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HomeMy WebLinkAboutC-5800 - VOIDCONTRACT NO. G5800 WAS VOIDED Per City Attorney's Office Mulvey, Jennifer From: Mullinax, Carrera Sent: Wednesday, December 03, 2014 1:50 PM To: Mulvey, Jennifer Cc: Buzby, Lisa Subject: RE: Contract Attachments: C- 5800.pdf Hi Jenn No — we don't have a fully executed copy — and the one you sent us actually has your City Clerk attestation on it — which is more than we have on our copy! I think what happened is that the Plaintiffs dropped the case in mid -May, so it wasn't necessary to retain counsel in the end. Sincerely, Carrera Mullinax, Certified Paralegal Office of the City Attorney City of Newport Beach 100 Civic Center Drive Newport Beach, CA, 92660 (949) 644 -3134 A (949) 644 -3139 Email: cmullinax @newportbeachca.Bov CONFIDENTIALITY NOTICE: The information in this e -mail message is intended for the confidential use of the addressees only. The information is subject to the attorney - client privilege and /or may be attorney work - product. Recipients should not file copies of this e -mail with publicly accessible records. If you are not an addressee or an authorized agent responsible for delivering this e-mail to a designated addressee, you have received this e -mail in error, and any further review, dissemination distribution, copying or forwarding of this e -mail is strictly prohibited. Moreover, such inadvertent disclosure shall not compromise or waive the attorney- client privilege as to this communication. If you received this e -mail in error, immediately notify the sender. Thank you. From: Mulvey, Jennifer Sent: Wednesday, December 03, 2014 1:31 PM To: Mullinax, Carrera Subject: Contract Do you have a fully executed copy of this contract? Thanks, cfM40& aQ7 Administrative Specialist to the City Clerk The City of Newport Beach 100 Civic Center Dr, Newport Beach, CA 92660 939- 643 -3005 1 NOSSAMANLLP VIA E -MAIL AND U.S. MAIL April 10, 2014 Michael Gelfand Bayside Village Marina, LLC Terra Vista Management P.O. Box 9262 Rancho Santa Fe, CA 92067 ATTORNEYS AT LAW 18101 Von Karman Avenue Suite 1800 Irvine, CA 92612 T 949.833.7800 F 949.833.7878 John J. Flynn III D 949.477.7634 jflynn @nossaman.com Refer To File #: 400244 -0002 Aaron C. Harp, Esq. City of Newport Beach Office of the City Attorney 100 Civic Center Drive Newport Beach, CA 92660 Re: Engagement Letter for Representation Related to Stop the Dunes Hotel v. City of Newport Beach, Orange County Superior Court, Case Number 30- 2014 - 00710776 -CU -PT -CXC Dear Messrs. Gelfand and Harp: We are very pleased to have the opportunity to provide legal services to Bayside Village Marina, LLC ( "Bayside ") and the City of Newport Beach ( "City ") (collectively, the "Clients "). (The terms "you" and "yours" as used in this letter shall refer to the Clients.) We expect that these services will be provided principally by attorneys resident in our Irvine office, although we may call upon attorneys in our other offices to provide advice or assistance on your matter if appropriate. This letter will serve to record our agreement of the terms and conditions of our representation following our completion of a review of all conflicts and acceptance of the engagement by Firm Management. Our engagement will not extend beyond the litigation matter described in this letter, and when work on this matter has ended, the engagement of our firm on this matter will have concluded. 1. Purpose of Engagement. Clients have asked us and we agree to represent Clients in the defense of Stop the Dunes Hotel v. City of Newport Beach, Orange County Superior Court, Case Number 30- 2014 - 00710776 -CU -PT -CXC (the "Action "). Bayside has appointed Michael Gelfand and Gordon Craig, and the City has appointed Aaron Harp and Leonie Mulvihill as their respective designees to receive our billings and other information, as needed, with respect to this agreement and to give us instructions as to how we are to provide service to the Clients under this agreement. It is agreed that Bayside will have sole and exclusive responsibility for payment of the Attorneys' fees and costs incurred pursuant to this agreement. On matters covered by this agreement, we agree to provide such legal services as we determine are reasonably required to represent Clients; to take reasonable steps to keep Bayside's representatives, Michael Gelfand, Gordon Craig, and Wendy Glenn (Bayside corporate counsel), and /or their designees, and the City's representatives, Aaron Harp and 357781 nossaman.com Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 2 Leonie Mulvihill, or their designee, informed of facts and developments concerning the subject matter of this engagement as they come to our attention; and to respond to your reasonable inquiries. The Firm's lawyers have no obligation to share information, even information material to the representation, if that information was learned while representing other clients and is confidential to those other clients. Each of you agrees to cooperate with us, to keep us informed of material developments affecting the action, to abide by this agreement and to pay our statements for services in accordance with the provisions below. Clients agree that Bayside and City are our Clients for the specific matters on which we are engaged, and that we shall not be deemed to represent any of Clients' parents, subsidiaries or other affiliates unless we expressly agree to do so in writing. Further, our representation of a corporation, partnership, joint venture, association, or other entity does not include a representation of the individuals or entities that are shareholders, officers, directors, partners, joint ventures, employees or members of such entities or their interests in such entities. There is no attorney - client relationship between the Firm and any such related person or entity. The attorney - client privilege is solely between the Clients and the Firm. Any proposed expansion of the representation to include any such related persons or entities shall be subject to and contingent upon execution of an engagement letter directly with those persons or entities, following clearance of any conflicts. 2. Joint Representation of Clients and Zador. Waiver. This law firm currently represents Bayside on matters related to land use, the California Environmental Quality Act ( "CEQA "), the California Coastal Commission, regional, state, and federal resource and water quality compliance and permitting for the Back Bay Landing Project. The final environmental impact report (FEIR 2012 -003) for the Back Bay Landing Project was certified by the City, the lead CEQA agency, on February 11, 2014, and the Notice of Determination ( "NOD ") filed and posted by the City on February 13, 2014. On March 14, 2014, Stop the Dunes Hotel filed the Action alleging purported CEQA and Planning and Zoning violations and naming both the City and Bayside, the latter as the real party in interest. In order for our firm to represent both Bayside and the City in this matter, potential conflicts of interest must be resolved. "Conflicts of Interest" is a short hand term for describing the fact, as related to the present situation, that lawyers owe undivided allegiance to each client in a particular engagement. In this case, as described above, our original client is Bayside, whom we represented before the City during the permitting and approval process for the Back Bay Landing Project, and will continue to represent in connection with future regulatory approvals. Because of potential conflicts in the course of such representation that could arise in the future, we are compelled to seek your informed written consent before we can jointly represent both Clients. This requirement is established by the Rules of Professional Conduct for all California attorneys, at rule 3- 310(C), which provides in pertinent part that "a member shall not, without the informed written consent of each client, accept representation of more than one client in a matter in which the interest of the clients potentially conflict." This letter addresses only the potential conflicts resulting from Nossaman's proposed representation of both Bayside and the City in the defense of the Action. Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 3 Based on the information that has been provided to us, we do not believe that our representation of Bayside and the City involves any actual conflict of interest at this time because both parties are currently in alignment in the defense of the case. You should be aware, however, that our representation may in the future produce actual conflicts of interest if the interests of Bayside become inconsistent with the interests of the City. For example, in the event settlement of the Action is proposed, a potential dispute could arise concerning how to proceed in the Action. Such matters are speculative at this time, and depend upon future developments that cannot be predicted. However, the possibility of an actual future conflict is considered a current potential conflict, and so requires all parties' informed consent. (Rule 3- 310 (C)(1).) Representation of multiple clients by a single law firm should result in certain advantages. However, multiple representation also involves risks. First, multiple representation may result in divided or at least shared attorney client loyalties and privileges. Although we are not currently aware of any actual or reasonably foreseeable adverse effects of such divided or shared loyalty in this case, it is possible that issues may arise as to which our representation of one Client may be materially limited by our representation of both Clients in the Action. It is our responsibility, in suggesting waiver of actual or potential conflicts, to inform all parties being asked to waive such conflicts "of the relevant circumstances and of the actual and foreseeable adverse consequences" to each party that may consider such waiver. (Rule 3- 310(C).) Specifically, Rule 3 -310 of the Rules of Professional Conduct, which governs all lawyers in California, requires: (C) A member [of the Bar] shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interest of the clients potentially conflict; or (2) Accept representation of more than one client in a matter in which the interest of the clients actually conflict. While in most instances, conflicts can be and are resolved while the joint representation continues, the differences between common clients may become so significant that continuing joint representation is not possible. That circumstance is addressed separately below in the discussion of the °Zadorwaiver." Furthermore, because we will be jointly retained to defend both Clients in this matter, we will not be able to protect communications from one of you against a possible need (in our judgment) to disclose that communication's content to the other Client, because counsel who represent more than one client in a single matter such as the Action cannot keep confidential matters related to or affecting the matter from other co- clients in the same matter. Thus, pursuant to this proposed joint - client arrangement, anything you disclose to us may be disclosed to the other jointly represented Client at any time and will not in any way be protected from disclosure to them, however much of it would be privileged against third parties. This is Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 4 true even if the jointly represented Clients subsequently have conflicts emerge which require the joint representation to end. The applicable law in such situation is, that if there is a Zador waiver in place and we continue to represent one Client, we will be able to share with our continuing Client any confidential and privileged information of the former Client. Importantly, in the event of a dispute or conflict between Clients, normally we would be disqualified from representing any or all of the Clients in the Action or in any actions between Clients, absent written consent from Bayside and the City. There are various ways in which a conflict could arise. For example, as referenced above, Clients may have a difference of opinion on how to proceed if a settlement offer has been proposed. We invite those parties who may encounter such actual conflict, to agree that in such case Nossaman may continue to serve a particular party despite the developed conflict which would otherwise require the firm to withdraw from both engagements. Such advance waivers, if narrowly tailored according to the rule stated in Zador Corporation, N.V. v. Kwan (1995) 31 Cal.AppAth 1285, will be upheld by the courts. "Zador waivers" are typically structured so as to allow the attorneys to continue serving that client that has the most intense or perhaps the longest- standing involvement with the attorneys' firm with respect to the particular matter. In this case, such client would be Bayside. While this letter does not provide an exhaustive list of all potential conflicts, by signing the Zador waiver at the end of this letter, we are asking the City to consent to our continued and future representation of Bayside, even if we will have received confidential information regarding the engagement from the City, and such information can be used in our ongoing representation of Bayside, and that the City agrees not to assert any conflict of interest or seek to disqualify our firm from representing Bayside, notwithstanding any adversity that may develop and even if we elect to discontinue representing the City as a result of any conflict that may emerge. By signing and returning to us the Waivers and Consents set forth at the end of this letter, each of you consents to such an arrangement and waives any conflicts regarding that arrangement. By signing this letter, the City is also agreeing to reasonably cooperate to facilitate our withdrawal as its counsel of record in the Action should a conflict make that necessary. Notwithstanding the above risks, we have discussed this dual representation and potential conflict, and each of you has advised us that at the present time you do not desire to seek other counsel but instead desire that we represent the interests of both Clients. Because the interests of one Client may become inconsistent with the other Client's interests, we are required to bring this matter to your attention and to obtain your separate consent to our continued representation of the other Client, as well as the consent of both Clients as to the representation in the face of the potential conflicts discussed in this letter, before we can represent either Client in the Action. Moreover, our existing client Bayside has indicated that it will not waive any actual or potential conflict unless the City also provides a "Zadorwaiver" as explained above. Accordingly, the City is requested, in addition to its overall waiver, also to consent to our continuing representation of Bayside if it and the City were to develop an actual conflict that would otherwise require our withdrawal from representation of any party. The reason for that request is that Bayside has spent significant time working with our firm in this complex engagement and does not want to lose the value of all that investment if a dispute later arises between it and the City. Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 5 Accordingly, we request that each of you signify your informed written consent by countersigning and returning this letter to us. We encourage each of you to seek independent counsel from an attorney of your own choosing regarding the importance of this consent, and we emphasize that Bayside and the City remain completely free to also seek additional independent counsel to represent them at any time even if they decide to execute the Waiver and Consent set forth below. 3. Hourly Rates. Our fees for services provided to you pursuant to this agreement will be calculated and billed based upon hourly rates established for each attorney, paralegal and clerk rendering services on your matters. Our statements for services will provide you with a description of the services performed, the date they were performed, the time devoted to your matters and the specific hourly rate of the attorney, paralegal or clerk that performed the services on your behalf. The hourly rates of individuals who are currently expected to perform services with respect to your matters are set forth on Attachment A hereto and will generally be recorded and billed in one tenth hour increments. If other personnel are asked to perform services, you will be informed of their billing rates on the first statement following their initial service. We expect that the attorneys listed on Attachment A will render the bulk of the services. From time to time, our rate structure in general, or the rates of particular attorneys, paralegals or clerks, may be increased. If so, you will be advised of the new rates. The new rates shall apply to all work performed after you have been advised of the new rates. Our hourly rates apply to all time spent on your behalf, including but not limited to court appearances; motion practice; preparing, analyzing, reviewing and revising correspondence and documents; factual and legal research; consultation and advice; conducting negotiations; engaging in depositions and other discovery; conferences; preparing for and conducting trials and appeals; conferring with other attorneys in our Firm, or with witnesses or attorneys also involved in the matter; and such other services of a professional nature as this engagement may require. 4. Costs and Expenses. We will ordinarily incur various costs and expenses or will provide certain in -house services while performing legal services. You agree to pay for these items in addition to our fees for legal services. The costs and expenses and in -house services may include, but will not necessarily be limited to, filing fees fixed by law or assessed by courts or other agencies; court reporters' fees; witness fees; experts' fees; consultants' fees; process server fees; investigation expenses; out of town travel expenses; long distance telephone charges; messenger and private courier delivery charges; photocopying and other reproduction services; computerized research charges; and similar items. In accordance with our Firm policies we charge 20 cents per page for reprographic and printing services. External costs and expenses are charged at our cost, including computerized research. Where the Firm maintains a fixed subscription contract with a vendor for computerized research, you will be charged for the actual cost incurred by the Firm during the given month which often results in substantial discounts of the vendor's regular rates. We will not charge you for word processing, overtime expenses associated with administrative or secretarial personnel, telephone calls within the United States and similar items unless these Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 6 items are unusually large in amount and we obtain your agreement in advance. We will not add a "handling" charge for costs and expenses incurred on your behalf. We are not required to advance payment for any external expenses. If for any reason we advance a payment for external expenses, you agree to promptly pay our invoices with those charges. In addition, we may submit those charges directly to you and ask that you pay such charges directly to the vendors, in a timely manner. If you do not make timely payments to vendors, we reserve the right to pay those vendors on your behalf and include such charges in our statements and require reimbursement from you. It is important that vendors be promptly reimbursed so that we can retain good professional relationships with those vendors. 5. Management of Files. Our files for work prepared pursuant to this agreement are your property. We will release our files for work performed pursuant to this agreement to you or to anyone else you designate upon your written request delivered to the attorney in charge of this matter. However, you agree that we may, in our sole discretion, copy all or any portion of the file and charge the copying costs to you, and that we may have a reasonable period of time before releasing the documents to you or anyone else you designate in order to copy all or any portion of the files you have directed us to surrender. We will, from time to time, send portions of your files that are not currently needed to an off -site storage facility. The cost of this facility will be our sole expense. However, we are not the guarantor of the security of any off -site storage facility. Accordingly, you agree that the Firm will not be responsible for any damages which may occur as a result of the loss of any of your files which we store at an off- site storage facility. You also agree that we may, after the passage of two years without our having performed any work for you pursuant to this engagement for services, destroy your files unless you provide us with written instruction to forward the files to you or to another person you designate. We will notify you in advance and seek your instructions regarding any files that are to be destroyed. 6. Communications. You agree to keep us informed of any change in your address, telephone numbers, or electronic mail address so that we may effectively communicate with you. We will also advise you promptly of any change in the Firm's business address, electronic mail address or telephone or facsimile numbers. You agree that we may communicate with you via electronic mail or wireless telephone even though these media may be less secure than alternative means of communication. 7. Assistance of Experts. To aid in your matters, it may become necessary to hire experts, consultants or investigators. Such persons will be employed by us on your behalf, not by you, so as to protect any privileged work, but we will not hire such persons unless you approve and also agree to pay their fees and charges. The responsibility to pay for their services is solely yours. 8. Payment for Services Rendered. We will send you monthly statements for fees and costs incurred. Payment is due within 30 days of the date of invoice, If not paid within the 30 days, interest shall accrue at the rate of 12% per annum from said due date. You agree to read your statements carefully and promptly notify the Firm of any error. Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 7 9. Termination. You may discharge us as your attorneys at any time. We may withdraw as your attorneys with or without your consent, as long as permitted by law. Some of the reasons that may cause us to withdraw include but are not limited to the following: your breach of this agreement; your failure to pay our bills on time; your refusal to cooperate with us; your refusal to follow our advice on a material matter; the development of irreconcilable disagreement between you and us as to the conduct of the engagement; or any other fact or circumstance that would render our continuing representation contrary to your interests, or to law, or to the rules of professional conduct. Failure to withdraw as your attorneys on any one occasion shall not be a waiver of our right to do so if such other occasions arise. If you discharge us, or if we elect to withdraw, you agree to secure forthwith other counsel of your own selection to represent you and, if we are your attorneys of record in any litigation, to cooperate fully in substituting such new counsel as your attorneys of record in the litigation. 10. No Guarantee of Specific Outcome. Nothing in this agreement and nothing in our statements to you should be construed as a guarantee or promise about the outcome of your matter or any phase thereof. Comments about the course or outcome of your matter or any phase thereof which we may make from time to time are expressions of opinion only. You acknowledge that the amount of legal fees and costs that may be incurred on your behalf pursuant to this agreement is not capable of precise prediction; and you acknowledge that we have made no guarantees or promises and that you have set no limits with regard to the cost of services we provide you. 11. Enforcement of Agreement. Except for a claim for failure to pay fees for professional services and /or expenses, if any dispute arises out of, or relates to, a claimed breach of this agreement, the professional services rendered by attorneys, or any other disagreement of any nature, type or description regardless of the facts or legal theories which may be involved, such dispute shall be resolved by binding arbitration before the Orange County Office of JAMS (or similar alternative dispute resolution firm should JAMS cease to operate), by a panel of three arbitrators. Discovery shall be permitted pursuant to the provisions of Code of Civil Procedure section 1283.05. Each side shall bear its own costs and attorneys' fees. Any dispute as to a failure to pay fees for professional services and /or expenses shall, subject to the provisions of Business and Professions Code sections 6200 et seq., be resolved in the appropriate Superior Court of the State of California. The party prevailing in an action regarding a dispute as to either Client's failure to pay fees for professional services and /or expenses shall be entitled to recover from the other party the prevailing party's actual attorneys' fees and costs incurred, including expert witness fees, witness fees, and associated expenses, whether or not the action proceeds to judgment. For the purposes of enforcing this agreement, and as otherwise required by law, you agree that this agreement may be disclosed to a court or arbitrator. 12. Governing Law. This agreement is made under and shall be construed in accordance with the substantive laws of the State of California without reference to its choice of law rules. Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 8 13. Professional Liability Insurance. We carry professional liability insurance that would cover the services we will be providing to you under the terms of this agreement. That insurance is subject to a significant self- insured retention. 14. Effective Date. This agreement will take effect when you sign this agreement and return it to us, but its effect will be retroactive to the date we first performed services on your behalf. It is agreed that performance under this agreement and payment of the fees and costs required hereunder shall be in Los Angeles, California. 15. Entire Agreement. This agreement constitutes a single, integrated written contract expressing the entire agreement of the Clients and our Firm. There is no other agreement, written or oral, express or implied, between the parties with respect to the subject matter of this agreement. This agreement may be modified only in a writing signed by all the parties. This agreement shall be construed by giving effect to the plain meaning of its terms. We are very proud of our client relationships, and occasionally identify clients to others who ask about our client base, or in institutional materials. Unless you object in writing, we assume that you agree that we may state that we represent you in such matters as we deem appropriate, although of course we would not publish or disseminate any confidential information. If these terms are acceptable to you, please sign in the space provided below on both this copy and the enclosed copy and return one copy of this agreement to us in the envelope enclosed for your convenience, together with any retainers required by this agreement and retain the other copy for your files. We appreciate your confidence in our Firm and look forward to working with you. Sincerely, olfin J. Flynn III of Nossaman LLP Enclosures cc: John P. Erskine, Esq. Leonie Mulvihill, Esq. Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 9 ACCEPTANCE I have read and understand the foregoing terms and agree to them as of the date that Nossaman LLP first provided services to Bayside Village Marina, LLC and /or the City of Newport Beach. Dated: Dated: I Bayside Village Marina, LLC By: Printed Name: Title: The City of ewport Beach #"' Printed Name: f Z' r Title: Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 10 WAIVER AND CONSENT I am a representative of the City of Newport Beach, a defendant in the above - referenced Action. I have read the foregoing letter, understand its explanation of the conflicts of interest that the City of Newport Beach is being asked to waive and have consulted with such independent counsel as I deem fit. On behalf of the City of Newport Beach, I hereby knowingly agree that the City of Newport Beach waives the conflicts of interest described above in this letter and agrees that Nossaman LLP may represent it and the other parties referred to in this letter. I further agree on behalf of the City of Newport Beach that if conflicts subsequently emerge as described above, Nossaman LLP may continue to represent Bayside Village Marina, LLC in the above - referenced case even if that representation were to become adverse to the City of Newport Beach, whether because of such conflict or otherwise. Dated Attest Y rr oij City Clerk E?7 q8 V/ � 4 k f . (-.000M.- The City ;rz BeachC By: __A"` Printed Name: /-r. Gi p'o C. S Title: k I am a representative of Bayside Village Marina, LLC. 1 have read the foregoing letter and understand its explanation of the conflicts of interest that I am being asked to waive on behalf of Bayside Village Marina, LLC. I hereby knowingly waive the conflicts of interest described above in this letter and agree that Nossaman LLP may represent all the parties referred to in this letter, including the City of Newport Beach. I further agree and understand that if conflicts subsequently emerge as described above, and the City of Newport Beach has signed this Waiver and Consent, that Nossaman LLP may discontinue representing the City of Newport Beach and nonetheless will continue to represent Bayside Village Marina, LLC in the above - referenced case. Dated: Bayside Village Marina, LLC By: Printed Nam Title: Michael Gelfand Aaron C. Harp, Esq. April 10, 2014 Page 11 PROSPECTIVE CONFLICTS WAIVER "ZADOR WAIVER" Having read the disclosure of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to us of granting this waiver, and having had the opportunity to obtain the advice of independent counsel, the undersigned hereby waives the conflicts of interest disclosed in the above letter and consents to the Nossaman firm's representations of the respective interests stated in the body of the letter. In addition, we acknowledge that in the event of a dispute or conflict between us and other parties addressed in the letter, there is a risk that the Nossaman firm may be disqualified from representing any and all of the parties absent written consent from such parties at that time. If such a conflict or dispute were to arise that would require a new conflicts waiver or disqualification, then and in such event, notwithstanding any adversity between us and Bayside Village Marina, LLC, we hereby consent to Nossaman's continued and future representation of Bayside Village Marina, LLC, and agree not to assert any such conflict of interest or to seek to disqualify Nossaman from representing Bayside Village Marina, LLC, in the Action. Date: L[ / ( "f / I L") City of New ort Beach By: D� C ff Printed Name: A c-, Title: C ` f` Y %i '� c> ✓ti e Y