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HomeMy WebLinkAboutManatt, Phelps & Phillips - Legal Services Agreementmanatt manatt 1 phelps 1 phillips December 11, 2017 BY ELECTRONIC MAIL Cliff Moore City Manager City of Yakima 129 N. Second Street Yakima, CA 98901 Re: Engagement for Legal Services Dear Mr. Moore June L. DeHart Manatt, Phelps & Phillips, LLP Direct Dial: (202)585-6510 E-mail: jdehart@manatt.com This letter describes the terms of our relationship, effective January 1, 2018. Manatt, Phelps & Phillips, LLP ("we" or "us") will represent and advise City of Yakima ("you") in connection with representation in Washington, D.C., before the U.S. Congress, Federal agencies, and other government organizations as needed. For purposes of this engagement, we will be representing you only and all duties and responsibilities created and imposed by this agreement shall be owed solely to you and we will not be deemed to represent the interests of any of your affiliates, subsidiaries, parent companies, joint ventures, officers, directors, partners, principals, investors or employees (collectively, "Your Affiliates"), unless otherwise agreed to in writing. Accordingly, we will be free to represent other firm clients adverse to or involving Your Affiliates or their interests. Unless otherwise agreed in writing, the terms of this letter also will apply to any additional matters we agree to handle on your behalf or at your direction. If this agreement is acceptable to you, please sign and return the original to me. The enclosed copy is for your files. In addition, please send a copy of the signed agreement to me by email as a .pdf attachment, or by facsimile at (202) 585-6600. When you sign this letter, it becomes a contract between you and us. Rates. You agree to pay our fees for services, which are primarily determined by multiplying the number of hours we spend working on your matters by the hourly rates then in effect for the professional providing such services. Currently, these hourly rates vary from $135.00 for the most junior legal assistant to $850.00 for the most senior professional likely to perform services for you. We review our hourly rates annually and any changes normally become effective on January 1. I will be primarily responsible for representing you, supported by our Legislative Advisor to ensure efficiency and cost effectiveness. My current hourly rate is $850.00. It may be necessary or desirable, from time to time, to utilize other professionals and personnel employed by or associated with us to perform the services you require. In addition to attorneys, the professionals whose services may be required in connection with our work on your 11355 West Olympic Boulevard, Los Angeles, California 90064-1614 Telephone: 310.312.4000 Fax: 310.312.4224 Albany I Los Angeles 1 New York 1 Orange County I Palo Alto I Sacramento I San Francisco 1 Washington, D.C. manatt manatt 1 phelps 1 phillips City of Yakima December 11, 2017 Page 2 behalf may include non -attorneys, such as consultants, advisors, litigation support specialists, paralegals and legal assistants. In addition to fees for services, you agree to pay all expenses incurred on your behalf and for certain in-house administrative services. Expenses such as court filing fees, filing and recording fees of other government agencies, fees and expenses of accountants or other experts retained on your behalf, and charges for transcripts, depositions, parking, and travel expenses generally will be billed at the actual cost incurred by us; however, you acknowledge your responsibility to pay the fees and expenses of such third parties, and we may require retainers in respect of such third party costs. You further agree that you will, at our request, contract directly with such third party vendors or otherwise agree to be responsible directly to them for the payment of their fees. Expenses such as document reproduction, on-line computerized research, long-distance telephone, telecopies and fax transmissions, mileage, word processing, staff overtime required to meet your imposed deadlines, and messenger services will be charged at our standard rate in effect at the time the expense is incurred. Billing Practices. We submit bills on a monthly basis shortly after services are rendered so you will have a ready means of monitoring and controlling the expenses you are incurring. Our bills itemize the services performed by date, time required, and the professional performing the services. Payment is due within twenty (20) days of your receipt of the bill. Please note that we do not accept foreign checks. If in the course of our representation we anticipate a significant increase in the level of our activity on your behalf, we may bill you on a basis more frequent than monthly. If you believe the expenses are mounting too rapidly, please contact us immediately so we can discuss and evaluate your options. When we do not hear from you, we assume you approve of the overall level of activity on our part in this matter on your behalf. We understand that you may request that we submit our invoices electronically through a designated e -billing vendor. While we will endeavor to accommodate any such request, we cannot guarantee that we will be able to comply with all of the technical or other procedure requirements of your designated vendor. We will consider any such request on a case-by-case basis, and conversion to e -billing shall remain subject to our mutual agreement. In addition, please note our submission to e -billing procedures will not alter our current billing cycle as explained above. Estimates. You may from time to time receive an estimate of the fees and expenses likely to be incurred by you in connection with the services we are providing. An estimate is not a fixed fee and does not constitute a commitment by us to perform services for that amount or an obligation by you to pay that amount. The fees and expenses required ultimately are a function of many conditions over which we have little or no control and may be more or less than any estimate. You will be responsible for the actual fees and expenses on the basis described in this agreement. Further, your obligation to pay such fees and expenses is not contingent upon successful completion of any project. manatt manatt 1 phelps 1 phillips City of Yakima December 11, 2017 Page 3 No Guarantee of Results. Either at the beginning or during the course of our representation, we may express our opinions or beliefs concerning the matter or various courses of action and the results that might be anticipated. Any such statement made by any attorney or employee of our firm is intended to be an expression of opinion only, based on information available to us at the time, and must not be construed by you as a promise or guarantee of any particular result. Late Charges. Each month we send to clients who have amounts outstanding an Unpaid Statement notice listing all such amounts. A client will be assessed a late charge equal to one percent (1%) of the amount included on each notice that has been outstanding more than sixty (60) days. The amount of this late charge will be set forth on the notice. This late charge will be imposed each month on amounts that continue to be outstanding for more than sixty (60) days, including unpaid late charges. Unless a payment applies to a particular invoice, payments are applied to statements that have been outstanding the longest period of time. The costs associated with late payments go beyond a mere cost of funds calculation and make it impracticable or extremely difficult to quantify the actual costs incurred in connection with late payments, and you and we agree that this late charge is presumed to be the cost of a payment that is not made on time. We also note that this late charge provision is not intended to provide our clients with a means of financing their bills, and instead we continue to expect and require prompt payment of our billing statements. Termination of Engagement. Either of us can terminate this relationship at any time, but if we find it necessary to terminate the relationship, we will, of course, comply with our ethical obligations to protect your interests in the process of withdrawing. Upon termination of this engagement, you will remain responsible for the payment of all fees and expenses incurred on account of the representation. You also agree that we may apply to the court or other tribunal to withdraw as your counsel in such matter(s) and you hereby consent to such withdrawal and to cooperate fully and promptly in freeing us of any obligation to perform further work, including the execution and delivery of a substitution of attorney form. In addition, you agree to immediately advise the appropriate court or tribunal of replacement counsel. Client Files. At the conclusion of our engagement, upon your request, we will turn over documents in the file(s) for this matter to your custody. If you do not request the file, we will retain it for a period of at least seven (7) years after the matter has concluded. If you do not request delivery of the file before the end of the seven-year period, we will have no further obligation to retain the file and may, at our sole discretion, destroy the file without further notice to you. Tax Reporting and Disclosure. Please be advised that certain federal and state tax laws and regulations may require us to provide information to tax authorities about advice rendered by us. If you have any questions about these requirements, an appropriate member of our tax practice will be pleased to discuss them with you. manatt manatt 1 phelps 1 phillips City of Yakima December 11, 2017 Page 4 Policy Regarding Sarbanes-Oxley Section 307. Please be advised that our firm has a policy regarding compliance with Section 307 of the Sarbanes-Oxley Act of 2002, SEC Release No. 33-8185, 17 CFR, Chapter II, Part 205. A copy of this policy is available for your review upon request. Conflicts of Interest. You understand and acknowledge that while Manatt is representing you, that we may be asked to represent other clients in connection with non - litigation matters adverse to or involving your interests. We represent a large number and variety of clients across a wide array of industries and businesses, including, without limitation, local municipalities. Given the scope of our practice, it is possible that we may be asked to represent, one or more of these other clients in matters adverse to you or your interests. By executing this letter, you acknowledge that we may represent other clients who directly, or through an affiliate, are adverse to you in transactions, negotiations, regulatory, legislative and public policy matters. You hereby acknowledge and agree that you have no objection to our representing such other clients adverse to you or your interests in connection with any matter not directly related to those matters for which we are representing or have represented you, and you waive any conflict of interest that may exist by virtue of any such adverse representation. This consent and waiver does not permit us to use any confidential information obtained during the course of our representation of you in any matter, nor does it extend to our engaging in litigation, arbitration or other formal dispute resolution proceedings adverse to you without your consent. Arbitration of Fee Dispute. By signing this letter, you agree that, in the event of any fee and expense dispute arising out of or relating to this agreement, our relationship, or the services performed, such dispute shall be resolved by submission to binding arbitration pursuant to the Attorney Client Arbitration Board ("ACAB") established by the District of Columbia Bar. The prevailing party in such arbitration shall be entitled to recover from the losing party an amount equal to the reasonable value of the attorney services (including the time of our own attorneys representing us in such dispute) and costs, and the arbitrators shall be authorized to enter such an award in favor of the prevailing party. The value of attorneys' reasonable services shall be calculated on the basis of the attorneys' prevailing hourly rates at the time of the arbitration. We encourage you to contact the ACAB for a copy of the ACAB rules at (202) 737-4700, extension 238 and for counseling and other information pertaining to the process prior to executing this agreement. Attorneys' Fees. In the event a dispute arises between us relating to the amount or payment of our fees, the prevailing party shall be entitled to recover from the losing party the prevailing party's reasonable attorneys' fees, expert fees, expenses, and costs (whether or not such fees, expenses, and costs are recoverable pursuant to the California Code of Civil Procedure) in the arbitration or litigation of such dispute. You agree that, if we represent ourselves in such arbitration or litigation and we are the prevailing party, we shall be entitled to recover the reasonable value of the services of our attorneys representing us in such action (based on their normal billing rates). Absent this agreement, we may be precluded from manatt manatt 1 phelps 1 phillips City of Yakima December 11, 2017 Page 5 recovering attorney's fees unless we retain other counsel to represent us in such action. Retainer. While we are not requiring a retainer at the outset of this engagement, we reserve the right to require a retainer in the future if we determine that circumstances so warrant. However, if there are outstanding fees due us for any other matters we may handle on your behalf, by signing below you acknowledge and agree that we may apply such retainer against any fees. Without limiting the foregoing, we may require retainers in advance to defray charges of third parties engaged by us on your behalf (such as experts, consultants, engineers, litigation support services and foreign counsel), which retainers will be applied to pay such third party charges on a current basis. Except as otherwise agreed by you, any retainers so delivered by you in respect of such third party charges will be applied exclusively to that purpose and not to the payment of our legal fees. As security for the payment of the sums charged to you in connection with our representation, and without prejudice to any other rights, recourse or remedies we may have, you hereby grant us a security interest in and lien upon any retainer funds that we may receive from you. In addition, as to any matters covered by this letter which involve litigation or threatened litigation, or any administrative or alternative dispute resolution proceeding, you hereby grant us a security interest in and a lien upon any sum or sums that may be recovered or received by you or on your behalf (or to which you are, or become, entitled to recover or receive) in connection with such litigation, threatened litigation or other proceeding, from any source or for any reason, including without limitation pursuant to any judgment, arbitration decision, settlement or insurance policy. You expressly authorize us to take appropriate action to perfect these security interests or liens, if necessary, and to resort to such security interests or liens to obtain partial or total satisfaction of any obligation or debt that you may have to us arising from this engagement. You may seek the advice of an independent lawyer of your choice about this lien provision and its consequences. By signing this agreement you acknowledge that you have been advised of the terms of this lien agreement and of your right to consult independent counsel and that you have been given a reasonable opportunity to seek such advice. Wire Transfer. You may remit the retainer, if one is required for this engagement, and any monthly payments to us via wire transfer as follows: Comerica Bank — California 1021 Glendon Avenue Los Angeles, CA 90024 Routing number: 121137522 For credit to the account of Manatt, Phelps & Phillips, LLP Account number: 1890693698 Effective Date. This agreement will not take effect, and we will have no obligation to provide services to you, until you return a signed copy of this agreement but the effective date of this agreement will be retroactive to the date we first provided legal services to you. Even if this agreement is not executed and returned by you, you will be obligated to pay the reasonable value manatt manatt 1 phelps 1 phillips City of Yakima December 11, 2017 Page 6 of any services we may have performed for you at your direction. No modification to this agreement will be effective unless it is in writing and signed by both of you and us. Facsimile signatures are as effective as original signatures. Please confirm your agreement to the terms of this engagement letter by signing and returning this letter at your earliest opportunity. For your convenience, we have enclosed a self-addressed, stamped envelope, or you can return it to me by email as a .pdf attachment, or by fax at 202-585-6600. We appreciate this opportunity to be of service to you. Very truly yours, 0P/42 June L. De art Manatt, Phelps & Phillips, LLP We hereby agree to retain Manatt, Phelps & Phillips, LLP, on the terms described above. By: Its: Dated: 204353200. City of Yakima City Manager CITY CONTRACT NO: �0/.3/ / RESOLUTION NO: dl 1 / 4