GENERAL PROVISIONS
INCORPORATED INTO LETTER OF ENGAGEMENT
1. RETENTION OF FIRM. Unless otherwise provided, you are services rendered, and costs and expenses paid or incurred, on your employing our firm, not any particular attorney, to represent you. behalf before the date of withdrawal.
2. OUR RESPONSIBILITIES. We will represent your interests, You specifically agree that we may do no further work on your behalf provide those legal services required within the scope of services if you fail to perform your obligations under our letter of engagement or described in the letter to which this applies, keep you informed of our these General Provisions, fail to follow our advice or instructions or fail progress and respond to your inquiries. to communicate with us.
3. YOUR RESPONSIBILITIES. You agree to be truthful with us, to 10. TERMINATION. You have the right at any time to terminate our cooperate, to keep us informed of developments affecting the litigation, services and representation upon written notice to us. Such to abide by the terms of our agreement, to pay our bills within 15 days' termination shall not, however, relieve you of the obligation to pay for of receipt and to keep us advised of your address, telephone number all services rendered and costs or expenses incurred on your behalf and whereabouts. before the date of such termination.
4. BILLING PRACTICES. When we bill on an hourly rate basis, we 11. OPINIONS. Although we may offer an opinion about possible will charge for the time we spend on telephone calls, including calls with results regarding the subject matter of our representation, we cannot you, opposing counsel, or others as necessary. The attorneys and and do not guarantee any particular result. Your signature(s) on the paralegals assigned to your matter may confer among themselves, as letter of engagement acknowledge(s) that we have made no promises required. When they do so, each person will charge for the time about the outcome and that any opinion offered by us in the future will expended. Likewise, if more than one of our attorneys is required to not constitute a guarantee or warranty. attend a meeting, court hearing or other proceeding, each will charge for the time spent. We will charge for waiting time in court and 12. CIVILITY TOWARD OPPOSING COUNSEL. Courtesy is elsewhere and for travel time, both local and out of town. Unless customarily honored with opposing counsel, such as extensions to file special arrangements are made at the outset, fees and expenses of pleadings or responses to other deadlines. In our experience, the others (such as experts, investigators, witnesses, consultants and court reciprocal extension of such courtesies saves our clients' time and reporters) will not be paid by us but will be your responsibility and will be money. By signing the letter of engagement you are confirming your billed directly to you. approval of this practice in your case.
5. BILLING STATEMENTS. We will provide you with monthly 13. CLIENT FILE. If you do not request the return of your file, we will statements that will show the costs advanced, the attorneys' fees retain your file for five years. After five years, we may have your file charged, and all payments received on account for the period destroyed. If you would like your file maintained for more than five designated on the statement. It will also reflect your trust account years or returned, you must make separate arrangements with us. balance, if any. You agree to make prompt payment of the amount shown as due on each statement. 14. INTERPRETATION. The laws of the State of California shall govern the interpretation and enforcement of this agreement. This
6. RETAINER. The refundable advance fee and cost deposit will be agreement shall be construed in accordance with its fair meaning and held in our client trust account. Our monthly statements will reflect the as though each of the parties participated equally in its drafting application of your account funds to our current charges for attorneys' fees and costs and show the amount remaining in our trust account, if 15. VENUE. In the event that any dispute arises under this any. You agree to make prompt payment of any balance shown as due agreement, the resolution of that dispute shall be pursued through on the monthly statement if it shows that the trust account deposit has judicial reference provided pursuant to Section 638 et. seq., of the either been exhausted or fallen below a minimum level set forth in the California Code of Civil Procedure (or such successor statute or letter of engagement. amendment thereto as may hereafter be enacted). By signing this letter, you agree that such reference shall be maintained in Orange
7. LATE PAYMENT. If the amount shown as due on our monthly County, California, and that the Superior Court of the State of statement is not paid within 30 days, the unpaid balance will bear California for Orange County shall have personal jurisdiction over it in interest at the rate of 1% per month. any such action or proceeding. Such reference shall be ordered by said Court to any member of the Orange County trial panel of retired
8. ESTIMATES. From time to time we may furnish estimates to you judges, properly upon commencement of such action or proceeding, of fees or costs that we anticipate you to incur for our services. These by our mutual agreement or (failing such agreement) upon motion estimates are subject to unforeseen circumstances, and are by their brought either by you or by us. very nature inexact. Accordingly, we cannot make any warranty as to the amount which you will incur for attorneys' fees and court costs for 16. ENTIRE AGREEMENT. Our agreement consists of the letter of this matter, since those figures hinge on the time and effort required to engagement to which these General Provisions apply, the Rate be devoted to this case. This in turn is dependent on numerous factors, Schedule (if applicable) and these General Provisions. including the complexity of the issues as they develop, the extent and agreement, statement or promise made on or before the effective date nature of the discovery required, and the approach the opposition takes of our engagement will be binding on the parties. to the case.
17. PARTIAL INVALIDITY. If any portion of these General
9. WITHDRAWAL. We reserve the right to withdraw from our Provisions, the letter of engagement or the Rate Schedule is held in representation if, among other things, you fail to honor the terms of our whole or part to be unenforceable for any reason, the remainder of that agreement, you fail to pay for our services as agreed, you fail to provision and of the other provisions of the letter of engagement, these cooperate or follow our advice, or something comes to our attention that General Provisions and the Rate Schedule will be severable and would, in our view, render our continuing representation unlawful or remain in effect. unethical. If we elect to withdraw, you agree to take and cooperate in all steps necessary to free us of any obligation to perform further 18. MODIFICATION. Our agreement may be modified only by an services, including the execution of any documents necessary to instrument in writing signed by all parties or an oral agreement to the complete our withdrawal, and we will be entitled to be paid for all extent the parties carry it out. _ 2023
VIA EMAIL
Successor Agency of the Redevelopment Agency of the City of Merced c/o City of Merced
678 W 18th Street
Merced, CA 95340
Attn: Stephanie Dietz, City Manager
Re: Engagement For Special Counsel Legal Services - Successor Agency of the Redevelopment Agency of the City of Merced
Dear Ms. Dietz:
I am pleased to submit this Letter Agreement for Special Counsel Legal Services to continue an attorney-client relationship between LEIBOLD MCCLENDON & MANN, P.C. and the Successor Agency of the Redevelopment Agency of the City of Merced ("Successor Agency").
The City Council has recently agreed to act as the governing board of the Successor Agency, effective September 17, 2023. Prior to the City agreeing to act as the Successor Agency, the Successor Agency was governed as a "designated local authority" under applicable law. The purpose of this letter is to set forth the terms of our engagement to represent the Successor Agency commencing September 17, 2023.
Please read this letter carefully, because it contains significant conditions regarding our representation. Unless we enter into an amendment or a new agreement in writing, this letter will govern all future services we may perform for the Successor Agency.
At the outset, we note two things: First, our representation is limited to representing the Successor Agency's interests on an as-needed basis with regard to the preparation and necessary approvals of its Recognized Obligation Payment Schedule and transactional matters related to its enforceable obligations, and other activities of the Successor Agency taken in accordance with applicable law regarding the dissolution of the former redevelopment agency. Services will be rendered only upon the request of City staff. If it becomes necessary to initiate litigation in order to protect the Successor Agency's interests, this letter will not govern the terms of that representation, if any, and the Firm will instead enter into a separate agreement with the Successor Agency to address those services. Second, while we will strive for a successful result in every task we undertake on behalf of the Successor Agency, we cannot make any prediction, representation, or guarantee as to the eventual outcome.
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You and your designees, as the representatives of the Executive Director, are designated to speak and provide direction on behalf of the Successor Agency. While Joy Otsuki will be responsible for the general conduct and oversight of our services to the Successor Agency, other attorneys and staff members may be assigned tasks from time to time as necessary to appropriately represent the Successor Agency.
We will charge for our services at the hourly rates set forth in the attached Rate Schedule.
You will be billed for all time we devote to your representation, and we charge in increments of one-tenth (1/10) of an hour. We do not require a retainer for our public agency clients and, consequently, Section 6 of the General Provisions does not apply.
It is our firm's practice not to charge our clients for telephone charges, postage, small photocopying jobs, and telecopying service (incoming or outgoing). However, the Successor Agency will be responsible for all other out-of-pocket expenses incurred on its behalf, such as travel, parking, transcripts of proceedings, and services such as messenger or delivery service and large photocopying jobs. Expenses will be separately itemized in our billing statements as "Costs." The California Rules of Professional Conduct require informed written consent before we can begin or continue to represent you in any matter where we presently have or have had an attorney-client relationship with someone who also has interests in the same matter for which you are currently requesting services. Our firm currently represents the Countywide Oversight Board of the County of Merced. Please review the attached Disclosure of Conflict of Interest and Request for Waiver. The County of Merced is aware of our representation of the Successor Agency and has waived any conflict of interest. Your signature accepting the terms and conditions of this Letter will serve as a waiver of the conflict of interest created by our concurrent representation of the Successor Agency and the Countywide Oversight Board of the County of Merced.
Please review this letter carefully along with the attached General Provisions and Rate Schedule, each of which is part of this Agreement. If those items meet with the Successor Agency approval, please sign the enclosed copy of this Agreement and return it to our offices. Our engagement will take effect when you have returned to us a signed copy of this letter.
If you have any questions about this letter or the attachments, I would be pleased to discuss them with you. On behalf of Leibold McClendon & Mann, I want to thank you for the opportunity to serve the Successor Agency.
Very truly yours,
LEIBOLD McCLENDON & MANN, P.C.
By: David H. Mann
Attachments: Disclosure of Conflict of Interest and Request for Waiver Rate Schedule
General Provisions
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THE TERMS OF THE FOREGOING ENGAGEMENT LETTER AND THE ATTACHED
DISCLOSURE OF CONFLICT OF INTEREST AND REQUEST FOR WAIVER, RATE
SCHEDULE AND GENERAL PROVISIONS ARE ACCEPTABLE TO THE SUCCESSOR
AGENCY OF THE REDEVELOPMENT AGENCY OF THE CITY OF MERCED AND THIS
LETTER HAS BEEN EXECUTED ON ITS BEHALF BY A DULY AUTHORIZED OFFICER THEREOF.
Date: _, 2023 SUCCESSOR AGENCY OF THE
REDEVELOPMENT AGENCY OF THE CITY
OF MERCED, a public body corporate and politic
Name: Stephanie Dietz.
Its: City Manager
APPROVED AS TO FORM:
10/3/2023
Date
City Attorney
Disclosure of Conflict of Interest and Request for Waiver Leibold McClendon & Mann has had the pleasure of representing the Merced Designated Local Authority, as Successor Agency to the Merced Redevelopment Agency ("Successor Agency") since 2012. As you know, our firm represents the Merced Countywide Oversight Board ("Oversight Board") in connection with its ongoing obligations under applicable law.
We have informed the Oversight Board of a conflict of interest due to our representation of the Successor Agency. The Oversight Board has agreed to waive any conflict so that the firm can continue to represent the Successor Agency. You have indicated that the Successor Agency is amenable to waiving the conflict of having our firm represent the Oversight Board while the firm may be representing the Successor Agency. Accordingly, this letter is provided to you in accordance with applicable Rules of Professional Conduct to confirm that waiver and will describe the applicable conflicts rules, the nature of our legal representation and the potential adverse consequences of these representations.
RULES OF PROFESSIONAL CONDUCT
Rule 3-310 of the California Rules of Professional Conduct provides in pertinent part:
(C) A member [of the Bar] shall not, without the informed written consent of each client:
(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or
(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.
(E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.
OUR REPRESENTATION
•This will describe our various representations.
1. Merced Successor Agency
Leibold McClendon & Mann has served as general counsel to the Successor Agency since 2012. During such time, attorneys at the firm have represented the Successor Agency in numerous legal matters pertaining to the dissolution of the former redevelopment agency, _ 2023
including, without limitation, lawsuits in which the County was named as a defendant which have since been dismissed.
The Firm's representation of the Successor Agency involved a lawsuit in which the County was named as a defendant:
Merced Designated Local Authority, as Successor Agency
to the Redevelopment Agency of the City of Merced os California Director of Finance Ana J Matosantos, et al., case number 34- 2012-80001351, dismissed June 16, 2016.
The Firm later represented the Successor Agency in a lawsuit in which the City was also a defendant.
California Department of Finance v. City of Merced, et al., Sacramento Superior Court, Case No. 34-2016-80002485
The parties to that lawsuit, including the County Auditor-Controller, Department of Finance, City and the Successor Agency, entered into a Settlement Agreement on around August 6, 2019, which provides for certain payments to be made to the Successor Agency by the City, who is then required to remit such payments to the County Auditor-Controller.
2. Merced Countywide Oversight Board
Leibold McClendon & Mann has been retained to serve as counsel to the Merced Countywide Oversight Board, which has agreed to waive the conflict of interest set forth herein. The firm is engaged to advise the Merced Countywide Oversight Board in connection with its ongoing obligations under the law governing the dissolution of former redevelopment agencies. The Merced Countywide Oversight Board oversees the Successor Agency's compliance with applicable sections of the law governing the dissolution of former redevelopment agencies.
ADVERSE CONSEQUENCES
We are required under Rule 3-310(C) to obtain the Successor Agency's waiver of our concurrent representation of the Successor Agency with respect to its supervision by the Merced Countywide Oversight Board and the Merced Countywide Oversight Board with respect to its oversight of the Successor Agency.
We are obliged to inform you of any actual or reasonably foreseeable adverse effects of these representations. It is possible that:
• Our exercise of independent judgment to the Agency may be impaired or clouded by our relationship with the County.
• We may not be able to present the appropriate position, claims or defenses for a client in order to avoid taking adverse position to the other client. • We may be restricted from forcefully advocating a client's position for fear of alienating the other client.
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• We may be forced to withdraw from representing either or both clients because of disputes or further conflicts of interest which could increase our clients' attorney's fees and costs.
There may be an appearance of impropriety in our representation of these clients simultaneously.
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YOUR CONSENT
nd the you are villard, consed your sign then represents in or the that or Agency. will not waive any protection that the Successor Agency may have with regard to attorney- client communications with us in this matter. Those communications will remain confidential and will not be disclosed to any third party without your consent.
I believe that you are familiar with the factual background in this matter, and I have given you a sufficiently-detailed description for obtaining informed written consent.
However, if you believe that there is any other information that you or I need to have before such consent can be granted, please let me know as soon as possible.
In the event that circumstances change or we become aware of new information that requires a new consent from the parties, you will be notified of that fact immediately, and continued representation will be subject to the informed written consent of the involved parties.
I should emphasize that you are entitled to and may consider obtaining an independent legal opinion regarding the advisability of signing this consent form.
The execution of this letter will constitute an acknowledgment of full disclosure in compliance with the requirements of Rule 3-310 of the California Rules of Professional Conduct previously quoted in this letter.
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RATE SCHEDULE
A. Identification.
Client: Successor Agency of the Redevelopment Agency of the City of Merced B. Hourly Rates for Legal Services
Attorneys: $290.00 per hour
Legal Assistants/Paralegals: $125.00 per hour.
C. Standard Costs and Expenses.
Photocopying (large jobs) and Transcripts of Proceedings: At cost.
Messenger/Delivery Service: At cost.
Travel (As Requested by the Successor Agency):
Airfare: At cost
Mileage: Federal Reimbursement Rate.
Parking: At cost.
Hotel: At cost
No charge for other overhead expenses, including telephone charges, postage, small photocopying jobs, and telecopying service (incoming or outgoing), secretarial and word processing unless approved in advance by the Successor Agency