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14-257 Approval of Agreement with Rutan & Tucker
CITY OF LADE _ LSMOI,E DREAM EXTREME, REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: GRANT YATES CITY MANAGER DATE: AUGUST 26, 2014 SUBJECT: APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH RUTAN & TUCKER, LLP FOR SPECIAL COUNSEL LEGAL SERVICES FOR THE WALMART PROJECT Recommendation Approve the form of the attached professional services agreement between the City and Rutan & Tucker, LLP for special counsel legal services for the Walmart project and authorize the Mayor to execute the agreement, subject to any minor modification approved by the City Attorney. Background The proposed Lake Elsinore Walmart Retail Center Project is located on the southwest corner of Central Avenue (SR -74) and Cambern Avenue. The proposed project would develop a commercial retail shopping center that would include a 154,487 square foot Walmart store and three outer lots for other retail uses. The proposed Walmart Project will involve a detailed environmental review process that will also necessitate participation and review by legal counsel to ensure compliance with all of the State's environmental and land use requirements, including compliance with the California Environmental Quality Act. Discussion Rutan & Tucker is well versed in the unique legal and environmental issues that are often faced by public agencies considering land use approvals for a Walmart store. Rutan's proven track record and legal team are set forth in the attached proposal. Also detailed in the proposal is Rutan's representation of the cities of Burbank, Merced and Torrance in litigation matters involving Walmart facilities. Special Counsel for Walmart Project August 26, 2014 Page 2of2 Included with this agenda item for the City Council's consideration is a professional services agreement with Rutan. Rutan estimates that the cost of providing special counsel legal services (excluding litigation) will be approximately $65,995. Fiscal Impact None to the City. Rutan's fees are subject to the City's cost recovery system such that Walmart will be responsible for reimbursing the City for Rutan's fees. Walmart will be required to deposit the initial estimate $65,995 for Rutan's services and make further deposits as may be necessitated by Rutan's actual legal fees. Prepared by: Barbara Leibold City Attorney Approved by: Grant Yates City Manager Attachments: 1. Rutan & Tucker Proposal 2. Form of Professional Services Agreement AGREEMENT FOR PROFESSIONAL SERVICES Rutan & Tucker, LLP Walmart Project This Agreement for Professional Services (the "Agreement ") is made and entered into as of the 26 day of August, 2014, by and between the City of Lake Elsinore, a municipal corporation ( "City ") and Rutan & Tucker, LLP, a California limited liability partnership ( "Consultant"). RECITALS A. The City has determined that it requi special counsel legal services for the Walmart project. B. Consultant has submitted to C hereto as Exhibit A ( "Consultant's Proposal ") services to City pursuant to the terms of this Ag C. Consultant possesses the skill, exr knowledge to perform the services described in described herein. D. City desires to retain Consultant to Consultant desires to provide such professional Agreement. AGREEN 1. Scope of Services. Consultant sha following professional services; iposal, dated July 30, 2014, attached rporated hereon, to provide professional background, certification and on the terms and conditions as provided herein and work as set forth in this perform the services described on Exhibit A which is attached hereto and incorporated herein by reference. Consultant shall provide such aid services at the tlme, place, and in the Manner specified in Exhibit A, subject to the direction of the City through its staff that it may provide from time to time. 2. Time of Performance. a Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the work or services contemplated pursuant to this Agreement. b. Reserved. C. Term. The services of Consultant are to commence upon execution of this Agreement and shall continue until completed in accordance with the scope of work described in the Consultant's Proposal (Exhibit A). 3. Compensation._ Compensation to be paid to Consultant shall be in accordance with the fees set forth in Consultants' Proposal (Exhibit A), which is attached hereto and incorporated herein by reference. Notwithstanding any provision of Consultant's Proposal to the contrary, expenses set forth in Exhibit A shall be reimbursed at cost without an inflator or PSA Rutan - Walmart Project 082114 administrative charge. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to the City at the time of payment. 4. Method of Payment. Consultant shall submit a monthly summary of billings to City describing the work performed during the preceding month together with a detailed billing statement. Consultant's billing statement shall be segregated by project task, if applicable, such that the City receives a separate accounting for work done on each individual task for which Consultant provides services. Consultant's bills shall include a brief description of the services performed, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. City shall pay Consultant no later than 30 days after approval of the monthly invoice by City staff. 5. Extra Work. At any time during the term of this Agreement, City may request that Consultant perform Extra Work. As used herein, "Extra Work" means any work which is determined by City to be necessary for the proper completion of the project for which services were rendered, but which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Consultant shall not perform, nor be compensated for, Extra Work without written authorization from City. Extra work will be invoiced separately from services performed in accordance with the Scope of Services, Exhibit A. 6. Termination. This Agreement may be terminated by the City immediately for cause or by either party without cause upon thirty (30) days' written notice of termination. Upon termination, Consultant shall be entitled to compensation for services performed up to the effective date of termination. 7. Confidentiality. All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, computer program data, input record data, written information, and other Documents & Data either created by or provided to Consultant in connection with the performance of this Agreement shall be held confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City's name or insignia, photographs relating to project for which Consultant's services are rendered, or any publicity pertaining to the Consultant's services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City. 8. Conflict Waiver. Consultant has disclosed and City acknowledges that Consultant has previously represented Richland Communities, Inc. and K. Hovnanian /Forecast Homes relating to certain land use and development impact fee matters in the City of Lake Elsinore. The Parties acknowledge that there is no conflict of interest as of the date of this Agreement, but in the event the K. Hovnanian /Forecast Homes matter resurfaces, the City agrees to waive the conflict to allow Consultant to represent K. Hovnanian /Forecast Homes in that matter while continuing to perform legal services in accordance with this Agreement. In addition, City acknowledges and agrees to waive the potential conflict resulting from the duty of indemnity owed by its client to Walmart in the consumer class actions disclosed in Consultant's Proposal. 2 9. Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City. 10. PERS Eligibility Indemnification. In the event that Consultant or any employee, agent, or subcontractor of Consultant providing services under this Agreement claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, Consultant shall indemnify, defend, and hold harmless City for the payment of any employee and /or employer contributions for PERS benefits on behalf of Consultant or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of City. Notwithstanding any other federal, state and local laws, codes, ordinances and regulations to the contrary, Consultant and any of its employees, agents, and subcontractors providing service under this Agreement shall 'not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in PERS as an employee of City and entitlement to any contribution to be paid by City for employer contribution and /or employee contributions for PERS benefits. 11. Interests of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant's services hereunder. Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement. Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant: a. will conduct research and arrive at conclusions with respect to his /her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official, other than normal agreement monitoring; and b. possesses no authority with respect to any City decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(a)(2).) 12. Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant's field of expertise. 13. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations. 3 14. Licenses. Consultant represents and warrants to City that it has the licenses, permits, qualifications, insurance and approvals of whatsoever nature which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of Consultant to practice its profession. Consultant shall maintain a City of Lake Elsinore business license. 15. Indemnity. Consultant shall indemnify, defend, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to property, or any violation of any federal, state, or municipal law or ordinance, to the extent caused, in whole or in part, by the willful misconduct or negligent acts or omissions of Consultant or its employees, subcontractors, or agents, by acts for which they could be held strictly liable, or by the quality or character of their work. The foregoing obligation of Consultant shall not apply when (1) the injury, loss of life, damage to property, or violation of law arises from the sole negligence or willful misconduct of the City or its officers, employees, agents, or volunteers and (2) the actions of Consultant or its employees, subcontractor, or agents have contributed in no part to the injury, loss of life, damage to property, or violation of law. It is understood that the duty of Consultant to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code. Acceptance by City of insurance certificates and endorsements required under this Agreement does not relieve Consultant from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Consultant acknowledges and agrees to the provisions of this Section and that it is a material element of consideration. 16. Insurance Requirements. a. Insurance. Consultant, at Consultant's own cost and expense, shall procure and maintain, for the duration of the contract, unless modified by the City's Risk Manager, the following insurance policies. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his /her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees, and volunteers for losses arising from work performed by Consultant for City. In the event that Consultant is exempt from Worker's Compensation Insurance and Employer's Liability Insurance for his /her employees in accordance with the laws of the State of California, Consultant shall submit to the City a Certificate of Exemption from Workers Compensation Insurance in a form approved by the City Attorney. ii. General Liabilit y Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per 4 occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit. Required commercial general liability coverage shall be at least as broad as Insurance Services Office Commercial General Liability occurrence form CG 0001 (ed. 11188) or Insurance Services Office form number GL 0002 (ed. 1/73) covering comprehensive General Liability and Insurance Services Office form number GL 0404 covering Broad Form Comprehensive General Liability. No endorsement may be attached limiting the coverage. iii. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non -owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence. Automobile liability coverage must be at least as broad as Insurance Services Office Automobile Liability form CA 0001 (ed. 12/90) Code 1 ( "any auto "). No endorsement may be attached limiting the coverage. iv. Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance appropriate for Consultant's profession for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant's services under this Agreement, whether such services are provided by the Consultant or by its employees, subcontractors, or sub consultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims -made annual aggregate basis, or a combined single limit per occurrence basis. b. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a Best's rating of no less than AMI and shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment fumished in connection with such work or operations. ii. This policy shall be considered primary insurance as respects the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any self - insured retention the City may have, shall be considered excess insurance only and shall not contribute with it. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents. 5 V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this Policy shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days written notice has been received by the City. C. Deductibles and Self- Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City. At the City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self- insured retentions. d. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this Agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. 17. Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below. Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section. If to City: City of Lake Elsinore Attn: City Manager 130 South Main Street Lake Elsinore, CA 92530 With a copy to: City of Lake Elsinore Attn: City Clerk 130 South Main Street Lake Elsinore, CA 92530 If to Consultant: Rutan & Tucker, LLP Attn: Kathy Jenson 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 18. Enti�greement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement. 19, Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 20. Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Consultant shall not subcontract or assign any portion of the work or any rights, duties or obligations of the Consultant under this Agreement without the E written authorization of the City. If City consents to such subcontract or assignment, Consultant shall be fully responsible to City for all acts or omissions of those subcontractors and assignees. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law. 21. Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement. 22. Severabilit . if any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 23. Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Riverside. 24. Litigation Expenses and Attorneys' Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees. 25. Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and share the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMSIENDISPUTE ("JAMS ") or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation. 26. Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart. 27. Authorily to Enter A reement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party. 28. Prohibited Interests. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term 7 of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 29. E ual Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non - discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above. "CITY" CITY OF LAKE ELSINORE, a municipal corporation "CONSULTANT' Rutan & Tucker, LLP, a California limited liability partnership Natasha Johnson, Mayor By: Its: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney Attachment: Exhibit A — Consultant's Proposal L-*1 EXHI BIT A CONSULTANT'S PROPOSAL [ATTACHED] EXHIBIT A s � 3 o, N I' RUTAN & TUCKER, LLP July 30, 2014 Grant Yates, City Manager City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 M. Katherine Jenson Direct Dial: (714) 641 -3413 E -mail: kjenson @rutan.com Re: Proposal for Legal Representation as Special Counsel for the City of Lake Elsinore — Walmart Project Dear Mr. Yates: This proposal is submitted pursuant to Barbara Leibold's request of July 28, 2014. We are pleased that you are considering retaining Rutan & Tucker, LLP ( "R &T') as special counsel for the City of Lake Elsinore to assist with the environmental review of the Walrnart project. We would also be available to represent the City if the project is challenged in court. A. Rutan & Tucker's Experience R &T, a firm of approximately 140 attorneys, represents a wide spectrum of public and private clients. R &T attorneys work in practice areas covering governmental law, real estate, labor, litigation and corporate /tax/estate planning. The firth is ranked as one of the top 50 law firms in the State of California by California Lawyer. R &T has been heavily committed to the practice of Public Law since the early 1950's and is proud to have one of the largest Public Law departments of any private law firm in California. With over 35 attorneys, and additional assistance from our other departments and paralegals, the Public Law department operates a municipal law practice on a scale with some of the state's largest cities. Public Law was the original practice area of R &T and the firm incorporated many cities in Southern California. R &T presently serves as City Attorney for the Cities of La Quinta, Dana Point, Irvine, La Palma, Yorba Linda, Adelanto, Laguna Woods, Laguna Beach, San Clemente, Twentynine Palms and Villa Park. We provide the full range of city attorney services for each of these municipalities. Additionally, we represent numerous cities and successor agencies on a special counsel basis. Our special counsel representation includes both litigation and transactional matters. With our many public agency and private clients, R &T has incredible experience and expertise in CEQA, land use and litigation arising in those areas. Rutan & Tucker, LLP 1 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626 PO Box 1950, Costa Mesa, CA 92628 -1950 714- 641 -5100 1 Fax 714 -546 -9035 119/099999 -0091 Orange County I Palo Alto I www.rutan.com 7312339.1 a07130114 RUTA Grant Yates, City Manager July 30, 2014 Page 2 I would invite you to review the firm's website for further information about R &T at www.rutan.com. B. The Proposed Litigation Team I would propose that R &T's legal team in this matter be myself, John Ramirez and Peter Howell. John, Peter and I have successfully navigated through pre - litigation environmental review and litigation defense and have handled many CEQA matters, both individually and as a team. Recent Team Walmart Experience. As a team, we have worked together on three very significant Walmart matters. In the City of Torrance, we successfully defended the City in Building An Economically Sound Torrance v. City of Torrance, Los Angeles Superior Court Case No. BS 129420. We prevailed at the trial court within three months of the matter being filed, and no appeal was filed. In that case, we worked closely with counsel for Walmart to avoid duplication of effort, yet maintained complete independence from Wal -Mart in making strategic decisions. I would strongly urge you to contact John Fellows, the Torrance City Attorney, at (310) 618 -5808, or chows@ Torrancc;t �v, to get his assessment of our work on the matter. We also represented the City of Merced in Merced Alliance For Responsible Growth, et al v City of Merced, et al, Cal. Court of Appeal, 5`i' Appellate District Case No. F062602. That case involved a CEQA challenge to a Wal -Mart Distribution Center. We were hired at the tail end of the EIR process, and also represented the City in court. We prevailed on all issues at the trial court, and the. Court of Appeal affirmed the trial court's decision. Again, we were able to work closely with Wal -Mart's counsel to efficiently brief the case without losing sight of the City's independent interests. I would urge you to contact the Merced City Attorney, Greg Diaz, at (209) 385 -6868, or aEcitofrerccrl.r, to get his assessment of the quality of our work. We also recently represented the City of Burbank in Shanna Ingalsbee v. City of Burbank, et al, Los Angeles Superior Court Case No. BS 137238. In this case, petitioners, who were funded by local unions, challenged building permits issued to Walmart by the City of Burbank for the re- purposing of a former Sears Great Indoors store to a Walmart. It was an extremely tough case, and a writ was ultimately issued against the City. Walmart is currently appealing the trial court ruling. Amy Albano, the Burbank City Attorney, thought very highly of our work and would be happy to share her views with you. Her telephone number is (818) 238- 5710. Her e-mail is lba to ci. r%,i sk.caaii�2 2. M. Katherine Jenson I would be the team leader. By way of background, I began my career at R &T as a Summer Associate 32 years ago, and have remained at the firm since I graduated from Ohio 119/099999 -0091 7317338.1 a07/30114 RUTAN .. u-.- :a.t. Grant Yates, City Manager July 30, 2014 Page 3 State College of Law (Order of the Coif) in 1983. I am the Chair of the firm's Land Use/Natural Resources Practice Group, which holds monthly programs on various land use and environmental topics. I was named one of The Daily Journal's 2013 "Top 100 Women Attorneys in California" and was recently designated as a "Female Powerbroker" by Law 360. I have successfully handled over 40 CEQA/NEPA/Land Use cases and have numerous published decisions. I had the pleasure of arguing before the California Supreme Court on behalf of the League of California Cities in City of Long Beach v. Department of Industrial Relations, et al., 34 Cal. 4th 942 (2004). My clients include the Port of Long Beach and the Cities of Long Beach, Torrance, Burbank, Merced, Marina, and La Quinta as well as many private clients. The primary focus of my practice has been CEQA and land use entitlements, including litigation. As City Attorney for La Quinta, I was responsible for the CEQA legal review for the very first Walmart Superstore in California. I have also written several articles and taught numerous courses regarding CEQA compliance. Enclosed is my resume. 3. John Ramirez John has been a partner in the Public Law department for the past 13 years. On behalf of both municipalities and landowners, John has devoted a significant portion of his practice to entitling and successfully defending big box - anchored shopping centers throughout the State. In 2005, following the Fifth District Court of Appeal's invalidation of two EIRs prepared for two Wal -Mart Supercenter- anchored shopping centers, John was hired to oversee, entitle and defend two new EIRs prepared for the two projects (totaling over 1.3 million square feet of retail). Ultimately the petitioners conceded the adequacy of the two new EIRs and were forced to dismiss their two pending lawsuits. In addition to the "team" cases listed above, John successfully entitled and defended challenges to EIRS prepared for Big Box retail centers and distribution centers in Kern County, the City of Adelanto, the City of Hesperia, and the City of Victorville. Recently John also represented a citizens group seeking to entitle a Big Box by way of the initiative process in a land mark California Supreme Court CEQA case which is anticipated to be decided in the next two months. John also has extensive experience defending a wide variety of projects attacked by well known CEQA petitioners' counsel Raymond Johnson and Cory Briggs. John has successfully defended and/or successfully settled numerous challenges brought by these attorneys seeking to invalidate a variety of residential, big box, waste processing, industrial and mixed use projects throughout Orange, San Bernardino, Riverside and San Diego Counties. In fact, in a recent case involving a CEQA challenge brought by Mr. Briggs to an EIR prepared for a waste transfer facility in the City of Pomona, John successfully defended the EIR and obtained a sanctions award against Mr. Briggs for bringing a "frivolous" CEQA action. In addition to the Walmart projects listed above, John has handled two additional cases involving EIRs for Walmart projects. Those cases are: Milpitas Coalition For A Better Community v. City of Milpitas, Santa Clara Superior Court Case No. 111CV205163; and Bakersfield Citizens For Local Control v. City of Bakersfield, Kern County Superior Court Case No. 249669 KCT. 1 19/099999-0091 7312338.1 a07/30/14 tl U T k Grant Yates, City Manager July 30, 2014 Page 4 John regularly appears before the Superior and Appellate Courts that have jurisdiction over the City of Lake Elsinore. 4. Peter Howell We would propose as a third member of our team, Senior Counsel Peter Howell. Peter has significant experience with CEQA matters and has represented both public agencies and private clients in CEQA litigation. As stated above, Peter worked extensively on the Torrance, Merced, and Burbank Walmart matters. In addition, Peter and I worked together on a CEQA case for the Orange County Transit Authority that is reported in Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal. App. 4a` 173. He recently defended an EIR for a 760 unit residential development that was challenged on several substantive and procedural grounds, including its analysis of biological resources and greenhouse gas impacts, resulting in judgment of the respondent city on all issues. Peter has also presented or co- presented numerous programs on CEQA including Developments in CEQA Case Law, Making the Most of CEQA Exemptions, and Making the Most of Prior CEQA Documentation. Since graduating from UCLA School of Law, and joining R&T in 2003, Peter has been a member of the firm's Public Law department and a member of the firm's Environmental Law and Land Use/Natural Resources Practice Groups. Peter's resume is enclosed for your review. C. Rate Structure The hourly rate R &T would charge the City for legal services is a blended rate of $335. This represents a significant reduction of the standard hourly rate for myself ($465) and for John ($425). The City would be charged for all time spent, including travel time. R &T prepares itemized billing statements, and bills in 0.1 hour time increments (six minutes). R &T also requires reimbursement for various costs incurred in performing legal services, including long distance telephone charges, significant postage, parking, out -of -town travel expenses, duplication (C 19¢ per page), telecopying, messengers, computer - assisted research (e.g. LEXIS), and other out -of- pocket expenses. R &T has an 800 telephone number (1-800 - RUTAN-76) to eliminate telephone expense charges to clients. Detailed monthly invoices will be sent directly to you. Payment is requested within 30 days of receipt of the invoice. At Ms. Leibold's request, I have enclosed an estimated budget for our work prior to the certification of the EIR. This is only an estimate. We have no way of accurately predicting the number of hours this matter would require until we are provided with draft documents and also see the types and extent of comments that are submitted in response to the documents. 119/099999 -0091 7312338.1 x07130/14 R (U. TA Grant Yates, City Manager July 30, 2014 Page 5 D. Disclosure of Potential Conflict Issues In the past, I have work for K. Hovnanian/Forecast Homes relating to certain development fees. I was informed by Ms. Leibold yesterday that an issue relating to that matter may resurface. If it does resurface and K. Hovnanian requests my services, we would need to obtain conflict waivers at that time. John has also represented Richland Communities, Inc. relating to the Lake Elsinore Specific Plan. That representation has not been adverse to the City, and we do not feel that a waiver would be required. Since speaking to Ms. Leibold on July 28th, I did learn of one other circumstance I wish to disclose. One of our long standing clients, Nutramax Laboratories, is a defendant in two putative consumer class actions that were both originally filed in U.S. District Court in California — one in the Central District of California and one in the Northern District. The cases have now been transferred to the District Court of Maryland, Panel on Multi- District Litigation, Case No. MDL -14 -2498 (the "Dorfman and Ferrell Actions "). Walmart is also a defendant in these actions as a result of certain items being sold in their stores. Nutramax owes Walmart a duty of indemnification. When these matters were pending in California, we were counsel of record for both Nutramax and Walmart. Nutramax and Walmart are represented in the Dorfman and Ferrell Actions by Maryland counsel. California issues are still being litigated, and Maryland counsel has indicated that he will very likely seek Rutan's assistance at various points, for example in opposing plaintiffs' class certification motion(s). Thus, while Rutan is no longer counsel of record in these actions, we do anticipate playing a role in the defense. Walmart has indicated no objection to Rutan being adverse to Walmart on other items, and has recently executed a conflict waiver for that purpose. If you would like any further details regarding this matter, please let us know. I would be more than happy to provide you with any additional information or to answer any questions you may have. I can be reached at (714) 641 -3413. Very truly yours, M. Katherine Jenso MKJ:Ir Enclosures Resume M. Katherine Jenson Resume of John A. Ramirez Resume of Peter Howell Proposed Pre- Litigation Budget 119/099999-"l 7312338.1 a07/30/14 i ,;v. E L'a hZ Grant Yates, City Manager July 30, 2014 Page 6 I have reviewed the terms of this agreement, and the City of Lake Elsinore agrees to the same. Dated: 119/099999 -0091 7312338.1 a07130114 Grant Yates, City Manager City of Lake Elsinore RU7["`A,N Ms. Jenson is the Chair of the Land Use/Natural Resources Practice RELATED SERVICES Group and a partner in the Government & Regulatory Law Section. Her 1--11111-111 . .. ..... -.. -- litigation practice focuses on the following areas: land use, CEQA, Affordable appeals, constitutional issues, property disputes, and contracts, Housing/ Economic representing the cities of Long Beach, Torrance, La Quinta, Merced, Development Marina and numerous private clients. Ms. Jenson served as the City laude; Class Rank: Attorney for La Quinta from June 2000 to June 2014. In May 2013, Kathy Government was named to The Daily Journal's Annual List of 100 Leading Women Regulatory Law Lawyers in California. Land Use/Natural AREAS OF EXPERIENCE Resources � Environmental Law EDUCATION � Land Use v Public Law Ohio State University, College of Law (J.D., � AB 1234 Training 1983), summa cum laude; Class Rank: PUBLICATIONS Upper 3% (5th of 209); Order of the Coif 1982 -83 "Making the Most of Prior CEQA Documents," Western Real Estate Issue Planning Editor, Business, October 2011 Ohio State Law Journal; 1981 -82 Staff Member, "Twenty Ways to Improve Your Administrative Record and Increase Ohio State Law Journal; Your Chances for Success in CEQA Litigation ", Public Law Journal, Member of the Issue California State Bar, Vol. 22, No. 4, Fall 1999; Planning Committee; "State v. Thomas: The "Nonresident Plaintiffs Lack Standing to Challenge Amendment to Final Blow to Battered Redevelopment Plan ", Redevelopment Journal, April 1995, p. 2; Women ?" 43 Ohio State Law Journal 491 (1982) "A Plaintiff With Standing - Every Lawsuit Needs One ", Los Angeles Daily Journal, Practitioner, July 1, 1993, p. 7; San Francisco Daily Cleveland State Journal, Practitioner, July 1, 1993, p. 5; University (B.A., 1980), Major: Political, summa PUBLISHED CASES cum laude Del Cerro Mobile Estates v. City of Placentia et al. (2011) 197 Cal. App. 4th 173 BAR ADMISSIONS California Earth Corps California State Lands Commission (2005) 128 Cal.AppAth 756 California, 1983 City of Long Beach v. Department of Industrial Relations (2004) 34 CalAth 942 Cantrell v. City of Long Beach, et al, (9th Cir. 2001) 241 F.3d 674 ► City of Vernon, et al. v. Board of Harbor Commissioners, et al. (1998) 63 Cal.AppAth 677 Clark v. City of Hermosa Beach (1996) 48 Cal.AppAth 1152 Burchett v. City of Newport Beach (1995) 33 Cal.App.4th 1472 Torres v. City of Yorba Linda (1993) 13 Cal.AppAth 1035 UNPUBLISHED APPELLATE DECISIONS o Merced Citizens for Responsible Planning v. City of Merced, Fifth Dist. Court of Appeal Case No. F056076; ► Long Beach Council of Parents and Teachers, Inc. v. City of Long Beach, et al, Fourth Dist. Court of Appeal, Div. Three Case No. G040430; Stop Taking Our Parks, et al. v. City of Long Beach, Second Dist. Court of Appeal, Div. One, Case No. 13156347; Citizens of Orange Park Acres Coalition v. City of Orange, et al, Fourth Dist. Court of Appeal, Div. Three, Case No. G024841; Huell Howser v. City of Long Beach, Second Dist. Court of Appeal, Div. Seven, Case No. B123336; Sierra Club v. City of Palm Springs, et al., Fourth Dist. Court of Appeal, Div. Two, Case No. E023399; e Huell Hawser v. City of Long Beach, Ninth Circuit Case No. 98- 55351; ► Friends of Coachella Valley v. County of Riverside, Fourth Dist. Court of Appeal, Div. Two, Case No. 8017901 (tentative opinion); Ignacio Barajas, et al. v. City of Santa Ana and Orange County Register, Fourth Dist. Court of Appeal, Div, Three, Case No. G011307; Raphael Babay, et al. v. City of Lynwood, et al., Second Dist. Court of Appeal, Div. Two, Civil No. 8046883; > Homer Croy, et al. v. Michigan Millers Mutual Insurance Company, et al., Fourth Dist. Court of Appeal, Div, Three, Case No. G008885; Eric Hexburg, et al. v. Superior Court of the State of California (Orange County), Fourth Dist. Court of Appeal, Div. Three, Case No. G006286; Cabrillo Land Company v. Soquel Creek Water District, Sixth Dist. Court of Appeal, Case No. H002002; Carlos Zambrano, et al. v. Superior Court of the State of California for Orange County (Fireside Thrift), Fourth Dist. Court of Appeal, Div. Three, Case No. G002370 SEMINAICUSES Emerging Trends in CEQA, Presented at the Appellate Judicial Attorneys Institute Conference, March 20, 2014 Land Use Cases Fall Update, Rutan & Tucker, LLP, MCLE November 4, 2013 U.S. Supreme Court, 1991 U.S. Court of Appeals for the Ninth Circuit, 1984 U.S. District Courts for the Central, Southern, and Northern Districts of California ► Emerging Challenges Associated with Public Information in the Electronic Age, Presented at the 2013 Environmental Law Conference at Yosemite, State Bar of California Environmental Law Section, MOLE, October 27, 2013 The Fall CEQA Roundup, Rutan & Tucker, LLP, MCLE, October 7, 2013 Legal Ethics for Municipal Attorneys, City Attorneys Association for the County of Los Angeles, MCLE August 22, 2013 CEQA/Land Use Update - Fall, Winter and (a bit ot) Spring, Rutan & Tucker, LLP, MCLE, April 1, 2013 " Keeping it Clean: Strategies for a Neat and Tidy Administrative Record, Rutan & Tucker, LLP, MCLE, March 4, 2013 Overview of CEQA and a Few Other Pointers, for the Marina Planning Commission, February 14, 2013 ► Ethical Dilemmas Faced by Attorneys in the Public Arena, Rutan & Tucker, LLP, MCLE, January 14, 2013 ► Avoiding Public Hearing Pitfalls, Rutan & Tucker, LLP MCLE, December 3, 2012 ► CEQA/Land Use Update — The Fall and Winter Cases" Rutan & Tucker, LLP MCLE, March 5, 2012 ► Ethics and Public Service Laws and Principles, City of Torrance, AB 1234 Training, August 24, 2011 ► Making the Most of Prior CEQA Documents, Rutan & Tucker, LLP MCLE, August 1, 2011 ► Making the Most of CEQA Exemptions, Rutan & Tucker, LLP MCLE, April 4, 2011 New Developments - CCP Section 1021.5 Attorney Fee Motions, Orange County City Attorneys Association MCLE, February 17, 2011 Lions and Tigers and CCP Section 1021.5 Attomeys' Fees (Oh Myl), Rutan & Tucker, LLP MCLE, February 7, 2011 Land Use and CEQA Litigation Update, Los Angeles County City Attorneys Association MCLE, November 18, 2010 ► Land Use and CEQA Litigation Update, Rutan & Tucker, LLP MCLE, October 11, 2010 ► Land Use and CEQA Litigation Update, City of Long Beach MCLE, September 27, 2010 ► Land Use and CEQA Litigation Update, League of California Cities, Fall Conference, September 16, 2010 ► Land Use and CEQA Litigation Update, League of California Cities, Spring City Attorney's Conference, May 5, 2010 Greenhouse Gas, Climate Change, CEQA Compliance, and More..., City of La Quinta, February 17, 2010 Administrative Record Preparation, Rutan & Tucker, LLP MCLE, February 1, 2010 ► A New Year, New Cases, Rutan & Tucker, LLP MCLE January 4, 2010 ► CEQA and Land Use Litigation Update, League of California Cities Annual Conference, September 18, 2009 CEQA and Land Use Litigation Update, Rutan & Tucker, LLP MCLE, September 14, 2009 CEQA and Land Use Litigation Update, City of Long Beach MCLE, June 4, 2009 Recent Developments Relating to Due Process in Land Use Administrative Hearings, Rutan & Tucker, LLP MCLE, June 1, 2009 CEQA and Land Use Litigation Update, City of La Quinta, May 26, 2009 CEQA and Land Use Litigation Update, League of California Cities, Spring City Attorney's Conference, May 6, 2009 k Update on Regulation of Greenhouse Gas Emissions and Water Supply Issues, Rutan & Tucker, LLP MCLE, March 2, 2009 ► Update on Recent Development in Land Use, Rutan & Tucker, LLP MCLE, February 2, 2009 ► CEQA Training, Session 2: The Nitty- Gritty of CEQA Compliance, City of Long Beach MCLE, October 16, 2008 ► CEQA Compliance for Property Acquisition, Session 1: Property Acquisition -- Defining the Project, Phasing, Timing and Scope of Environmental Review, City of Long Beach MCLE, September 30, 2008 ► CEQA's Dirty Dozen: A Guide to Steering Clear of the 12 Most Common CEQA Mistakes, City of Long Beach MCLE, November 2007 ► Quarterly Update New CEQA Cases, Rutan & Tucker, LLP MCLE, August 2007 ► Update on Air Quality Developments and New CEQA Decisions, Rutan & Tucker, LLP MCLE, April 2007 Review of 2006 CEQA Cases, Rutan & Tucker, LLP MCLE, February 2007 Building Communities, Orange County Conference for Woman, Panelist, September 2006 Overview of General Plans, Specific Plans, and Zoning, Rutan & Tucker, LLP MCLE, March 2003 ► The Do's and Don'ts in Representing Developers and Agencies in Public Hearings for Development Projects, Moderator, Rutan & Tucker, LLP MCLE Seminar, March 2003 ► A Guide to Planning Commission Meetings, Rutan & Tucker, LLP MCLE Seminar, February 2003 ► CEQA Overview and Practice Tips, Rutan & Tucker, LLP MCLE Seminar, September 2002 ► CEQA Tips, Rutan & Tucker, LLP MCLE Seminar, May 2002 ► A CEQA Overview, City of La Quinta Planning Department, City of La Quinta, May 2002 Defending Land Use Approvals in CEQA Litigation and from Challenges under the Federal and State Endangered Species Act, League of California Cities, City Attorney's Spring Conference, Spring 2000 6 What's New and Exciting Under the California Environmental Quality Act, California Chapter, American Planning Association Annual Conference, October 1996 ► CEQA Guerrilla Warfare - A Litigator's Perspective, Cahuilla District of the American Planning Association, March 1996 ► California Environmental Quality Act MCLE Seminar, City of Long Beach, September 1994 ► California Environmental Quality Act MCLE Seminar, City of Long Beach, Redevelopment Agency, December 1994 ► Recent Developments Regarding the California Environmental Quality Act, American Planning Association Nuts and Bolts Conference on Zoning, March 1994 ► Overview of the Government Tort Claims Act, Rutan & Tucker, LLP MCLE, February 1993 ® The Public Records Act, Rutan & Tucker, LLP MCLE, July 1992 ► Emerging Trends in Section 9983 Liability - Avoiding Section 1983 Liability For Regulation of First Amendment Rights, League of California Cities, Continuing Education Seminar for Municipal Attorneys, 1991 The Right of Access to information Held by Public Agencies, American Planning Association State Conference, 1990 MEMBERSHIPS & ASSOCIATIONS Director, Orange County Legal Aid Society (1997 -2000) Director, Orange County Bar Association, Harbor Division (1994 -1997) 1992 Vice- Chairperson, 1993 Chairperson, Orange County Bar Association, Appellate Law Section ► Public Law Section of California Bar Association Orange County Bar Association Former Executive Committee Member — Legal Advocacy Committee - League of California Cities — City Attorneys Division COMMUNITYiAFFILIATIONS ► Volunteer for Public Law Center ► Served as Judge Pro Tern for Law and Motion ► Member of the Newport Boulevard Specific Plan Study Committee for the City of Costa Mesa, 1995 to completion and approval of Plan in 1996 AWARDS & HONORS ► Southern California "Super Lawyer" 2006, 2010, 2011, 2012 Southern California "Super Lawyer" Business Edition, 2012 1 AV® Preemininent' rating with LexisNexis /Martindale Hubbell Daily Journal's Annual List of 100 Leading Women Lawyers in California, 2013 © 2014 Rutan & Tucker t >;5 i f �� �1 U., l / TAar & TUCKER, I„¢, P John A. Ramirez is a partner in the Government and Regulatory and Land Use and Natural Resources Departments. Prior to joining Rutan & Tucker, LLP, John was an attorney at the Sacramento -based law firm Nielsen, Merksamer, Parrinello, Mueller & Naylor, where John specialized in constitutional law, election law, and government law. Following his tenure at Nielsen Merksamer, John served as a Staff Attorney with the Pacific Legal Foundation, where he represented land owners on various land use, constitutional law, exaction and rent control cases. Prior to law school, John served in the administration of former California Governor Pete Wilson as an Executive Fellow in the Business, Transportation and Housing Agency, where John worked on infrastructure and housing policy issues. John later worked for the Governor's Office of Planning & Research. RELATED SERVICES In 2002, the Los Angeles Daily Journal, a leading legal newspaper, named Land Use /Natural John as one of the "Top 20 Lawyers in the State Under 40." In 2005 and Resources 2006, based on the recommendations of his peers, Law & Politics Magazine listed John as "Rising Star" in its annual Super Lawyer survey. John attended the University of California, Hastings School of Law, where EDUCATION he was a member of the Hastings Law Journal. During law school, John - - was chosen to work for California Supreme Court Justice Kathryn University of California, Werdegar as a Judicial Extern. John completed his undergraduate Hastings College of the studies at the University of California, Irvine. Law AREAS OF EXPERTISE c Land Use � CEQA v Election Law � Initiative and Referendum P Public Policy & Mandamus Litigation Natural Resources P Redevelopment � Water Law John has obtained numerous victories for his clients in both federal and state courts including the following successful published decisions: University of California, Irvine California ® Golden State Boring and Pipe Jacking, Inc. v. Orange County Water District (2006) 2006 Cal.App. Lexis 1523 [successful defense of a local water district's substitution of a listed subcontractor] Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004) 120 Cai.AppAth 961 [successful representation of a land developer in a case of first impression holding that the adoption by a city council of a voter - sponsored initiative is exempt from CEQA] Schroeder v. Irvine City Council (2002) 97 Cal.AppAth 174 [successful representation of city in an anti -SLAPP action brought in connection with the re -use of MCAS El Toro; obtained an award of $85,000 in attomeys' fees on behalf of client] San Jose Christian College v. City of Morgan Hill (9th Cir. 2004) 360 F.3d 1024 [successfully defended a municipality in the first Ninth Circuit case brought under the Religious Land Use & Institutionalized Persons Act of 2000] Montclair Parkowners v. City of Montclair (9th Cir. 1999) 211 F.3d 1144 [successful representation of a mobilehome park owner in reversing a district court dismissal to a challenge to a local rent control law] In re Monterey County Initiative Matter (2006 N.D. Cal.) 427 F.Supp.2d 958 [successful pre - election invalidation of an initiative measure that sought to amend the county's general plan] Ventura County Christian High School v. City of San Buenaventura (2002 C.D. Cal.) 233 F.Supp.2d 1241 [successful defense of municipality in civil rights and first amendment action] John has an extensive government law and land use practice, and assists both private and public clients in the following areas: R Land Use Entitlement, Subdivisions, and California Environmental Quality Act Compliance: Represents private and public clients in connection with all aspects of the Planning and Zoning Law, the California Environmental Quality Act, the National Environmental Policy Act, the Subdivision Map Act, development agreements, Williamson Act, and fees and exactions. John also represents clients in connection with land acquisition and purchase and sale transactions. In the last several years, John has specialized in complex site acquisition, entitlement and CEQA matters for retail power center and big box developers. ► Community Redevelopment Law and Housing: Represents private and public entities in connection with the Community Redevelopment Law. John serves as Assistant General Counsel to the Cypress and Arroyo Grande Redevelopment Agencies. John is also a recognized expert on Housing Element law. Water Law: John serves as the Assistant General Counsel to the Orange County Water District. John has represented private and public entities on complex water law and policy issues, including compliance with Senate Bill 221 and Senate Bill 610. John assisted in the drafting of Proposition 50, a multi - billion dollar bond measure that was adopted by the State's voters at the 2002 general election. John also successfully represented the Orange County Water District in Yorba Linda Water District v. Orange County Water District (Sup. Ct. Case No. 04CC09152), which involved a complicated water rights dispute stemming from a 1970 water rights contract. Initiative and Referenda and Campaign and Election Law Compliance: John is recognized statewide as an expert in all aspects of election law and political law, and has drafted dozens of highly technical land use and other local and statewide initiative petitions. John also represents private and public entities in connection with referendum matters and has successfully litigated the legal validity of dozens of initiative and referendum matters. In 2002, John served as General Counsel to the Richard Riordan for Governor Committee and as General Counsel to the Californians for Safe, Clean Water (Prop. 50) qualification committee. John is also an expert on the Voting Rights Act. John represents numerous private companies on compliance with the California Political Reform Act and the Federal Election and Campaign Act, as amended, and also represents candidates and ballot measures on candidate statement and ballot pamphlet litigation. John's successful published decisions in this regard include Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano, Schroeder v. Irvine City Council, and In re Monterey County Initiative. Federal and State Natural Resource Permitting: Represents private developers on issues arising under the federal and state Endangered Species Acts, obtains section 404 permits and streambed alteration permits and is well versed in all related regulatory issues. In 2006, John obtained a highly controversial section 404 permit for JSerra High School in south Orange County, which involved a multi- agency clearance process under section 104 of the National Historic Preservation Act. In this capacity, John successfully defended the client in litigation brought by environmental groups challenging various regulatory decisions made by the Army Corps of Engineers (see Sierra Club v. U.S. Army Corps of Engineers (Case No. 054306 CW (2005)). Writ of Mandate and Public Policy Litigation: John is recognized statewide as a leading litigator in the realm of highly controversial public policy issues. In addition to his numerous successful reported decisions set forth above, John has also obtained numerous trial court and unpublished court of appeal decisions successfully on behalf of his clients on a wide variety of issues including, but not limited to, inverse condemnation, fees and exactions, rent control, constitutional law, federal and state and civil rights laws including the Fair Housing Act, federal preemption issues, Coastal Act, and housing policy. Among a very partial list of the notable cases John has been involved with, in addition to those listed above, are as follows: San Remo Hotel v. City and County of San Francisco [California Supreme Court case involving a vacancy control ordinance and hotel conversions]; Martinez v. La Quinta Redevelopment Agency [successful defense of complicated civil rights, Fair Housing Act and mobilehome closure case brought by statewide public interest groups]; Extra Space of Laguna Hills v. San Clemente (Sup. Ct. G027790) [successful defense of fee exactions]; Nixon v. Shrink Missouri Government PAC [Unites States Supreme Court case involving First Amendment issues]. First Amendment (Political Association, Commercial Speech, and Religious Liberty): Represents a variety of public and private clients on a wide array of First Amendment and related constitutional law issues. Currently represents one of the State's largest billboard companies on land use entitlement and various litigation matters, all of which involve complex First Amendment issues. In addition, John is a well - recognized expert on issues pertaining to religious liberty, and successfully obtained the first decision from the Ninth Circuit Court of Appeals construing the Religious Land Use and Institutionalized Persons Act of 2000. 6 Anti -SLAPP Matters: John is a well- recognized expert in connection with litigating Anti -SLAPP matters. In this capacity John has successfully litigated dozens of Anti -SLAPP matters and has obtained significant fee awards for his clients. Federal, State, and Local Government Ethics and Lobby Regulations: Represents numerous private companies on matters pertaining to complying with the increasingly sophisticated federal, state and local governmental ethics and lobby regulations. In this capacity, John has represented clients before numerous public ethics agencies, including but not limited to, the California Fair Political Practices Commission, the San Diego Ethics Commission, the City of Los Angeles Ethics Commission, and the Federal Election Commission. Special Districts and Compliance with the Cortese- Knox- HertzBerg Act: Represents public agencies in all aspects relating to local agency formation commissions, special districts, and annexations. Rent Control: John has represented numerous landowners before local rent control boards on rent control matters and has also litigated rent control matters in State and Federal Courts. Among the cases John has been involved with include Montclair Parkowners v. City of Montclair, and San Remo Hotel v. City and County of San Francisco. Fees, General and Special Taxes, and Exactions: Represents public and private clients on all aspects relating to fees, general and special taxes, and exactions. Has represented public agencies in the formation and adoption of fee programs involving nexus studies, and has litigated fee claims under the Mitigation Fee Act. Non - Profit Entities: Represents Internal Revenue Code Section 501(c) (3), 501(c)(4), and 501(c)(6) charities, social welfare organizations, and trade associations on tax, lobby, and related regulatory issues. Representative clients include the California Rifle and Pistol Association and several statewide ballot measure committees. PUBLICATIONS Failure to Turn Square Corners: The California Supreme Court's Application of Federal Takings Law, 9 Cal. Land Use & Policy Rptr. (2000). The California Supreme Court's Foreclosure of the Compensation Remedy for Takings Claimants: Assessing the Effect of Recent California Supreme Court Opinions, 8 Cal. Land Use & Policy Rptr (April 1999). Campaigning in California: A Practical Guide to State and Federal Campaign Disclosure Laws, California Journal (1998). © 2014 Rutan & Tucker RUTA,"`,,.,,N 61 Mr. Howell is senior counsel in the firm's Government & Regulatory Law Section and a member of the firm's Environmental Law and Land Use /Natural Resources Practice Groups. Mr. Howell's practice includes litigation and advisory matters involving governmental agencies, as well as litigation between private parties. In particular, Mr. Howell's practice focuses on environmental and land use litigation. He also advises clients, including political candidates and PACs, on election law issues. Mr. Howell has represented a wide variety of private and public- sector clients, including property owners, developers, business owners, cities, water districts, redevelopment agencies, and school districts. Affordable Housing/Economic Development Environmental Law Government & Regulatory Law ii M Mr. Howell has taught or co- presented courses on a variety of topics, Land Use/Natural including SB 375 (2008 legislation designed to reduce greenhouse Resources emissions by encouraging development around public transportation and curbing urban sprawl), Attorney Fee Motions under the "Private Attorney General" Statute, and numerous aspects of the California Environmental Quality Act (CEQA), including but not limited to Developments in CEQA EDUCATION Case Law, Making the Most of CEQA Exemptions, and Making the Most - of Prior CEQA Documentation, and What Do You Mean We Have To Do University of California, CEQA AND NEPA Compliance ?. Los Angeles (J.D., 2003) AREAS OF EXPERTISE Bradley University (B.A., 1998), magna cum laude Land Use/Natural Resources Environmental Law BAR ADMISSIONS REPRESENTATIVE MATTERS California Represented a city a lawsuit challenging the city's approval of a 510 acre, 760 unit residential development under the California Environmental Quality Act (CEQA) and the Seismic Hazards Mapping Act, resulting in judgment for the City on all issues. Represented city in California Environmental Quality Act (CEQA) lawsuit challenging the city's approval of permits issued to big -box retailer, resulting in judgment in favor of the city. Represented the owner of a manufacturing facility who was forced to cease operating by the county and threatened with significant penalties. Successfully obtained a writ of mandate requiring the county to allow the facility to operate. Thereafter successfully represented the client on appeal in a related action brought by a group seeking to shut down the facility. Represented city in lawsuit seeking damages and injunctive relief related to environmental contamination discovered in a public park. This case was ultimately resolved through settlement agreement which required the defendant to clean up the park and pay the City $1,000,000. Represented numerous cities, as well as building industry groups in lawsuits challenging various aspects of stormwater regulation, including regulations adopted pursuant to the federal Clean Water Act and California Porter - Cologne Act. > Represented businesses and individuals charged with violating the Califomia False Claims Act. Successfully obtained dismissal of the entire action, which sought several million dollars in penalties. This case was ultimately settled on favorable terms while pending appeal. Successfully defended public agency in lawsuit brought in CEQA lawsuit challenging approval of road construction improvements, resulting in judgment in favor of the agency. Judgment affirmed by the Court of Appeal. Successfully defended city in lawsuit brought by homeowner for damages caused by alleged failure of sewer pipes, with lawsuit dismissed on summary judgment. Represented water district in complicated water rights dispute which resulted in successful prosecution of $750,000 water assessment claim, as well as dismissal of $24 million cross - complaint. Represented redevelopment agency in action to recover real property transferred to a private entity, resulting in settlement in which the defendant agreed to return the property back to the agency in return for its deposit. Represented city in CEQA lawsuit against adjacent city, which resulted in favorable settlement after the Court tentatively ruled in favor of the client city's position on diapositive motion. a Represented church in appellate proceedings related to property dispute with break -away members of congregation, resulting in favorable settlement. w Represented owner of apartment building complex in contractual dispute with vendors, resulting in favorable settlement. b Represented individual property owner in civil lawsuit brought by District Attorney for alleged environmental violations and unfair business practices, resulting in dismissal of unfair business practice claims and favorable settlement of remaining claims. b Represented property owner in action against homeowner's association, resulting in favorable settlement and obtaining award of attorney's fees. Successfully defended an individual investor in an action alleging breach of contract and fraud, resulting in a court order finding the plaintiffs claims to be unsupported by evidence and imposing sanctions requiring the plaintiff and plaintiffs attorney to pay the attorney's fees incurred in defending the action. PUBLISHED CASES Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal. App. 4th 173 Fullerton Redevelopment Agency v. Southern California Gas Co. (2010) 183 Cal. App. 4th 428 ® Golden State Boring & Pipe Jacking, Inc. v. Orange County Water Dist. (2006) 143 Cal, App. 4th 718 MEMBERSHIPS & ASSOCIATIONS State Bar of California Orange County Bar Association © 2014 Rutan &"fucker Progosed Pre-Litigation Budget for Walmart Entitlement City of Lake Elsinore Work to be Performed: Estimate of Hours: Amount of Fees: Initial Conference Call with ESA and Meetings with City 10 $3,350 Review Screencheck DEIR First Draft 30 $10,050 Review Technical Studies 15 $5,025 Conference Calls and Meetin gs 8 $2,680 Review Screencheck DEIR Second Draft 20 $6,700 Review Revised Technical Studies 5 --$1,675 Review Public Version of DEIR 5 $1,675 Review Comments on DEIR 5 $1,675 Review and Revise Response to Comments 50 $16,750 Review and Revise CEQA Resolution for Planning Commission 2 $670 Review Staff Report for Planning Commission Hearing 3 $1,005 Prepare for and attend Planning Commission Hearin� 6 $2,010 Review Staff Re port for CLty Council Meetin 3 $1,005 Review and Revise CEQA Resolution, Statement of Facts, and Statement of Overriding Consideration for Ci y Council 8 $2,680 Assist Staff in Written Response to Correspondence Received prior to City Council Meeting 20 $6,700 Attend CLty Council Me2!jRg 6 $2,010 Review NOD and Post Approval Work 1 $335 Totals 1197 652995 1191099999-0091 7312855.1 a07/30114