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. 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’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.
The time charged will include the time Burke spends on telephone calls relating to Client’s matter, including calls with Client and any opposing counsel. 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 or other proceeding, each will charge for the time spent. Burke will charge for waiting time and for travel time, both local and out-of-town.
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6. 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: 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, 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: $ .655 (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.
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.
7. 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.
8. 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. 267
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9. 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. ______ (Client Initial Here) ______ (Burke Initial Here)
10. 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.
11. 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. Attorney work product is the property of Burke. Attorney work 268
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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.
12. TECHNOLOGY. At its discretion, unless otherwise stated, Burke will employ technology to facilitate its representation of Client. 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.
13. 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.
14. 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 269
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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 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 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.
______ (Client Initial Here) _____ (Burke Initial Here)
15. 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.
16. 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.
17. 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.
18. 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.
19. 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. 270
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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: ____________, 2023 CLIENT
By:
Name: Marc Tran
Title: City Attorney for City of Adelanto
DATED: January 26, 2023 BURKE, WILLIAMS & SORENSEN, LLP By:
Cheryl Johnson-Hartwell
Partner
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Attachment “A”
1. Representation of the City of Adelanto in the matters of Gabriel Elliott v.
City of Adelanto, et al., San Bernardino County Superior Court Case No.
CIVDS1828311; and Cynthia Herrera v. City of Adelanto, et al., San Bernardino County Superior Court Case No. CIVDS1901478.
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Attachment “B”
Rates for Attorneys and other timekeepers through December 31, 2023:
$375 Senior Partners (Cheryl Johnson-Hartwell and Lisa Lee) $360 Junior Partners (Al Ford)
$295 Associates
$150 Paralegals
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CITY COUNCIL AGENDA REPORT
DATE: February 8, 2023
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager
BY: Brenda Lopez City Clerk
SUBJECT: NOMINATION AND APPOINTMENTS TO THE PLANNING COMMISSION.
STAFF RECOMMENDATION: Staff recommends that the City Council discuss and vote on Mayor Pro Tem’s nomination for planning commission.
FISCAL IMPACT:
N/A
ATTACHMENTS:
Resolution No. 23-05
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RESOLUTION NO. 23-05
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ADELANTO,
COUNTY OF SAN BERNARDINO, CALIFORNIA, PROVIDING FOR AN
APPOINTMENT TO THE PLANNING COMMISSION
WHEREAS, the Adelanto City Charter, Article XI, Section 1103. Appointment and Removal of Members provides that members of all commissions and boards of the City shall be appointed by the City Council and shall serve at the pleasure of said City Council.
Such appointment shall be made by resolution, adopted by the affirmative vote of not less than three (3) members of the City Council. Any vacancy on any board or commission, from whatsoever cause arising, shall be filled by resolution, carried by not less than three (3) affirmative votes of the City Council. Upon a vacancy occurring leaving an unexpired portion of a term, any appointment to fill such vacancy shall be for the unexpired portion of such terms.
WHEREAS, Mayor Pro Tem Ramos has nominated to the
Planning Commission, for a term concurrent to the Council Members term.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ADELANTO DOES HEREBY RESOLVE AS FOLLOWS:
The City Council ratifies Council Member Ramos’s nomination and appoints to the Planning Commission.
PASSED, APPROVED AND ADOPTED this 8th day of February, 2023. ________________________________
Gabriel Reyes, Mayor
_____________________________
Brenda Lopez, City Clerk, CMC
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RESOLUTION NO. 23-05
PAGE 2
I, Brenda Lopez, City Clerk of the City of Adelanto, California, do hereby certify that the foregoing Resolution No. 23-05 was duly and regularly adopted at a regular meeting of the City Council of the City of Adelanto on this 8th day of February 2023 by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS THEREOF, I hereunto set my hand affix the official seal of the City of Adelanto, on the 8th day of February, 2023.
_________________
Brenda Lopez, City Clerk, CMC
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