Burhenn & Gest has
no continuing obligation to advise the City with respect to future legal developments.
3. Fees and Expenses. Burhenn & Gest's fees will be based on the billing
rate for each attorney and legal assistant devoting time to this matter. Burhenn & Gest's
billing rate for partners is presently $395 per hour. Time devoted by associates is
charged at $250 an hour and time devoted by legal assistants is charged at $95 per hour.
For the purpose of this proceeding, it is agreed that the billing rate for partners charged to
the City in this matter will be only $295 per hour. Howard Gest, a partner in the firm,
will be chiefly responsible for representing the City in this matter, although other
attorneys may assist from time to time.
Other cities have also requested that Burhenn & Gest represent them before the
Commission on State Mandates to seek reimbursement for the costs they have incurred
with regard to the inspections and the trash receptacles imposed by the Los Angeles
County Municipal Stormwater Permit. Services that are common to all clients
represented by this office will be divided equally amongst the clients. Services that are
unique to the City will be billed solely to it.
Burhenn & Gest will include on its statements charges for performing services
such as photocopying, messenger and delivery service, computerized research, travel,
long-distance telephone, facsimile, word processing and search and filing fees. Fees and
expenses of others (such as consultants, appraisers, and local counsel) generally will not
be paid by Burhenn & Gest, but will be billed directly to the City. Burhenn & Gest
anticipates billing the City monthly. The City agrees that Burhenn & Gest's statements
are due upon receipt and will be paid within 30 days thereafter.
BURHENN & GEST LLP
Jerome G. Groomes
City Manager
September 25, 2007
Page 3
4. Conflicts. Burhenn & Gest has multiple clients. Although Burhenn &
Gest hopes it never happens, it is possible that an adverse relationship (including
litigation) could develop in the future between the City and one of Burhenn & Gest's
other clients. If Burhenn & Gest is not representing the City in that future matter and that
future matter is not substantially related to Burhenn & Gest's representation of the City in
the above referenced matter, the City agrees that Burhenn & Gest may represent the other
client. (In its engagement letters with its other clients, Burhenn & Gest has asked for
similar agreements to preserve Burhenn & Gest's ability to represent you.)
As set forth above, other cities have requested this office to represent them
before the Commission on State Mandates with respect to their claims for reimbursement
for costs incurred in complying with the inspection and trash receptacle obligations
imposed by the Los Angeles County Municipal Stormwater Permit. In addition, this
office has represented and continues to represent the County of Los Angeles with respect
to the County's claims for reimbursement arising from the industrial inspections and the
installation of trash receptacles. It is agreed that the City waives any conflict of interest
or potential conflict of interest that could arise from this office's representation of any
other city or the County of Los Angeles with respect to these matters. Other cities and
the County are providing the same waiver with respect to the City of Carson.
Once again, Burhenn & Gest is pleased to have this opportunity to work with you.
If you have any questions or comments during the course of this representation, please
call me at (213) 688-7715.
Very truly yours,
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Howard Gest
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AGREED TO AND ACCEPTED ON BEHALF
OF CITI OF CARnN,
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Attest: 04_ A A A -
City lerk
BURHENN & GEST LLP
Jerome G. Groomes
City Manager
September 25, 2007
Page 4
Approved as Form:
60. tk�
City AtHmey
00N,
4 City of Carson
Report to Mayor and City Council
October 2, 2007
New Business Consent
SUBJECT: REQUEST FOR AUTHORIZATION FOR BURHENN & GEST LLP TO PROVIDE
LEGAL REPRESENTATION REGARDING REIMBURSEMENT FOR UNFUNDED
MANDATES
Submitted by M.'Vict&ao—liwiwoe��
Development Services General Manager
1. SUMMARY
App ove ero Groomes
City Manager
The city of Carson, County of Los Angeles (county) and several other cities
challenged the Commission on State Mandates' refusal to consider the costs of
the storm water inspection program and trash receptacle obligations imposed by
the Los Angeles County Municipal Storm Water Permit. The county and cities
represented by Burhenn & Gest LLP prevailed at the Appellate Court level and
may now file a test claim to recover the cost of these unfunded mandates. City
Council is requested to authorize Burhenn & Gest LLP to represent the city to
file the test claim and in all other related matters.
RECOMMENDATION
TAKE the following actions:
1 APPROVE representation by Burhenn & Gest LLP to file a test claim for
reimbursement of the cost of unfunded mandates with the Commission on
State Mandates and/or to represent the city in all other related matters, with
the understanding that the city's share of the cost is anticipated to not exceed
$7,500.00.
2. AUTHORIZE the Mayor to execute the professional services agreement with
Burhenn & Gest LLP, following approval as to form by the City Attorney.
ALTERNATIVES
TAKE any other action that the City Council deems necessary and appropriate at
this time.
IV. BACKGROUND
In 2003, the county and ten (10) cities (Bellflower, Cerritos, Commerce,
Covina, Downey, Monterey Park, Pico Rivera, Signal Hill, South Pasadena and
West Covina) retained Burhenn & Gest LLP to file test claims with the
Cornmission on State Mandates (the "Commission"). The test claims revolve
around two of the mandates issued by the Los Angeles Regional Water Quality
wzl�e
city of Carson Report to Mayor and City Council
October 2, 2007
Control Board (Regional Board) in the 2001 National Pollution Discharge
Elimination System (NPDES) and the Los Angeles County Municipal Storm
Water Permit. The first mandate requires the installation and maintenance of
trash receptacles at every transit stop in the community, regardless of the
location, transit passenger usage or past history of litter. The cities argued that
the installation of trash receptacles would result in additional cost for installation
and maintenance as well as littering where no litter previously existed. The
second mandate requires the cities to conduct storm water inspections on state
permitted commercial and industrial properties. The state already charges an
inspection fee for state permitted facilities. The state refused the cities' request
to provide a portion of this fee to the cities in order to complete what is in
essence a state inspection. This city has funded the state mandated inspections
from its General Fund. Some cities passed the inspection cost on to the
businesses only to be deluged with complaints from the business community.
The Commission refused to hear the test claims in 2003. Subsequently, the
County and eight cities (Carson, Commerce, Downey, Hawaiian Gardens,
Montebello, Santa Fe Springs, Signal Hill and West Covina) joined together in
litigation. A separate litigation was filed by the law firm of Richards, Watson
and Gershon for the cities of Artesia, Beverly Hills, La Mirada, Monrovia,
Norwalk, Rancho Palos Verdes, San Marino and Westlake Village. The court
consolidated the two cases.
The county and the cities prevailed in the Superior Court in 2005. The
commission appealed the trial court decision. The California Court of Appeals
ruled in favor of the county and the cities in May of 2007. The Commission
decided not to appeal this decision. The appellate court decision was published
and it orders the Commission to hear the county and the cities.
These unfunded mandate cases have far-reaching ramifications. The county and
the cities have maintained that the new storm water programs are unfunded state
mandates, and are not required under the Clean Water Act. Filing the test
claims and successfully defending the claims against additional legal arguments
made by the state is critical in the long term because the Regional Board will
continue to impose additional unfunded programs in the future. For example,
the Regional Board has now inserted numeric limits in the draft Ventura County
NPDES permit, which are not required under federal law. This Regional Board
is attempting to make a finding in the draft permit that there are no unfunded
mandates. Furthermore, the requirement that cities inspect state permitted
facilities is a shift of responsibility without sharing the inspection fee revenues.
And, it is likely that the state's budget situation will result in the continued
transfer of any revenues to other Water Board programs. The legislature is
pressuring the Water Boards to improve their inspection programs. If left
10
City of Carson iteport to Mayor and City Council
October 2, 2007
unchecked, these additional responsibilities will continue to be shifted to the
cities without any funding sources.
Staff recommends the engagement of the services of Burhenn & Gest LLP to
assist the city in recovering the inspection and trash receptacle costs. The legal
cost will be shared among the county and the cities and, to date, the county has
funded the majority of the expenses with the city's share being $3,000.00. The
professional services agreement with the law firm will be provided under
separate cover at this meeting.
V. FISCAL IMPACT
Funds for the legal representation by Burhenn & Gest LLP, which should not
exceed $7,500.00, are available in account no. 01-11-000-012-6004, City
Attorney Litigation Service. If the test claim is successful, the cost of installing
trash receptacles and maintaining these receptacles, and the cost of inspecting
state permitted facilities may be recovered.
VI. EXHIBITS
None.
Prepared by: Patricia Elkins, Building Construction Manager
sf:Rev061902
I-,eViUWr-U UY.
City Clerk
Ci!y Treasurer
Administrative Services
Development Services
Economic D elo nt ervices
Public Services
Action taken by City Council
Date Action