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11-17-2020 - AGENDA ITEM 12 CONSIDERATION OF CONTRACT WITH COLE HUBER LLP IN CONNECTION WITH THE BKK LANDFILL LOCAL ENFORCEMENT AGENCYAGENDA ITEM NO. 12 AGENDA STAFF REPORT City of West Covina I Office of the City Manager DATE: November 17, 2020 TO: Mayor and City Council FROM: David Carmany City Manager SUBJECT: CONSIDERATION OF CONTRACT WITH COLE HUBER LLP IN CONNECTION WITH THE BKK LANDFILL LOCAL ENFORCEMENT AGENCY RECOMMENDATION: It is recommended that the City Council authorize the City Manager to negotiate and execute any documents necessary for the continued engagement of Cole Huber LLP to provide legal services to the City in connection with the BKK Landfill Local Enforcement Agency. BACKGROUND: On or about March 9, 2020 the City Manager entered into a Legal Services Agreement with Cole Huber LLP for the firm to provide legal services to the City in connection with the BKK Landfill. Staff now seeks City Council authorization for the City Manager to negotiate and execute any documents necessary for the continued engagement of Cole Huber. DISCUSSION: Elizabeth Martyn, a partner at Cole Huber, is the lead attorney representing the City in the BKK Local Enforcement Agency matter. Ms. Martyn has experience with the BKK landfill as former West Covina City Attorney during the late 1980s until 2000. LEGAL REVIEW: The City Attorney's Office has reviewed and approved the Legal Services Agreement as to form. OPTIONS: The City Council has the following options: 1. Approve staffs recommendation; or 2. Provide alternative direction. Fiscal Impact FISCAL IMPACT: Cole Huber's hourly rates are charged to Account Number 110.22211 as follows: Changes in Fee Arrangements and Budgets It may be necessary under certain circumstances for a client to increase the size of required advances for fees after the commencement of our engagement and depending upon the scope of the work. For example, prior to a protracted trial or hearing, the firm may require a further advance payment to the firm's trust account sufficient to cover expected fees. Any such changes in fee arrangements will be discussed with the client and mutually agreed upon in writing. Because of the uncertainties involved, any estimates of anticipated fees that we provide at the request of a client for budgeting purposes, or otherwise, can only be an approximation of potential fees. 00072172.1 • Elizabeth Marlyn and Steve Graham - $275.00/hour • Associates - $245.00/hour • Paralegals - $165.00/hour Attachments Attachment No. 1 - Legal Services Agreement CITY COUNCIL GOALS & OBJECTIVES: Protect Public Safety COLE HUBERLLP March 3, 2020 ATTORNEY -CLIENT PRPM.EGE VIA E-MATT. AND U.S. MAIL. David Carmany Thomas Duarte City Manager City Attorney City of West Covina Jones & Mayer 1444 West Garvey Avenue South 3777 North Harbor Blvd. West Covina, CA 91790 Fullerton, CA 92835 E-Mail: dcarmany@westcovina.org E-Mail: tpd@jones-mayer.com Re: Legal Services Agreement with Cole Huber LLP BKK Landfill Local Enforcement Agency Dear Mssrs. Carmany and Duarte: ABOUT OUR REPRESENTATION Cole Huber LLP is pleased to represent the Local Enforcement Agency (LEA) in the above -referenced matter. Specifically, our firm will provide separate and independent representation for the LEA in discussions, negotiations, and possible administrative hearings and litigation with the State of California acting through CalRecycle and Department of Toxic Substances Control (DTSC) and other state or federal agencies regarding the BKK Landfill. This letter constitutes our agreement setting forth the terms of our representation. CONFIDENTIALITY AND ABSENCE OF CONFLICTS An attorney -client relationship requires mutual trust between the client and the attorney. It is understood that communications exclusively between counsel and the client are confidential and protected by the attorney -client privilege. To also assure mutuality of trust, we have maintained a conflict of interest index. The California Rules of Professional Conduct defines whether a past or present relationship with any party prevents us from representing you. Similarly, your names will be included in our list of clients to ensure we comply with the Rules of Professional Conduct. We have checked the following names against our client index: City of West Covina State of California (CalRecyle and DTSC) ADVANCING YOUR AGENDA 00072172.1 ATTORNEY -CLIENT PRIVILEGE David Carmany Thomas Duarte March 3, 2020 Page 2 EPA (federal) Singpoli Group, LLC Based on that check, we can represent your interests in the above -referenced matter. Please review the list to see if any other persons or entities should be included. If you do not tell us to the contrary, we will assume that this list is complete and accurate. We request that you update this list for us if there are any changes in the future. YOUR OBLIGATIONS ABOUT FEES AND BILLINGS The current billing rate for Elizabeth Martyn and Steve Graham is $275 per hour, associate attorneys are billed at $245 per hour, and paralegals are billed at $165 per hour. We will bill you monthly for all services provided. You agree that the firm's right to recover fees and costs from the deposit or any subsequent deposit held in the firm's Client Trust Account becomes fixed seven days after the date a bill is sent to you. If the firm receives a written objection from you within seven days of sending the bill, the firm's right to withdraw the amount that is identified in the objection shall be deemed to be disputed, and the firm will not withdraw the disputed fees and/or costs from the Client Trust Account until the dispute is resolved. If the firm receives an objection from you more than seven days after the date the bill is sent and after the funds have been withdrawn, the firm will not be required to redeposit the disputed fees and/or costs into the Client Trust Account during the pendency of the dispute. The memorandum attached to this letter describes the other aspects of our firm's billing policies. You should consider this memorandum part of this Agreement as it binds both of us. For that reason, you should read it carefully. FIRM STATUS Cole Huber LLP is a limited liability partnership organized under California law. Derek P. Cole and Scott E. Huber are the equity partners of the firm. All other attorneys who may work on your matter are employees of the firm. INSURANCE We understand that you are not now insured or have any insurance that may cover potential liability or attorneys' fees in this case. If you think you may have such insurance, please notify me immediately. 00072172.1 ATTORNEY -CLIENT PRIVILEGE David Carmany Thomas Duarte March 3, 2020 Page 3 We are also pleased to let you know that Cole Huber LLP carries errors and omissions insurance with Lloyds of London. After a standard deductible, this insurance provides coverage beyond what is required by the State of California. DISCLAIMER OF GUARANTEE AND ESTIMATES Nothing in this Agreement and nothing in any attorneys' statements to you will be construed as a promise or guarantee about the outcome of the subject of our representation. Attorney statements are expressions of opinion only, are neither promises nor guarantees, and will not be construed as promises or guarantees. Any deposits made by you, or estimate of fees given by the attorney, are not a representation of a flat fee and will not be a limitation on fees or a guarantee that fees and costs will not exceed the amount of the deposit or estimate. Actual fees may vary significantly from estimates given. CLIENT'S DUTIES You agree to be truthful with our attorneys and the firm and not withhold information. Further, you agree to cooperate, to keep our attorneys informed of any information or developments which may come to your attention, to abide by this Agreement, to pay the firm's bills on time, and to keep our attorneys advised of your address, telephone number, and whereabouts. You will assist our attorneys by timely providing necessary information and documents. You agree to appear at all legal proceedings when our attorneys deem it necessary, and generally to cooperate fully with our attorneys in all matters related to the preparation and presentation of your claims. NO TAX ADVICE The firm has not been retained to provide you with any tax advice concerning any of the services described in this Agreement. Any documents prepared by attorneys may have specific tax ramifications. To be sure you understand and are certain of all the potential tax consequences, you should consult with tax advisors regarding these matters. NEW MATTERS When we are engaged by a new client on a particular matter, we are often later asked to work on additional matters. You should know that such new matters will be the subject of a new signed supplement to this agreement. Similarly, this Agreement does not cover and is not a commitment by either of us that we will undertake any appeals or collection procedures. Any such future work would also have to be agreed upon in a signed supplement. 00072172.1 ATTORNEY -CLIENT PRIVILEGE David Carmany Thomas Duarte March 3, 2020 Page 4 CIVILITY IN LITIGATION In litigation, courtesy is customarily honored with opposing counsel, such as extensions to file pleadings or responses to other deadlines. In our experience, the reciprocal extension of such courtesies saves our clients time and money. By signing this Agreement, you will be confirming your approval of this practice in your case. HOW THIS AGREEMENT MAY BE TERMINATED You, of course, have the right to end our services at any time. If you do so, you will be responsible for the payment of fees and costs accrued but not yet paid, plus reasonable fees and costs in transferring the case to you or your new counsel. By the same token, we reserve the right to terminate our services to you upon written notice, order of the court, or in accordance with our attached memorandum. This could happen if you fail to pay our fees and costs as agreed, fail to cooperate with us in this matter, or if we determine we cannot continue to represent you for ethical or practical concerns. CLIENT FILE If you do not request the return of your file, we will retain your file for five years. After five years, we may have your file destroyed. If you would like your file maintained for more than five years or returned, you must make separate arrangements with us. 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. THANK YOU We are pleased that you have selected Cole Huber LLP to represent you and appreciate the opportunity to assist in resolving this matter. If you have any questions at any time about our services or billings, please do not hesitate to call me. If this letter meets with your approval, please sign and date it, and return the original to us. Unless you sign, date, and return the original by March 12, 2020, we will not represent you in any capacity, and we will assume that you have made other arrangements for legal representation. We have enclosed a separate signed copy of this Agreement for your records. [Signature Page Follows] 00072172.1 ATTORNEY -CLIENT PRIVILEGE David Carmany Thomas Duarte March 3, 2020 Page 5 Sincerely, Elizabeth L. Martyn COLE HUBER LLP cc: Derek Cole Steven Graham AGREED AND ACCEPTED By: Dated: `-ci - Ze 00072172.1 COLE HUBER LLP - BILLING POLICIES Our experience has shown that the attorney -client relationship works best when there is mutual understanding about fees, expenses, billing, and payment terms. Therefore, this statement is intended to explain our billing policies and procedures. Clients are encouraged to discuss with us any questions they have about these policies and procedures. Clients may direct specific questions about a bill to the attorney with whom the client works. Any specific billing arrangements different from those set forth below will be confirmed in a separate written agreement between the client and the firm. Fees for Professional Services Unless a flat fee is set forth in our engagement letter with a client, our fees for the legal work we will undertake will be based, in substantial part, on time spent by personnel in our office on that client's behalf. In special circumstances, which will be discussed with the client and agreed upon in writing, fees will be based upon the novelty or difficulty of the matter or the time or other special limitations imposed by the client. Hourly rates are set to reflect the skill and experience of the attorney or other legal personnel rendering services on the client's behalf. Time is accrued on an incremental basis for such matters as telephone calls (minimum .3 hoar) and letters (minimum .5 hour), and on an actual basis for all other work. Our rates for services are set forth in the retainer letter that accompanies these policies, but are customarily billed at rates from $250 to $400 per hour, and our research assistants, paralegals and law clerks are billed at the rate of $125 to $175 per hour. These hourly rates are reviewed annually to accommodate rising firm costs and to reflect changes in attorney status as lawyers attain new levels of legal experience. Any increases resulting from such reviews will be instituted automatically and will apply to each affected client, after advance notice. Fees for Other Services. Costs and Expenses We attempt to serve all our clients with the most effective support systems available. Therefore, in addition to fees for professional legal services, we also charge separately for some other services and expenses to the extent of their use by individual clients. These charges include, but are not limited to, mileage at the current IRS -approved rate per mile, extraordinary telephone and document delivery charges, copying charges, computerized research, court filing fees and other court -related expenditures including court reporter and transcription fees. No separate charge is made for secretarial or word processing services; those costs are included within the above hourly rates. We may need to advance costs and incur expenses on your behalf on an ongoing basis. These items are separate and apart from attorneys' fees and, as they are out-of-pocket charges, we need to have sufficient funds on hand from you to pay them when due. We will advise the client from time to time when we expect items of significant cost to be incurred, and it is required that the client send us advances to cover those costs before they are due. 00072172.1 Advance Deposit Toward Fees and Costs Because new client matters involve both a substantial undertaking by our firm and the establishment of client credit with our accounting office, we require an advance payment from clients. The amount of this advance deposit is determined on a case -by -case basis discussed first with the client and is specified in our engagement letter. Upon receipt, the advance deposit will be deposited into the firm's client trust account. Our monthly billings will reflect such applications of the advance deposit to costs and not to attorneys' fees. At the end of engagement, we will apply any remaining balance first to costs and then to fees. We also reserve the right to require increases or renewals of these advanced deposits. By signing the initial engagement letter, each client is agreeing that the trust account balances may be withdrawn and applied to costs as they are incurred and to our billings, after presentation to the client. If we succeed in resolving your matter before the amounts deposited are used, any balance will be promptly refunded. Monthly Invoices and Payment Cole Huber LLP provides our clients with monthly invoices for legal services performed and expenses incurred. Invoices are due and payable upon receipt. Each monthly invoice reflects both professional and other fees for services rendered through the end of the prior month, as well as expenses incurred on the client's behalf that have been processed by the end of the prior month. Processing of some expenses is delayed until the next month and billed thereafter. Our fees are not contingent upon any aspect of the matter and are due upon receipt. All billings are due and payable within ten days of presentation unless the full amount is covered by the balance of an advance held in our trust account. If a bill is not paid within 60 days, a late charge of one and a half percent per month on the unpaid invoice shall be added to the balance owed, commencing with the next statement and continuing until paid. It is our policy to treat every question about a bill promptly and fairly. It is also our policy that if a client does not pay an invoice within 60 days of mailing, we assume the client is, for whatever reason, refusing to pay. We will then advise the client by letter that the client may pay the invoice within 14 days or the firm will take appropriate steps to withdraw as attorney of record. If the delay is caused by a problem in the invoice, we must rely upon the client to raise that with us during the 14-day period. This same policy applies to fee arrangements which require the client to replenish fee deposits or make deposits for anticipated costs. From time to time clients have questions about the format of the bill or description of work performed. If you have any such questions, please ask them when you receive the bill so we may address them on a current basis. 00072172.1