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HomeMy WebLinkAboutCA Density Bonus Ordinance Legal Services; ColantuonoCOLANTUONO 420 Sierra College Drive, Suite 140 Gass Valley, CA 95945-5091 H I G H S M I T H Voice (530) 432-7357 rax (530) 4.32-7356 WHATLEY,PC December 27, 2016 VIA E-MAIL AND U.S. MAIL Paul A. Jensen, AICP Community Development Director City of San Rafael 1400 Fifth Avenue San Rafael, CA 94901 Michael G. Colautuono (530) 432-7359 MColantuono@chwlaw.us Re: Representation of City of San Rafael re Density Bonus Ordinance Dear Paul: As you asked, I write to propose the terms under which we agree to represent City of San Rafael ("City" or "you") regarding the density bonus issues identified in your December 21, 2016 letter to me. These will be our sole projects for you; if we can assist you on other matters, please let me know. Colantuono, Highsmith & Whatley, PC and all of its professionals are very pleased to have the opportunity to represent you. This letter sets forth the basis upon which our firm will provide legal services to you and bill you for services and costs. The firm maintains a conflict of interest index which lists all clients of our firm and matters in which we represent them. We will not represent any party with an interest that may be adverse to an indexed person without first determining if a professional conflict of interest would arise. We propose to index the following with respect to this matter: Client -Affiliated Parties: Adverse Parties: City of San Rafael None. Please let me know if any of these names are incorrect or if there are other parties with an interest in this matter that we should list such as, for example, property owners 162577.2 Paul A. Jensen, Community Development Director City of San Rafael December 27, 2016 Page 2 or developers with pending density bonus proposals before the City. Unless we hear from you to the contrary, we will assume the above listing is accurate -and complete. We have reviewed our files and our conflicts index and have no other client relationships which would interfere with our ability to represent you in this matter. As you know, we have represented the City on finance issues in the past. As we have discussed, the nature of the matter makes it impossible for us to precisely estimate the total amount of fees you may incur. You will receive monthly statements informing you of the fees and costs incurred during the prior month. We will, of course, do our best to represent you efficiently and without undue expense. Please make payments payable to Colantuono, Highsmith & Whatley, PC directly to our Grass Valley office at: Colantuono, Highsmith & Whatley, PC 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945-5091 Our federal employer identification number is 75-3031545. I will have primary responsibility for your representation, and the firm will use other attorneys and legal assistants in the best exercise of our professional judgment. If at any time you have questions, concerns or criticisms, please contact me at once. Naturally, we expect you to keep us reasonably informed of all significant developments in matters relating to this representation. We review all statements before they are issued to ensure that the amount charged is appropriate. The statement for fees is simply the product of the hours worked multiplied by the hourly rates for the attorneys and legal assistants who did the work. Our hourly rates are based upon the experience, reputation and ability of the lawyer or legal assistant performing the services, and for 2017 range between $195 and $475 per hour for attorneys' time, and between $125 and $160 for the time of paralegals and legal assistants. As a courtesy to you, however, we agree to cap our fees at $375 per hour, a $100 discount from my full rate. Our rate structure in general and the rates of 162577.2 Paul A. Jensen, Community Development Director City of San Rafael December 27, 2016 Page 3 particular lawyers may be increased from time to time, and are usually adjusted as of the beginning of each calendar year, but we will not lift the $375 per hour cap without first discussing with you the need to do so. It may be necessary to bill you for items such as, but not limited to, authorized travel, long distance telephone calls, filing fees, photocopying, computerized legal research outside the scope of our Westlaw contract and the like. These items are separately itemized on our statement as "disbursements." These amounts will be billed in addition to our fees. We will send you monthly statements, and expect payment within 15 days of the billing date. If payment is not received within 30 days of the billing date, we reserve the right to charge interest on the unpaid balance at the rate of 1% per month and to terminate our representation. We rarely have disputes with clients over our fees. Nevertheless, you should be aware that you are entitled to require that any fee dispute be resolved by binding arbitration in Los Angeles or Nevada Counties pursuant to the arbitration rules for legal fee disputes of the respective County Bar Association. We agree that all disputes between us regarding the services rendered or fees charged not resolved via County Bar fee arbitration will be submitted to binding arbitration in Sacramento to be conducted by ADR Services, Inc. in accordance with its commercial arbitration rules. YOU SHOULD REVIEW THIS PARAGRAPH CAREFULLY AND, IF YOU WISH, SEEK INDEPENDENT LEGAL COUNSEL REGARDING IT, AS YOU AND WE ARE AGREEING TO FOREGO SIGNIFICANT RIGHTS IN THE EVENT OF A DISPUTE BETWEEN US, INCLUDING THE RIGHT TO A JURY TRIAL. You have the right to terminate our representation at any time. We have the same right, subject to an obligation to give you reasonable notice to arrange alternative representation. In either circumstance, you agree to secure new counsel to represent you as quickly as possible and to cooperate fully in the substitution of the new counsel as counsel of record in any litigation in which we may subsequently agree to represent you. Notwithstanding the termination of our representation, you will remain obligated to pay to us all fees and costs incurred prior thereto. 16277.2 Paul A. Jensen, Community Development Director City of San Rafael December 27, 2016 Page 4 You agree that we may, in our discretion, maintain all or part of your client file in electronic format. The firm may store part or all of your documents using secure cloud storage services. If so, the firm will apply all reasonable methods to maintain the confidentiality of your files, just as it does for your non -digital information. Your data will be password protected and encrypted using currently available technology. Clients requiring information from their files may obtain that information only by written request to us. You also agree that following termination of our attorney-client relationship, we will not be required to maintain your client file for more than two years. If you ask us to deliver your file to you, you agree that delivery of an electronic version, together with any materials that cannot be saved electronically, satisfies our obligation to release all your client papers and property to you. Two years after termination of our relationship, and after reasonable notice, you agree that we will be free to destroy your client file, including all electronic records. We may also discharge our obligation to maintain your file before the expiration of two years by mailing a copy to you at your address last known to us. You agree that "reasonable notice" means our mailing a notice of our intent to destroy your client file to you at that address. I apologize for the formality of this letter, but we are required by California law to provide this information to you in writing. We are also required to inform you that we currently maintain professional liability insurance coverage. Please review the foregoing and, if it meets with your approval, execute it and return it to me by fax, mail or email. If you have any questions, please feel free to call me at the direct -dial number above. Thank you for the opportunity to represent you? 4: Very truly yours, /Michael G. Colantuono MGC:mgc 162577.2 Paul A. Jensen, Community Development Director City of San Rafael December 27, 2016 Page 5 On behalf of City of San Rafael, I agree to retain Colantuono, Highsmith & Whatley, PC to provide legal services as set forth above. Jim S Utz City er ATTEST: Date: Esther Beirne City Clerk c: Rob Epstein, City Attorney Lisa Goldfien, Assistant City Attorney ;roi,ol.,ed as io `criri; � n 162577.2 Date: 2 % , 201 ;2' [ (=, , 201 —*- December 21, 2016 Michael Colantuano Colantuano, Highsmith & Whatley, PC 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945-5091 Subject: Request for Legal Services; Residential Density Bonus Law Dear Mr. Colantuano: It was a pleasure speaking with you last week regarding the Residential Density Bonus Law. As I mentioned, Rob Epstein, San Rafael City Attorney and Elise Simonian, Town of San Anselmo Planning Director suggested that I contact you. At their prompting, I was able to view the presentation you made on this topic to the Town of San Anselmo Town Council; it was refreshing to see a complicated topic explained in simplistic terms. The City of San Rafael would like your legal assistance on the Residential Density Bonus Law. As I explained to you, some years ago, the City of San Rafael adopted an ordinance establishing residential density bonus provisions and regulations. The local ordinance, which is include in our affordable housing provisions, can be accessed at: httr)s://www.municode.com/library/ca/san rafael/codes/code of ordinances?nodeld =TIT14ZO DIVIVREAPALSEDI CH14.16SIUSRE 14.16.030AFHORE In part, our density bonus ordinance was developed to mirror the State Residential Density Bonus Law that was in place at the time of our adoption, but was customized to address specific community goals and needs. For example, our local ordinance allows a developer to request a density bonus that exceeds the 35% density bonus limit set by the State law. However, there is no additional graduation of the affordable housing requirements for projects that exceed the 35% density bonus. As a result, we have had several developers propose projects with densities that are twice the amount allowed by the property zoning and General Plan. What is unfortunate is that with these proposals, there is no real mechanism to require more than the minimum below- market rate housing component. We have also found that there are several development proposals that involve complicated requests for concessions supported by interpretations of the State Density Bonus Law, which depart from our knowledge and interpretation of this law. Furthermore, there have been subsequent changes in state density bonus law which we need to make sure our ordinance continues to k Gary O. Phillips, Mayor • Kate Colin, Vice Mayor • Maribeth Bushey, Councilmember • John Gamblin, Councilmember • Andrew Cuyugan McCullough, Councilmember Michael Colantuano December 21, 2016 Page 2 comply. For these reasons, we need the knowledge and skills of an expert on this topic to assist us in review and decision-making. We request your services for the following tasks related to the residential density bonus topic: Task 1: Review the City of San Rafael residential density bonus ordinance (SRMC Section 14.16.030) for consistency with the current State Density Bonus Law. Determine if there are changes needed to the City ordinance to achieve compliance with the State law. Requested work product: Provide a written report summarizing your findings. Task 2: Meet with City staff to discuss improvements to SRMC Section 14.16.030. Regardless of the issue of consistency with the State law, the City ordinance is overdue for a review and amendment to address more current conditions and challenges in the community. Further, the ordinance needs to be amended so that there is more clarity on the concessions, pro -forma requirements and bonus limitations. Requested work product: Provide a written report summarizing recommendations to update and improve the City ordinance. Task 3: Provide legal assistance in reviewing specific development applications that include a density bonus request. At present, the City is processing two -three development applications, which include a density bonus request. For each application, a comprehensive legal review of the bonus request for consistency with the State law and City ordinance is necessary. Requested work product: For each development application, meet with staff to learn about each project, garner staff's concerns/questions about consistency with local and state density bonus law, and then provide a written report summarizing the review, findings and recommendations. In addition to the above services, we request legal guidance on our current affordable housing requirements. Task 4: Since 1986, the City of San Rafael has administered an inclusionary housing requirement for new development (both rental and for -sale). As you are aware, results of case law in the last several years (e.g., Palmer v. City of Los Angeles) has stifled the ability of local jurisdictions to require inclusionary housing units for residential rental development projects. Consequently, the City has relied on tentative map applications (if submitted) to consider the project ownershuip and thus require inclusionary house or by using the density bonus provisions (if requested) to yield affordable rental units. In the past, we have been advised to "wait-and-see" the outcome of the case law to determine if we can re -instate f � oii :ia�� ]'Y•V� ��_ �.�tf:i�l�l�k ",�����€rt. =,�i,:`^:,y;�ti�.:, »ir�s.`.rd1;r�;N.•. „yzirr.. Ec�2 zr.aJ�.�;;:�l��•?^:..: oa;tw ] Gary O. Phillips, Mayor • Kate Co in Vice Mayor • Maribeth Bushey. Councilmember - John Gamblin Councilmember • Andrew Cuyugan McCullough Councilmember Michael Colantuano December 21, 2016 Page 3 our inclusionary requirement for rental projects. As an alternative, we have been advised that we can commission a "nexus" study to demonstrate the need for re -instating this requirement. We have a consultant proposal and budget to complete a nexus study, which is also on our work program for the coming year. However, we have not proceeded with this study because it is costly and it may not be warranted. At this point, we need legal advice on the status of the case law and whether we should proceed with the nexus study or re -instate our inclusionary requirement without completing this study. Requested work product: Provide a written report on the status the case law a recommendation on how to proceed. We understand that the above scope and tasks would be completed on a time and materials basis rather than a service that is budget -based. I confirmed that you have an active services agreement with the City for legal services. However, the active agreement is specific to services related to the City's pension program. Therefore, the City Attorney's Office has suggested that a separate agreement be executed with you to specifically cover our legal service needs for the Community Development Department. To simplify this process, we would like to suggest the same agreement form and content that was used for your legal services on the pension program (your letter agreement dated May 20, 2015). What this means is that we will cap the services at a budget of $20,000, which will afford us to administratively approve the agreement. I hope that this is workable for you. If so, prepare a letter addressed to me, which provides a general scope that includes City authorization through signatures by the City Manager (Jim Schutz) and the City Clerk (Esther Beirne). All future billings/invoices for services can be forwarded to the City Attorney's Office, or directly to my office. We are looking forward to working with you on this matter. If you have any questions or wish to schedule meeting to discuss the above in more depth, please contact me at 415-485-5064 or email at Pau l.iensen@citvofsanrafael.ore. Sincerely, Paul A. Jensen, AICP Community Development Director cc: Rob Epstein, City Attorney Lisa Goldfien, Assistant City Attorney Raffi Boloyan, Planning Manager Gary O. Phillips. Mayor • Kate Colin, Vice Mayor • Maribeth Bushey Councilmember • John Gamblin, Councilmember • Andrew Cuyugan McCullough, Councilmember DATE (MMIDDIYYYY) A� " CERTIFICATE OF LIABILITY INSURANCE 1/23/2017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Xanh(Sand)Train NAME: Shaw Moses Mendenhall b Associates Ins. Agency PHONr o, Ext): (626)799-7813 FA�XX No): (626)799-8784 License #OD94511 E-MAIL ADDRESS: xanh@smmainsurance.com 625 Fair Oaks, Suite 158 INSURER(§) AFFORDING COVERAGE NAIC # South Pasadena CA 91030 INSURER A Citizens Insurance Company of 31534 INSURED INSURER B :Carolina Casualty Ins. Co. 10540 COLANTUONO, HIGHSMITH b INSURERC: WHATLEY , PC. INSURER D 420 SIERRA COLLEGE DR. STE 140 INSURER E: GRASS VALLEY CA 95945 INSURER F: COVERAGES CERTIFICATE NUMBER:CL1633105443 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUBR POLICY EFF POLICY EXP LIMITS LTR INSn WVD POLICY NUMBER IMM/DDIYYYYI (MM/DDIYYYYI X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE S 2,000,000 DAMAGE TO RENTED 300,000 A CLAIMS -MADE X OCCUR _ PREMISES (Ea occurrence) S OB39898667 4/1/2016 4/1/2017 MED EXP (Any one person) $ 5,000 PERSONAL BADV:NJURY S 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE S 4,000,000 X POLICY PRO- JECT LOC PRODUCTS - COMPiOPAGG S 4,000,000 OTHER: EmpoyeeBenefits S 1,000,000 AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT S 2,000,000 (Ea accident) A ANY AUTO BODILY INJURY (Per person) S ALL OWNED SCHEDULED OB39898667 4/1/2016 4/1/2017 BODILY INJURY (Per accident) S AUTOS AUTOS NON -OWNED PROPERTY DAMAGE X HIRED AUTOS x AUTOS Per accident $ S UMBRELLA LIAB OCCUR EACH OCCURRENCE S EXCESS LIAB CLAIMS -MADE AGGREGATE S DED RETENTION S S WORKERS COMPENSATION x PER 1OTH- AND EMPLOYERS' LIABILITY YIN N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT S 1 000,000 OFFICER/MEMBER EXCLUDED? N / A ----" A (Mandatory In NH) WB39898674 4/1/2016 4/1/2017 E.L. DISEASE - EA EMPLOYEE S 1,000,000 If yes, describe under - _-- DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT S 1,000,000 B Professional Liability 1455985 4/4/2016 4/4/2017 2,000,000/4,000,000 25,000 Deductible DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 181, Additional Remarks Schedule, may be attached If more space Is required) The Certificate Holder is named as an Additional Insured. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of San Rafael THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 1400 5th Avenue, 3rd floor ACCORDANCE WITH THE POLICY PROVISIONS. San Rafael, CA 94901 AUTHORIZED REPRESENTATIVE Xanh (Sand) Tran/XTT © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD INS025 (201401) RAFq�` �1 S 2 � yo C,rY WITH P eA\y CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: COMMUNITY DEVELOPMENT Project Manager: PAULJENSEN Extension: 5064 Contractor Name: COLANTUONO, HIGHSMITH & WHATLEY, PC Contractor's Contact: MICHAEL COLANTUONO Contact's Email: ALLOYD@CHWLAW.US ® FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Already on file with City b. Email contract (in Word) & attachments to City 12/28/2016 Atty c/o Laraine.Gittens@cityofsanrafael.org 2 City Attorney a. Review, revise, and comment on draft agreement 1/19/2017 R LAG and return to Project Manager 1/19/2017 5Z LAG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor 3 Project Manager Forward three (3) originals of final agreement to Click here to contractor for their signature enter a date. 4 Project Manager When necessary, * contractor -sinned agreement ® N/A agendized for Council approval *PSA > $20,000; or Purchase > $35,000; or Or Public Works Contract > $125,000 Click here to Date of Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 5 Project Manager Forward signed original agreements to City 2/2/17 PJ Attorney with printed copy of this routing form 6 City Attorney Review and approve hard copy of signed Z —7 Q �� agreement K� 7 City Attorney Review and approve insurance in PINS nd bonds K& Z/Z/ Ok (for Public Works Contracts) Pkto, PJ _ 8 City Manager/ Mayor Agreement executed by Council authorized official 9 City Clerk Attest signatures, retains original agreement and 2- b�' % ' i forwards copies to Project Manager