08-0115_DAPEER, ROSENBLIT & LITVAK, LLP_Personal Services Agreement•
PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective thisl.S;th day of
January, 2008, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter
referred to as the "City") and DAPEER, ROSENBLIT, AND LITVAK, LLP (hereinafter
referred to as the "Attorney").
RECITALS:
WHEREAS, City desires to retain the services of Attorney regarding the City's
proposal to provide "Contract Code enforcement Services;" and
WHEREAS, Attorney is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Attorney mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by the City shall consist of those tasks as set forth
in Exhibit 'A" attached and incorporated herein by reference. To the extent that there are
any conflicts between the provisions described in Exhibit "A" and those provisions contained
within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
The term of this Agreement shall be for a period of three (3) years subject to the
termination provisions of Section 15. It is understood that the parties that City will conduct a
performance review of the Attorney's code enforcement work one year from the effective
date of this Agreement.
Section 3. Compensation.
3.1 Amount.
Pursuant to Exhibit A, the hourly rate for Attorney's legal services shall be
$160.00 per hour. There shall be an additional surcharge of $25.00 per hour for attorney
time for those items as identified in Section 4 of Exhibit A. Paralegal time shall be billed at
$100.00 per hour. The hourly rates as described herein shall be fixed for the three year term
of this Agreement.
3.2 Method of Payment.
Subject to Section 3. 1, Attorney shall submit monthly invoices based on total
services which have been satisfactorily completed for such monthly period. The Citywill pay
monthly payments based on approved invoices in accordance with this Section.
3.3 Records of Expenses.
Attorney shall keep complete and accurate records of all costs and expenses
incidental to services covered by this Agreement. These records will be made available at
reasonable times to City.
Section 4. Independent Contractor.
It is agreed that Attorney shall act and be an independent contractor and not an agent
or employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 5. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Attorney, its principals and
employees were a substantial inducement for City to enter into this Agreement. Attorney
shall not contract with any other entity to perform the services required without written
approval of the City. This Agreement may not be assigned, voluntarily or by operation of
law, without the prior written approval of the City, If Attorney is permitted to subcontract any
part of this Agreement by City, Attorney shall be responsible to City for the acts and
omissions of its subcontractor as it is for persons directly employed. Nothing contained in
this Agreement shall create any contractual relationships between any subcontractor and
City. All persons engaged in the work will be considered employees of Attorney. City will
deal directly with and will make all payments to Attorney.
Section 6. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is required
prior to Attorney undertaking any extra work. In the event of a change in the Scope of Work
provided for in the contract documents as requested by the City, the Parties hereto shall
execute an addendum to this Agreement setting forth with particularity all terms of the new
agreement, including but not limited to any additional Attorney's fees.
Section 7. [Reserved]
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Attorney shall comply with all applicable laws, ordinances, codes and regulations of
federal, state and local government.
Section 10. Conflicts of Interest.
Attorney covenants that it presently has no interest and shall not acquire any interest,
direct or indirect, which would conflict in any manner or degree with the performance of the
services contemplated by this Agreement. No person having such interest shall be
employed by or associated with Attorney.
Section 11. [Reserved].
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Attorney in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Attorney agrees that they shall not be made available to
any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Attorney's professional services. Nothing herein shall be
deemed to abrogate the Attorney -Client or Attorney Work -Product Privileges.
Section 13. Indemnity.
Attorney agrees to protect, defend, and hold harmless the City and its elective or
appointive boards, officers, agents, and employees from any and all claims, liabilities,
expenses, or damages of any nature, including attorneys' fees, for injury or death of any
person, or damage to property, or interference with use of property, to the extent arising out
of, or in any way connected with the negligence, recklessness and/or intentional wrongful
conduct of the Attorney, its agents, officers, and employees.
This hold harmless agreement shall apply to all liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Attorney.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Attorney, at its own cost and expense, shall carry, maintain for the duration of
the agreement, and provide proof thereof that is acceptable to the City, the insurance
specified below with insurers and under forms of insurance satisfactory in all respects to the
City. Insurance required herein shall be provided by Admitted Insurers in good standing with
the State of California and having a minimum Best's Guide Rating of A- Class VII or better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Attorney shall maintain in full force and
effect Comprehensive General Liability coverage in an amount not less than one million
dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated
with the work contemplated by this agreement. If a Commercial General Liability Insurance
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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.
14.2 Comprehensive Automobile Liability.
Throughout the term of this Agreement, Attorney shall maintain in full force and
effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned
vehicles in an aggregate amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Worker's Compensation.
If Attorney intends to employ employees to perform services under this
Agreement, Attorney shall obtain and maintain, during the term of this Agreement, Worker's
Compensation Employer's Liability Insurance in the statutory amount as required by state
law.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Attorney shall submit the
insurance certificates called for in this agreement to the City Attorney for approval.
14.5 Errors and Omissions Coverage
Throughout the term of this Agreement, Attorney shall maintain Errors and
Omissions Coverage (professional liability coverage) in an amount of not less than One
Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Attorney
shall submit an insurance certificate to the City's City Attorney for certification that the
insurance requirements of this Agreement have been satisfied.
14.6 Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, except that
ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium.
14.7 Terms of Compensation.
Attorney shall not receive any compensation until all insurance provisions have
been satisfied.
14.8 Notice to Proceed.
Attorney shall not proceed with any work under this Agreement until the City
has issued a written "Notice to Proceed" verifying that Attorney has complied with all
insurance requirements of this Agreement.
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Section 15. Termination.
City shall have the right to terminate this Agreement without cause by giving thirty (30)
days' advance written notice of termination to Attorney.
In addition, this Agreement may be terminated by any party for cause by providing ten
(10) days' notice to the other party of a material breach of contract. If the other party does
not cure the breach of contract, then the agreement may be terminated subsequent to the
ten (10) day cure period.
Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or to
such other addresses as may be designated by written notice. These addresses shall be
used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Manager
To Attorney: Steven Rosenblit, Esq.
Dapeer, Rosenblit, and Litvak, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, CA 90064
Section 17. IReservedl.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
By: D Q, w -A
David F. Adams, City Manager
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DAPEER, ROSENBLIT, & LITVAK, LLP
Bv-
Steven Rosen lit
APPROVED AS TO FORM:
Omar Sandbval, City Attor ey
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DAPEER, ROSENBLIT & LITVAK, LLP
PROPOSAL -CODE ENFORCEMENT SERVICES
Section 1 Firm History
1.1 The firm (hereafter "DRU) consists of senior partners - Kenneth B.
Dapeer, Steven H. Rosenblit and William Litvak and eleven (11)
staff attorneys. The firm is "AV" rated by Martindale -Hubbell
(their highest rating). All attorneys are licensed by the State of
California. Fifteen support persons also assist the attorneys.
1.2 Messrs. Dapeer and Rosenblit have served as city prosecutors and
code enforcement attorneys since 1979. William Litvak joined the
firm in 1989. James Eckart became a junior partner in 2006. The
firm has provided services to over fifty (SO) cities/agencies in six
(6) counties as hereafter described.
1.3 DRL has also acted as educators in the field of code enforcement
as follows:
• Workshops with city councils, commissions and staffs.
• Speaker at a convention of the Independent Cities Assn.
• Instructor for the Southern California Association of
Code Enforcement Officials ("S.C.A.C.E.O")
• Instructor for the California Code Enforcement Council
("C.C.E.C.").
• Lecturer, L.A. County Fire Department - Fire Prevention.
• Lecturer - Artesia, Baldwin Park and Montebello Crime
Free Multi -Housing Programs.
• Lecturer - March 2001 - CALBO Annual Meeting.
• Lecturer - August 2001 - L.A. County Housing Program.
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EXHIBIT A
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Section 2 Services
2.1 DRL's philosophy and commitment are to obtain voluntary code
compliance whenever possible. The arts of persuasion and diplomacy
are utilized with great success to achieve this objective and to either
avoid or conclude litigation. However, when communication alone is
insufficient to resolve a problem, our firm can utilize various remedies
to obtain compliance with the law. These include administrative
actions, criminal prosecution and/or civil litigation (for nuisance
abatement injunctive orders and, where appropriate, receivers). Local
and state codes are utilized to effectively and efficiently cause
abatement of prohibited activities and conditions. The following is a
sample of remedies used:
• Code of Civil Procedure, Section 731 [Abatement of
Public Nuisance by a city].
• Business & Professions Code, Sections 17203
lAppointment of a Receiverl and 17206 (a) ]Imposition of
Civil Penalties] for a landlord's maintenance of property
maintenance and technical code violations (i.e., an
unlawful business practice that constitutes unfair
business competition).
• Health & Safety Code Section 17980.1 (c) [Appointment
of Receivers for Dwellings When an Agency's Abatement
Orders are Ignored].
• Health & Safety Code Section 11570 [Abatement of
Narcotic Nuisances in Dwellings].
• Government Code Section 38773.5 (a) and Civil Code
Section 3496 (Recovery of Attorney's Fees) when
appropriate.
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2.2 DRL adapts to each city's code enforcement program and regards
itself as a "team player."
2.3 DRL is typically asked to provide the following services:
• Oversee investigations, analyze legal issues and make
recommendations for effective enforcement programs
and solutions for particular cases.
• Issue "compliance letters" to violators who have ignored
staff notices of violations.
• Conduct compliance conferences with violators at City
Hall.
Obtain inspection warrants from a court when consent
to enter private property is refused and abatement
warrants when city forces elect to abate a public
nuisance.
• Prosecute violators (whether actions are commenced by
citation or complaint) to obtain court -imposed
conditions of probation that achieve code compliance.
• Initiate probation violation hearings for future code
violations that are in disregard of conditions of
probation.
Initiate civil actions to preclude nuisances and other
illicit activities. This extends to almost any type of
prohibited condition or activity since municipal codes
provide that any violation thereof is unlawful and a
public nuisance.
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Seek the appointment of a receiver to oversee and cause
the abatement of housing code violations and other code
enforcement problems.
Provide comments to staff regarding proposed conditions
to permits and licenses, particularly when future code
compliance is of concern.
At the request of the city attorney, represent staff at
administrative proceedings to declare and abate a public
nuisance and for the revocation of a permit or license.
• Review existing and proposed ordinances for code
enforcement issues.
Upon request, provide training to staff -persons to
promote effective code enforcement procedures. Topics
may include review and analysis of frequently used
codes, proper inspections of code violations, the
selection of the best remedy, report writing, techniques
for eliciting prompt voluntary compliance and testimony
in court.
2.4 DRL seeks the recovery of staff investigative and other recoverable
costs in obtaining code compliance as part of the disposition of court cases.
Depending on the size of the code enforcement program, this can amount to
substantial sums per year.
2.5 Steven H. Rosenblit would be the firm's designated attorney for
the city. The services of partners and associates would be utilized as needed.
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Section 3 Experience
3.1 DRL brings over thirty (30) years of code enforcement experience,
and the resulting wisdom and sound judgment, to each municipal client. This
enables the firm to expeditiously resolve routine and complex code enforcement
cases and to reduce the need for, and duration of, litigation. Attorney's fees are
thus substantially conserved.
3.2 DRL's experience is also demonstrated by effective communication
and advocacy. In our contact with the public, we cultivate a sense of civic
responsibility so that persons do not violate municipal codes in the first place
and, should this occur, they voluntarily and promptly fulfill their legal
obligations. The firm discharges its responsibilities to each city by:
• Promptly returning telephone calls and responding to
questions or assignments.
• Counseling each client on the best remedy or solution to
a code enforcement problem.
• Providing staff with copies of our communications to
violators or their attorneys. This includes written
updates regarding court appearances and other case
developments.
• Always discussing options to resolve a case with staff
before acting on same.
Regularly providing a client with a case summary, if
requested.
Identifying possible civil ramifications in a code
enforcement matter and promptly reporting same to the
city attorney.
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Advising each client on the need for new legislation or
the amendment of existing ordinances with regard to
code enforcement matters.
3.3 DRL has represented the following public clients:
Huntington Park
Costa Mesa
Norwalk
Compton
South El Monte
Lomita
West Hollywood
Temple City
San Marino
City of Big Bear Lake
Artesia
Pacifica
Bell
San Dimas
Lynwood
Palmdale
South Gate
Culver City
Commerce
Monrovia
Monterey Park
Benicia
Carson
Calabasas
Hesperia
La Canada Flintridge
Agoura Hills
San Bruno
Bellflower
Pleasant Hill
Baldwin Park
Diamond Bar
Bell Gardens
Colma
Malibu
Barstow
Cerritos
Orange County
Hawaiian Gardens
Town of Apple Valley
Beverly Hills
Downey
Lake Elsinore
Santa Fe Springs
Sierra Madre
Soledad
Irwindale
Lancaster
Hemet
Norco
Montebello
San Fernando
Pomona
Montclair
La Habra Heights
Los Alamitos
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3.4 DRL has successfully resolved thousands of cases involving the
following:
Building Codes
• Illegal garage conversions, room additions, structural
hazards, alterations or other construction without all
required permits and approvals.
• Unpermitted conversion/expansion of tenant dwellings,
garages and other structures.
• Actions in disregard of stop work orders.
• Maintenance of unsafe buildings.
• Hazardous excavations and embankments. Grading
without all required reports, permits and approvals.
Zoning Codes
• Improper uses in all residential, commercial and other
zones.
• Violations of conditional use permits, temporary use
permits, variances and site plan approvals.
• Illegal outdoor storage.
• The use of illegal screening or fencing materials.
• The display of signs without permits or which are
otherwise illegal.
• The establishment or intensification of a use on property
without submitting to a site plan or other review
process.
Fire Codes
• Overcrowding in places of public assembly.
• Failure to install or maintain department approved fire
alarms systems and/or sprinklers in commercial
structures.
Maintaining obstructions to fire doors & fire apparatus.
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• Improper storage of flammable substances and the
maintenance of other fire hazards.
Property Maintenance & Health Codes
• Maintaining structures in a state of disrepair or
deterioration.
• Maintaining unsanitary premises.
• Accumulations of junk, trash, debris and discarded
items or inoperable vehicles in yard areas.
• Overgrown vegetation.
• Prohibited outdoor storage.
Specially Regulated Activities
• Activities by fortune-tellers, dance halls/club operators,
junk dealers, arcade operators, private security
operators, motel operators, masseurs, escort services
and valet operators without the required permits, or in
violation of conditions thereof.
• Illegal activities by taxi operators refuse haulers and bus
bench providers.
• Activities without special event and/or entertainment
permits.
License and Tax Codes
• Unlicensed business operations.
• Non-compliant hotel operators.
• Failure to pay delinquent business taxes or transient
occupancy taxes and penalties.
• Illegal home occupations.
Miscellaneous Matters
Working with police/sheriff agencies to abate narcotic
and red light nuisance violations.
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• Police citations for noise disturbances, illegal peddling,
drinking in public, aggressive panhandling, illegal use of
public property and vicious dog bite cases.
• Representing staff in administrative proceedings
involving tax issues, nuisance abatement actions,
permit revocations and appeals.
• Defending cities in mandamus proceedings in the
superior court.
• Representing appellants and respondents in
governmental and private party appeals.
• Formulating or revising code enforcement programs.
• Assisting task force programs (police, fire, building
planning, county health and state agencies) to reduce
crime and related Housing and Building Code violations.
• Overseeing "sting" operations by police/ sheriff personnel
regarding motel operators and illegal massage parlors.
• Presenting cases to district attorneys for possible state
code misdemeanor and felony offenses.
• Prosecuting injunctive actions in the superior court to
abate continuing public nuisances.
• Prosecuting related state code misdemeanor offenses
with district attorney approval pursuant to Government
Code, Section 41803.5, if asked to do so by a city.
• Implementing cost recovery programs.
• Analyzing ordinances, or proposed amendments thereto,
for code enforcement issues. Such reviews have been
undertaken for zoning, fire, license, narcotic nuisance
and property maintenance codes.
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3.5 The following results also indicate the breadth of the firm's
experience in the field of code enforcement:
• DRL litigation terminated chronic prostitution at a
motel. The action also resulted in a sale of the premises
and a judgment against the sellers.
• DRL litigation resulted in the appointment of a receiver
to address chronic substandard conditions in 20+
apartment buildings. DRL brought this action on behalf
of two cities.
• DRL obtained a judgment terminating a legal
nonconforming use on behalf of a city. This action
caused the eradication of a salvage yard and the
demolition of substandard buildings. This judgment will
include a stipulated award of attorney's fees ($40,000)
on behalf of the city.
• DRL obtained a court order appointing a receiver to evict
tenants involved in narcotic nuisance activities and to
make extensive repairs to a 20 + unit apartment
building. A judgment against the owner included
attorney's fees and civil fines (of $60,000) for unfair
competition. A sale of the building to a law-abiding
owner also resulted from this litigation.
• Our litigation successfully terminated unpermitted
activities in a residential zone.
• Illegal hospital/ medical facilities were closed.
• Illegally operated massage parlors were closed.
• An unlicensed and unpermitted tattoo parlor was
closed.
• Our firm successfully defended a lawsuit to overturn a
city's closure of two massage parlors.
• A property owner demolished a structurally unsafe
apartment building, by reason of a successfully
negotiated plea agreement.
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• Delinquent transient occupancy taxes exceeding
$1,000,000,000 have been recovered from delinquent
hotel operators.
• Delinquent busirless taxes exceeding $4,000,000 have
been recovered in the past thirty-six months from
business operators.
Section 4 Fees and Expenses
4.1 DRL proposes to charge an hourly rate of $160.00 for attorney time
when utilizing the criminal remedy and for pre -litigation services. Services
concerning: (i) code/ordinance changes or reviews to promote effective enforcement
practices and/or to improve compliance results, (ii) administrative hearings before a
reviewing authority, (iii) civil/injunctive/mandamus court and related actions, and
for (iv) appeals concerning any matter before an appellate or higher court, shall
have an additional surcharge of $25.00 per hour for attorney time.
4.2 Firm proposes to charge an hourly rate $100.00 for paralegal time
when such persons are utilized for support services.
4.3 DRL proposes reimbursement for the following costs/ expenses:
• Attorney service charges, as incurred, for service of
arraignment notices and subpenas, procurement of
documents from courts and other entities, document
certification fees, and for other related services.
• Any court reporter fees, as incurred, for the procurement of a
transcript of a court or other proceeding.
• Any charges, as incurred, to prepare, duplicate or enlarge
exhibits for any proceeding.
• $15.00 for each use of commercial database providers
(including Choicepoint, Infotek, Dataquick or Courthouse
Data) for investigational or background purposes in a matter.
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This charge is exclusive of any attorney time in reviewing this
information (to be billed hourly), or other charges to the Firm
by said information providers (which shall also be billed to
the City).
• On -Line Legal Research Charges - as incurred.
• Copier charges - 20 cents a page; Faxes - 25 cents a page.
• Postage - as incurred.
• Extraordinary expenses, with prior City approval for:
- Any third party expert witness or consulting fee.
- Any court reporter or transcript fees.
- Any exhibit preparation expense.
Section 5 Contact Information
Steven H. Rosenblit
Dapeer, Rosenblit & Litvak, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, California 90064
Tel: (310) 477-5575 Fax: (310) 477-7090
E -Mail: srosenblitL@drllaw.com
Dated: July 23, 2007
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1/15/2008
AGENDA REPORT G 1 a
TO: Dave Adams, City Manager �`
FROM: Nasser Abbaszadeh, Engineering & Building Director
SUBJECT: Consideration of Approving a Three Year Agreement With Dapeer,
Rosenblit, and Litvak to Assist Staff in Code Enforcement Compliance
RECOMMENDATION
By motion,
1. Approve a three year agreement with Dapeer, Rosenblit, and Litvak, LLC to
assist staff in code enforcement compliance; and,
2. Authorize the City Manager to execute the agreement.
BACKGROUND:
Code enforcement is defined as the process by which public agencies gain compliance
with laws, regulations, and permits they have authority over. Comprehensive code
enforcement goes beyond this basic definition to encompass an awareness of the public
policy for codes and the case resolution alternatives to achieve compliance.
At the City Council meeting of October 2, 2007, the City Council considered a proposal
with the law firm of Dapeer, Rosenblit, and Litvak, LLP (DRL), and instructed staff to
return with an Agreement for:
1. DRL to provide services for three years with a performance review in twelve
months.
2. DRL to hold its proposed hourly rates fixed for three years.
The attached Agreement covers the above items and will be effective January 15th,
2008. The following is a summary of DRL background and approach to code
enforcement cases:
• Over thirty years of code enforcement experience.
Full range of pre -litigation services to obtain code compliance as soon as
possible.
Full range of litigation services utilizing administrative, civil/injunctive, and
criminal remedies.
Agenda Report •
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• January 15, 2008
• Work with the City Attorney's Office to represent the City in code enforcement
cases.
COMMISSION/BOARD REVIEW AND RECOMMENDATIONS:
N/A
FINANCIAL CONSIDERATIONS:
The current litigation cost for a code enforcement case is $185 per hour. There might be
small savings per hour costs with the DRL services. Compensation for all attorneys with
DRL is at $160 an hour without a monthly retainer (services related to hearings, court
actions, and appeals will have a surcharge of $25 per hour).
NOTIFICATION:
None.
By motion,
1. Approve a three year agreement with Dapeer, Rosenblit, and Litvak, LLC to
assist staff in code enforcement compliance; and,
2. Authorize the City Manager to execute the agreement.
Respectfully submitted:
Nasser Abbaszadeh, P.E.
Engineering & Building Director
Attachment: 1. Agreement
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PERSONAL SERVICES AGREEMENT
THIS AGREEMENT is made, entered into, and shall become effective this day of
January, 2008, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter
referred to as the "City") and DAPEER, ROSENBLIT, AND LITVAK, LLP (hereinafter
referred to as the "Attorney").
RECITALS:
WHEREAS, City desires to retain the services of Attorney regarding the City's
proposal to provide "Contract Code enforcement Services;" and
WHEREAS, Attorney is qualified by virtue of experience, training, education and
expertise to accomplish such services.
NOW, THEREFORE, City and Attorney mutually agree as follows:
Section 1. Scope of Work.
The scope of work to be performed by the City shall consist of those tasks asset forth
in Exhibit 'A" attached and incorporated herein by reference. To the extent that there are
any conflicts between the provisions described in Exhibit "A" and those provisions contained
within this Agreement, the provisions in this Agreement shall control.
Section 2. Term.
The term of this Agreement shall be,for a period of three (3) years subject to the
termination provisions of Section 15. It is understood that the parties that City will conduct a
performance review of the Attorney's code enforcement work one year from the effective
date of this Agreement.
Section 3. Compensation.
3.1 Amount.
Pursuant to Exhibit A, the hourly rate for Attorney's legal services shall be
$160.00 per hour. There shall be additional surcharge of $25.00 per hour for attorney
time for those items as identified in Section 4 of Exhibit A. Paralegal time shall be billed at
$100.00 per hour. The hourly rates as described herein shall be fixed for the three year term
of this Agreement.
3.2 Method of Payment.
Subject to Section 3. 1, Attorney shall submit monthly invoices based on total
services which have been satisfactorily completed for such monthly period. The City will pay
monthly payments based on approved invoices in accordance with this Section.
ATTACHMENT
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3.3 Records of Expenses.
Attorney shall keep complete and accurate records of all costs and expenses
incidental to services covered by this Agreement. These records will be made available at
reasonable times to City.
Section 4. Independent Contractor.
It is agreed that Attorney shall act and be an independent contractor and not an agent
or employee of City, and shall obtain no rights to any benefits which accrue to City's
employees.
Section 5. Limitations Upon Subcontracting and Assignment.
The experience, knowledge, capability and reputation of Attorney, its principals and
employees were a substantial inducement for City to enter into this Agreement. Attorney
shall not contract with any other entity to perform the services required without written
approval of the City. This Agreement may not be assigned, voluntarily or by operation of
law, without the prior written approval of the City. If Attorney is permitted to subcontract any
part of this Agreement by City, Attorney shall be responsible to City for the acts and
omissions of its subcontractor as it is for persons directly employed. Nothing contained in
this Agreement shall create any contractual relationships between any subcontractor and
City. All persons engaged in the work will be considered employees of Attorney. City will
deal directly with and will make all payments to Attorney.
Section 6. Changes to Scope of Work.
For extra work not part of this Agreement, a written authorization from City is required
prior to Attorney undertaking any extra work. In the event of a change in the Scope of Work
provided for in the contract documents as requested by the City, the Parties hereto shall
execute an addendum to this Agreement setting forth with particularity all terms of the new
agreement, including but not limited to any additional Attorney's fees.
Section 7. [Reserved]
Section 8. Time of Essence.
Time is of the essence in the performance of this Agreement.
Section 9. Compliance with Law.
Attorney shall comply with all applicable laws, ordinances, codes and regulations of
federal, state and local government.
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Section 10. Conflicts of Interest.
Attorney covenants that it presently has no interest and shall not acquire any interest,
direct or indirect, which would conflict in any manner or degree with the performance of the
services contemplated by this Agreement. No person having such interest shall be
employed by or associated with Attorney.
Section 11. (Reserved].
Section 12. Ownership of Documents.
All reports, information, data and exhibits prepared or assembled by Attorney in
connection with the performance of its services pursuant to this Agreement are confidential
to the extent permitted by law, and Attorney agrees that they shall not be made available to
any individual or organization without prior written consent of the City. All such reports,
information, data, and exhibits shall be the property of the City and shall be delivered to the
City upon demand without additional costs or expense to the City. The City acknowledges
such documents are instruments of Attorney's professional services. Nothing herein shall be
deemed to abrogate the Attomey-Client or Attorney Work -Product Privileges.
Section 13. Indemnity
Attorney agrees to protect, defend, and hold harmless the City and its elective or
appointive boards, officers, agents, and employees from any and all claims, liabilities,
expenses, or damages of any nature, including attorneys' fees, for injury or death of any
person, or damage to property, or interference with use of property, to the extent arising out
of, or in any way connected with the negligence, recklessness and/or intentional wrongful
conduct of the Attorney, its agents, officers, and employees.
This hold harmless agreement shall apply to all liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by Attorney.
Section 14. Insurance.
On or before beginning any of the services or work called for by any term of this
Agreement, Attorney, at its own cost and expense, shall carry, maintain for the duration of
the agreement, and provide proof thereof that is acceptable to the City, the insurance
specked below with insurers and under forms of insurance satisfactory in all respects to the
City. Insurance required herein shall be provided by Admitted Insurers in good standing with
the State of California and having a minimum Best's Guide Rating of A- Class VII or better.
14.1 Comprehensive General Liability.
Throughout the term of this Agreement, Attorney shall maintain in full force and
effect Comprehensive General Liability coverage in an amount not less than one million
dollars per occurrence ($1,000,000.00), combined single limit coverage for risks associated
with the work contemplated by this agreement. If a Commercial General Liability Insurance
3
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.
14.2 Comprehensive Automobile Liability.
Throughoutthe term of this Agreement, Attorney shall maintain in full force and
effect Comprehensive Automobile Liability coverage, including owned, hired and non -owned
vehicles in an aggregate amount not less than one million dollars per occurrence
($1,000,000.00).
14.3 Worker's Compensation.
If Attorney intends to employ employees to perform services under this
Agreement, Attorney shall obtain and maintain, during the term of this Agreement, Worker's
Compensation Employer's Liability Insurance in the statutory amount as required by state
law.
14.4 Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement, Attorney shall submit the
insurance certificates called for in this agreement to the City Attorney for approval.
14.5 Errors and Omissions Coverage
Throughout the term of this Agreement, Attorney shall maintain Errors and
Omissions Coverage (professional liability coverage) in an amount of not less than One
Million Dollars ($1,000,000). Prior to beginning any work under this Agreement, Attorney
shall submit an insurance certificate to the City's City Attorney for certification that the
insurance requirements of this Agreement have been satisfied.
14.6 Notice of Cancellation/TermMation of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled, nor
the coverages reduced, until after thirty (30) days' written notice is given to City, except that
ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium.
14.7 Terms of Compensation.
Attorney shall not receive any compensation until all insurance provisions have
been satisfied.
14.8 Notice to Proceed.
Attorney shall not proceed with any work under this Agreement until the City
has issued a written "Notice to Proceed" verifying that Attorney has complied with all
insurance requirements of this Agreement.
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Section 15. Termination.
City shall have the right to terminate this Agreement without cause by giving thirty (30)
days' advance written notice of termination to Attorney.
In addition, this Agreement may be terminated by any party for cause by providing ten
(10) days' notice to the other party of a material breach of contract. If the other party does
not cure the breach of contract, then the agreement may be terminated subsequent to the
ten (10) day cure period.
Section 16. Notice.
All notices shall be personally delivered or mailed to the below listed addresses, or to
such other addresses as may be designated by written notice. These addresses shall be
used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: City Manager
To Attorney: Steven Rosenblit, Esq.
Dapeer, Rosenblit, and Litvak, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, CA 90064
Section 17. [Reservedl.
Section 18. Dispute Resolution.
In the event of a dispute arising between the parties regarding performance or
interpretation of this Agreement, the dispute shall be resolved by binding arbitration under
the auspices of the Judicial Arbitration and Mediation Service ("JAMS").
Section 19. Entire Agreement.
This Agreement constitutes the entire understanding and agreement between the
parties and supersedes all previous negotiations between them pertaining to the subject
matter thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
In
David F. Adams, City Manager
0
DAPEER, ROSENBLIT, & LITVAK, LLP
By--�
Steven Rosenblit
ATTEST:
Margaret R. Monahan, City Clerk
APPROVED AS TO FORM:
Omar Sancbval, City Attor ey
DAPEER, ROSENBLIT & LITVAK, LLP
PROPOSAL -CODE ENFORCEMENT SERVICES
Section 1 Firm History
1.1 The firm (hereafter "DRL") consists of senior partners - Kenneth B.
Dapeer, Steven H. Rosenblit and William Litvak and eleven (11)
staff attorneys. The firm is "AV" rated by Martindale -Hubbell
(their highest rating). All attorneys are licensed by the State of
California. Fifteen support persons also assist the attorneys.
1.2 Messrs. Dapeer and Rosenblit have served as city prosecutors and
code enforcement attorneys since 1979. William Litvak joined the
firm in 1989. James Eckart became a junior partner in 2006. The
firm has provided services to over fifty (50) cities/agencies in six
(6) counties as hereafter described.
1.3 DRL has also acted as educators in the field of code enforcement
as follows:
• Workshops with city councils, commissions and staffs.
• Speaker at a convention of the Independent Cities Assn.
• Instructor for the Southern California Association of
Code Enforcement Officials ("S.C.A.C.E.O")
• Instructor for the California Code Enforcement Council
("C. C. E.C.°).
• Lecturer, L.A. County Fire Department - Fire Prevention.
• Lecturer - Artesia, Baldwin Park and Montebello Crime
Free Multi -Housing Programs.
• Lecturer - March 2001 - CALBO Annual Meeting.
• Lecturer - August 2001 - L.A. County Housing Program.
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EXHIBIT A
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Section 2 Services
2.1 DRL's philosophy and commitment are to obtain voluntary code
compliance whenever possible. The arts of persuasion and diplomacy
are utilized with great success to achieve this objective and to either
avoid or conclude litigation. However, when communication alone is
insufficient to resolve a problem, our firm can utilize various remedies
to obtain compliance with the law. These include administrative
actions, criminal prosecution and/or civil litigation (for nuisance
abatement injunctive orders and, where appropriate, receivers). Local
and state codes are utilized to effectively and efficiently cause
abatement of prohibited activities and conditions. The following is a
sample of remedies used:
• Code of Civil Procedure, Section 731 [Abatement of
Public Nuisance by a city].
Business & Professions Code, Sections 17203
[Appointment of a Receiver] and 17206 (al (Imposition of
Civil Penalties] for a landlord's maintenance of property
maintenance and technical code violations (i.e., an
unlawful business practice that constitutes unfair
business competition).
Health & Safety Code Section 17980.1 (c) [Appointment
of Receivers for Dwellings When an Agency's Abatement
Orders are Ignored].
Health & Safety Code Section 11570 [Abatement of
Narcotic Nuisances in Dwellings].
Government Code Section 38773.5 (a) and Civil Code
Section 3496 [Recovery of Attorney's Fees] when
appropriate.
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2.2 DRL adapts to each city's code enforcement program and regards
itself as a "team player."
2.3 DRL is typically asked to provide the following services:
• Oversee investigations, analyze legal issues and make
recommendations for effective enforcement programs
and solutions for particular cases.
• Issue "compliance letters" to violators who have ignored
staff notices of violations.
• Conduct compliance conferences with violators at City
Hall.
• Obtain inspection warrants from a court when consent
to enter private property is refused and abatement
warrants when city forces elect to abate a public
nuisance.
• Prosecute violators (whether actions are commenced by
citation or complaint) to obtain court -imposed
conditions of probation that achieve code compliance.
• Initiate probation violation hearings for future code
violations that are in disregard of conditions of
probation.
• Initiate civil actions to preclude nuisances and other
illicit activities. This extends to almost any type of
prohibited condition or activity since municipal codes
provide that any violation thereof is unlawful and a
public nuisance.
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Seek the appointment of a receiver to oversee and cause
the abatement of housing code violations and other code
enforcement problems.
Provide comments to staff regarding proposed conditions
to permits and licenses, particularly when future code
compliance is of concern.
At the request of the city attorney, represent staff at
administrative proceedings to declare and abate a public
nuisance and for the revocation of a permit or license.
Review existing and proposed ordinances for code
enforcement issues.
• Upon request, provide training to staff -persons to
promote effective code enforcement procedures. Topics
may include review and analysis of frequently used
codes, proper inspections of code violations, the
selection of the best remedy, report writing, techniques
for eliciting prompt voluntary compliance and testimony
in court.
2.4 DRL seeks the recovery of staff investigative and other recoverable
costs in obtaining code compliance as part of the disposition of court cases.
Depending on the size of the code enforcement program, this can amount to
substantial sums per year.
2.5 Steven H. Rosenblit would be the firm's designated attorney for
the city. The services of partners and associates would be utilized as needed.
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Section 3 Experience
3.1 DRL brings over thirty (30) years of code enforcement experience,
and the resulting wisdom and sound judgment, to each municipal client. This
enables the firm to expeditiously resolve routine and complex code enforcement
cases and to reduce the need for, and duration of, litigation. Attorney's fees are
thus substantially conserved.
3.2 DRL's experience is also demonstrated by effective communication
and advocacy. In our contact with the public, we cultivate a sense of civic
responsibility so that persons do not violate municipal codes in the first place
and, should this occur, they voluntarily and promptly fulfill their legal
obligations. The firm discharges its responsibilities to each city by:
• Promptly returning telephone calls and responding to
questions or assignments.
• Counseling each client on the best remedy or solution to
a code enforcement problem.
• Providing staff with copies of our communications to
violators or their attorneys. This includes written
updates regarding court appearances and other case
developments.
Always discussing options to resolve a case with staff
before acting on same.
Regularly providing a client with a case summary, if
requested.
Identifying possible civil ramifications in a code
enforcement matter and promptly reporting same to the
city attorney.
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Advising each client on the need for new legislation or
the amendment of existing ordinances with regard to
code enforcement matters.
3.3 DRL has represented the following public clients:
Huntington Park
Costa Mesa
Norwalk
Compton
South EI Monte
Lomita
West Hollywood
Temple City
San Marino
City of Big Bear Lake
Artesia
Pacifica
Bell
San Dimas
Lynwood
Palmdale
South Gate
Culver City
Commerce
Monrovia
Monterey Park
Benicia
Carson
Calabasas
Hesperia
La Canada Flintridge
Agoura Hills
San Bruno
Bellflower
Pleasant Hill
Baldwin Park
Diamond Bar
Bell Gardens
Colma
Malibu
Barstow
Cerritos
Orange County
Hawaiian Gardens
Town of Apple Valley
Beverly Hills
Downey
Lake Elsinore
Santa Fe Springs
Sierra Madre
Soledad
Irwindale
Lancaster
Hemet
Norco
Montebello
San Fernando
Pomona
Montclair
La Habra Heights
Los Alamitos
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3.4 DRL has successfully resolved thousands of cases involving the
following:
Building Codes
• Illegal garage conversions, room additions, structural
hazards, alterations or other construction without all
required permits and approvals.
• Unpermitted conversion/ expansion of tenant dwellings,
garages and other structures.
• Actions in disregard of stop work orders.
• Maintenance of unsafe buildings.
• Hazardous excavations and embankments. Grading
without all required reports, permits and approvals.
Zoning Codes
• Improper uses in all residential, commercial and other
zones.
• Violations of conditional use permits, temporary use
permits, variances and site plan approvals.
• Illegal outdoor storage.
• The use of illegal screening or fencing materials.
• The display of signs without permits or which are
otherwise illegal.
• The establishment or intensification of a use on property
without submitting to a site plan or other review
process.
Fire Codes
• Overcrowding in places of public assembly.
• Failure to install or maintain department approved fire
alarms systems and/or sprinklers in commercial
structures.
• Maintaining obstructions to fire doors & fire apparatus.
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Improper storage of flammable substances and the
maintenance of other fire hazards.
Property Maintenance & Health Codes
• Maintaining structures in a state of disrepair or
deterioration.
• Maintaining unsanitary premises.
• Accumulations of junk, trash, debris and discarded
items or inoperable vehicles in yard areas.
• Overgrown vegetation.
• Prohibited outdoor storage.
Specially Regulated Activities
• Activities by fortune-tellers, dance halls/club operators,
junk dealers, arcade operators, private security
operators, motel operators, masseurs, escort services
and valet operators without the required permits, or in
violation of conditions thereof.
• Illegal activities by taxi operators refuse haulers and bus
bench providers.
• Activities without special event and/or entertainment
permits.
License and Tax Codes
• Unlicensed business operations.
• Non-compliant hotel operators.
• Failure to pay delinquent business taxes or transient
occupancy taxes and penalties.
• Illegal home occupations.
Miscellaneous Matters
• Working with police/sheriff agencies to abate narcotic
and red light nuisance violations.
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• Police citations for noise disturbances, illegal peddling,
drinking in public, aggressive panhandling, illegal use of
public property and vicious dog bite cases.
• Representing staff in administrative proceedings
involving tax issues, nuisance abatement actions,
permit revocations and appeals.
• Defending cities in mandamus proceedings in the
superior court.
• Representing appellants and respondents in
governmental and private party appeals.
• Formulating or revising code enforcement programs.
• Assisting task force programs (police, fire, building
planning, county health and state agencies) to reduce
crime and related Housing and Building Code violations.
• Overseeing "sting" operations by police/sheriff personnel
regarding motel operators and illegal massage parlors.
• Presenting cases to district attorneys for possible state
code misdemeanor and felony offenses.
• Prosecuting injunctive actions in the superior court to
abate continuing public nuisances.
• Prosecuting related state code misdemeanor offenses
with district attorney approval pursuant to Government
Code, Section 41803.5, if asked to do so by a city.
• Implementing cost recovery programs.
• Analyzing ordinances, or proposed amendments thereto,
for code enforcement issues. Such reviews have been
undertaken for zoning, fire, license, narcotic nuisance
and property maintenance codes.
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3.5 The following results also indicate the breadth of the firm's
experience in the field of code enforcement:
• DRL litigation terminated chronic prostitution at a
motel. The action also resulted in a sale of the premises
and a judgment against the sellers.
• DRL litigation resulted in the appointment of a receiver
to address chronic substandard conditions in 20+
apartment buildings. DRL brought this action on behalf
of two cities.
• DRL obtained a judgment terminating a legal
nonconforming use on behalf of a city. This action
caused the eradication of a salvage yard and the
demolition of substandard buildings. This judgment will
include a stipulated award of attorney's fees ($40,000)
on behalf of the city.
• DRL obtained a court order appointing a receiver to evict
tenants involved in narcotic nuisance activities and to
make extensive repairs to a 20 + unit apartment
building. A judgment against the owner included
attorney's fees and civil fines (of $60,000) for unfair
competition. A sale of the building to a law-abiding
owner also resulted from this litigation.
• Our litigation successfully terminated unpermitted
activities in a residential zone.
• Illegal hospital/ medical facilities were closed.
• Illegally operated massage parlors were closed.
• An unlicensed and unpermitted tattoo parlor was
closed.
• Our firm successfully defended a lawsuit to overturn a
city's closure of two massage parlors.
• A property owner demolished a structurally unsafe
apartment building, by reason of a successfully
negotiated plea agreement.
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r�
• Delinquent transient occupancy taxes exceeding
$1,000,000,000 have been recovered from delinquent
hotel operators.
• Delinquent business taxes exceeding $4,000,000 have
been recovered in the past thirty-six months from
business operators.
Section 4 Fees and Expenses
4.1 DRL proposes to charge an hourly rate of $160.00 for attorney time
when utilizing the criminal remedy and for pre -litigation services. Services
concerning: (i) code/ordinance changes or reviews to promote effective enforcement
practices and/or to improve compliance results, (ii) administrative hearings before a
reviewing authority, (iii) civil/injunctive/mandamus court and related actions, and
for (iv) appeals concerning any matter before an appellate or higher court, shall
have an additional surcharge of $25.00 per hour for attorney time.
4.2 Firm proposes to charge an hourly rate $100.00 for paralegal time
when such persons are utilized for support services.
4.3 DRL proposes reimbursement for the following costs/expenses:
• Attorney service charges, as incurred, for service of
arraignment notices and subpenas, procurement of
documents from courts and other entities, document
certification fees, and for other related services.
Any court reporter fees, as incurred, for the procurement of a
transcript of a court or other proceeding.
• Any charges, as incurred, to prepare, duplicate or enlarge
exhibits for any proceeding.
• $15.00 for each use of commercial database providers
(including Choicepoint, Infotek, Dataquick or Courthouse
Data) for investigational or background purposes in a matter.
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This charge is exclusive of any attorney time in reviewing this
information (to be billed hourly), or other charges to the Firm
by said information providers (which shall also be billed to
the City).
• On -Line Legal Research Charges - as incurred.
• Copier charges - 20 cents a page; Faxes - 25 cents a page.
• Postage - as incurred.
• Extraordinary expenses, with prior City approval for:
- Any third party expert witness or consulting fee.
- Any court reporter or transcript fees.
- Any exhibit preparation expense.
Section 5 Contact Information
Steven H. Rosenblit
Dapeer, Rosenblit & Litvak, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, California 90064
Tel: (310) 477-5575 Fax: (310) 477-7090
E -Mail: srosenblit(a,)drllaw.com
Dated: July 23, 2007
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32400 PASEO ADELANTO
SAN JUAN CAPISTRANO, CA 92675
(949) 493.1171
(949) 493-1053 FAx
www.sanjuancapistrano.org
TRANSMITTAL
TO:
Steven Rosenblit, Esq.
Dapeer, Rosenblit, and Litvak, LLP
11500 W. Olympic Blvd., Suite 550
Los Angeles, CA 90064
DATE: March 4, 2008
Jw� �
j� Inunrnne�
' Istemsnm � � 1961
1776
•
FROM: Maria Morris, Deputy City Clerk (949) 443-6309
MEMBERS OF THE CITY COUNCIL
RE: Personal Services Agreement — Code Enforcement Compliance Services
Thank you for maintaining documentation confirming compliance with the terms of the
agreement related to insurance.
SAMALLEVATO
THOMAS W. HRIBAR
MARK NIELSEN
JOE SOTO
DR. LONDRES USO
Please keep in mind this documentation must remain current with our office during the term of
this agreement. If you have questions related to insurance requirements, please call me at
(949) 443-6309.
If you have questions concerning the agreement, please contact Nasser Abbaszadeh,
Engineering & Building Director (949) 443-6398
An original Personal Services Agreement is enclosed for your records.
Cc: Nasser Abbaszedeh, Engineering & Building Director
San Juan Capistrano: Preserving the Past to Enhance the Future
A
J Printed on 100°h recycled paper