Loading...
059-21 - Miller Nash Graham & Dunn - ContractM I LLER NASH GRAHAM &DUNN,'" Pier 70 280 1 Alaskan Way, Suite 300 Seattle, Washington 981 2 I owrcr206.624.830f rx206.340.9599 Matthew R, Hansen matthew.hansen@millemash.com 206.7 7 7 .7 502 direct line January 27,2021 VIA EMAIL City of Port Orchard c/o Leslie Findlay, Right of Way Operations Manager Tierra Right of Way Services, Ltd. 8685 Martin Way E. #203 Lacey, WA 98516 Email : lfi ndlay@tieffa-row. com Subject: Agreement for Legal Services Dear Leslie, Thank you for selecting Miller Nash Graham & Dunn LLP ("MNG&D") to assist Tierra Right of Way Services, Ltd. ("Tierra") in the performance of Tierra's contract with the City of Port Orchard, WA (the "City"), under which Tierra, on behalf of the City, is acquiring the property and property rights necessary for the Bay Street Project within the City. MNG&D's engagement will include legal advice and consulting services related to the Bay Street Project. The purpose of this letter is to confirm the scope of MNG&D as counsel for the City and to provide you with certain information concerning our fees, billing information, and other terms that will govern our relationship with Tiena and the City. Although we do not wish to be overly formal in our relationship with you, we have found it a helpful practice to confirm with our clients the nature and terms of our representation. Tierra will engage MNG&D on behalf of the City for legal advice and consulting services pursuant to Tierra's contract with the City. As such, MNG&D will be a sub-consultant under Tierra's contract, as set out more fully below. As required by Washington's Rules of Professional Conduct, MNG&D's client will be the City, regardless of the factthat MNG&D is being engaged by, and will be paid by, Tierra. Moreover, pursuant to certain ethical requirements governing the client-attorney relationship, although MNG&D has agreed to accept direct payment from Tiena on the City's behalf, Tierra may not interfere with the independence of MNG&D attorneys' professional judgment on the City's behalf, nor with our direct client-lawyer relationship with the City. 583090-000 1 /4841 -957 2-4502.s Contract No. 059-21 M I LLER NASH GRAHAM *,RH,lYl*; The City of Port Orchard January 27,2021 Page2 1. SCOPE OF SERVICES Our client in this matter will be the City. We have been engaged to represent the City solely in connection with acquisition of the property rights needed for the City's project described above. Our services will be shictly of a legal nature. We do not provide business, investment, or accounting advice and the City will not rely on us for any such advice. 2. CONFLICT.OF.INTEREST ISSUES Because we are a large, full-service law firm with offices in various cities, we represent many companies and individuals. It is possible that while we are representing the City, some of our present or future clients will have disputes or transactions with the City. We reserve the right to represent existing or future clients in any matter that is not substantially related to our work for the City, even if the interests of the clients in those other matters are directly adverse to the City. The foregoing does not apply if, as a result of our representation of the City, we have obtained proprietary or other confidential information of a nonpublic nature that if known to the other client could be used in the other matter by that client to the City's material disadvantage. We recommend that the City consult independent legal advice to determine whether to consent to this advance waiver. 3. STAFFING. FEES. AND CHARGES It is our general policy that one attorney will have primary responsibility to see that your legal needs are met. I will be that person for this representation. I may, however, utilize other lawyers in the firm as well as paralegals, if I believe it appropriate under the circumstances. Our fees will be based on the billing rate for each attorney and paralegal devoting time to this matter. My hourly billing rate will be discounted to $450 per hour (standard rate $525 per hour), my partner Tara O'Hanlon's billing rate will be discounted to $345 per hour (standard rate $400 per hour), my associate AmberNovack's rate will be discounted to $325 (standard rate $370 per hour), and my senior paralegal Heidi Reynold's billing rate will be discounted to $195 per hour (standard rate $225 per hour). Although we have set forth a number of attorney and paralegal rates above, it is our intent to limit the number of professionals working on the City matters and will only utilize these other professionals with additional consent by Tierra and the City. Each month we will issue you a statement describing the work performed and expenses recorded on our books during the previous month. Payment is due within fifteen (15) days of receipt of payment from the City for any MNG&D services billed under the invoice which generated the payment. If the statement is not paid within 30 days after the invoice date, we retain the right to charge interest on overdue amounts at the rate of nine percent (9%) per annum from the invoice date. 583090-000 1 /4841 -957 2-4502.5 M I LLER NASH GRAHAM &DUNN"" ATTORNEYS AT LAW The City of Port Orchard January 27,2021 Page 3 If any statement remains unpaid for more than 60 days, we may suspend performing services for the City until arrangements satisfactory to us have been made for payment of outstanding statements and the payment of future fees and expenses. We will include on our statements any separate charges for performing services such as outside photocopying services, messenger and delivery service, and filing fees. In litigation matters, costs may also include fees for process servers, court reporters, litigation support specialists, and witnesses. Fees and expenses ofothers (such as non-appraiser experts, investigators, and consultants) generally will not be paid by us and may be billed directly to you. This Agreement will not take effect, and MNG&D will have no obligation to provide legal services, until Tierra returns a signed copy of this Agreement along with written acknowledgment by the City consenting to MNG&D receiving fees for this engagement from Tierra directly. Estimates. Clients occasionally ask us to estimate the amount of fees and costs likely to be charged in a particular matter. Unless the engagement is undertaken on a fixed-fee basis, these estimates are not guaranteed maximum amounts. In most matters, it is impossible to predict exactly how much time and effort will be required. This is especially true in matters involving litigation or negotiation, in which factors not within our control often affect the fee. Accordingly, we have made no commitment to you concerning the maximum fees and costs that will be necessary to resolve or complete this matter. Any estimate of fees and costs that we may have discussed represents only an estimate of the fees and costs. It is also expressly understood that your obligation to pay the MNG&D's fees and costs is in no way contingent on the ultimate outcome of the matter. 4. RESPONSIBILITIES Tierra for itself and on behalf of the City, agrees to be candid and cooperative with us and to keep us informed with complete and accurate factual information, documents and other communications relevant to the subject matter of our representation of the City, or otherwise reasonably requested by the MNG&D. In particular, Tierra for itself and on behalf of the City, agrees to facilitate making City officers and employees available to attend trial, hearings, depositions and discovery conferences, and other proceedings, and to commit the appropriate personnel and sufficient resources to meet the City's discovery obligations. Either at the commencement or during the course of our representation, we may express opinions or beliefs concerning this matter or various courses of action and the results that might be anticipated. Any such statement made by any lawyer or employee of MNG&D is intended to be an expression of opinion only, based on information available to us at the time, and should not be construed by you as a promise or guarantee. 583090-000 1 /4 841 -957 2-4502.5 M I LLER NASH GRAHAM &DUNN"" The City of Port Orchard January 27,2021 Page 4 5. COMMUNICATIONS AND USE OF ELECTRONIC MAIL Leslie Findlay will be our primary contact with Tierra for itself and on behalf of the City. Matthew Hansen will be Tierra and the Crty's primary contacts with MNG&D. Because it is important that MNG&D be able to contact Tierra and the City at all times to consult regarding our representation of the City, Tierra for itself and on behalf of the City, agrees to inform the MNG&D, in writing, of any changes in the name, address, telephone number, contact person, e- mail address, state of incorporation, or other relevant changes regarding Tierra or the City. Whenever Tierra or the City need instructions or authorization in order to proceed with legal work on the City's behalf, Tierra or the City will contact the MNG&D at the latest business address, phone number or e- mail you have provided us. We expect to communicate with you through the use of electronic devices and Internet services (which may include unencrypted wired or wireless email, cellular telephones, voice-over internet, electronic dataldocument Web sites, and other state-olthe-art technology). Although the use of this technology involves some degree of risk that third parties may "hack into" or otherwise access confidential communications, we believe that the benefits of using this technology outweigh the risk of accidental disclosure. Nevertheless, just as we have policies and systems in place designed to make our electronic communications with you reasonably secure, it is equally important that you also communicate with us in a manner that reasonably protects the confidentiality of information we share and any attorney- client privilege that may apply to our communications. This means that you should not use any computers or other electronic devices, networks, or Internet addresses that are owned, are controlled, or may be accessed by others, including but not limited to a hotel, a library, an internet cafd, or a shared home computer, to send or receive confidential information to or from us. Any device you use should be password-protected and not accessible for use by any third party. If you wish our email communications to be encrypted, we will work with you to establish encryption protocols for use in our electronic communications. 6. CONSENT TO IN.HOUSE ATTORNEY-CLIENT PRIVILEGE From time to time, issues arise that raise questions as to our duties under the professional conduct rules that apply to lawyers. These might include, for example, conflict-of-interest issues and could even include issues raised because of a dispute between us and a client over the handling of a matter. Under normal circumstances, when such issues arise, we seek the advice of our in-house general counsel (or his or her delegate), who has been given the responsibility within MNG&D for providing legal advice in such matters. 583090-000 1 /4841 -957 2-4502.5 M I LLER NASH GRAHAM &DUNN.." ATTORNEYS AT LAW The City of Port Orchard January 27,2021 Page 5 Under Washington law, such consultation is protected by attorney-client privilege, but that may not be the case under the law of other jurisdictions. We believe that it is in our clients' interests, as well as the firm's interests, to make sure that a consistent rule applies firm-wide and to all our engagements. Accordingly, you agree that if we determine in our own discretion during the course of our representation that it is appropriate to consult with our firm's counsel (either in-house general counsel or outside counsel), we have your consent to do so. You also agree that our contemporaneous representation of you will not result in a waiver or an invalidation of the in-house attorney-client privilege. 7.TERMINATION OF' REPRESENTATION Tierra may terminate MNG&D's services and representation of the City only with the City's consent and upon written notice to the Firm, or the City may terminate the MNG&D's services at any time upon written notice to the MNG&D. Such termination shall not, however, relieve Tierra of the obligation to pay for all services already rendered, including work in progress and remaining incomplete at the time of termination, and to pay for all expenses incurred on behalf ofthe City through the date of termination. In some circumstances, we may find it necessary or appropriate to withdraw from representing the City. Tiena and the City will be given prompt notice ofthat fact, orally and in writing. Circumstances for withdrawal of representation covered by the Rules of Professional Conduct include your failure to pay for our fees or costs; your failure to fully inform us regarding material facts; conduct you engage in that is inconsistent with our advice; and conflicts of interest with other clients. In the event that MNG&D terminates the engagement, MNG&D will take such steps as are reasonably practicable to protect the City's interests in the above litigation, and Tierra, on behalf of itself and the City, agrees to take all steps necessary to free MNG&D of any obligation to perform further, including the execution of any documents necessary to perfect MNG&D's withdrawal. MNG&D will be entitled to be paid for all services rendered and costs or expenses incuned on behalf of the City through the date of withdrawal. If permission for withdrawal is required by a court or arbitration panel, we will promptly request such permission, and Tierra and the City agree not to oppose the MNG&D's request. Unless previously terminated, our representation will terminate upon our sending Tierra, on behalf of the City, our final statement for services rendered in this matter. After our representation is terminated, we do not have a continuing obligation to advise Tierra or the City concerning subsequent legal developments that might have a bearing on your affairs generally or, after completion of this matter, subsequent legal developments related to or that might have a bearing on the specific subject matter of our representation. 583090-000 1 /4841 -957 2-4502.5 M I LLER NASH GRAHAM kR,.Y"l'll);; The City of Port Orchard January 27,2021 Page 6 8. RETENTION AND DISPOSITION OF'DOCUMENTS At Tierra's or the City's request, all papers and property will be returned to Tierra or the City upon receipt of payment for outstanding fees and costs. We reserve the right to destroy or otherwise dispose of any of the original documents or tangible property that you have provided to us but have not requested to be refurned to you after termination of the engagement within a reasonable time after its termination without further notice to you. To the extent that you would like copies of those portions of our file that are external correspondence, pleadings, or related documents previously furnished to you, we will be pleased to provide them to you at our cost of retrieval and duplication, so long as we still retain them. We agree that all internal files generated during the course of our representation will be and remain the property of MNG&D. These MNG&D files may include, for example, internal emails, firm administrative records, time and expense reports, personnel and staffing materials, and credit and accounting records, as well as any internal lawyers' work product, such as drafts, notes, internal memorandums, and legal and factual research, including investigative reports, prepared by or for the internal use of lawyers. For various reasons, including the minimization of unnecessary storage expenses, we reserve the right to destroy or otherwise dispose of any such documents or other materials retained by us no less than six years after the termination of the engagement, and without further notice to you. Please let me know if you have any questions or comments regarding this agreement for legal services. If any of these terms are unacceptable to you, please let me know right away so that we can work together to resolve any differences and proceed with a clear, complete, and consistent understanding of our relationship. If this letter is acceptable, please have a copy of it executed and returned to us for our files. In the meantime, we will assume that you agree to these terms if you proceed to assign us work on the matter above. We are pleased to have this opportunity to be of service to you and to work with you. 583090-000 1 /4841 -957 2-4502.5 M I LLER NASH GRAHAM &DUNN.." ATTO R N EYS AT LAW Sincerely, MILLER NASH GRAHAM & DUNN LLP The City of Port Orchard January 27,2021 PageT M Matthew R. Hansen Attorney ACKNOWLEDGED AND AGREED BY TIERRA RIGHT OF WAY SERVICES, LTD. By Title: Vice President Date: 4/21121 THE CITY OF'PORT ORCHARI) 5-il RPO g SEAL I 583090-000 1 /4841 -957 2-4502.5