Loading...
HomeMy WebLinkAboutAGENDA REPORT 2013 0403 CCSA REG ITEM 10I ITEM 10.1. City Council i eetinQ MOORPARK CITY COUNCIL -- -,-_-- - '3- o AGENDA REPORT ACTION: - TO: Honorable City Council FROM: Deborah S. Traffenstedt, Deputy City Manager DATE: March 28, 2013 (CC Meeting of 413/13) SUBJECT: Consider City Attorney (Richards, Watson and Gershon) Conflict Waiver to Permit Simultaneous Representation of the City of Moorpark and Shea Homes Including Review of Subdivision Improvement Agreement for Tentative Tract No. 5425 Background and Discussion As previously disclosed to the City Council at the time an agreement was approved with RWG for City Attorney services, a RWG attorney has been providing legal services to Shea Homes Limited Partnership (Shea Homes) in a matter before the California Coastal Commission involving a residential development proposed in Huntington Beach, California. In order for a RWG attorney to review a draft Subdivision Improvement Agreement for a Shea Homes project in the City of Moorpark (Tentative Tract No. 5425/Residential Planned Development Permit No. 2003-02), RWG has obtained a waiver from Shea Homes. Staff is now requesting that the City Council authorize the City Manager to sign an Acknowledgment, Consent and Waiver to allow RWG to represent the City of Moorpark in the pending matter involving Shea Homes in Moorpark while representing Shea Homes in the unrelated matter before the Coastal Commission, as further explained in the attached letter from Kevin Ennis, City Attorney. Chapter 16.36, Security and Improvements, of Title 16, Subdivisions, of the Moorpark Municipal Code requires a subdivider to enter into a contract with the City, in a form acceptable to the City Engineer and City Attorney, for the construction of required improvements prior to the approval by the City Council of any final map or the acceptance of the dedication of any of the streets, alleys or other public places. Fiscal Impact None. Staff Recommendation Authorize the City Manager to sign an Acknowledgment, Consent and Waiver to permit RWG to represent the City of Moorpark in the Shea Homes project in Moorpark while simultaneously continuing to represent Shea Homes in the matter before the Coastal Commission, subject to City Manager final language approval of Waiver. Attachment: Letter dated 3/26/2013, including draft Acknowledgment, Consent and Waiver 106 11t0J►1J RICHARDS I WATSON I GERSHON ,`ACC! ATTORNEYS AT LAW-A PROFESSIONAL CORPORATION -iSS South Grand Avenue.4oth Floor.Los Anzeles.California Qoo71-41oi R'["A(916 iq88� March 26, 2013 GLENN R.WATSON (1917-2010) Steve Kueny HARRY L.GERSHON (1922-2007) City Manager STEVEN L.DORSEY City of Moorpark WILLIAM L.STRAUSZ MITCHELL E.ABBOTT 799 Moorpark Avenue GREGORY W.STEPANICICH QUINNLM.BAR OW Moorpark, California 93021 CAROL W.LYNCH GREGORY M.KUNERT THOMAS M.JIMBO ROBERT C.CECCON Re: Conflict Waiver: Shea Homes Project(Tentative Tract Map No. 5425 and PD STEVEN H.KAUFMANN �T (� (� ROBIN DG HARRIS No• 2003-02) MI CHAELESTRAOA LAURENCE S.WIENER STEVEN R.ORR B.TILDEN KIM Dear Steve. SASKIA T.ASAMURA KAYSER O.SUME PETER M.THORSON JAMES L.MAR MAN As you know, an attorney In our firm has been providing legal services to CRAIG A.STEELE T.PETER PIERCE Shea Homes Limited Partnership ("Shea Homes") in a matter before the California TER EN CE R.BOGA LISA BOND JANET E.[OLESON Coastal Commission involving a residential development proposed in Huntington ROKAN N E M.D IAZ JIM G.GRAYSON Beach, California(the "Coastal Matter.") ROY A.CLARKE WILLIAM P.CURLEY III MI CHAEL F.YOSHIBA REGINA N.DANNER In connection with our work for the City of Moorpark ("City"), we have been PAULA GUTIERREZ BAEZA BRUCE NA K.CLHUANG asked to review an "Agreement for Construction of Subdivision Improvements and PATRICK K.BOBKO NORMAN A.DUPONT Reimbursement" and related land use approvals, permits and agreements for a Shea DAVID M.SNOW LOLLYA.ENRIQUEZ Homes project in the City. The project is generally described as Tentative Tract Map KI RSTEN R.BOWMAN GINETTA L. CO TRISHA 5425 and Residential Planned Development Permit No. 2003-02 for the development HA OR ORTIZ CANDICE K.LEE BILLY D.OUNSMORE of 102 Housing Units on a 15.13 acre parcel located at the terminus of Fremont AMY GREYSON DEBORAH R.HAKMAN Street, South of Los Angeles Avenue and east of Majestic Court in the City D.CRAIG FOX MARK GIE E.MASTIN NET (`Moorpark Project"). GENA M.STIN NETT JENNIFER PETRUSIS STEVEN L.FLOWER CHRISTOPHER).DIAZ ERIN L POWEERS RS Upon receipt of the request to work on the Moorpark Project, we sought and TOUSSAINT S.BAILEY SERITA R.YOUNG obtained a conflict waiver from Shea Homes related to the Coastal Matter that allows SHIRI KLIMA DIANA H. RAT JULIE A.HA MILI us to represent the City in matters related to the Moorpark Project. At this time, the ANDREW I.BRADY AARON C.O,DELL ELL Shea Homes waiver allows us to provide services to the City on any aspect of BYRON MILLER SPENCER B.KALUCK Moorpark Project excluding litigation. A copy of that Shea Homes waiver letter is PATRICK D.SKAHAN },, OF COUNSEL attached. MARK L.LAMKEN SAYRE WEAVER JIM R. RPIAK TERESA HO-URANO We now write to formally disclose to the City our work for Shea Homes in the NO SAN FRANCISCO OFFICE Coastal Matter and seek the City's consent to provide services to the City on the TELEPHONE 415.421.8484 Moorpark Project given our representation of Shea Homes in the Coastal Matter. ORANGE COUNTY OFFICE T ELEPHONE 714.990.0901 TEMECULA OFFICE Our firm does not believe that the representation of the Shea Homes in the TELEPHONE 951.695.2373 Coastal Matter will present a conflict of interest with our representation of the City in 12853-0001\1S42723v1.doc 107 RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW-A PROFESSIONAL CORPO RAF]ON Steve Kueny March 26, 2013 Page 2 connection with the Moorpark Project. The separate and distinct natures of the two representations effectively ensure (1) that we would not obtain any confidential information of the City that would be relevant to our representation of Shea Homes in the Coastal Matter, and (ii) that there would be no substantive opportunity for us to disclose confidential information of the City in our work for Shea Homes in the Coastal Matter. The purpose of this letter is to request the consent of the City to permit our firm to provide services to the City in connection with the Moorpark Project, while at the same time permitting our firm to continue to represent Shea Homes Limited Partnership in the Coastal Matter. Rule 3-310(C)(1) of the Rules of Professional Conduct of the State Bar of California states, in relevant part, as follows: "(C) A member shall not, without the informed written consent of each client: (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." Rule 3-310(E) of the Rules of Professional Conduct of the State Bar of California provides as follows: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." A strict reading of Rule 3-310(C) does not, in our opinion, require written consent from the City because the City is not adverse to Shea Homes in the existing Coastal Matter. Similarly, we do not believe Rule 3-310(E) applies because we have not obtained any confidential information in either matter that would be material to the other matter. Nonetheless, we did need to obtain the consent of Shea Homes to work for the City on the Moorpark Project. In addition, we do need to formally disclosure our representation of Shea Homes in the Coastal Matter to the City. 12853-0001\1542723v1.doc 108 RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW-A PROFESSIONAL CORPORATION Steve Kueny March 26, 2013 Page 3 Where a conflict of interest exists, we are obligated to inform you fully of the relevant circumstances" and of the "actual and reasonably foreseeable adverse consequences" of the separate representation. We have provided extensive advice to Shea Homes in connection with the Coastal Matter, and we intend to continue to fully represent Shea Homes in that Coastal Matter. In our view, providing services to the City of Moorpark in connection with the Moorpark Project is unrelated to the services our firm provides to Shea Homes in the Coastal Matter. We do not foresee the possibility that any confidential information of the City would be material or related in any way to our services as special counsel to the Shea Homes in the Coastal Matter, and vice-versa. We can and will continue to zealously represent the City and have absolutely no reason to believe that our objectivity or representation will be compromised in any way by our simultaneous representation of Shea Homes in the Coastal Matter. If, after considering the foregoing, the City agrees to waive any potential conflict of interest arising from our separate and continued representation of the Shea Homes in the Coastal Matter, we would appreciate it if you would sign and return a copy of this letter. Please do not hesitate to call me if you wish to discuss the matter further. Very truly yours, / Kevin G. Ennis Enclosure 12853-0001\1542723v1.doc 109 RICHARDS I WATSON I GERSHON ATTORNEYS AT LAW-A PROFESSIONAL CORPORAL ION Steve Kueny March 26, 2013 Page 4 ACKNOWLEDGMENT, CONSENT AND WAIVER Based upon the foregoing disclosures, the City of Moorpark acknowledges receipt of and understands the disclosures made herein and consents to the Finn's simultaneous representation of the City of Moorpark in connection with administrative, non-litigation matters, including the review and approval of an "Agreement for Construction of Subdivision Improvements and Reimbursement" and related land use approvals, permits and agreements for the Moorpark Project and the continued representation of Shea Homes Limited Partnership in connection with the Coastal Matter, and waives any actual, potential or perceived conflict arising from the simultaneous representation. City of Moorpark By Date: 2013 Title 12853-0001\1542723v1.doc 110 11flki RICHARDS j WATSON GERSHON ,k1l 9 ATTORNEYS AT LAW-A PROFESSIONAL CORPORAT!ON its South Grand Avenue.troth Floer,Los Aneeles.California geon-aioi RIEHAR 6 iqS March 18,2013 GLENN R.WATSON (191'-2°10) John Vander Velde HARRY L.GERSHON Vice President sTEYEN 11 DORSEY Shea Dome Limited Partnership WILLtAAS L.STRAUSZ [ Court, Suite MITCHELL E.ABBOTT 1250 Corona Pointe Court Suite 600 G REGO RY W,S I EPANICICH > LE BROWNS QUINN M.BARROW Corona, California 92879 QUINN CAROL W.LYNCH GREGORY M.KUNERT rHOMAS M.IIMDO ROBERT C.CFCCON Re: Conflict Waiver: City of Moorpark Agreements and Matters STEVEN H.KAUFNAANN KEVIN G.ENNIS ROBIN D.HARRIS MICHAE S.WIENER UURENCE S.WIE Dear Mr. Vander Velde: STEVEN R.ORR B.TIL05N KIM SAS KIA T.ASAMURA KAY ER O.SUME As you know, my fine specializes in representing public entities. In the past PETER M.THORSON JAMES L.MARKMAN we have discussed conflict issues when one or more Shea entities is proposing a CRAIG A.STEELE T.PETER B transaction with a public entity that the firm represents. E TEREN C R..BOLA OGA LISA BOND JANET E COL ESON RO", A YSON DIAL H",G.GRA This letter seeks a conflict waiver that will permit the firm to represent City of G. EOV 0..C R,KE WILLIAM P.CURLEVIII Moorpark ("City') in connection with the review and approval of an "Agreement for MICHAEL:.YOSHIBA REGTE REZANNER Construction of Subdivision Improvements and Reimbursement' and related land use PAULA GUTIERPEZ BAELA BRUCE W.GALLOWAY DIANA K.CHUANG approvals, pen-nits and agreements for a Shea Homes project in the City. The project PATRICK K.DOD KO NORMAN A.DUPONT is generally described as Tentative Tract Map 5425 and Residential Planned DA ID M.SNOW LOLLY A.ENRIQUEZ Development Permit No 2003-02 for the development of 102 Housing Units on a KIRSTEN R.BOWMAN GINETT iRCO TRISHA ORTIZ 15.13 acre parcel located at the terminus of Fremont Street, South of Los Angeles RISNA CANDICE DU NSMOKSMORE E D- 91LLY D-DU Avenue and east of Majestic Court in the City("Moorpark Project'). AMY GREYSON DEBORAH R,HARMAN D.CRAIG FOX MARICELA E MARROQUIN Kevin G_ Ennis of our firm is the recently appointed City Attorney for the GENA M.STIN NETT JENNIFER L PETRUSIS City. STEVEN FLOWER C C CHRISTOPHER I.DIAZ ERIN L POWERS TOUSSAI NT S.DAILEY vices to SERITA R.YOUNG As you know, our firm currently is and has been providing legal ser SNLRI KLIMA DIANA H.VARAT Shea Homes Limited Partnership, a matter before the California Coastal Commission JULIE A.HAMILL ANDREWI.BRADY (nvolvtna a residential development ent proposed b In Huntington Beach, California the AARON EO'DELL b GVRON MILIER " SPENCER R.KA LUCK Coastal Matter." Our role as counsel for the City would be handled by a lawyer in a PATRICK O.SKAHAN different practice group and does not involve any substantive issues relating to the DFCOUNSEL MARK L IAMKEN Coastal tatter. SAYRE WEAVER JIM R.KARPMK TERESA u0-URANO SAN FRANCISCO OFFICE Our firm does not believe that the representation of the City will present a TELEPHONE 415.421,8484 conflict of interest with our continued representation of Shea Homes Limited ORANGE COUNTYOFFt CE IF,FPHONF?"1.99..0901 Partnership in connection with the Coastal matter. The separate and distuict natures TEMECULA of the two representations effective) ensure t that we have not obtained an TELEPHONE 95..695.2 j7) Y Y (•) Y confidential information of Shea Homes Limited Partnership that would be relevant 12853-0001\1540101v1.doc 111 RICHARDS j WATSON 1 GERSHON ATTORNEYS AT LAW-A FRO FESSiCN AL CUR POP;F!UN John Vander Velde March 18, 2013 Page 2 to our representation of the City, and (ii) that there would be no substantive opportunity for us to disclose confidential information of Shea Homes Limited Partnership in our work as City Attorney for the City. The purpose of this letter is to request the consent of Shea Homes Limited Partnership to permit our firm to provide services to the City in connection with the Moorpark Project, while at the same time permitting our firm to continue to represent Shea Homes Limited Partnership in the Coastal matter. Rule 3-310(C)(1) of the Rules of Professional Conduct of the State Bar of California states, in relevant part,as follows: "(C) A member shall not, without the informed written consent of each client: (3) Represent a client in a matter and at the same time in a separate hatter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." Rule 3-310(E) of the Rules of Professional Conduct of the State Bar of California provides as follows: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." A strict reading of Rule 3-310(C) does not, in our opinion, require written consent because the City is not adverse to Shea in the existing Coastal matter. Similarly, we do not believe Rule 3-310(E) applies because we have not obtained any confidential information in either matter that would be material to the other matter. Nonetheless, we feel it is in the spirit of these rules to disclose that representation to Shea Homes Limited Partnership and provide it the opportunity to evaluate and consent to our continued representation. Where a conflict of interest exists, we are obligated to inform you fully of the "relevant circumstances" and of the "actual and reasonably foreseeable adverse consequences"of the separate representation. 12853-0001\1540401v1.doc 112 RICHARDS I WATSON I GERSHON AI TGRNEYf AT(Aw-A RRO:E SSMC":At CC FVORAT I ON John Vander Velde March 18. 2013 Page 3 We have provided extensive advice to Shea Homes Limited Partnership in connection with the Coastal matter, and we intend to continue to fully represent Shea EIomes Limited Partnership in that matter. In our view, providing services to the City of Moorpark in connection with the Moorpark Project and is unrelated to the services our firm provides to Shea in the Coastal matter. We do not foresee the possibility that any confidential information Shea Homes Limited Partnership might impart to the lawyers at the firm handling the unrelated Coastal matter would be material or related in any way to our services as City Attorney for the City in connection with the Moorpark Project,or vice-versa. We can and will continue to zealously represent Shea Home Limited Partnership and have absolutely no reason to believe that our objectivity or representation will be compromised in any way by our simultaneous representation of the City in the Moorpark Project. If, after considering the foregoing, Shea agrees to waive any potential conflict of interest arising from our separate representation of the City of Moorpark in the Moorpark Project, we would appreciate it if you would sign and return a copy of this letter. Please do not hesitate to call me if you wish to discuss the matter further. Very truly yours, Steven 1-1. Kaufmann 12853-0001\1540401v1.doc 113 RICHARDS I WATSON i GERSHON ATTCRNEY$AT LAW-A 7RUtE5SlE)ft A 1.CORPORA T!ON John Vander Velde 'March I8. 2013 Page 4 ACKNOWLEDGMENT CONSENT AND WAIVER Based upon the foregoing disclosures, Shea flomes Limited Partnership acknowledges receipt of and understands the disclosures made herein and consents to the Firm's simultaneous representation of the City of Moorpark in connection with administrative, non-litigation matters, including the review and approval of an "Agreement for Construction of Subdivision Improvements and Reimbursement"and related land use approvals, permits and agreements for the Moorpark Project and the continued representation of Shea Homes Limited Partnership in connection with the Coastal matter, and waives any actual, potential or perceived conflict arising from the simultaneous representation. Shea Homes Limited PArtg6ship By Date: I 2013 {J f _- � _ Title ' T 12853-0001\1S404010.doc 114