HomeMy WebLinkAboutRetainer Agreement with Givens Pursley for New City Hall DesignGIVE . S SLEY I.I.P
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LAW OFFICES Gary G. Allen Franklin G. Lee J. Will Vann
601 W. Bannock Street Kristen A. Atwood David R. Lombardi Conley E. Ward
PO Box 2720, Boise, Idaho 83701 Kelly T. Barbour John M. Marshall Robert B. White
TELEPHONE: 208 388-1200 Christopher J. Beeson Kenneth R. McClure
FACSIMILE: 208 388-1300 William C. Cole Kelly Greene McConnell
WEBSITE: www.givenspursley.com Michael C. Creamer Cynthia A. Melillo Kenneth L. Pursley
Thomas E. Dvorak Christopher H. Meyer RETIRED
Roy Lewis Eiguren L. Edward Miller
Jeffrey C. Fereday Patrick J. Miller Raymond D. Givens
Martin C. Hendrickson Judson B. Montgomery RETIRED
Steven J. Hippler Angela K. Nelson
Debora K. Krislensen Deborah E. Nelson James A. McClure
Anne C. Kunkel W. Hugh O'Riordan, LL. M. RETIRED
Jeremy G. Ladle Bradley V. Sneed
H. Barton Thomas, LL. M.
RECEIVED
Theodore W. Baird, Jr.
Assistant City Attorney
City of Meridian
703 N Main Street
Meridian, Idaho 83642-2300
Re: Retainer Agreement
Dear Ted:
May 31, 2006 JAN d .~ 2006
City Of Meridian
City Clerk Office
Thank you for considering Givens Pursley LLp to represent the City of Meridian (the
"City") on matters related to the design and construction of the riew Meridian City Hall. This
letter, including the enclosed Conflict Waiver Agreement, is our Retainer Agreement with the
City that establishes the scope and terms of our engagement and confirms our mutual
understandings regarding conflicts.
Scope of Work
The City is retaining Givens Pursley LLP to provide legal services in connection the
design and construction of the new Meridian City Hall. Our representation is limited to that
matter unless you ask us to represent you on additional matters, and we have accepted those
additional matters. To allow for efficient tracking of work and fees, we may open additional
matters as specific issues arise. All matters will be subject to this Retainer Agreement unless we
otherwise agree in writing.
I will be the attorney in this firm that is primarily responsible for our representation of the
City and will handle day-to-day management of the representation.
RETAINER AGREEMENT -1
Theodore W. Baird, Jr.
City of Meridian
May 31, 2006
Page 2
General Terms and Conditions
Unless expressly modified by another writing, the following terms and conditions apply
to the relationship between the City and Givens Pursley LLP. The City may terminate its
relationship with the firm unilaterally at any time upon written notice to the firm. Termination
shall not affect your obligation to pay for services rendered prior to that time and/or fees and
costs necessarily incurred by the firm to wind down or hand over the work.
Fees. Givens Pursley LLP calculates fees based upon the hourly rates of the attorneys,
paralegals and other timekeepers who perform professional services for the client. Our fees for
attorneys range from $125 to $275. My current rate is $195 per hour. As your project evolves,
we may involve the assistance of other attorneys in the firm. Billing rates are subject to
adjustment on a semi-annual basis. Any adjustment in the hourly rate or the addition of other
timekeepers will be reflected in the monthly billing statements presented to the client.
Costs. We will bill the City for all costs incurred on its behalf. Costs are subject to
adjustment annually. Any adjustment will be reflected in the monthly billing statements
presented to the client. Our current cost schedule is as follows:
Photocopying $0.15/page for black and white
$0.30/ age for color
Messenger Service $7.50 Downtown Area
$15.00 Up to 20 Miles
$25.00 Over 20 Miles
Westlaw/Lexis Prevailing Rate
Long Distance Telephone Prevailing Rate
Overtime Staff Charges $25.00/hour
Facsimile $5.00 1-5 pages
$10.00 6-19 pages
$20.00 Over 20 pages
Billing Procedures. The firm typically provides monthly billing statements by regular
mail. Unless otherwise directed by you, billing statements will be sent to:
City Attorney's Office
Attn: Theodore W. Baird, Jr.
City of Meridian
703 N Main Street
Meridian, Idaho 83642-2300
RETAINER AGREEMENT - 2
Theodore W. Baird, Jr.
City of Meridian
May 31, 2006
Page 3
The amounts shown on the firm's statements are payable within 30 days after the date of
the statement. Statements that are not paid within 30 days will be assessed a late payment charge
at the rate of one and one-half percent per month (18.0 % per annum) on the unpaid balance.
Conflicts of Interest
As we previously discussed with you, Mayor de Weerd and Council member Keith Bird,
Givens Pursley LLP represents many clients in Idaho, some of which currently, and may in the
future have, interests adverse to the City. Consequently, it is very important that we have a clear
understanding and agreement about conflicts of interest that may arise during our representation
of the City. I have attached a Conflict Waiver Agreement that memorializes the agreement
reached during our prior discussions. Please review the Conflict Waiver Agreement carefully and
bring it to the specific attention of the Mayor and City Council. Please feel free to call me if you
have any questions or concerns about the attached Conflict Waiver Agreement.
We enclose two copies of this Retainer Agreement and the Conflict Waiver Agreement.
If you agree to the representation as described above, please indicate your approval by signing
the acceptance at the bottom of this letter. Please return one copy to me and keep the other for
your file.
We are pleased that you are entrusting your work to this firm and look forward to
working with you.
FGL/ehk
Enclosure
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Fr lin G. Lee
ACCEPTANCE OF RETAINER AGREEMENT
The City of Meridian has read the preceding letter and the attached Conflict Waiver
Agreement, and agrees to the firm's representation on the terms described therein.
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GIVENS PURSLEY LLP
Conflict Waiver Agreement
Our representation of you is governed by the Rule 1.7 of the Idaho Rules of Professional
Conduct.l For your reference, I have attached a copy of Rule 1.7 and its official commentary.
This rule prohibits the firm from representing multiple clients where our representation of one
client would be directly adverse to another client, unless the circumstances are fully explained,
each client expressly waives the conflict with written confirmation, and it was reasonable for us
to ask them to do so. The purpose of this Conflict Waiver Agreement is to memorialize the major
elements of our discussion about conflicts of interest and confirm your agreement to terms in this
Conflict Waiver Agreement.
Direct Conflicts of Interest
The firm is aware of several potential direct conflicts of interest with respect to our
representation of the City. By direct conflicts, we mean situations in which you and another
client have directly conflicting positions or objectives, and our representation of at least one
party involves advocating that position or pursuing that objective. Those direct conflicts include:
• Our representation of United Water Idaho in matters adverse to the City related to
water rights. I understand the City and United Water Idaho have reached a settlement that is
stayed pending resolution of the Snake River Basin Adjudication.
• Our representation of Jim Griffin in a small matter involving a potential
reimbursement claim for approximately $1,492.40.
• Our representation of a variety of clients in development, zoning, licensing,
permitting and many other matters. Currently, we have several clients with matters pending, or
soon to be pending, before the City or adverse to the City. To zealously represent those other
1 Rule 1.7 of the Idaho Rules of Professional Responsibility (effective July 1, 2004) provides:
RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists i£
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by
the lawyer's responsibilities to another client, a former client or a third person or by the personal
interests of the lawyer, including family and domestic relationships.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
CONFLICT WAIVER AGREEMENT = 1
clients, lawyers of this firm may help those clients appeal or otherwise contest decisions made by
the City staff, City Planning and Zoning Commission or City Council. Such appeals maybe
through the City's internal process or through the judicial system. Further, we may be required
to take legal or other action against the City in other forums and required to zealously represent
the interests of those other clients.
We request your consent for lawyers from this firm, including me, to represent other
clients on matters that may be directly adverse to the City's interests, including those clients and
matters identified above, so long as the matter is unrelated to the design or construction of the
new Meridian City Hall.
Indirect Conflicts of Interest
It is possible that the interests of the City and those of our other clients could be at odds
on matters not directly related to our representation of the City. You should be aware that the
firm's lawyers are engaged in matters on behalf of many clients in different industries or sectors
This includes, among others, businesses and industries of all types and governmental entities at
all levels, as well as other public and quasi-public entities. We represent these persons and
entities in private transactions as well as matters before courts, agencies, regulatory and
governmental bodies, and state and federal legislatures. Consequently, the firm's lawyers are
frequently engaged in a variety of public policy, regulatory and legislative matters with broad
implications.
Consequently, it is likely that we may now or in the future represent other persons or
entities in the City's industry or business. In some cases, this may include the City's direct
competitors. It might also include those with whom the City has commercial, financial,
regulatory or other relationships.
It is possible that something we do on behalf of one client might have implications or
repercussions for your business. There could be instances in which we pursue a policy issue or
legal precedent on behalf of one client that you might not consider favorable or desirable.
Because these types of indirect conflicts do not involve direct adversity of representation,
they may in some cases fall outside the definition of conflicts under the Idaho Rules of
Professional Conduct.2 In any event, we want you to clearly understand and agree that, under
this Conflict Waiver Agreement, we are not barred from having this sort of indirect conflict
between you and our other clients so long as we do not represent both of you with respect to a
specific matter in conflict.
z The official comment number 6 to Rule 1.7 of the Idaho Rules of Professional Conduct provides: "On the
other hand, simultaneous representation in unrelated matters of clients whose interests are only economically
adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the respective clients."
CONFLICT WAIVER AGREEMENT - 2
Future Conflicts of Interest
In general, future conflicts of interest maybe waived if the client reasonably understands
the material risk that the waiver entails.3 Such waivers are particularly likely to be effective if
the client is (i) an experienced user of the legal services involved, (ii) reasonably informed of the
risk that a conflict may arise, and (iii) independently represented by other council in giving the
consent and the consent is limited to future conflicts unrelated to the subject of this
representation. The circumstances of the City's consent squarely fit the elements above. The
City is an experience user of a broad range of legal services, including legal services related to
design and construction issues. Through our discussions and the City's own knowledge, the City
is well informed that a wide range of conflicts are expected to arise during our representation.
The City is well informed of the risks associated with the conflicts that may arise. For example,
the City is aware that this firm may give the City advice on matters within the scope of our
representation and then, on the same day, zealously advocate against the City's interest on behalf
of another client. In giving its consent, the City has been independently represented and advised
by its own in-house counsel. Finally, the City's consent is limited to future conflicts unrelated to
the subject matter of this representation, i.e., conflicts unrelated to the design or construction of
Meridian City Hall.
We request your consent for lawyers from this firm, including me, to represent other
clients on future matters that may be directly adverse to the City's interests, including those
clients and matters identified anywhere in this Conflict Waiver Agreement, so long as the matter
is unrelated to the design or construction of the new Meridian City Hall.
As stated in the Retainer Agreement, you may end our legal representation of you at any
time. However, by entering into the Retainer Agreement, you agree not to object to our
representation of other existing or future clients unrelated to the subject of this representation.
In the event a conflict emerges in the future between you and another client of the firm
that is unrelated to our representation of you, but which is unacceptable to you, to the other
client, or to this firm, we reserve the right to terminate our representation of you and to continue
to represent the other client.
Because this firm's representation of the City is limited in scope, we will not be in a
position to detect every situation that may raise concerns about future potential conflicts of
interest. Therefore, we ask you to notify us of any concerns that may come to your attention
about the appropriateness of any present or future conflict of interest. Likewise, we will notify
you if we become aware of any circumstances that may raise a conflict of interest concern.
s Please see official comment 22 to Rule 1.7 of the Idaho Rules of Professional Conduct.
CONFLICT WAIVER AGREEMENT - 3