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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 'J 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, 'XV45--XI� Howard Gest HDG:da AGREED TO AND ACCEPTED ON BEHALF OF CITI OF CARnN, It ,ZZ_ _7Z� james D ,Wayor 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