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HomeMy WebLinkAboutLW18-339 - Original - Foster Pepper PLLC - Engagement Letter: Naden Area Utility & Other Development - 08/22/2018 �✓ �* T Records Management Document CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to the City Clerk's Office. All portions are to be completed. If you have questions, please contact the City Clerk's Office at 253-856-5725. ❑ Blue/Motion Sheet Attached ❑ Pink Sheet Attached Vendor Name: Foster Pepper PLLC Vendor Number (JDE): Contract Number (City Clerk): ___,, _._ wIF5 Category: Choose an item Enclaclement Letter for Leqal Services Sub-Category (if applicable) Ch„o,,,ose. an item Project Name: Naden Area Utility and other Development ...... .........._. .... .. ...._ Contract Execution Date: 8/22/18 Termination Date: N/A 1, �Gt a La W Contract Manager: Tim-La rte Department: d 1 E ineer g Contract Amount: N/A Approval Authority: ® Director ❑ Mayor ❑ City Council Other Details: i Direct Phone (206)447-8971 Direct Facsimile (206)749-1927 steve.dijulio@foster.com July 20, 2018 VIA EMAIL Pat Fitzpatrick City Attorney City of Kent 220 Fourth Ave. S. Kent, WA 98032 PFitzpatrick@KcntWa.gov Re: Engagement for Services—Naden Area Utility and other Development Dear Pat: This is to confirm the engagement of Foster Pepper PLLC to provide services for the City of Kent in connection with the development of utility infrastructure, street access and related issues in the Naden Avenue area of the City north of Willis Street. Attached for your consideration is a copy of our current Terms for Engagement of Services. As has been the case in past representations of the City, we do not request a retainer. We will bill monthly for services on this matter. Unless you request otherwise, bills will be directed to your attention for processing. My current standard hourly rate is $625 per hour. We will discount my billing rate by 10% for this matter. I will have primary responsibility for this matter; however, it is our practice to consult other Foster Pepper attorneys and assign tasks among associate attorneys, paralegals, law clerks, and document clerks in such a way as to produce the highest quality of work at reasonable expense to the City. No attorney will be in excess of my discounted rate. As a law firm with attorneys focused on real estate and land use practices, we will periodically represent clients in matters adverse to the City in these types of matters. It is our understanding that non-adversarial real estate, land use and permitting advice does not pose an adversity between other Foster Pepper clients and the City under the Rules of Professional Conduct. In some cases, Foster Pepper attorneys may be asked to represent a client in a dispute with the City, or a non-adversarial matter may evolve into a dispute with the City over time. Adversities from these disputes may include, but are not limited to, the following categories: (1) the negotiation or appeal of permitting decisions or conditions, (2) challenges by third parties to the City's permitting decisions, and (3) due diligence and representations related to the purchase and sale of real property within the City limits. These disputes may involve i i 1 lmrO A .mm.., 5a Ilk 3000, '3daMo &"Im'i1„fon URJU 1 jQ1,A41 44010 ['A', 7110 e117 9NO `gmui n corn 9111276 1 Pat Fitzpatrick City Attorney July 20, 2018 Page 2 I negotiation, and even litigation adverse to the City. For these types of disputes, Foster Pepper will not represent other clients in real estate, land use and permitting matters that fall within these categories without first obtaining the City's prior written consent. Please confirm this engagement by executing this letter in the space provided below and returning a copy to me. We appreciate the opportunity to again be of service to the City of Kent. Very truly yours, FOSTER PEPPER PLLC P. Stephen DiJulio Managing Partner Enclosure ACCEPTED AND CONFIRMED this 9 ' day of�s 2018. txu�wc� � City of Kent Its arc Tfm m� 53111176 1 Terms for Engagement of Services Thank you for choosing Foster Pepper Pf.LC. Our Engagement Letter and these "Terms" constitute our agreement with You for performing the engagement described in that letter. We pride ourselves on responsive and vigorous representation and strive to develop excellent working relationships with our clients. Therefore, we wish to share with you the terms of our engagement as your lawyers and tell you about our firm. Our web page (www.foster.coni) contains additional information about the firm and its capabilities. If you have questions or concerns, please contact its immediately. Scope of Work Our policy and the foundation of a sound client-attomey relationship isto ensure that we understand your legal needs and that you understand the nature of the services we will provide. Communication between us is critical. We regularly will keep you informed of our activities on your behalf and will act in your interest at all times to the best of our abilities, subject to our knowledge of the facts and the state of the law during the representation. Generally, one lawyer will be responsible for and will oversee your representation. Other lawyers and legal assistants may work on your behalf especially when special skill or expertise is required or when delegation is more expeditious and cost- effective, or for other appropriate reasons. Your responsible lawyer will be your point of contact for all aspects of your representation. If at any time you are unhappy with any person working on your behalf, please tell your responsible lawyer or the Chair of the firm's Executive Committee. The situation will be addressed immediately. We need your help to represent you to the best of our abilities. We rely on you to be candid with and responsive to us, as we will be with you. Please inform us immediately of any change of circumstance affecting the representation or our ability to contact you. We both must respond promptly and completely to inquiries and requests to enable us to represent you effectively. While we cannot assure a successful result in any engagement, we pledge to use our best efforts on your behalf. You may terminate our representation of you at any time and for any reason. In addition, we may choose to withdraw from the representation, but only in accordance with the applicable Rules of Professional Conduct in effect in the jurisdiction where our relationship exists. If we choose to withdraw as your lawyers, we will notify you in writing. At termination or withdrawal, you will remain obligated to pay us promptly for all charges for legal services rendered as well as charges resulting from the termination or withdrawal, including working with any successor counsel. We will cooperate with successor counsel to assure a smooth transfer of the representation. Conflicts of Interest Because our representation of you is limited in scope and because we have a large number of clients, we wish to clarify the extent to which our representation of you may affect our ability to represent other clients in other matters,including matters in which you may be involved. We employ internal procedures to ensure that our representation of other clients will not cause a conflict of interest with you. Your identity as our client is the person or entity named as the client in our Engagement Letter and does not include any of your affiliates, officers, directors, principals or other related parties unless so specified. Accordingly, we may represent another client with interests adverse to any such affiliate without obtaining your consent, and we respectfully decline to be bound by any contrary policy. if we discover any actual or potential conflict of interest affecting our representation of you, we will notify you promptly. Depending upon our relationship, at the conclusion of the engagement described in the Engagement Letter, you will no longer be considered a current client of the firm. As a former client, you may expect that we will not represent another person in the same or a substantially related matter if that client's interests are adverse to your interests unless you have consented in writing to the representation after consultation and full disclosure of material facts. You may also expect that we will preserve appropriately the confidentiality of your information and secrets. Without your prior written consent, we will not represent a client adverse to you in a different matter if we have obtained confidences or secrets from you that arc material to that matter. 53l l 13l6 1 r Records Retention We maintain policies regarding retention and destruction of records. Records include our files and related electronic documentation, including e-mails. Records (including materials provided by you to its and all electronic documentation) relating to this engagement will be destroyed according to our policies unless you request that they be returned to you. Our own files pertaining to the matter will be retained in accordance with the policies. Our own files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, internal lawyers' work product such as drafts, notes, intemal memoranda, and legal and factual research, including investigative reports, prepared by or for the internal use of lawyers. We retain client files for ten years after a matter is closed. We will endeavor to remind you of this policy on completion of the engagement, but we reserve the right to destroy records in accordance with our policy without further notice to you. Fees for Services We generally charge on an hourly basis for time expended on your behalf. This includes, for example, telephone conversations, face-to-face conferences, strategy development and planning, document preparation and review, research, drafting, negotiating, court appearances and travel. Through hourly billing, you pay only for work performed on your behalf We maintain daily time records that include a brief description of the work done so that you will understand why you are being billed. We record our time in units of tenths of an hour. Upon request, we will work with you to produce an estimate of the anticipated legal fees and costs for a particular engagement. Any such estimate will be based on our prior experience with similar engagements as well as information you provide us about your particular needs. Unless we reach a clear, written understanding that the fee will be a fixed amount, any estimate we make may be revised based upon the facts and circumstances we encounter during your representation. Our rates (which are subject to change prospectively with notice) should always be discussed in advance with your responsible attorney. Generally, rates are revised annually and adjustments will be reflected in our invoices in the month following any adjustment. On occasion, and after discussion with you, we may perform services on a non-hourly basis. Our agreement with you to do so will be in writing. We strive to keep fees and charges at a level appropriate to the task. Expenses to addition to fees for legal services, you will be charged for expenses advanced on your behalf and ancillary costs incurred by us during the course of your representation. Such charges may be revised from time to time without notice and will be reflected in our invoice in the month following any revision. These charges include such things as photocopying, document binding, external messenger service, electronic records searches, special mailing or courier services, and costs associated with managing electronically stored information [e.g., scanning, image processing, data collection, database services, web hosting, document summaries, etc.]. We may add an administrative charge to some or all of these costs. The firm's Automated Legal Support Services team may perform some of the services associated with managing electronically stored information. Charges for these services are part of the costs you agree to pay in connection with our representation of you. You will not be billed for long distance telephone charges, facsimile transmissions or standard postage charges. Please note that should your work require secretarial overtime (not caused by a secretary working for another client during the regular work day), you will be charged for such service. You may be asked to pay certain non-routine expenses directly to the service provider. These may include travel expenses, filing fees, and fees and expenses of independent professionals such as appraisers, accountants, investigators, court reporters, and other consultants and experts. Often, these expenses must be paid in advance. Normally, we will send the charge directly to you for payment or obtain in advance funds from you to pay such costs. While we are under no obligation to do so, we may advance payment of such expenses and subsequently bill you for the charges. Billing Policy Usually, you will be billed monthly. For your convenience, the billing statement will describe briefly the matter and legal services performed and will set forth the fees and expenses relating to the legal services provided. The bill typically will contain charges incurred during the prior month. Charges for some expense items such as copy and delivery charges may not be processed and billed until some time after the expense has been incurred. Bills are due upon receipt, and may be paid by check, wire transfer, Visa, MasterCard or American Express. Any past due amounts will bear interest at twelve -2- 5311127h1 percent per year. We strive to provide clear and prompt billing statements. If you have any questions regarding your invoice,please promptly call your responsible attorney or our accounting department. Advance Fee and Trust Deposits If required by your Engagement Letter, you must pay in advance an amount equal to our estimate of the fees and costs for some or all of the work contemplated by the scope of the engagement. Any amount remaining at the conclusion of the engagement will be returned to you. If, after commencing work, it appears the advance payment will be insufficient to cover legal fees and costs, you may be asked to advance additional amounts. If required by your Engagement Letter, you must pay a retainer to secure our availability for a given period of time, which is considered caned by us when paid. Amounts you pay to us in trust, including advance payments for fees and costs, will be deposited in a trust account that we maintain for the benefit of our clients as required by the Rules of Professional Conduct. Under these rules, if your deposit is not expected to earn a "positive net return" given its size, the expected duration of the deposit and prevailing interest rates(less reasonable bank and administrative charges),we will place the deposit into a pooled account. The interest earned on this account must be paid to a charitable foundation established by court rule. If your deposit likely will earn a"positive net return", you may request that it be placed into a segregated account and interest earned on that account will be added to your deposit and will be reported by our bank to the [metnal Revenue Service as taxable income to you. If you wish us to place such finds into a segregated account for your benefit, you must provide us with your Federal Fax Identification Number. Attorney-Client Privilege Our attorneys and staff recognize our duty to maintain confidentiality. The attorney-client privilege protects communications between us, whether oral or written, as long as neither of us discloses those communications to anyone else. Privileged communications cannot be used in court without your consent. Therefore, to preserve the privilege and confidentiality of our communications, you should not show our written communications or discuss any oral communications between us with anyone. Furthermore, certain communications and documents prepared in anticipation of litigation are also privileged even if no attorney is involved. Because disputes can arise as to whether certain communications are privileged, if you have any questions regarding what you can do, be sure to seek advice from the lawyer with whom you are working. We are not acting as your counsel with respect to the provisions of this statement of Termsfor Engagement afSe-rvices and to do so would be a conflict of interest. TJ you wish to seek advice fYom independent counsel ofyour choice about whether you should agree to these terms, please do so. In addition, ifyou have any questions or would like additional information, we are happy to discuss this statement with you further. These terms of engagement will govern our relationship, however, unless we reach a different agreement in writing. We understand that you have selected its not only for our expertise, but also for our reputation as responsive and creative counsel. Be assured that we will strive to live up to your expectations. If you have any questions, please do not hesitate to call. Seattle: Foster Pepper PI.LC Spokane: Foster Pepper PLLC 1 I I 1 Third Avenue, Suite 3000 618 West Riverside Avenue, Suite 300 Seattle, Washington 98101-3299 Spokane,Washington 99201-5102 Phone. (206)447-4400 or(800)995-5902 Phone: (509)777-1600 Facsimile: (206)447-9700 or 9283 Facsimile: (509) 777-1616 Revised: 01/08/13 53111276 I REQUEST FOR MAYOR'S SIGNATURE KENT Print on Cherry-Colored Paper Routing Information: (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE LAW DEPARTMENT) Approved by Director_ Originator: Cheryl Roldk-Wilcox Phone (Originator): x5771 Date Sent: 8j22j18 Date Required: 8/27/18 Return Signed Document to: Cheryl Rolcik-Wilcox Contract Termination Date: n/a VENDOR NAME: Date Finance Notified: (Only required on contracts Foster Pepper PLLC n/a $20,000 and over or on anv, Grant) DATE OF COUNCIL APPROVAL: n/a Date Risk Manager Notified:n/a (Required on Non-City Standard Contracts/Agreements) Has this Document been Specifica11 Account Number: Authorized in the Budget? OYES 0 NO --------------- Brief Explanation of Document: Engagement letter for legal services to be provided by Steve Di]ulio regarding the Naden Area Utility and other Development .Ejja t Be Routed Through The Law Department A,iJ2, ' area to r4a te e, Department) Received: Approval of Law De Law De Date Fo , Shaded Areas To Be Completed By Administration Staff Received; REEGENEU Recommendations and Comments„ AUG 2 9, 2,171ii Disposition: City of Kent Office of the Mayor Date Returned: Im CmmAn pgygX.nP pypm roynA¶WiS,tlee