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Home My WebLink AboutC-2163 - Litigation Defense - Koll Company and Aetna Life Insurance Company vs Newport BeachCITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER March 11, 1980 TO: FINANCE DIRECTOR FROM: City Manager �J SUBJECT: MONTHLY REPORT Attached is a letter of agreement, approved by the City Council, concerning the employment of this law firm. Please note the sentence requiring monthly invoices to be submitted to the City Council. You, in turn, are requested to give me a monthly report on the charges by this law firm to permit me to report monthly to the City Council. rNR )- ROBERT L. WY N Attachment C LAW OFFICES • WENKE, TAYLOR. EVANS F3 IKOLA WILLIAM F, WENKE GARY L. TAYLOR DAVID W. EVANS RAYMOND J. (KOLA RICHARD A. DEREVAN LINDA A, CHAPIN WILLIAM S. O'HARC / RECEIVED �< FEB 201980P_ Maym it >1 Beab Mr. Paul Ryckoff Mayor, City of Newport Beach 3300 Newport Boulevard Newport Beach, Ca. 92663 0 CALIFORNIA FIRST BANA OL-LDINO SVITE 801 • I055 NORTH MAIN STREET SANTA ANA. CALIFORNIA 92701 AREA CODE TA TELEPHONE 635 -3335 IN REPLY REFER TO: 2593 -05 �J February 19, 1980 // ...,//doo Re: The Koll Company, et al., v. City of Newport Beach, et al. United States District Court, Central District of California r. Case No. 80 00510 RMT (Kx) Dear Mayor Ryckoff: This will confirm that our firm has been requested to represent the individually named defendants in the above - referenced lawsuit,. namely, yourself, Ray Williams, Evelyn Hart, Paul Hummel, and Donald Strauss. We will undertake this task under the following fee arrange- ment. Our fees will be based upon the time devoted to the matter by each attorney of our firm multiplied by the then current hourly rate for that attorney. Currently, our hourly rates range from $70 to $125 per hour. The three attorneys who will be performing the majority of the work on this case have current hourly rates ranging from $70 to $95 per hour. Accordingly, we propose that our fees be based on our normal hourly charges subject to the limitation that the total fees will not exceed the total number of hours worked. multiplied by $90 per hour. We would request that this limitation be open to renegotiation on January 1, 1981. In addition to the fees, there will be charges for direct out -of- pocket expense items such as photocopying, long distance telephone, any extraordinary secretarial services, messenger services, filing fees, etc. •Invoices will be presented monthly. It is our understanding that, inasmuch as the City will be bearing these fees, a formal approval will be needed. Kindly advise when that approval is obtained. In the meantime, because of the 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK (714) 640 -2251 March 14, 1980 , Taylor, Evans & Ikola California First Bank Building Suite 801 1055 North Main Street Santa.Ana, California 92701 Subject: Case No. 80 00510 FMT Enclosed is a "00P Dop of y your proposal which was accepted by'the -Newport Beach City Council on March 10, 1980 i DORIS GEORGE City Clerk DG:bf encl. City Hall • 3300 Newport Boulevard, Newport Beach, California 92663 • • 1 CITY OF NEWPORT BEACH CALIFORNIA DATE March 14, 1980 TO: FINANCE DIRECTOR FROM: City Clerk SUBJECT: Contract No. C -2156 Description of Contract _Li_ticlation defense Council minutes Authorized by Resolution No. V34 -68 , adopted on March 10, 1980 Effective date of Contract March 10, 1980 Contract with Address 1055 -N� Main -St Santa Ana, Calif. 92701 Amount of Contract see contract , Ste. City Clerc City flail 3100 W. Newport Blvd. Area Code 714 F LAW OFFICES WENKE. TAYLOR. EVANS B [KOLA WILLIAM F_ WENKE GARY L. TAYLOR DAVID W. EVANS RAYMONO J. (KOLA RICHARD A. DEREVAN LINDA A_ CHAPIN WILLIAM 5. O'HARE nCEW U) FIB201980"'0 Mayo: cav I " "Wt X_ bemb Mr. Paul Ryckoff Mayor, City of Newport Beach 3300 Newport Boulevard Newport Beach, Ca. 92663 rI CALIFORNIA FIRST BANK BUILDING SUITE SOI•ICES NORTH MAIN STREET SANTA ANA. CALIFORNIA 92701 AREA CODE 714 TELEPHONE 835 -3338 IN REPLY REFER TO: 2593 -05 February 19, 1980 Re: The Koll Company, et al., v. City of Newport Beach, et al. United States District Court, Central District of California Case No. 80 005'10 RMT (Kx) Dear Mayor Ryckoff: This will confirm that our firm has been requested to represent the individually named defendants in the above - referenced lawsuit, namely, yourself, Ray Williams, Evelyn Hart, Paul Hummel, and Donald Strauss. We will undertake this task under the following fee arrange- ment. Our fees will be based upon the time devoted to the matter by each attorney of our firm multiplied by the then current hourly rate for that attorney. Currently, our hourly rates range from $70 to $125 per hour. The three attorneys who will be performing the majority of the work on this case have current hourly rates ranging from $70 to $95 per hour. Accordingly, we propose that our fees be based on our normal hourly charges subject to the limitation that the total fees will not exceed the total number of hours worked multiplied by $90 per hour. We would request that this limitation be open to renegotiation on January 1, 1981. In addition to the fees, there will be charges for direct out -of- pocket expense items such as photocopying, long distance telephone, any extraordinary secretarial services, messenger services, filing fees, etc. Invoices will be presented monthly. It is our understanding that, inasmuch as the City will be bearing these fees, a formal approval will be needed. Kindly advise when that approval is obtained. In the meantime, because of the 0 Mr. Paul Ryckoff February 19, 1980 Page 2 time pressures imposed by the pendency of the complaint, we will begin our work immediately. Thank you for the opportunity to serve. Very truly / yours, �� Raymond J. Ikola of WENKE, TAYLOR, EVANS & IKOLA RJI:so cc: Mr. Donald Strauss Ms. Evelyn Hart Mr. Paul Hummel Mr. Ray Williams March 12, 1980 The terms set forth in this proposal have been accepted by the City Council of the City of Newport Beach at the Regular Council Meeting of March 10, 1980. Mayor -J E ATTEST: Zc�1 � City Clerk Wenke Tayloi Cal ifornit.-I SAnta.Ana- rr IMPORTANT The ArtietW- covered by. this Purchase Order or contract must, CITY ;OF NEWPORT BEACj1 - - ��0{) `rouform.to:oppliciibte ^Cal- OSHA - Standards, and /or other appropriate Jaws, regulations, rules, and codes of the Federal r--,_ Government and the State of California. ` - Show as a separate item any retail sales tax, use tax or Federal -tax applicable to this purchase. - - - - This order subject to California sates tax. .. - D. W. MEANS PURCHASING AGENT All allowable transportation charges must be prepaid and shown - as a separate item on the invoice. Do not include Federal trans. - portation tax. MEN "g 1V Wenke Tayloi Cal ifornit.-I SAnta.Ana- rr IMPORTANT The ArtietW- covered by. this Purchase Order or contract must, CITY ;OF NEWPORT BEACj1 - - ��0{) `rouform.to:oppliciibte ^Cal- OSHA - Standards, and /or other appropriate Jaws, regulations, rules, and codes of the Federal r--,_ Government and the State of California. ` - Show as a separate item any retail sales tax, use tax or Federal -tax applicable to this purchase. - - - - This order subject to California sates tax. .. - D. W. MEANS PURCHASING AGENT All allowable transportation charges must be prepaid and shown - as a separate item on the invoice. Do not include Federal trans. - portation tax. MEN AY OF NEWPORT BACH COUNCILMEN MINUTES 'A ROLL CALL �J'� March 10, 1980 INDEX 16. Removed from the Consent Calendar. I I i 17. BUDGET AMENDMENTS - For approval: i BA -073, $900.00 increase in Budget Appropriations I and increase in Revenue Estimates for installa- tion of drainage line along the north side of Via Lido Saud and the northwest corner of Via Nice to the northeast corner of Via Orvieto with donations of $900 from the property owners; from Unappropriated Surplus and Donations and Contribu- tions to General Services -Field Maintenance, Maintenance and Repair Materials, General Fund. BA -074, $1,500.00 increase in Budget Appropria- tions and increase in Revenue Estimates for purchase of plants for Newport Center Branch Library with donation from Harbor View Hills Garden Club, from Unappropriated Surplus and Donations and Contributions, Building Excise Tax Fund. I. ITEMS REMOVED FROM THE CONSENT CALENDAR: j 1. A report was presented from the City Attorney CHAD regarding CHAD (Orange County Combined Health (57) Agencies Drive). Motion The report was received and ordered filed. x Ayes x x x x x x Noes x 2. A letter from Wenke, Taylor, Evans & Ikola was Litigation presented outlining the terms of employment as Koll Co attorneys representing the members of the City (31) Council in the Koll Company lawsuit. Motion x The proposal was accepted with the inclusion All Ayes that the Council be permitted to review the bills monthly. i j 3. A report was presented from the Planning Depart- Off -Site ment regarding an amendment to the conditions Parking/ i of approval of an existing Off -site Parking Evans Agreement between the City and Julius V. Evans (38) of 3331 East Coast Highway, Corona del Mar. Councilman Hummel stated after looking over the parking lot, he felt a concrete block wall should be erected dividing the parking lot from the adjacent residential property and that the planter on the westerly end of the parking lot should be altered to allow cars to make a maneuverable right turn out of the parking lot. Edward Wells addressed the Council and requested the removal of all of the wheel stops on the alley side of the parking lot. i Volume 34 - Page 68 COUNCILME ROLL CALL I I ' 40TY OF NEWPORT AACH MINUTES March 10, 1980 8. REPORTS - For Council information and filing: (a) Removed from the Consent Calendar. (b) Progress report from the Arts Commission regarding the summer concert. (Attached) 9. PUBLIC HEARING SCHEDULING: None. 10. USE PERMIT NO. 1862 - Acceptance of the public improvements constructed in conjunction with Use Permit No. 1862; and authorization to the City Clerk to release the Faithful Performance Surety (Time Certificate of Deposit No. 55- 1039852 issued by Imperial Savings and Loan Association). (A report from the Public Works Department) 11. USE PERMIT NO. 1883 - Acceptance of the public improvements constructed in conjunction with Use Permit No. 1883; authorization to the City Clerk to release the Use Permit Faithful Performance Bond (Bond No. 8 SM 551), and to release the Use Permit Labor and Materials Bond (Bond No. 8 SM 551) in six months provided no claims have been filed. (A report from the Public Works Depart- ment) 12. SAN JOAQUIN HILLS ROAD AND JAMBOREE ROAD FREE RIGHT TURN LANE (C -1991) - Approval of the plans and specifications; and authorization to the City Clerk to advertise for bids for Contract No. 1991 to be opened at 2:30 p.m. on Wednesday, April 2, 1980. (A report from the Public Works Department) 13. IRVINE AVENUE - CLIFF DRIVE INTERSECTION IMPROVE- MENTS (C -2143) - Approval of the plans and specifications; and authorization to the City Clerk to advertise for bids to be opened at 2:30 p.m. on April 16, 1980. (A report from the Public Works Department) 14. MARINAPARK SHELTER FACILITY (C -2010) - Acceptance of the work; and authorization to the City Clerk to file a Notice of Completion and release the bonds 35 days after the Notice of Completion has been filed. (A report from the Public Works Department) 15. MAINTENANCE DREDGING HARBOR PERMITS - Approval of the following maintenance dredging harbor permit, subject to the conditions of approval listed in the general permit issued to the City by the Corps of Engineers: (A report from the Marine Department) 101 -104 California Recreation Co. 1601 Bayside Drive Volume 34 - Page 67 INDEX City Arts Comsn (24) UP 1862 (88) UP 1883 (88) SJH Rd/ Jamboree Rt Turn Lane (38) Irvine/ Cliff Dr Intersection Impry (38) Marinapark Shelter Facility (38) Harbor Permits (51) 0 • SETTLEMENT AGREEMENT AND RELEASE This Settlement Agreement and Release (the "Agreement ") is entered into by and between the following parties: 1. The Koll Company, a California corporation (. "Koll "); 2. Aetna Life'Insurance Company, a Connecticut corporation ( "Aetna "); 3. 4. 5. 6. 7. The City of Newport Beach, California ( "Newport "); Paul Ryckoff ( "Ryckoff "); Ray E. Williams ( "Williams "); Evelyn R..Hart ( "Hart "); Paul L. Hummel ( "Hummel ") ; and 8. Donald A. Strauss ( "Strauss "). Koll, Aetna, Newport, Ryckoff, Williams, Hart, "Hummel, and Strauss will collectively be referred to within this Agreement as the "Parties." RECITALS A. Koll and Aetna along with others are the owners and developers of certain real property located in the City of Newport Beach, California, commonly known as Koll Center Newport (the "Property "). B. Newport is a charter city of the State of California. Ryckoff, Williams, Hart, Hummel, and Strauss are now, or at some times since 1976 have been, members of the City Council of Newport. (the "Council Members "). (lr • C. A dispute has arisen with respect to certain ordinances, resolutions, and policies adopted and /or established by Newport during the terms of office of the Council Members which impact upon Koll, Aetna, and /or the Property (the "Dispute "). The Dispute involves the Council Members in both their individual and official capacities. The Dispute includes, but is not limited to, the adoption by Newport, through the action of the Council Members, of Newport's General Plan Amendment 79 -1 ( "GPA 79 -1 "). D. An action with respect to the Dispute has been filed in the United States District Court for the Central District of California and is entitled "The Koll Company, etc., et al. v. City of Newport Beach, et,al." (the "Federal Action "). The Federal Action bears Case No. 80- 00510RMT(Kx). E. A mandate proceeding arising from the Dispute has been filed in Orange County Superior Court and is entitled "The Koll Company, etc., et al. v._ City of Newport Beach,-et al." (the "State Action "). The State Action bears Case No. 326876. F. This Agreement is executed concurrently with and is conditioned upon settlement of the State Action which consists of a stipulation to judgment requiring the invalidation of GPA 79 -1 insofar as it might apply to the Property. G. The Parties desire that the Federal Action be terminated and resolved without further legal proceedings, thus avoiding the inconvenience,-expense, and uncertainty of further litigation. AGREEMENT In consideration of the foregoing recitals and of the covenants -2- 0 and conditions set forth below, the Parties respectively agree as follows: 1. RECITALS. The recitals set forth above are incorporated by this reference as a part of the Agreement between the Parties. 2. DISMISSAL BY KOLL AND AETNA. Concurrently with the execution of this Agreement, the Parties shall execute a stipulation to dismissal providing.,for the dismissal with prejudice of the Federal Action by Koll and Aetna. 3. COSTS AND ATTORNEYS' FEES. Each of the Parties shall bear its, his -or her own costs and attorneys' fees-incurred as a result of the Federal Action. This paragraph 3 is not intended, however, to impair, release, or cancel any agreement between co- plaintiffs or co- defendants for the sharing, contribution, or indemnification of attorneys'. f ees and costs as between co- plaintiffs and co- defendants, it being the intent hereof that plaintiffs shall not be liable for defendants' fees and costs and defendants shall not be liable for plaintiffs' fees and costs. 4. WAIVER OF APPEAL RIGHTS. The Parties expressly waive any right to appeal any judgment or order in the Federal Action. 5. RELEASES. (a) Except;for the obligations created by and the rights expressly reserved within this Agreement, Koll and Aetna release and discharge Newport and the Council Members and their respective officials, employees, representatives, agents, attorneys, assigns, and successors from any and all rights, claims, and actions, known or unknown,.which Koll and /or Aetna may have with respect to the Federal Action, the State Action, or the Dispute. -3- • 0 (b) Except for the obligations created by and the rights expressly reserved within this Agreement, Newport and the Council Members release and discharge Roll and Aetna and their respective stockholders, directors, officers, employees, repre- sentatives, agents, attorneys, assigns, and successors from any and all rights, claims, and actions, known or unknown, which. Newport and /or any of the Council Members may have with respect to the Federal Action, the State Action, or the Dispute. 6. WAIVER OF UNKNOWN CLAIMS.' It is understood by each of the Parties that'Section 1542 of the Civil Code of California provides as follows: "Section 1542. .[Certain claims not affected by general release.] A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Section 1542 of the Civil Code of Califotnia is waived by each of the Parties. 7. FACTUAL DIFFERENCES. Each of the Parties understands and accepts the risk that the facts with respect to which this Agreement is entered into may be different from the facts now known or believed by each such party to. be true. This Agreement shall remain in all respects effective and shall not be subject to termination or rescission by virtue of any such difference in fact, absent a'showing of intentional fraud by any of the Parties in inducing any other to enter into this Agreement. 8. REPRESENTATION BY COUNSEL. Each of the Parties has been -4- 0 0 represented by counsel in entering into this Agreement. Each of the Parties affirms to the other that it has consulted and discussed the provisions of this Agreement with its counsel and fully understands the legal effect of each such provision. 9. BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit of the respective heirs, successors, assigns, and personal 'representatives of the Parties. 10. ENTIRE AGREEMENT. Except as set forth in Recital F above, this Agreement is• entered into by each of the Parties without reliance upon any statement, representation, promise, inducement, or agreement not expressly contained within this Agreement. This Agreement and such agreements as are executed in settlement of the State Action constitute the entire agreement between the Parties and supersede all prior oral or written agreements concerning the settlement of all claims between the Parties related to the Federal Action or the Dispute. 11. MODIFICATION. This Agreement shall not be amended or modified except in a writing signed by each of the Parties affected by such amendment or modification. 12. ATTORNEYS' FEES. If any action at law or equity is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which it may be entitled. 13. WARRANTY OF NON - ASSIGNMENT. Each of the Parties warrants that it has neither actually nor purportedly assigned or transferred to any person not a party to this Agreement all or any portion of any released matter. Each of the Parties agrees to -5- any claim, damage, liability, or action arising from any such actual or purported assignment or transfer, including the payment of attorneys' fees and costs actually incurred, whether or not litigation is actually commenced. 14. ADDITIONAL DOCUMENTS. The Parties agree to execute any and all additional documents reasonably necessary to complete and document this transaction_ 15. NEGOTIATED TRANSACTION. The drafting and negotiation of this Agreement has been participated in by each of the Parties. For all purposes, this Agreement shall be deemed to have been drafted jointly by each of the Parties. 16. NO INFERENCES TO BE DRAWN. The undersigned further understand and agree that the execution of this Settlement and Release shall not constitute or be construed as an admission of any obligation or liability, or of the validity of any claim whatsoever, or of the truth of the allegations made in the Federal Action, the defendants in the Federal Action having each consistently taken the position that the material allegations made by the plaintiffs are untrue, and that the defendants have no obligation or,liability whatsoever to the plaintiffs, or either of them. Dated: ML- Iz,- , 1980 Dated: May 21 , 1980. THE KOLL MPANY By CIA- I Name Timothy L. Strader Senior Vice President Title and General Counsel AETNA LIFE INSU] - COMPANY ,049 By Name Ro ert L. Peterson Title Assistant Vice President 0 S indemnify and hold harmless each of the others from and against any claim, damage, liability, or action arising from any such actual or purported assignment or transfer, including the payment of attorneys' fees and costs actually incurred, whether or not litigation is actually commenced. 14. ADDITIONAL DOCUMENTS. The Parties agree to execute any and all additional documents reasonably necessary to complete and document this transaction_ 15. NEGOTIATED TRANSACTION. The drafting and negotiation of this Agreement has been participated in by each of the Parties. For all purposes, this Agreement shall be deemed to have been drafted jointly by each of the Parties. 16. NO INFERENCES TO BE DRAWN. The undersigned further understand and agree that the execution of this Settlement and Release shall not constitute or be construed as an admission of any obligation or liability, or of the validity of any claim whatsoever, or of the truth of the allegations made in the Federal Action, the defendants in the Federal Action having each consistently taken the position that the material allegations made by the plaintiffs are untrue, and that the defendants have no obligation or,liability whatsoever to the plaintiffs, or either of them. Dated: ML- Iz,- , 1980 Dated: May 21 , 1980. THE KOLL MPANY By CIA- I Name Timothy L. Strader Senior Vice President Title and General Counsel AETNA LIFE INSU] - COMPANY ,049 By Name Ro ert L. Peterson Title Assistant Vice President 0 S 0 APPROVED AS TO FORM AND CONTENT: VI TUE & SCHECK 'NCORPORATED ti By MIC L C. G TIM PAONE Attorneys for The Koll Company and Aetna Life Insurance Company Dated: May 13 1980. CITY OF NEWPORT BEACH Name Jacqueline E. Heather Title Mayor APPROVED AS.TO FORM AND CONTENT: RUTAN & TUCKER By �ONARD A. Attorneys for the City of Newport Beach Dated: /7C - 1980. t Z / . All ovry noo LE - "E�f�` Dated: �i(L� 1980. Dated: 1980. Dated: S— ( 3 1980. Dated: S- 13 , 1980. APPROVED AS TO'FORM AND CONTENT: WENKE, TAYLOR, EV/ I. & IKOLA By '�`nY� �f' . Nt-r'� RAYMOND J. IKULA 'Attorneys for the Council Members -7- ' - GANG 1 MICHAEL C. TIM PAONE 2 SUSAN W. HALDEMAN Members of the Law Firm of " 3 VIRTUE & SCHECK,.INCORPORATED 17 Corporate Plaza Drive. MAY j 4 �p3� 4 P. O. Box 2950 K CLEF: - Newport Beach, California 92660 ��• DIS1' : ;IL f 5 (714) 644 -9030 By UfSTF:!CF 0r CAUFO DEP; 6 Attorneys for Plaintiffs ENTERED 7 8 UNITED STATES DISTRICT COURT MAY 15 1980 9 CENTRAL DISTRICT OF CALIFORNIHLERK. U. S. L 3..: 'URT "O' RNI CENTRAL DISTRZI ' � 10 By 11 THE KOLL COMPANY, a California ) corporation; and AETNA LIFE ) 12 INSURANCE COMPANY, a Connecticut) corporation, ) Case No. CV -80 -00510 RMT (Kx) 13 ) Plaintiffs, ) STIPULATION TO DISMISSAL 14 ) vs. ) 15 ) CITY OF NEWPORT BEACH; PAUL ) 16 RYCKOFF; RAY E. WILLIAMS; ) EVELYN R. HART; PAUL G. HUMMEL; ) 17 and DONALD A. STRAUSS, ) 18 Defendants. ) 19 20l Pursuant to the settlement entered into by the parties to 21 this action, the parties, through their respective counsel of i 221 record, stipulate that this action shall be dismissed with 23 prejudice. As provided in the Settlement Agreement and Release 24 between the parties, each of the parties shall bear its, his, or 25 her own costs and attorneys' fees. I 26� Dated: I� , 1980. VIRTUE & SCHECK, CORPORATED 27 By 28I MIC EL C. GERING TIM PAONE Attorneys for The Koll Company and Aetna Life Insurance Company I I 2 3 4 »71 C:i', 91 10 11 12I, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated : �•.._ „�`/ , 1980 Dated: %i /C j 1980 RUTAN & TLWR By LEONARD A. HAMPEL Attorneys for the City of Newport Beach WENKE, TAYLOR, EV /AN %S �& I /KOLA By �^W l • aat-"/ RAYMOND J. IKOLA Attorneys for the Council Members IT IS SO ORDERED. Dated:. MAY 1 4 1980. RU a RT MI. TAXALUG! ROBERT M. TAKASUGI Judge of the United States District Court -2-