HomeMy WebLinkAboutContract 1633 1600 Iowa Avenue - Suite 250
Riverside, California 92507-7426 ✓ I���
voice 951.788.0100 - fax 951.788.5785 JJJ
BURKE, WILLIAMS & SORENSEN, LLP www.bwslaw.com
Direct No.: 951.801.6625
Our File No.: F0002-0001
evail@bwslaw.com
November 20, 2015
Charlie McClendon, City Manager
City of Cathedral City
68700 Avenida Lalo Guerrero
Cathedral City, Ca 92234
Re: Retainer Agreement for Legal Services (DIVCA/Time Warner / PEG)
Dear Mr. McClendon:
We are pleased to represent the City of Cathedral City 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 Cathedral City
("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 regard 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. The effective date of this Agreement will be Monday, November 23, 2015.
2. SCOPE OF SERVICES. Client hires Burke to provide legal services with
regard to the ongoing dispute between Client and Time Warner regarding interpretation
of Time Warner's obligation under DIVCA to pay Client PEG fees. No representation
outside of this matter shall be provided by Burke to Client without a new agreement or
amendment to this Agreement. No representation of any directors, officers, employees,
shareholders, or any other persons or entities affiliated with Client shall be provided
unless such representation is expressly included herein above. 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 for the filing of any administrative, legal, equitable or
other matter before a court of competent jurisdiction or any state or federal regulatory
agency. Separate arrangements must be agreed to for those services. Services in any
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Los Angeles - Inland Empire - Marin County - Oakland - Orange County - Palm Desert - Silicon Valley - Ventura County
BURKE, WILLIAMS & SORENSEN, LLB
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 2
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 Time
Warner. 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. REPLENISHING DEPOSIT. Intentionally deleted.
6. DISCLOSURE. Pursuant to the requirements of California Business &
Professions Code Section 6148, Burke hereby discloses that it maintains professional
errors and omissions insurance.
7. LEGAL FEES AND BILLING PRACTICES. Client agrees to pay by the
hour at the flat rate of Two Hundred and Thirty-five dollars ($235) per hour for attorneys
and One Hundred dollars ($100) per hour for paralegals, if utilized, for all time spent on
Client's matter by Burke's legal personnel. These rates shall prevail for one calendar
year or until a new legal services agreement is approved between the parties.
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
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 3
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.
8. 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, long distance telephone charges, messenger and other delivery fees,
postage, photocopying and other reproduction costs, travel costs including parking,
mileage, transportation, meals and hotel costs, investigation expenses, consultants'
fees, expert witness, professional, mediator, arbitrator and/or special master fees,
unavoidable administrative staff and secretarial overtime, 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: $ .565 (per IRS notices)
(b) Out-of-town travel. Client agrees to pay 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 rates 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. 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.
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.
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 4
9. 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.
10. INTEREST CHARGES. If a billing statement is not paid by its due date,
interest will be charged on the principal balance (fees, costs, and disbursements) shown
on the statement. Interest will be calculated by multiplying the unpaid balance by the
periodic rate of .833% per month (TEN PERCENT [10%] ANNUAL PERCENTAGE
RATE). The unpaid balance will bear interest from the date of the invoice until paid.
11. LIEN. Client hereby grants Burke a lien on any and all claims or causes of
action that are the subject of the representation under this Agreement. The lien will be
for any sums owing to Burke at the conclusion of services performed. The lien will
attach to any recovery Client may obtain, whether by arbitration award, judgment,
settlement or otherwise. The effect of such a lien is that Burke may be able to compel
payment of fees and costs from any such funds recovered on behalf of Client even if
Burke has been discharged before the end of the case. Because a lien may affect
Client's property rights, Client may seek the advice of an independent lawyer of Client's
choice before agreeing to such a lien. By initialing this paragraph, Client represents and
agrees that Client has had a reasonable opportunity to consult such an independent
lawyer and—whether or not Client has chosen to consult such an independent lawyer—
Client agrees that Burke will have a lien as specified above.
C (Client Initial Here) (/(Burke Initial Here)
12. 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
unless subject to the lien provided in Paragraph 11 above, whether or not Client has
paid for all services.
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 5
13. 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.
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.
14. TECHNOLOGY. At its discretion, unless otherwise stated, Burke will
employ technology to facilitate electronic discovery. This may include scanning of
paper documents, culling of documents, converting electronically stored information into
a format suitable for review, the usage of electronic review software, etc. Applicable
associated costs, including electronic storage and transfer costs, will be billed to Client.
15. 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
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 6
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.
16. MEDIATION/ARBITRATION; WAIVER OF JURY TRIAL. If a dispute
arises out of or relating to any aspect of this Agreement between Client and Burke, or
the breach thereof, and if the dispute cannot be settled through negotiation, Burke and
Client agree to discuss in good faith the use of mediation before resorting to arbitration,
litigation, or any other dispute resolution procedure. Nothing herein shall limit or
otherwise affect your right under Sections 6200-6206 of the California Business and
Professions Code to request arbitration of any fee dispute by an independent, impartial
arbitrator or panel of arbitrators through a bar association program created solely to
resolve fee disputes between lawyers and clients. However, should discussions,
mediation or the non-binding arbitration provided through a local bar association
program not resolve the dispute, the dispute shall be determined by binding arbitration
before the American Arbitration Association under its then prevailing commercial
arbitration rules, except that discovery may be taken in that arbitration pursuant to the
California Code of Civil Procedure. The claims or controversies subject to this provision
shall include, without limitation, any claim of professional negligence or malpractice.
The arbitration shall be held in Riverside, California, unless we mutually select another
venue, and judgment may be entered upon the arbitrator's award by any court having
jurisdiction. Should you refuse or neglect to appear or participate in the arbitration
proceedings, the arbitrator is empowered to decide the claim or controversy in
accordance with the evidence presented. You should realize that by accepting the
arbitration provision, YOU WILL WAIVE YOUR RIGHT TO A JURY TRIAL AND THE
RIGHT, EXCEPT UNDER LIMITED CIRCUMSTANCES, TO APPEAL THE
ARBITRATOR'S DECISION.
QPILt (Client Initial Here) (Burke Initial Here)
17. 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.
18. 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.
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 7
19. 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.
20. 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.
21. 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: /c-�O//t,2))/,S" CITY OF CATHEDRAL CITY
By.
Charlie McClendon,
City Manager
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BURKE, WILLIAMS & SORENSEN, LLP
Charlie McClendon, City Manager
City of Cathedral City
November 20, 2015
Page 8
DATED: 7,>/O//)0/S- BURKE, WILLIAMS & SORENSEN, LLP
By: /�_ � _-
Eric Vail
Partner
Enclosure: return copy
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