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HomeMy WebLinkAboutBurke- Retainer Agrmnt-foreclosures2280 Market Street - Suite 300 Eff - Riverside, California 92501-212 1 voice 951.788.01 00 - fax 951.788.5785 em.ra%w 3URKE. WILLlAMS & SORENSEN. LLP www.bwslaw.com Direct No.: 213.236.2818 Our File No.: F0002-0001 jwelsh@bwslaw.com September 30, 2011 Robert Mescher Administrative Services Manager Truckee Donner Public Utility District 11570 Donner Pass Road Truckee, California 96161 Re: Retainer Agreement For Judicial Foreclosure Counsel Services Dear Mr. Mescher: We are pleased to represent the Truckee Donner Public Utility District ("DISTRICT") with respect to the matters described in this Agreement. The following sets forth the terms pursuant to which BURKE, WILLIAMS & SORENSEN, LLP ("BURKE") and DISTRICT agree that BURKE will provide judicial foreclosure counsel services relating to the DISTRICT's Community Facilities District special tax delinquencies. 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 judicial foreclosure counsel services, until DISTRICT returns a signed copy of this Agreement. The effective date of this Agreement will be September 30, 2011, and will remain in full force and effect until terminated in accordance with the provisions of Section 10. 2. SCOPE OF SERVICES. DISTRICT hires BURKE to provide judicial foreclosure counsel 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 DISTRICT. No representation of any officers, council members, employees, or any other persons or entities affiliated with DISTRICT shall be provided. BURKE will provide those judicial foreclosure counsel services reasonably required to represent DISTRICT. BURKE will take reasonable steps to keep DISTRICT informed of progress and to respond to DISTRICT's inquiries. Services in any matter not RIV #4820-7457-0507 v1 Los Angeles - Inland Empire - Oakland - Orange County - Palm Desert - Silicon Valley - Ventura County a . .- SURKE. \?VfLLJAMS & SORENSEN. LLP Robert Mescher, Administrative Services Manager Truckee Donner Public Utility District September 30, 2011 Page 2 described above will require a separate written agreement or a written modification to this Agreement. 3. DISTRICT'S DUTIES. DISTRICT agrees to be truthful with BURKE, to cooperate, to keep BURKE informed of any information or developments which may come to DISTRICT's attention, to abide by this Agreement, to pay BURKE's bills on time, and to keep BURKE advised of any change of circumstance that may affect the representation. DISTRICT will assist BURKE in providing necessary information and documents and will appear when necessary at legal proceedings. 4. CONFLICTS OF INTEREST. Before accepting to represent DISTRICT, BURKE has undertaken reasonable and customary efforts to determine whether there are any potential conflicts of interest or adversity of positions between DISTRICT and any other person or entity that would bar BURKE from representing DISTRICT 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 DISTRICT's representation. DISTRICT'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. DISTRICT agrees to pay by the hour at BURKE's prevailing rates for all time spent on DISTRICT'S matter by BURKE's legal personnel. Current hourly rates for legal personnel are specified on Exhibit A, attached hereto. BURKE may amend the Exhibit A rates from time to time on thirty (30) days written notice to DISTRICT. 7. COSTS AND OTHER CHARGES. BURKE will incur various costs and expenses in performing judicial foreclosure counsel services under this Agreement. DISTRICT agrees to pay for all costs, disbursements and expenses in addition to the hourly fees, which will be tracked on a per parcel basis and collected as part of payment in full for recoupment by the DISTRICT. The costs and expenses commonly include, service of process charges, Court Call, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel RIV #4820-7457-0507 v1 Robert Mescher, Administrative Services Manager Truckee Donner Public Utility District September 30, 2011 Page 3 costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, and computer research charges. All costs and expenses will be charged at BURKE's Cost. 8. BILLING STATEMENTS. In an effort to accommodate the DISTRICT'S need to pay for judicial foreclosure counsel services as the delinquencies are collected, all judicial foreclosure work performed by BURKE, in addition to the necessary costs incurred in pursuit of foreclosure, will be payable at the time payment in full is submitted to the DISTRICT. However, it is anticipated that monthly summaries will still be generated by BURKE's Accounting Department and forwarded to a designated individual at DISTRICT for informational purposes only. At the time the payment in full is submitted to DISTRICT, a final matter invoice will be generated with payment due to BURKE within thirty (30) days. 9. INTEREST CHARGES. If a billing statement is not paid within thirty (30) days, 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 thirty-first day following the date of the invoice until paid. 10. DISCHARGE AND WITHDRAWAL. DISTRICT may discharge BURKE at any time. BURKE may withdraw with DISTRICT'S consent or for good cause. Good cause includes DISTRICT'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 DISTRICT's request, deliver DISTRICT'S files, and property in BURKE's possession, whether or not Client has paid for all services. 11. DOCUMENT RETENTION POLICY. Client is entitled upon written request to any files in BURKE's possession relating to the judicial foreclosure counsel services performed by BURKE for DISTRICT, excluding BURKE's internal accounting records and other documents not reasonably necessary to DISTRICT's representation, subject to BURKE's right to make copies of any files withdrawn by DISTRICT. Once a matter is concluded, BURKE will close the file, and DISTRICT will receive notice thereof. DISTRICT'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 DISTRICT request the return of a file at the conclusion of a matter. Under BURKE's RIV #4820-7457-0507 v1 Robert Mescher, Administrative Services Manager Truckee Donner Public Utility District September 30, 2011 Page 4 document retention policy, BURKE normally destroys files five (5) years after a matter is closed, unless other arrangements are made with DISTRICT. All DISTRICT -supplied materials and all attorney end product (referred to generally as "client material") are the property of DISTRICT. 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 DISTRICT of any client materials that remain in BURKE's possession. DISTRICT will be invited to retrieve these client materials within 45 days of notice, or DISTRICT may direct BURKE to forward the client materials to DISTRICT, at DISTRICT's expense. If within 45 days of this notice DISTRICT fails to retrieve the client materials or request BURKE to forward them, DISTRICT 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. 12. MEDIATION/ARBITRATION; WAIVER OF JURY TRIAL. If a dispute arises out of or relating to any aspect of this Agreement between DISTRICT and BURKE, or the breach thereof, and if the dispute cannot be settled through negotiation, BURKE and DISTRICT 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 their 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 Los Angeles, 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 RIV #4820-7457-0507 v1 a . .- SURKE. 1r TUAMS & SORENSEN. LLP Robert Mescher, Administrative Services Manager Truckee Donner Public Utility District September 30, 2011 Page 5 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. (DISTRICT: Initial Here) (BURKE Initial Here) 13. 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. 14. 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. 15. 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. 16. 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. 17. EFFECTIVE DATE. This Agreement will govern all judicial foreclosure counsel services performed by BURKE on behalf of DISTRICT 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 DISTRICT. RIV #4820-7457-0507 v1 a . .- SURKE. \?VfLLJAMS & SORENSEN. LLP Robert Mescher, Administrative Services Manager Truckee Donner Public Utility District September 30, 2011 Page 6 THE PARTIES HAVE READ AND UNDERSTOOD THE FOREGOING TERMS AND AGREE TO THEM AS OF THE DATE BURKE FIRST PROVIDED SERVICES. DISTRICT SHALL RECEIVE A FULLY EXECUTED DUPLICATE OF THIS AGREEMENT. DATED: DATED: TRUCKEE DONNER PUBLIC UTILITY DISTRICT Title: Address: Telephone: BURKE, WILLIAMS & SORENSEN, LLP John J. Welsh, Managing Partner RIV #4820-7457-0507 v1 'a 1he � . BURKE. \?VfLLJAMS & SORENSEN. LLP Exhibit A Scope of Services and Compensation Rates A. Identification. Client: Truckee Donner Public Utility District ("DISTRICT") B. Scope of Services. Burke, Williams & Sorensen, LLP ("BURKE") shall provide judicial foreclosure counsel services for the DISTRICT relating to the DISTRICT'S Community Facilities District special tax delinquencies. BURKE will also coordinate the transition of all existing foreclosure files from Susan Feller, Esq., and the law firm of Sherman & Feller, a Law Corporation C. Hourly Rates for Legal Personnel. Option Two Partners (Ms. Fogleman) $275 Associates $230 Paralegals/Case Assistants $135 D. Standard Charges. Time will be billed in minimum units of one -tenth hours. E. Costs and Expenses. In -office photocopying Mileage Computerized Legal Research Conference Call Charges Postage Courier and Air Freight Charges Messenger Services Title Report and/or Litigation Guarantee Travel Expenses Court Photocopying Fax Charges Court Call $0.20/page IRS prevailing mileage rates At vendor cost Standard rates or equal At vendor cost At vendor cost At third -party vendor cost At vendor cost At cost At cost $1.00/page At cost RIV #4820-7457-0507 v1 Exhibit A (Cont.) Scope of Services and Compensation Rates Term of Rates. These rates shall remain in effect until June 30, 2012. Thereafter, on an annual basis, fees may be adjusted to reflect, at a minimum, any increase in the cost of living. RIV #4820-7457-0507 v1