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HomeMy WebLinkAboutAgr 2017-04-17 (Virginia Undergrounding Advisory Services) 555 12`"Street,Suite 1500 Sky Woodruff Oakland,California 94607 Attorney at Law tel(510)808-2000 swoodruff@meyersnave.com fax(510)444-1108 www,meyersnave.com meyers nave April 17, 2017 PERSONAL& CONFIDENTIAL Benjamin L. Stock Tiburon Town Attorney 181 Third Street, Suite 200 San Rafael, CA 94901 Re: Engagement of Legal Services for Advisory Services for Property Owners Within Proposed Virginia Drive Utility Undergrounding Assessment District Dear Mr. Stock: Meyers, Nave, Riback, Silver&Wilson ("Meyers Nave") is pleased to be retained by the Town of Tiburon (the"Town") to perform legal services in connection with the Town. We appreciate the opportunity to serve as the Town's lawyers and look forward to working with you. We are advised that the Town has received a petition and related informal boundary map from proponent property owners who are petitioning the Town to establish an assessment district encompassing 22 single family homes fronting on Virginia Drive (the"Proposed Assessment District"). The legal proceedings to establish the Proposed Assessment District would be conducted by the Town Council of the Town (the "Town Council") pursuant to the Municipal Improvement Act of 1913 (Sections 10000 and following, California Streets and Highways Code; the"1913 Act"), as supplemented by the provisions of the Proposition 218 Omnibus Implementation Act (Sections 53750 and following, California Government Code; the"Prop. 218 Implementation Act"),with limited obligation improvement bonds to be issued pursuant to the Improvement Bond Act of 1915 (Sections 8500 and following, Streets and Highways Code; the"1915 Act"). The purpose of the assessment district is to implement a proposed project to underground the existing overhead utility facilities located within or adjacent to the Proposed Assessment District, concluding with removal of the existing utility poles and facilities (the"Undergrounding Project"). In connection with the Proposed Assessment District,we have received from you the Town's nine-page"Policy&Procedures for the Formation of Utility Undergrounding Assessment Districts" (the"Policy&Procedures"), and we have reviewed the provisions on page 5 of the Policy&Procedures pertaining to the"Advisory Services, to be provided by A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17, 2017 Page 2 Bond Counsel for the Proposed Assessment District ("Bond Counsel"). Our understanding from you is that the law fii-tn of Stradling Yocca Carlson & Rauth is expected to be retained as Bond Counsel, subject to the'Town retaining separate legal counsel to provide the Advisory Services. This letter represents our proposal for Meyers,Nave, Riback, Silver. &Wilson ("Meyers Nave"), a law firm separate and apart from Bond Counsel, to provide the Advisory Services, as an alternative to having such services provided by Bond Counsel as set forth in the Policy & Procedures. It sets forth our proposed agreement concerning the legal services we will provide, as well as specifying some exclusions from those legal services, and our fee arrangements for the services provided. Because this proposed agreement for providing the Advisory Services is a departure from the Policy& Procedures,we respectfully request that it be approved by action of the Town Council, authorizing and directing execution hereof by an designated representative of the Town and submission of an executed copy to the undersigned. Please read this entire agreement before signing and returning it to us. 1. Scope of Engagement. In accordance with the description of the Advisory Services set forth on page 5 of the Policy&Procedures,we will advise and provide information to all interested property owners within the Proposed Assessment District (whether proponents or opponents of the Proposed Assessment District) about the legal process for establishing and implementing the Proposed Assessment District and the Undergrounding Project. Specific services will consist of the following: a. Prepare a written summary of the process for establishing the Proposed Assessment District and implementing the Undergrounding Project,with particular emphasis on the engineer's report (the "Engineer's Report") prepared by the assessment engineer (the "District Engineer"), the public hearing, the assessment ballot procedure, the imposition of the special assessments, the options of the property owners for paying the special assessment, and the obligation to provide for the undergrounding of the individual service connections pertaining to homes or other structures situated on the private property of the property owners. b. Conduct two evening information meetings at the Tiburon Town Hall for the benefit,of the property owners, based on mailed notice to be provided by the Town,with the timing of the two meetings to be as described in the Policy&Procedures, as follows: (i) a first meeting, to be held as soon as practicable following the meeting of the Town Council at which the resolution of intention specified by Section 10200 of the 1913 Act is adopted; and (ii) a second meeting, to be held once a draft of the Engineer's Report is available and deemed by the District Engineer to be ready for submission to the A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17, 2017 Page 3 Town Council for preliminary approval but prior to such preliminary approval and scheduling of the public hearing. C. Subject to exhaustion of funding for the Advisory Services as set forth below, provide consultation to property owners in response to either telephone calls or email inquiries. 2. Limitations on the Scope of Engagement. It is expressly agreed and understood that the services of Meyers Nave shall not include advice or guidance, whether to any property owner or any other person, on how to contest or defeat the Proposed Assessment District or how to challenge any aspect of the Proposed Assessment District in litigation. In providing the services specified by this agreement,Meyers Nave is acting as special legal counsel to the Town and not to the property owners or any other person, and no attorney- client relationship is being established with any property owner or any other person than the Town. In addition to the foregoing, Meyers Nave shall not provide any advice or guidance to property owners with respect to income tax considerations,including but not limited to deductibility of payments made with respect to the special assessment levied on such property owners'property or any other aspect of the Proposed Assessment District or the Undergrounding Project. 3. Fees and Personnel. As compensation for our services,Meyers Nave shall be paid fees at the rate of$350 per hour for the time expended,including travel time of two hours for each of the two meetings. Samuel A. Sperry, contract attorney with Meyers Nave,will be the lead attorney for all legal services provided by our firm under this engagement. He will be assisted if necessary by Stephanie Downs, Senior Associate Attorney. If other attorneys and/or paralegals are assigned to work on your matter, the then current hourly rates of those individuals will be utilized. This agreement retains the legal services of our law firm and not of a particular attorney. Hourly rates are subject to reasonable change,usually at the beginning of each year. E 4. Disbursements and Expenses. In addition to hourly fees,we may incur out-of- pocket expenses related to your representation and shall be entitled to reimbursement of our customary out-of-pocket expenses for duplicating, telephone and facsimile transmission charges,postage and express delivery charges and travel expenses at IRS-approved mileage rates, together with parking charges and bridge tolls as incurred. Our Statement of Fee and Billing Information,which sets forth the details of our disbursement and expense policy,is attached as Attachment 1. A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17, 2017 Page 4 We understand that funding for our fees and expenses is limited to $10,000, and we agree that, absent action by the Town to increase this cap, our invoices shall not exceed$10,000. 5. Billing and Payment Responsibilities. We will send monthly statements which are due within 30 days of receipt. If you have any questions about an invoice, please promptly telephone or write me so that we may discuss these matters. Our Statement of Fee and Billing Information sets forth the details of our fee and billing policy. G. Communications and Protocols. All services to be provided under this engagement shall be in accordance with the following.communications and protocols: (a) You agree to receive unencrypted email and email attachments from Meyers Nave pertaining to this engagement as well as other matters that may interest you. (b) Any views or conclusions expressed in the course of conversations or in any effort to document them should be viewed only as general guidance in a situation that may be fluid and could evolve unpredictably. Such views or conclusions speak only as of their date and may be subject to change with or without notice to you. (c) Whether or not expressly labeled as such, each email communication from Meyers Nave to the Town shall be presumed to be a privileged and confidential attorney- client communication. (d) No addressee of any privileged and confidential attorney-client communication shall forward, copy or otherwise relay such communication to anyone or any organization without the prior express authorization of the Town Manager or of someone designated in writing by the Town. The "reply to all" feature should not be used without prior consideration of this protocol. (e) During this engagement, the use of"we" or"us" or the equivalent in any communication shall be presumed to refer to the sender and each addressee rather than to Meyers Nave, except as expressly stated to refer to Meyers Nave. , 7. Termination of Services. This agreement may be terminated at any time by either party without cause,by written or emailed notice from the terminating party to the other party. After giving or receiving such notice,we will cease providing services. We will cooperate with you in the orderly transfer of all related files and records to your new counsel. Termination of our services,whether by you or by us,will not relieve the Town of its obligation to pay for services rendered and costs incurred before our services formally ceased. 8. Insurance. During the term of this engagement,Meyers Nave shall take out and maintain general liability and property damage insurance in amounts not less than A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17, 2017 Page 5 51,000,000;professional errors and omissions insurance, in amounts not less than $2,000,000 per occurrence; and $4,000,000 aggregate,which insurance may not be canceled or reduced in required limits of liability unless at least ten days advance written notice be given to you. 9. No Guarantee of Outcome. Any comments made by us about the potential outcome of the Proposed Assessment District or the Undergrounding Project are expressions of opinion only and are not guarantees or promises about any outcome or results. 10. Dispute Resolution. In the event you become dissatisfied with any aspect of our relationship,we encourage you to bring such concerns to our attention immediately. If we are unable to resolve any dispute, either arising out of or in connection with this Agreement or relating to the services performed by our firm or any of its attorneys, to our mutual satisfaction, our firm will first comply with any mandatory dispute resolution procedures that may apply to any such dispute. If we are unable to resolve any dispute, and after mandatory dispute resolution procedures have been waived or exhausted, the parties shall submit such dispute to final and binding arbitration in Alameda County, California before the American Arbitration Association, pursuant to its then prevailing rules,unless the parties agree in writing to a different arbitration method or forum. By signing this agreement,you acknowledge and agree that you have read and understand this arbitration provision. You understand that by agreeing to arbitration we each give up the right to present our claims or defenses for trial by a judge or jury, and we also give up the right to an appeal. The initial resort to the courts by either party shall not be considered a waiver of that party's right to compel binding arbitration under this provision. This agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Alameda County, California, or in the Federal District Court for the Northern District of California. 11. Entire Agreement; Full Understanding; Modifications in Writing. This letter. contains our entire agreement about our representation. Any modifications or additions to this letter agreement must be made in writing 12. Joint Representation. Our firm maintains of counsel agreements with certain legal specialists. Because these individuals are deemed independent contractors under the applicable provisions of the tax laws and not employees of our firm,it is necessary that you consent to dual representation by our firm and the specialist in the event the matter which you have engaged us to handle requires the use of that specialist. This arrangement has no A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17, 2017 Page 6 effect whatsoever on the cost of your legal services, rather it is an ethical requirement that we disclose this fact and that you consent. You are consenting by signing this letter. 13. Conflicts. Our firm represents many public agencies in California, Nevada and Arizona. Since 1986,we have represented over seven hundred public clients,including numerous cities, redevelopment agencies, special districts, counties and other public entities, as well as financial institutions,bond issuers, and other borrowers, and we are accepting new engagements all the time. It is virtually inevitable that we will work on projects from other clients having different governmental or political objectives, beliefs or views from the Town of Tiburon. In view of the fact that the Town of Tiburon is a general law city, this letter confirms that the services which we are rendering to you are limited in scope and for the benefit of the Town of Tiburon and the property owners within the Proposed Assessment District only. Meyers Nave performs a variety of professional services for its clients and it is possible that we will represent public agency clients which are adverse to you on other matters. To avoid potential problems, you agree that you expressly waive any actual or potential conflicts that might arise from such representation, that you will not attempt to disqualify Meyers Nave on such matters, and that Meyers Nave is free to represent its clients on such matters. By signing this letter and returning it to us,you acknowledge that we have discussed these matters, and you confirm that the Town of Tiburon does not object to our representation of clients on matters where their legal,governmental or political objectives and/or positions may be different from or adverse to those of the Town of Tiburon, and that the Town of Tiburon waives any conflict of interests with respect to our representation of such clients with differing legal,governmental or political interests. You further confirm that the Town of Tiburon will not assert any conflict of interest concerning such representation or attempt to disqualify this firm from representing such clients notwithstanding such adversity. While you would certainly be free to terminate our relationship,you agree that this firm nonetheless would be free to represent such clients even on those matters which you consider adverse,and that you waive any conflict of interest in connection therewith. Needless to say, these acknowledgments do not permit Meyers Nave to represent another client in opposing the specific matters for which you engage us without your specific written consent. You may wish, and we encourage you, to consult legal counsel regarding the effect of this conflict waiver. 14. Conclusion. We would request that you review this letter carefully and,if it is . consistent with your understanding of our respective responsibilities,please so indicate by A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO Benjamin L.Stock Re: Engagement of Legal Services April 17,2017 Page 7 returning a signed copy of this letter to me at your earliest convenience. Enclosed is an additional copy of this letter which you should retain for your records. Again, we thank you for allowing us the opportunity to serve as your lawyers. Very truly yours, <Z/ 5 z Wit° Sky Woodruff Attorney at Law SW:vfd Enclosures c: Conflicts Department Billing Department These terms are accepted and agreed to as of the date of this letter. Town of iburo By: Gre -s Town anager 2804543.1 A�PPVED AS T0�FORM TOWN ATTORNEY TOWN OF TIBURON A PROFESSIONAL LAW CORPORATION OAKLAND LOS ANGELES SACRAMENTO SANTA ROSA SAN DIEGO ATTACHMENT 1 MEYERS, NAVE, RIBACK, SILVER&WILSON STATEMENT OF FEE AND BILLING INFORMATION The following is a general description of our fee and billing policies. These general policies may be modified by the specific engagement letter or agreement to which this summary is attached. Professional Fees. Our fees for professional services are based on the fair value of the services rendered. To help us determine the value of our services,our attorneys and paralegals maintain tirne records for each client and matter. Our attorneys and paralegals are assigned hourly rates which are based on years of experience, specialization,training and level of professional attainment. We adjust our rates periodically (usually at the beginning of each year) to take into account inflation and the increased experience of our professional personnel. To keep professional fees at a minimum,legal work that does not require more experienced attorneys will be performed,where feasible, by attorneys with lower billing rates. Of course, the quality of the work is paramount,and we do not sacrifice quality to economy. Before undertaking a particular assignment,we will,if requested,provide you with a fee estimate to the extent possible. Estimates are not possible for some matters,however,and cannot be relied on in many others because the scope of our work will not be clear at the outset. When a fee estimate is given,it is only an estimate;it is not a maximum or minimum fee quotation. The actual fee may be more or less than the quoted estimate. Billing And Payment Procedures. Unless other arrangements are made at the time of the engagement,invoices will be sent monthly. Invoices for outside services exceeding$100 may be billed separately. Occasionally,however,we may defer billing for a given month or months if the accrued fees and costs do not warrant current billing or if other circumstances would make it appropriate to defer billing. Our invoices contain a brief narrative description of the work performed;if requested,the initials of the attorney who performed the work will appear on the statement. The invoice will include a line item reflecting in-house administrative costs. The firm's in-house administrative costs include, but are not limited to,duplicating, facsimile charges,telephone charges,E-mail,postage,mileage and other administrative expenses. The firm will be reimbursed for all outside services incurred in the course of providing legal services to our client(s). Outside services will include,but are not limited to,all third-parry expenses,delivery charges, travel expenses,outside research services, filing fees,expert witness and expert consultant fees. If you have any questions regarding an invoice,the Finance Director or Executive Director is available to answer your questions. For any unresolved matters,the Bar Association has an arbitration mechanism that can be used to resolve such matters. Late Payments. Statements for services are payable upon presentation and,in all events,within thirty (30) days after receipt. Occasionally a client has difficulty in making timely payments. To avoid burdening those clients who pay their statements promptly with the added costs we incur as a result of late payments,a late charge will be assessed on statements not paid within thirty(30) days. The maximum monthly late payment charge will be 1.5%per month. In the unlikely event we are required to institute legal proceedings to collect fees and costs,the prevailing party will be entitled to reasonable attorneys'fees and other costs of collection.