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HomeMy WebLinkAboutC-2630STRADLING YOCCA CARLSON & RAUTH A PROFESSIONAL CORPORATION ATTORNEYS AT LAW E. KURT YEAOER 660 NEWPORT CENTER DRIVE, SUITE 1600 DIRECT DIAL: (949) 725 -4169 NEWPORT BEACH, CA 92660 -6422 KYEAGEROSYCR.COM TELEPHONE (949) 725.4000 FACSIMILE (949) 725 -4100 June 14, 2005 PRIVILEGED AND CONFIDENTIAL ATTORNEY - CLIENT COMMUNICATION Mr. Don Penman Deputy City Manager/Development Services Director City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 -6021 Re: Santa Anita Grade Ser)aration Project Dear Mr. Penman: 114C - e o C `,Z(930 SAN FRANCISCO OFFICE 44 MONTGOMERY STREET, SUITE 2950 SAN FRANCISCO, CALIFORNIA 84104 TELEPHONE (415) 28 3.2240 FACSIMILE (415) 283.2255 SANTA BARBARA OFFICE 302 OLIVE STREET SANTA BARBARA, CALIFORNIA 93101 TELEPHONE (805) 664.0086 FACSIMILE (805) 564.1044 We are pleased that you have requested Stradling Yocca Carlson & Rauth (the "Firm ") to provide legal services to you, and we thank you for the opportunity to be of assistance. We apologize for the formality of this Agreement, but we believe that it is important that our clients have a clear understanding of the Firm's policies regarding legal services and fees from the inception of our relationship. Moreover, many of the provisions of this Engagement Agreement (the "Agreement") are required or recommended by California law, the State Bar of California, or the Code of Professional Responsibility of the American Bar Association. The purpose of this Agreement is to verify your approval as to the scope of our engagement, the financial terms of our engagement, and all other aspects of this engagement, as follows: 1. Scope of Engagement. You have requested us to assist you in connection with legal aspects of financing a Santa Anita Grade Separation for the MTA's Gold Line Extension. We would expect to assist the City in complying with the law related to a general obligation bond election to finance the project and to consider other alternatives such as a Mello -Roos financing or sales tax revenue bond. In addition, we would act as bond counsel and, at your future direction, disclosure counsel to you in connection with any bond issuance. By means of this Agreement, you are engaging the Firm to perform only the specific services described herein; however, subject to our mutual written agreement, you may also engage us to perform additional services in the future. 2. Fees and Hourly Rates. For legal services in connection with the City's selection of the financing technique, and preparation for a bond election, we propose to be compensated at the DOCSOC/ 1114465v 1/29999 -0000 Mr. Don Penman June 14, 2005 Page 2 hourly rate of the attorneys involved ranging from $350 per hour for Mr. Yeager and other shareholders, to $200 per hour for associates, if any, and $100 per hour for paralegals. In addition, we would expect to be reimbursed for our out -of- pocket expenses in accordance with the City's typical reimbursement policies for legal services. Notwithstanding the foregoing, in the event the bond election is successful, and the City subsequently chooses to issue bonds, for services as bond counsel we propose a fee for each issue in the approximate principal amount as set forth below: Principal Amount Fee Up to $5,000,000 $30,000 in excess of $5,000,000 F$30,000 plus 1/10 of 1% of amount in excess of $5,000,000 Thus, for a single $10,000,000 financing our fee would equal $35,000. We would also expect to be reimbursed for our out -of- pocket expenses, including document production and reproduction, telecommunications and transcript production. These typically range from $2,500 to $4,000 for transactions of this nature. In addition, we would apply a credit of up to $15,000 against these fees for any fees incurred in connection with the selection of the financing techniques. If we are asked to serve as disclosure counsel to the City in connection with any bond financing, we propose a fee for each issue of 60% of the stated bond counsel fee. In this regard we would prepare the preliminary and final official statement and render to the underwriter a supplemental opinion to the effect that in the course of our engagement nothing came to our attention which caused us to believe the bonds contain any material misstatements or omissions. 3. Additional Services and Outside Expenditures. We may provide additional services in -house in connection with our legal representation of you. These in -house additional services typically include photocopying, computerized research, facsimile services, long distance telephone, postage, staff overtime, word processing, and small field expenses for mileage, meals, parking, lodging, and the like. Our practice is to bill these services to you directly at our usual and customary rates. A summary of our charges for these services is available on request. Our legal representation may also involve additional services provided by third party vendors outside of the Firm. You will be required either to pay for these outside additional services directly, or to reimburse us if we make payment for these services on your behalf. We sometimes will make payment for, and then bill you for reimbursement of smaller items such as filing fees, photocopying by outside copying services, recording fees, messenger services, service of process, and Court fees. When there are substantial expenditures involving outside vendors (such as for depositions, expert witnesses, exhibit preparation, or air fare) or substantial out -of- pocket expenditures (such as extended field expenses, large outside copying jobs, or jury fees), we will require either that you pay DOCSOC/ 1114465v 1/29999 -M Mr. Don Penman June 14, 2005 Page 3 those sums to us before we expend them, that you provide an advance deposit for such expenditures, or that you directly contract with and pay the outside vendor. 4. Monthly Statements and Payment Terms. Our practice is to send a monthly statement of our charges for legal services and in-house additional services rendered and for reimbursement of payments made on our client's behalf for outside additional services. The detail in the monthly statement will inform you of the nature and progress of our work and of the charges and expenditures being incurred. Bills for bond and disclosure counsel services will be billed at the completion or substantial abandonment of the work, and will not detail the time spent. Each monthly statement is fully due and payable upon receipt, but in no event later than thirty days after its issuance date. We reserve the right to charge, at the rate of ten per cent per year, a monthly late payment charge on the unpaid balance of any statement not timely paid in full, computed from thirty days after the statement issuance date until payment. We specifically reserve the right to withdraw from representation of you and to cease performing immediately all services if we do not receive full payment of any amounts owed to us within thirty days of any statement. We do our best to see to it that our clients are satisfied not only with our legal representation and services, but also with the reasonableness of.our charges. Therefore, if you should have any question about o1 objection to a monthly statement, our services, or our charges, then you should raise it promptly for discussion. If you object to only a portion of the charges on a statement, then you agree to pay the remainder, which will not constitute a waiver of your objection. 5. Advance Deposit for Payments. No advance deposit for payments is required at this time. However, we reserve the right to require an advance deposit for payment of our charges for services and expenditures in the future due to circumstances such as substantial expenditures, imminence of trial or other hearing, or delayed payment of any prior statement. 6. Withdrawal From Representation. The attorney - client relationship is one of mutual trust and confidence. If you have any questions at all about the provisions of this Agreement, we invite your inquiries. We encourage our clients to inquire about any matter relating to our engagement agreements or monthly statements which may be in any way unclear or appear unsatisfactory. If you do not meet your obligation of timely payments or deposits under this Agreement, we reserve the right to withdraw from your representation on that basis alone, subject of course to any required judicial, administrative, or other approvals. This Agreement is also subject to termination by either party upon reasonable notice for any reason. If there were to be such 'a termination, however, you would remain liable for all unpaid charges for services provided and expenditures advanced or incurred. 7. Duties Upon Termination of Active Representation. Upon termination of our active involvement in a particular matter for which we had previously been engaged, we will have no DOCSOC/ 1114465 v 1/29999 -0000 Mr. Don Penman June 14, 2005 Page 4 further duty to inform you of future developments or changes in law which may be relevant to such matter in which our representation has terminated. Further, unless you and the Firm agree in writing to the contrary, we will have no obligation to monitor renewal or notice dates or similar deadlines which may arise from the matters for which we had been engaged. If your matter involves obtaining a judgment and such judgment is obtained, we will only be responsible for those post judgment services (such as recording abstracts, filing judgment liens, and calendaring renewals of judgments) as are expressly agreed to by you and the Firm in writing, agreed upon by the Finn and for which you will be obligated to pay. 8. Document Storage Policies. The Firm's policy with regard to documents and other materials at the conclusion of a matter is to maintain them in storage for a period of no more than seven years. All documents and other materials in our file will then be destroyed or discarded without notice to you. Accordingly, if there are any documents or other materials you wish to have retrieved from your file at the conclusion of a matter, it will be necessary for you to advise us of that request to ensure that they are not destroyed. 9. Arbitration. We appreciate the opportunity to serve as your attorneys and anticipate a productive and harmonious relationship. If you should feel for any reason that there is a problem with the services we have performed or with our charges, we encourage you to bring that to our attention immediately. If we perceive a problem with your representation, we likewise will endeavor to discuss it with you. Most problems should be rectified by communication and discussion. However, a dispute might arise between us which could not be resolved by negotiation. We believe that such attorney - client disputes are most satisfactorily resolved through final and binding arbitration rather than by litigation. Both the United States Supreme Court and the California Supreme Court have endorsed arbitration as an accepted and favored method of resolving disputes, because it is economical and expeditious. In arbitration, there is no right to a trial by jury and the arbitrator's legal and factual determinations are generally not subject to appellate review. Arbitration rules of evidence and procedure are often less formal and less rigid than the rules which apply in Court. Arbitration usually results in a decision much more quickly than proceedings in Court, and the attorneys' fees and other costs incurred by both sides may be substantially less. You are free to discuss the advisability of arbitration with us, or with your own independent counsel or any of your other advisors, and to ask any questions which you may have. By signing this Agreement, we agree that, in the event of any dispute or claim arising out of or relating to this Agreement, our relationship, our charges, or our services (including but not limited to disputes or claims regarding our charges, professional malpractice, errors or omissions, breach of contract, breach of fiduciary duty, fraud, or violation of any statute), SUCH DISPUTE OR CLAIM SHALL BE RESOLVED BY SUBMISSION TO FINAL AND BINDING ARBITRATION IN ORANGE COUNTY, CALIFORNIA, BEFORE A RETIRED JUDGE OR JUSTICE. BY AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU HAVE TO A COURT OR JURY TRIAL. Venue with regard to any ancillary proceedings arising out of such dispute or claim shall also be in Orange County. If we are unable to mutually agree on a retired judge or justice, then each DOCSOC/ 1114465v l/29999 -0000 Mr. Don Penman June 14, 2005 Page 5 side will name one retired judge or justice and the two named persons will select a neutral judge or justice who will act as the sole arbitrator. The fees of the arbitrator will be paid initially equally by both the Firm and you. However, the arbitrator shall have the right to order either party to pay all fees and costs as part of the award. In arbitration, we shall both be entitled to conduct discovery in accordance with the provisions of the California Code of Civil Procedure, but either of us may request that the arbitrator limit the amount or scope of such discovery and, in determining whether to do so, the arbitrator shall balance the need for the discovery against the parties' mutual desire to resolve disputes expeditiously and inexpensively. Under California law, you have the right, if you desire, to request arbitration of any fee dispute before an arbitrator or panel of arbitrators selected by a local bar association or the State Bar (the `Bar Arbitration ") and a trial de novo in court if dissatisfied with the result. If you do request a Bar Arbitration, the law provides that evidence of any claim of malpractice or professional misconduct is admissible only concerning the fees or costs in dispute and that the Bar Arbitrators shall not award any affirmative relief in the form of damages, offset or otherwise on account of such claim. By signing this Agreement, you agree that if a Bar Arbitration is conducted, that Bar Arbitration or any trial de novo in Court thereafter shall determine only the issue of the amount of fees properly chargeable to you, if any, and that such Bar Arbitration or trial de novo in Court thereafter shall have no effect on the provisions set forth above which require arbitration before a retired judge or justice of any claims for affirmative relief based on alleged professional malpractice, errors or omissions, breach of conduct, breach of fiduciary duty, fraud or violation of any statute. Any such claims shall be solely determined in an arbitration proceeding by a retired judge or justice without regard to the result of any Bar Arbitration or trial de novo thereafter. 10. Consent to Electronic Communications. In order to maximize efficiency in this matter, we intend to use state of the art communications devices to the fullest extent possible (e.g., E- Mail, document transfer by computer, cellular telephones, and facsimile transfers). The use of such devices under current technology may place your confidences and privileges at risk. However, we believe the effectiveness involved in use of these devices outweighs the risk of accidental disclosure. By signing this letter, you acknowledge your consent to the use of these devices. 11. Disclaimer of Guarantee. Nothing in this Agreement should be construed as a promise or guarantee about the outcome of any matter which we are handling on your behalf. Our comments about the outcome of your matter are expressions of opinion only. If we should provide you with an estimate of the fees and costs which may be incurred in connection with our representation of you, it is important that you understand and acknowledge that any such estimate is merely an estimate based on numerous assumptions which may or may not prove to be correct and that any estimate is not a guarantee or agreement of what the maximum amount of fees and/or costs will be. 12. Future Matters. Unless otherwise agreed in writing between us, all other matters referred to us for representation shall be governed by the terms of this Agreement. DOCSOC / 1114465v 1/29999 -M Mr. Don Penman June 14, 2005 Page 6 13. Entire Agreement. This Agreement contains all terms of the agreement between us applicable to our representation of you, and may not be modified except by a written agreement signed by both of us. 14. Future Conflict. As you know, we represent many public agencies as bond counsel and as special counsel, and we also represent underwriters, banks and others from time to time in unrelated finance transactions. It is possible we will have represented on unrelated matters any underwriter you may select in the future. By your acceptance of this engagement, you are accepting our representation of such participants on unrelated matters. We will, however, advise you if we so represent any participants you may select. Our undertaking to represent you in the above matter will not act as a bar so as to prevent us from representing any existing or future client with respect to a claim, litigation or transaction adverse to you, so long as in the course of our representation of you we have not obtained any information that would be adverse to your interests with respect to such claim, litigation or transaction. 15. Client. The Firm's client for the purpose of our representation is only the person or entity identified in this Agreement. Unless expressly agreed, we are not undertaking the representation of any related or affiliated person or entity, nor any of their shareholders, partners, officers, directors, agents, or employees. If this Agreement correctly sets forth your understanding of the scope of the services to be rendered to you by Stradling Yocca Carlson & Rauth and if all of the terms set forth in this Engagement Letter are satisfactory, then please sign the enclosed copy and return it to me so that we will be engaged as your legal counsel. If the scope of services described is incorrect or if the terms set forth are not satisfactory to you, please let us know in order that we can discuss either aspect. DOCSOC /l 114465v 1/29999 -0000 Mr. Don Penman June 14, 2005 Page 7 We look forward to working with you and thank you once again for the opportunity to be of service. Very truly yours, STRADW SON & RAUTH E. Kurt Enclosure The undersigned has read and understands the above Agreement, and accepts and agrees to all of its terms and conditions. Date DOCSOC/ 1114465v 1/29999 -0000 Don Penman, City Manager City of Arcadia Page 1 of 1 fill Your payment request has been received. Please review the confirmation below and print it for your records. Please allow up to 48 - 72 hours for your payment to be posted and visible to you via the Website. Once your payment posts to your account, the date applied will reflect today's date if the payment was made by 11:59pm. You can track the payment status online by going to the payment history screen Payment to: Credit Card Account ( * * ** * * ** * * ** 6296 ) Payment from: Payment amount: You can cancel this payment up until two days before the payment date or on the same day the payment is scheduled whichever comes first untill 11:59 pm EST. A payment with status other than "Scheduled" can not be cancelled. 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