HomeMy WebLinkAboutCAG2024-337 - Original - Foster Garvey - Engagement Letter - 20610 68th - 7/6/24 FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form Dir Asst:
• For Approvals,Signatures and Records Management Dir/Dep:
KE N T This form combines&replaces the Request for Mayor's Signature and Contract Cover (Optional)
WASHINGTON Sheet forms.
Originator: Department:
T. Reyes-Selden for T. White Law
Date Sent: Date Required:
0 07/15/2024 N/A
CL Director or Designee to Sign. Date of Council Approval:
Q N/A
Budget Account Number: Grant?[:]YesZNo
Budget?R]Yes:No Type: N/A
Vendor Name: Category:
Foster Garvey P.C. Contract
Vendor Number: Sub-Category:
= 2168481 Original
0
Project Name: Legal Services - Engagement Letter
E
C Project Details:Retention of Foster Garvey P.C. to provide consultation and legal services to the City
= of Kent in connection with the City's potential acquisition of property located at
20610 68th Avenue South in Kent, Washington.
C
d
Agreement Amount: N/A Basis for Selection of Contractor: Direct Negotiation
`Memo to Mayor must be attached
Start Date: 7/6/2024 Termination Date:
Im
Q Local Business?F_1YesP'1No* If meets req uiremen ts per KCC 3.70.100,please complete"Vendor Purchase-Local Exceptions'form on Cityspace.
Business License Verification:Yes:ln-Process:Exempt(KCC 5.01.045)
Notice required prior to disclosure? Contract Number:
F1YesF]No CAG2024-337
Comments:
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Date Routed to the City Clerk's Office: 7/15/24 Interlocal Agreement has been uploaded to website:
adccW22313_1_20 Visit Documents.KentWA.gov to obtain copies of all agreements
rev.20210513
Foster1111 Third Avenue Main!206.447.4400
Carve Suite 3000 Fax:206.447.9700
Seattle,WA 98101 toster.com
Direct Phone: 206.447.8972
adrian.winder(Moster.com
July 3, 2024
Tammy White, City Attorney
City of Kent
220 Fourth Ave. S.
Kent, WA 98032
TWhite@kentwa.gov
Re: Engagement for Services—20610 68th Avenue South, Kent, Washington
Dear Tammy:
We are pleased to have the opportunity assist the City of Kent ("City") in the matter described
below. This letter and the attached Terms of Engagement form our agreement regarding the terms under
which the City engages Foster Garvey P.C. ("Foster Garvey").
Our Engagement
This engagement involves Foster Garvey providing consultation and legal services to the City in
connection with the City's potential acquisition of property located at 20610 68th Avenue South in Kent,
Washington. The scope of our engagement may be expanded or amended by written mutual agreement.
This letter and enclosure will govern any related additional matter or service we may undertake, except as
otherwise specified in a separate letter or email addressing that matter.
Our Fee Arrangement
Our fees are principally based on hourly rates. My hourly rate for this engagement will be $545
(discounted from my standard hourly rate of $605). I may involve other lawyers or staff members as
necessary to handle the work efficiently. Their time may be charged at different rates,but those rates will
also be discounted by 10 percent. We review and adjust our billing rates from time to time, typically on
January 1. The enclosed Terms of Engagement provides additional information regarding fees,
disbursements, billing and payment, and termination of our representation should payment not be made
or other circumstances warrant.
Other Agreements
You agree to pay our invoices on a timely basis. You agree to provide us with complete and
accurate information relevant to our representation of you, to cooperate fully, and to make any necessary
SEAT FLE PORTLAND WASHINGTON,D.C. NEW YORK SPOKAN E BEUING
July 3, 2024
City of Kent
Engagement for Services
Page 2
decisions in a timely manner. In addition,you agree to notify us promptly of any change of circumstances
affecting the representation or our ability to contact you.
From time to time, either at the outset of our representation or as the matter proceeds, we may
express opinions or beliefs concerning various courses of action and the results that might be anticipated.
You acknowledge that any such statement is an expression of opinion only,based on information available
to us at the time, and is not a guarantee.
In some engagements, questions may arise regarding our duties under the rules of professional
conduct that apply to lawyers. These questions might concern a potential conflict of interest or a dispute
between the firm and a client over the handling of a matter. Generally, when such issues arise, we seek
the advice of our firm counsel, who has expertise in such matters. We consider such consultations to be
attorney-client privileged communications between firm personnel and counsel for the firm. We believe
it is in our clients' interest, as well as the firm's interest that we obtain expert analysis of our obligations
when legal ethics or related issues arise during a representation. Accordingly, you agree that, if we
determine in our own discretion that it is necessary or appropriate to consult with our internal or outside
counsel during the course of the representation, we have your consent to do so, at our expense, and that
our representation of you shall not, thereby, waive any attorney-client privilege that we may have to
protect the confidentiality of our communications with firm counsel.
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. It is our understanding that non-adversarial real estate,
land use and permitting advice does not pose an adversity between other Foster Garvey clients and the
City under the Rules of Professional Conduct. Of course, we will not use any proprietary or other
confidential nonpublic information concerning you that we acquired as a result of our representation of
you in any matter in which we represent another client adverse to you. In some cases, Foster Garvey
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
negotiation, and even litigation adverse to the City. For these types of disputes, Foster Garvey 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.
Waiver of Conflict—Boeing Employees' Credit Union
The property about which the City is asking Foster Garvey to advise is currently owned by Boeing
Employees' Credit Union (`BECU"). This presents a conflict of interest because this firm represents
BECU in unrelated real estate and intellectual property matters.However,we believe the factual and legal
issues likely to arise in the proposed engagement are unrelated to our representation of BECU, which is
represented by another firm concerning the above-described property.
FG: 102808147.1
July 3, 2024
City of Kent
Engagement for Services
Page 3
Under the Washington Rules of Professional Conduct, this firm may not oppose a current client,
even on an unrelated matter, unless (1) we reasonably believe that we will be able to provide competent
and diligent representation to each client and (2) each client gives informed consent. In other words, we
must consult with both clients, and we cannot proceed with the engagement unless both BECU and the
City consent.
In deciding whether to consent, the City should consider whether our representation of BECU in
unrelated matters might adversely affect the City. For example, clients that are asked to waive or consent
to conflicts typically should consider whether there is any material risk that their attorneys will be less
vigorous advocates on their behalf due to concern about offending the other client. Similarly, clients
should consider whether there is any material risk that their confidences will be used to their detriment. In
the present case,we do not believe there is a material risk of either type because the proposed engagement
for the City is unrelated to our representation of BECU. We also take seriously our obligation under the
Rules of Professional Conduct not to disclose, or otherwise misuse, the City's confidential information.
BECU has provided its written consent to our representation of the City in this matter; however,
in the event any future litigation or arbitration may arise between the City and BECU in connection with
this matter, we would not represent the City in such litigation or arbitration without the additional written
consent of both parties.
The City's signature below will constitute its agreement to waive the above-referenced conflict of
interest regarding BECU and the City's consent for Foster Garvey to proceed with representation of the
City in this matter. If you have any questions or concerns that you wish to discuss before you reach a
decision,please let me know.
Beginning Our Representation
If this letter and the enclosed Terms of Engagement meet with your approval, please confirm our
engagement by signing and dating below and returning a copy to me. We appreciate the opportunity to
again be of service to the City of Kent and look forward to working with you.
Very truly yours,
FOSTER GARVEY P.C.
Adrian Urquhart Winder
Principal
Attachment: Terms of Engagement
FG: 102808147.1
July 3, 2024
City of Kent
Engagement for Services
Page 4
AGREED AND ACCEPTED:
CITY OF Is.-TN
By: _
Name: ram ly 4hite
Title: City Attorney
Date: 7/6/24
FG: 102808147.1
Foster Garvey
Terms of Engagement
Thank you for choosing Foster Garvey P.C. This document explains terms that apply to the
representation described in our engagement letter and any subsequent engagements undertaken
by mutual agreement, unless we reach a different written understanding. Please ask any
questions you may have about these terms before signing the engagement letter.
Working Together
Generally one lawyer will be responsible for, and will oversee,the firm's representation of you,
although other lawyers or staff members may assist in providing appropriate, efficient, and
timely legal services. Your responsible lawyer will be your principal contact for coordination of
your representation. If you have any concerns regarding our relationship or our services,please
notify your responsible lawyer or one of the Co-Chairs of the firm's Executive Committee.
Electronic Communications
As we work together, it is likely that both you and the firm will use electronic devices and
Internet services (which may include unencrypted email, mobile phones,voice over Internet,
electronic data/document websites, and other technology) to communicate and transfer
documents. Although the use of this technology involves some degree of risk that third parties
may access confidential communications, we believe and you agree that the benefits of using this
technology outweigh the risk of accidental disclosure. We have adopted policies and systems to
make our electronic communications with you reasonably secure, and it is equally important that
you communicate with us in a manner that reasonably protects confidential information and
privileged communications. You should not use any computers or other electronic devices,
networks, or Internet addresses that are owned, controlled, or may be accessed by others to send
or receive confidential information to or from us. If you anticipate that any matter will involve
personally identifiable information protected by data security laws,please notify the responsible
lawyer promptly so we can discuss the use of encrypted email and/or other precautions.
Conflicts of Interest
We have performed a search of our conflicts database to determine whether representing you
might present a potential conflict of interest with another client. We performed the check using
your name and any other names you provide to us. Please inform us immediately if you use any
other names (such as trade names)that we should enter into our database.
Client Identity
Our client is the entity or person named as our client in the engagement letter and does not
include any affiliate, equity holder, employee, or other person unless we are retained directly by
them. You confirm that we may represent another client adverse to any of them, or to an entity in
which you hold an ownership interest, in matters unrelated to our work for you.
Foster Garvey Terms of Engagement- 1
October 1,2019
FG: 102808147.1
Basis for Fees
We generally charge on an hourly basis for time expended on your behalf, including telephone
conversations, in-person meetings, strategy development and planning, document preparation
and review,research, court appearances, and travel. In setting the hourly rates for a particular
engagement,we will consider various factors, including: the novelty or difficulty of the
questions involved; the experience, reputation, and ability of those performing the services; the
time limitations imposed by the client or the circumstances; the amount at stake; and the
likelihood that accepting the engagement would preclude the firm from accepting other client
opportunities. We review and adjust our standard billing rates from time to time, typically on
January 1. Alternative fee arrangements that are not based entirely on hourly rates will be
specified in the engagement letter.
Estimates vs. Fixed Fees
Clients occasionally request advance estimates of fees and costs. An estimate, although based on
the lawyer's professional judgment and the information provided by the client, will be affected
by factors outside the control of the firm and the client. Unless we reach a clear, written
understanding that the fee will be charged at a fixed amount or capped at a fixed amount, any
estimate we provide may be revised based upon the facts and circumstances we encounter during
your representation.
Advance Fee Deposit
New clients are requested to provide an advance fee deposit as specified in the engagement letter,
as are existing clients retaining us for new litigation matters or other matters of significant scale.
These funds will be deposited in our client trust account, and any balance will be returned to the
client upon termination of representation. In the event payment is not timely made,we reserve
the right: to use any part of the deposit to satisfy a delinquent payment; to discontinue
representation until the full advance fee deposit is restored; and to increase the amount of the
deposit required for continued representation.
Trust Account
The amounts you pay to us in trust will be deposited in our client trust account. As required by
the rules of professional conduct governing lawyers, interest earned will be paid to a foundation
to support law-related charitable activity. However, when a client's deposit is large enough to
earn interest in excess of bank and administrative costs, the firm will place the funds in a
segregated account. In that circumstance the interest earned will be added to your deposit and
reported by our bank to the Internal Revenue Service as taxable income to you.
Costs Advanced to Third Parties
In the course of serving you, we may make payments to third parties on your behalf. For
example, courts and agencies often charge filing or recording fees, and we are required by law to
pay witness fees. We may also contract on your behalf with vendors, such as court reporters,
messenger services, independent professionals (foreign agents, investigators, appraisers, and
accountants, to name a few examples), and expert witnesses, and we may incur travel expenses.
We may elect to advance these costs and include the charges, without mark-up, on our invoices,
or we may require you to provide an advance deposit for costs or to pay non-routine expenses
directly to the third party.
Foster Garvey Terms of Engagement-2
October 1,2019
FG: 102808147.1
Other Charges
In addition, our invoices reflect charges for services provided by our firm, currently including the
following: photocopying, document binding, database storage costs, and online legal research.
Billing and Payment
We generally invoice our clients on a monthly basis. The invoice will typically reflect charges
incurred during the prior month but some charges may not be processed and billed until
sometime after the expense has been incurred. Payment is due within 30 days following the date
of the invoice. Payment of an invoice confirms your agreement to the amount charged. If you
disagree with the amount charged on an invoice,you must notify us within 60 days following the
date of the invoice by contacting the responsible lawyer or the firm's accounting department.
Insurance Coverage
If you believe you may have coverage for legal fees incurred in this matter,you should notify
your broker or carrier immediately. We have no obligation to notify your broker or carrier unless
you expressly request us to do so, we agree to undertake that additional task, and you provide
copies of all relevant policies and related documents. Although you may have coverage, primary
responsibility for payment remains with you.
Late Payment and Past Due Accounts
Amounts past due accrue service charges at the rate of twelve percent per year. If an account
becomes more than thirty days past due, the firm may decline to perform additional legal
services until the account is brought current or may withdraw from the representation. If the firm
incurs costs to collect the amount due, it shall be entitled to its collection costs and a reasonable
attorney's fee (for the services of outside counsel and/or internal counsel). Unless otherwise
agreed,we may apply payments first to our attorney's fees and costs of collection, second to
service charges, and then to invoiced fees, costs advanced, and other charges. You agree that,to
the fullest extent permitted by law, we have an attorney's lien in your files and/or against the
results of our representation to secure payment of your financial obligations and that we may
take steps to inform others of any lien rights we may have.
Conclusion of Matter; Retention and Disposition of Documents
Our representation in a matter will be deemed concluded at the time we issue our final invoice
for services rendered in that matter or, if an invoice is not characterized as a final invoice,upon
the passage of twelve months following the date of the last invoice for the matter. To the extent
you have not previously received copies of correspondence or other documents during the course
of representation, we will provide such material at your request and expense. We will have no
obligation to retain files following the conclusion of the engagement.
Post-Engagement Matters
You are engaging us to provide legal services in connection with a specific matter. After
completion of the matter, changes may occur in applicable laws or regulations that could affect
your future rights or liabilities. Unless you re-engage us to provide additional legal advice, the
firm has no continuing obligation to advise you regarding such issues, other legal developments,
or renewal or other deadlines you may have with respect to the subject matter of the
representation. Any re-engagement will be subject to clearing conflicts and to these terms of
engagement.
Foster Garvey Terms of Engagement- 3
October 1,2019
FG: 102808147.1
Termination of Representation
Prior to conclusion of our representation, you may terminate our relationship at any time and for
any reason by providing written notice. Similarly,we may, with written notice,withdraw from
our representation of you if required or permitted by the applicable rules of professional conduct.
If the permission of a court or other adjudicator is required for withdrawal, we will promptly
request such permission, and you agree not to oppose our request. Upon termination or
withdrawal,you will remain obligated to pay promptly all charges for legal services already
rendered and, in circumstances where the termination or withdrawal is caused by your conduct,
charges resulting from the termination or withdrawal, including time spent working with
successor counsel. We will cooperate with successor counsel to assure a smooth transfer of the
representation.
Arbitration
If you disagree with the amount of our fee,please contact the responsible lawyer or an alternate
representative identified on our website. Typically we can resolve such disagreements
satisfactorily with little inconvenience or formality. In the event a fee dispute is not readily
resolved, some state bar associations offer programs for arbitration of fee disputes.
Questions
If you have any questions regarding the terms set forth in this document,please contact the
lawyer who sent your engagement letter or your current responsible lawyer, if different. Please
note that the rules of professional conduct preclude us from acting as your counsel with respect
to these terms,but you are free to consult with independent counsel if you wish. These terms
govern not only the representation described in our engagement letter, but also any subsequent
engagements undertaken by mutual agreement,unless we reach a different written
understanding.
Foster Garvey Terms of Engagement-4
October 1,2019
FG: 102808147.1