2014/03/13 Burke, Williams and Sorensen, LLP Falco Appeal attorney 444 South Flower Street - Suite 2400
- Los Angeles, California 90071-2953
. voice 213.236.0600 - fax 213.236.2700
BURKE, WILLlAMS &SORENSEN, LLP www.bwslaw.Com
Direct No.: 213.236.2818
Our File No.: F0002-0001
jwelsh@bwslaw.com
March 12, 2014
VIA E-MAIL
rjoh nson@cityofinen ifeems
Mr. Robert Johnson
City Manager
City of Menifee
29714 Haun Road
Menifee, CA 92586
Re: Retainer Agreement for Legal Services
Dear Mr. Johnson:
We are pleased to represent the City of Menifee with respect to the matters
described in this Agreement. The following sets forth the terms pursuant to which
BURKE, WILLIAMS & SORENSEN, LLP ("Burke") and the CITY OF MENIFEE
("Client") agree that Burke will provide legal services to Client. The hallmark of any
productive professional relationship is effective communication, and we would invite you
to contact us at any time during or after our representation with regards to any
questions you may have associated with our representation or the matters described
herein.
1. CONDITIONS. This Agreement will not take effect, and Burke will have
no obligation to provide legal services, until Client returns a signed copy of this
Agreement.
2. SCOPE OF SERVICES. Client hires Burke to provide legal services in the
matters set forth in Attachment "A" to this Agreement. No representation outside of the
matters set forth in Attachment "A" to this Agreement shall be provided by Burke to
Client. Burke will provide those legal services reasonably required to represent Client.
Burke will take reasonable steps to keep Client informed of progress and to respond to
Client's inquiries. If a court action is filed, Burke will represent Client through trial and
post-trial motions. This Agreement does not cover representation on appeal or in
execution proceedings after judgment. Separate arrangements must be agreed to for
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Mr. Robert Johnson
City Manager
City of Menifee
March 12, 2014
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those services. Services in any matter not described above will require a separate
written agreement or a written modification to this Agreement.
3. CLIENT'S DUTIES. Client agrees to be truthful with Burke, to cooperate,
to keep Burke informed of any information or developments which may come to Client's
attention, to abide by this Agreement, to pay Burke's bills on time, and to keep Burke
advised of Client's address, telephone number and whereabouts. Client will assist
Burke in providing necessary information and documents and will appear when
necessary at legal proceedings.
4. CONFLICTS OF INTEREST. Before accepting representation of Client,
Burke has undertaken reasonable and customary efforts to determine whether there are
any potential conflicts of interest or adversity of positions between Client and any other
person or entity that would bar Burke from representing Client in general or in any of the
specific matters listed in Attachment "A". Burke has reviewed this issue in accordance
with the Rules of Professional conduct adopted in California. Burke believes that those
rules, rather than the rules of any other jurisdiction, are applicable to Client's
representation. Client's execution and return of the enclosed copy of this letter
represents an express agreement to the applicability of the Rules of Professional
Conduct adopted in California to any and all representation arising under this
Agreement.
5. DISCLOSURE. Pursuant to the requirements of California Business &
Professions Code Section 6148, Burke hereby discloses that it maintains professional
errors and omissions insurance.
6. LEGAL FEES AND BILLING PRACTICES. Client agrees to pay by the
hour at Burke's prevailing rates for all time spent on Client's matter by Burke's legal
personnel. Current hourly rates for legal personnel are set forth in Attachment "B" to
this Agreement. Burke agrees that it will not bill Client in excess of $25,000 under this
Agreement without Client's prior written approval.
Burke's rates are subject to change on 30 days' written notice to Client. Rates
shall automatically increase annually on January 1 of each year as set forth in
Attachment "B" to this Agreement. If Client declines to pay increased rates, Burke will
have the right to withdraw as attorney for Client.
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BURKE, WILLlAMS &SORENSEN, LLP
Mr. Robert Johnson
City Manager
City of Menifee
March 12, 2014
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The time charged will include the time Burke spends on telephone calls relating
to Client's matter, including calls with Client, witnesses, opposing counsel or court
personnel. The legal personnel assigned to Client's matter may confer among
themselves about the matter, as required and appropriate. When they do confer, each
person will charge for the time expended, as long as the work done is reasonably
necessary and not duplicative. Likewise, if more than one of the legal personnel
attends a meeting, court hearing or other proceeding, each will charge for the time
spent. Burke will charge for waiting time in court and elsewhere and for travel time,
both local and out-of-town.
7. COSTS AND OTHER CHARGES.
(a) Burke will incur various costs and expenses in performing legal services
under this Agreement. Client agrees to pay for all costs, disbursements and expenses
in addition to the hourly fees. The costs and expenses commonly include, service of
process charges, filing fees, court and deposition reporters' fees, jury fees, notary fees,
deposition costs, messenger and other delivery fees, photocopying and other
reproduction costs, parking, transportation, meals and hotel costs, investigation
expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or
special master fees, and other similar items. Except for the items listed below, all costs
and expenses will be charged at Burke's cost.
In-office photocopying/page: $ .20
In-office color photocopying/page $ 1 .00
Facsimile charges/page: $ 1 .00
Mileage/mile: $ .56 (pursuant to IRS notices)
(b) Out-of-town travel. Client agrees to pay reasonable transportation, meals,
lodging and all other costs of any necessary out-of-town travel by Burke's personnel.
Client will also be charged the hourly travel rates set forth in Attachment "B" for the time
legal personnel spend traveling.
(c) Experts, Consultants and Investigators. To aid in the preparation or
presentation of Client's case, it may become necessary to hire expert witnesses,
consultants, investigators, and outsourced support services. Client agrees to pay such
fees and charges, subject to the City's prior written approval. Burke will select any
expert witnesses, consultants, investigators or support services to be hired, and Client
will be informed of persons chosen and their charges.
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City Manager
City of Menifee
March 12, 2014
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Additionally, Client understands that if the matter proceeds to court action or
arbitration, Client may be required to pay fees and/or costs to other parties in the action.
Any such payment will be entirely the responsibility of Client.
8. BILLING STATEMENTS. Burke will send Client periodic statements for
fees and costs incurred. Each statement will be payable within 30 days of its mailing
date. Client may request a statement at intervals of less than 30 days. If Client so
requests, Burke will provide one within 10 days. The statements shall include the
amount, rate, basis of calculation or other method of determination of the fees and
costs, which costs will be clearly identified by item and amount.
9. DISCHARGE AND WITHDRAWAL. Client may discharge Burke at any
time. Burke may withdraw with Client's consent or for good cause. Good cause
includes Client's breach of this Agreement, refusal to cooperate or to follow Burke's
advice on a material matter or any fact or circumstance that would render Burke's
continuing representation unlawful or unethical. When Burke's services conclude, all
unpaid charges will immediately become due and payable. After services conclude,
Burke will, upon Client's request, deliver Client's file, and property in Burke's
possession, whether or not Client has paid for all services.
10. DOCUMENT RETENTION POLICY. Client is entitled upon written
request to any files in Burke's possession relating to the legal services performed by
Burke for Client, excluding Burke's internal accounting records and other documents not
reasonably necessary to Client's representation, subject to Burke's right to make copies
of any files withdrawn by Client. Once a matter is concluded, Burke will close the file,
and Client will receive notice thereof. Client's physical files may be sent to storage
offsite, and thereafter there may be an administrative cost for retrieving them from
storage. Thus, it is recommended that Client request the return of a file at the
conclusion of a matter. Under Burke's document retention policy, Burke normally
destroys files five (5) years after a matter is closed, unless other arrangements are
made with Client.
All client-supplied materials and all attorney end product (referred to generally as "client
material") are the property of Client. Attorney end product includes, for example,
finalized contracts, pleadings, and trust documents. Attorney work product is the
property of Burke. Attorney work product includes, for example, drafts, notes, internal
memoranda and electronic files, and attorney representation and administration
materials, including attorney-client correspondence and conflicts materials.
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City Manager
City of Menifee
March 12, 2014
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After the close of a matter, Burke will notify Client of any client materials that remain in
Burke's possession. Client will be invited to retrieve these client materials within 45
days of notice, or Client may direct Burke to forward the client materials to Client, at
Client's expense. If within 45 days of this notice Client fails to retrieve the client
materials or request Burke to forward them, Client authorizes Burke to destroy the client
materials.
After the 45-day period, Burke will, consistent with all applicable rules of professional
conduct, use its discretion as to the retention or destruction of all attorney work product
and any client materials that remain with Burke.
11. DISCLAIMER OF GUARANTEE AND ESTIMATES. Nothing in this
Agreement and nothing in Burke's statements to Client will be construed as a promise
or guarantee about the outcome of the matter. Burke makes no such promises or
guarantees. Burke's comments about the outcome of the matter are expressions of
opinion only. Any estimate of fees given by Burke shall not be a guarantee. Actual fees
may vary from estimates given.
12. ATTORNEYS' FEES CLAUSE. The prevailing party in any action or
proceeding arising out of or to enforce any provision of this Agreement, with the
exception of a fee arbitration or mediation under Business and Professions Code
Sections 6200-6206, will be awarded reasonable attorneys' fees and costs incurred in
that action or proceeding, or in the enforcement of any judgment or award rendered.
Any such action would occur in Riverside County.
13. ENTIRE AGREEMENT. This Agreement contains the entire agreement of
the parties. No other agreement, statement, or promise made on or before the effective
date of this Agreement will be binding on the parties.
14. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of
this Agreement is held in whole or in part to be unenforceable for any reason, the
remainder of that provision and of the entire Agreement will be severable and remain in
effect.
15. MODIFICATION BY SUBSEQUENT AGREEMENT. This Agreement may
be modified by subsequent agreement of the parties only by an instrument in writing
signed by both of them, or an oral agreement only to the extent that the parties carry it
out.
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Mr. Robert Johnson
City Manager
City of Menifee
March 12, 2014
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16. EFFECTIVE DATE. This Agreement will govern all legal services
performed by Burke on behalf of Client commencing with the date Burke first performed
services. The date at the beginning of this Agreement is for reference only. Even if this
Agreement does not take effect, Client will be obligated to pay Burke the reasonable
value of any services Burke may have performed for Client.
THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS
AND AGREE TO THEM AS OF THE DATE BURKE FIRST PROVIDED SERVICES, IF
MORE THAN ONE CLIENT SIGNS BELOW, EACH AGREES TO BE LIABLE, JOINTLY
AND SEVERALLY, FOR ALL OBLIGATIONS UNDER THIS AGREEMENT, CLIENT
SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT,
DATED: March 13 2014 CITY OF MENIFEE
By: r %A z�
Robert Po nson V
City Mh ger
City of 14enifee
29714 Haun Road
Menifee, CA 92586
Telephone: (951) 672-6777
DATED: Marchl), 2014 BURKE, WILLIAMS & SORENSEN, LLP
By.
ohn Jel Managing Partner
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BURKE, WILLlAMS &SORENSEN, LLP
Mr. Robert Johnson
City Manager
City of Menifee
March 12, 2014
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Attachment "A"
1 . Burke will provide legal advice to the City of Menifee on the code
enforcement matter involving Tony Falco and Accurate Leak Locators, Inc.
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Mr. Robert Johnson
City Manager
City of Menifee
March 12, 2014
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Attachment "B"
Hourly Rates for Attorneys through December 31 , 2014
$225 Partners
$200 Associates
$135 Law Clerks and Paralegals
Effective January 1 , 2015, and on each January 1 thereafter, the foregoing base rates
shall be increased based on the U.S. Department of Labor Bureau of Labor Statistics
Los Angeles-Riverside-Orange County Consumer Price Index-All Urban Consumers
("CPI-U"), using the CPI-U for October 2007 as the base and the value for October 2008
(and each October thereafter) to escalate the hourly rates in the ratio of the most recent
October CPI-U value to that of the October 2007 CPI-U value, rounded up to the
nearest $5 increment.
The following U.S. Department of Labor, Bureau of Labor Statistics (BLS) web site page
will be the source of the data utilized (if the URL is changed, the parties shall agree on
the replacement web page to be as close as reasonably possible to the page detailed
herein):
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