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HomeMy WebLinkAbout5919 "�' �`� OGDEN MURPHY WALLACE,PLLC T 206 4477000 OMWLAW.COM (-EHt) ry t l E1\1 901 FIFTH AVENUE,SUITE 3500 F 206 4470215 Iv]`�,.�J+LJ F-I r SEATTLE,WA 98164-2008 WA LLACE N 1 ' ` W. SCOTT SNYDER ssnyder@omwlaw.corn EMAIL roger.lubovich@ci.bremerton.wa.us AND REGULAR MAIL February 10,2020 Roger A. Lubovich, City Attorney CITY OF BREMERTON Norm Dicks Government Center 345 6th St., Suite 100 Bremerton, WA 98337-1891 RE: Addendum to Engagement Letter Brother Don's Bar& Grill Dugout Sports Bar& Grill Dear Mr. Lubovich: Thank you for engaging our firm to represent the City of Bremerton with regard to the prosecution of Brother Don's Bar & Grill and the Dugout Sports Bar & Grill — Memorandum Decision of February 3,2020. This letter supplements an engagement letter and standard terms and conditions of February 8, 2019. Unless specifically addressed in this letter, the underlying terms of the engagement letter remain in full force and effect. EXPANSION OF SCOPE OF REPRESENTATION You have requested that we advise and assist with regard to the valuation and potential appeal of a Memorandum Order bythe Honorable Jeffrey J. Jahns dated February 3, 2020. My present billing rate for this matter and for work performed by other member attorneys will be $350 per hour. Associate attorney billing rates for the matter are$270 per hour. These rates will not apply to any litigation-related legal services, and upon request for litigation or appellate-related legal services, a rate of$380 per hour will apply for members and$275 per hour for associates. Ogden Murphy Wallace will not bill the City of Bremerton in excess of$15,000 in 2020 for work related to this matter unless given express written authority from the City. In all other respects our engagement will comply with the terms and conditions set forth in our letter of February 8, 2019 and attached standard terms and conditions. {WSS2087411.DOCX;1/13127.900000/} Roger Lubovich February 10, 2020 Page 2 If you wish us to proceed,please execute a copy of the signature page of this letter and return it to me electronically. We look forward to working with you. As noted, legal services in this matter will be primarily performed by myself and by Daniel Kenny of our firm. Very truly yours, OGDEN MURPHY WALLACE, PLLC W. Scott Snyder WSS/gjz I have read and agree to the terms and conditions set forth this letter. Date: F�+5 i 1 j 2--U z .Q4— ---- Roser Lubovich, City Attorney City of Bremerton {WSS2087411.DOCX;1/13127.900000/} OLDEN MUPPHY WALLACE ATTORNEYS OGDEN MURPHY WALLACE, PLLC T205447.7000 OMWLAW.COM 901 FIFTH AVENUE, SUITE 3500 F 206 447.0215 SEATTLE, WA 98164-2008 ELANA R. ZANA 206.442.1308 ezana@omwlaw.com February 8, 2019 VIA DOCUSIGN EMAIL & US MAIL Roger Lubovich, City Attorney City of Bremerton 3456 th Street, Suite 100 Bremerton WA 98337 Re: Engagement Letter Telecommunications Legal Advice Dear Mr, Lubovich: Thank you for engaging our firm to represent the City of Bremerton. The purpose of this letter is to confirm that we will provide telecommunications related legal services to the City of Bremerton and to describe how our services will be provided. I will be your primary contact here at the firm for legal matters, but you should always feel free to contact any of the other attorneys that may work on your matter. Terms of Engagement In our representation of clients, we think it is critical that our clients and the firm share the same understanding of the attorney-client relationship. To that end, enclosed is a copy of our Terms of Engagement. This engagement letter and the enclosed standard Terms of Engagement set forth our agreement with the City of Bremerton. Please review them carefully and if you understand and agree to both documents, please sign this letter where indicated and return it to us. You can sign it and return it to us via DocuSign, email, or U.S. Mail. The DocuSign or email of your signatures will be binding. Please let us know if you have any questions or comments regarding our relationship. Legal Fees You will be billed for our services on an hourly basis. There may be some activity that we can do on a flat fee basis, in which case we would have to specifically discuss and agree on that. My present billing rate for this matter and for work performed by other member attorneys is $365.00 per hour. Associate attorney billing rates for this matter are $285.00 per hour. These rates will not apply for litigation related legal services, upon request for litigation -related legal services we will apply a special rate of $400 per hour for members and $300 per hour for associates. Ogden Murphy Wallace shall not bill he City of Bremerton in excess of $15,000.00 in 2019 for work related to this matter, unless given express authority from the City. {E RZ1866355. DOCX;1/98100.000005/ 1 Roger Lubovich February 8, 2019 Page 2 Advance Fee Deposit To Commence Representation We are waiving our customary advanced fee deposit for this matter. Supervising Attorney and Assistance As supervising attorney, I will be responsible for seeing that the work is carried out in an efficient and economical manner. 1 may be assisted by other attorneys and legal assistants in our office. They are all bound to you by the same duties of loyalty and confidentiality that bind me. Scope of Services Based upon our discussion of your legal matters, you agreed that we should undertake the services described in this letter and as are reasonably required, which represents the full scope of the services we have agreed to perform at this time pursuant to this Engagement Letter: Telecommunications legal advice. We appreciate your expression of confidence in Ogden Murphy Wallace, P.L.L.C. and would like to assure you that we will do our best to provide you with high quality legal services. If you have any questions or concerns during the course of our relationship, we encourage you to raise them with our Managing Member, Geoff Bridgman, or me. We look forward to working with you. Yours sincerely, Ogden Murphy Wallace, PLLC Elana R. Zana Enclosure cc: Accounting (ERZ1866355.DOCX;1/98100.000005/ ) Roge,Lubovch February 8,2O18 Page THE FOREGOING LETTER AND THE ENCLOSED STANDARD TERMS OF ENGAGEMENT ARE UNDERSTOOD ANDAG By: Title: (ExZ1866355.00m;1/98100.000005/} Roger Lubovich February 8, 2019 Page 4 OGDEN MURPHY WALLACE, P.L.L.C. STANDARD TERMS OF ENGAGEMENT General Rates The usual basis for determining our fees is the time expended by attorneys, paralegals and legal assistants of the firm. The rates for our services may change from time to time without notice, usually in September. Our current rate schedule is always available upon request. Whenever it is appropriate, we will use associate attorneys, law clerks or legal assistants in our office to keep your costs as low as possible. Other Factors in Rates Although time expended and costs incurred are usually the sole basis for determining our fees, by mutual agreement billings to you for legal services may, in some instances, be based on a more comprehensive evaluation of the reasonable value of the firm's services. The firm is committed to charging reasonable fees for its services. In certain situations, factors other than the amount of time required will have a significant bearing on the reasonable value of the services performed. Such factors include: the novelty and complexity of the questions involved; the skill required to provide proper legal representation; familiarity with the specific areas of law involved; the preclusion of other engagements caused by your work; the magnitude of the matter; the results achieved; customary fees for similar legal services; time limitations imposed by you or by circumstances; and the extent to which office forms and procedures have produced a high quality product efficiently. In circumstances where our fees will be based on or include factors other than our normal hourly charges and costs, we will notify you promptly and prior to proceeding. Any basic document fee that we may charge in your business matters has been and will be set in light of these various factors. Billine Fees and Costs We will bill you on a regular basis, normally each month, for all the time spent on your project and for other costs incurred relating to our work or on your behalf. The activities for which our time will be billed will include: conference time, whether in person or on the telephone; document preparation and revision; negotiations; correspondence; staff or attorney supervision; factual and legal research and analysis; travel on your behalf; and other matters directly pertinent to and related to your business and/or litigation matters handled by our firm. Typical of the costs for which you will be billed would be: filing fees; delivery fees; computer assisted legal research; copying; imaging; charges of outside experts and consultants; and travel. Payment; Interest You agree to make payment within thirty (30) days of receipt of our monthly statement. Outstanding balances that are not paid when due will accrue interest at the rate of one percent compounded monthly from the date of invoice until paid. Advance Fee Deposit {ERZ1866355.DOCX;1/98100.000005/ 1 Roger Lubovich February 8, 2019 Page 5 New clients are usually requested to provide an advance fee deposit to the firm. The advance fee deposit is placed in a trust account as described below, and fees and expenses for legal services are then charged against the account. Paying an advance fee deposit does not relieve the client's obligation to pay monthly invoices. If an invoice remains unpaid after 15 days, the firm reserves the right to apply the advance fee deposit to the unpaid balance and require an additional advance fee deposit before commencing further work. At the conclusion of our legal representation or at such time as the deposit is unnecessary, the remaining balance or an appropriate part of it will be returned to you. Trust Deposits All trust deposits from you will be held in a client trust account. By court rule in Washington, funds deposited to a trust account are subject to IOLTA (Interest on Lawyers Trust Account) participation in a pooled trust account. The exception is when the deposit is large enough to earn interest in excess of bank and administrative costs, and you request that it be held in a separate account, in which case the interest earned will be added to the deposit for your benefit and will be taxable income to you. IOLTA funds are used to support law-related charitable and educational activities. Termination You may terminate our representation at any time, with or without cause, by notifying us. Upon such action, all fees and expenses incurred before the termination are due to the firm. If such termination occurs, your original papers will be returned to you promptly upon receipt of payment for outstanding fees and costs. If you wish to have a paper or electronic copy of your file at the conclusion of our representation, we will provide it to you at the current copy rate per page then in effect at this firm. Estimates You may, from time to time, ask us for estimates of our fees and expenses either in whole or in part. We are hesitant to give estimates because of their potential inaccuracy. However, if you require it, and if we do provide you with such estimates, they will be based upon our professional judgment, but always with a clear understanding that it is not a maximum or fixed fee quotation. We cannot guarantee that the actual fees and expenses will be at or below the estimates because of factors outside the control of the firm. Confidentiality and Electronic Communications We owe a duty of confidentiality to all of our clients. Accordingly, you acknowledge that we will not be required to disclose to you, or to use on your behalf, any information in our possession with respect to which we owe a duty of confidentiality to another current or former client. As part of our work for you, we may transmit information by email, cellular telephones, voice over Internet and electronic data/document web sites and other means of electronic communication. If you need to have any information relating our work for you encrypted prior to transmission, let us know prior to any electronic communications. In the absence of a specific request for encryption, we do not regularly encrypt our communications. By agreeing to engage us as your attorneys, you consent to the use of these communication methods. Dispute Resolution {ERZ1866355.DOCX;1/98100,000005/) Roger Lubovich February 8, 2019 Page 6 If you disagree with the amount of our fee, please take up the question with your principal attorney contact or with the firm's managing member. Typically, such disagreements are resolved to the satisfaction of both sides with little inconvenience or formality. Any disputes relating to these Terms of Engagement or the accompanying engagement letter (collectively this "agreement") or the amount of legal fees related thereto, will be submitted to arbitration through the American Arbitration Association (the "AAA") in Seattle, Washington, according to its then -effective rules, and Ogden Murphy Wallace, P.L.L.C. and you agree to be bound by the results of such arbitration. Please be aware that by agreeing to arbitration, you are waiving the right to a trial by jury and your right to appeal, that the arbitrator will be bound by the AAA rules and not by state orfederal law, and that discovery will be limited to what is allowed underthe AAA rules. Arbitration fees and expenses shall be borne equally by the parties. In the event of non-payment such that we have to pursue collection of your account, you agree to pay the costs of collecting the debt, including court costs and fees, and a reasonable attorney's fee. Withdrawal We reserve the right to withdraw from representing you if, for any reason, our fees are not timely paid in accordance with this agreement, or for any other appropriate reason, as determined by the firm in accordance with applicable law and the Rules of Professional Conduct. Disclaimer You acknowledge that we have made no guarantees regarding the disposition, outcome, or results of your legal or business matters, and all expressions we have made relevant thereto are only our opinions as lawyers based upon the information available to us at the time. Our beginning work on your behalf will constitute your acceptance of this agreement unless we receive a written objection from you within ten (10) days of the date of the accompanying engagement letter. Independent Advice Since the Engagement Agreement is legally binding and affects your legal rights, you may wish to seek the advice of independent counsel prior to executing it. Conclusion Thank you for retaining our firm. We look forward to working with you. iERZ1866355.DOCX;1/98100.000005/ I DocuSign Envelope ID: OEBCED05-F419-4A8E-8512-4DCOC13136BB DE V UFIPHY L 1� AU OGDEN MURPHY WALLACE, PLLC T 206.447.7000 OMWLAW.COM 901 FIFTH AVENUE, SUITE 3500 F 206.4470215 SEATTLE, WA 98164-2008 ELANA R. ZANA 206.442.1308 ezana@omwlaw.com February 7, 2019 VIA EMAIL TO: AMANDA. HARVEY@CI.BR EMERTON.WA.US Amanda Harvey Assistant City Attorney, City of Bremerton 3456 th Street, Suite 100 Bremerton, WA 98337 Re: Conflict Waiver Dear Ms. Harvey: It is our understanding that the City of Bremerton desires to enter into an interlocal agreement for the implementation of an outreach program to divert individuals with behavioral health issues from involvement in the criminal justice system ("Behavioral Health Outreach Navigator Program") with the City of Poulsbo. Ogden Murphy Wallace ("OMW") provides general legal services as the City Attorney to the City of Poulsbo, including with regard to the Behavioral Health Outreach Navigator Program, and has been asked by the City of Poulsbo to assist with review and negotiation of the interlocal agreement between the City of Bremerton and the City of Poulsbo. The purpose of this letter is to let you know of a potential conflict of interest because of our relationships with both the City of Poulsbo and the City of Bremerton, and that we are requesting waivers of this potential conflict from both the City of Poulsbo and the City of Bremerton. Under Rule 1.7 of the Rules of Professional Conduct ("RPCs"), a lawyer may not represent a client if the representation of that client will be directly adverse to, or may be materially limited by the lawyer's responsibilities to another client, unless the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, and 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. Additionally, each affected client must provide informed consent to the representation in writing, following authorization from the other client to make any required disclosures. Due to our representation of the City of Bremerton, our representation of the City of Poulsbo could be considered directly adverse to the City of Bremerton. Although this poses a concurrent conflict of interest under the RPCs, we reasonably believe that OMW will be able to provide competent and (ERZ1864719.DOCX;1/98100.000005/ ) DocuSign Envelope ID: OEBCED05-F419-4A8E-8512-4DCOC13136BB Amanda Harvey February 7, 2019 Page 2 diligent representation to the City of Bremerton in connection with telecommunications and other rights of way matters, since our representation of the City of Bremerton is wholly unrelated to the Behavioral Health Outreach Navigator Program. Under Rule 1.6 of the Rules of Professional Conduct, a lawyer shall not reveal confidences or secrets relating to the representation of a client without the prior written consent of the client, unless disclosure is impliedly authorized in order to carry out the representation. None of the information OMW has from the City of Bremerton concerning the telecommunications and rights of way matters have any relevance to OMW's representation of the City of Poulsbo with regard to this interlocal agreement. Nor is there any information that we anticipate gaining in connection with our representation of the City of Poulsbo with regard to the Behavioral Health Outreach Navigator Program that is expected to have any relevance to our representation of the City of Bremerton. More importantly, we do not anticipate obtaining any confidential information that would have any relevance in our representation of either party. In summary, despite the conflict of interest posed with regard to our representation of the City of Poulsbo and the City of Bremerton, we reasonably believe that we will be able to provide competent and diligent representation to both parties in their current and future unrelated matters. Elana Zana and Scott Snyder both provide services to the City of Poulsbo, including with regard to the Behavioral Health Outreach Navigator Program, however, they will not be providing assistance to the City of Poulsbo with regard to this interlocal agreement with the City of Bremerton. We are unaware of any law or regulation that would prohibit our representation of the City of Poulsbo with regard to the interlocal agreement or the Behavioral Health Outreach Navigator Program and with the City of Bremerton with regard to telecommunications and rights of way matters. Furthermore, OMW's representation of the City of Poulsbo in this matter does not involve the assertion of a claim by either party against the other. Finally, by this and a similar message to the City of Poulsbo, we are seeking the informed consent of both the City of Poulsbo and the City of Bremerton to our representation of the City of Poulsbo with regard to the interlocal agreement between the parties. This letter discloses to you the facts of which we are presently aware in connection with this conflict. If, however, you need additional information, provided the City of Poulsbo consents to the disclosure, we will promptly provide it. If you believe any statements of fact or analysis herein to be incorrect in whole or in part, please let me know immediately. Please indicate your consent to waive the potential conflict of interest described in this letter by signing the letter below and returning it to me (in the alternative, you may respond via e-mail). If you have any questions about this, please call or e-mail. Thank you for your time and consideration of this matter. Best regards, OGDEN MURPHY WALLACE, P.L.L.C. 0oou31omA 6y: 71®85677EA��4C7... Elana R. Zana {ERZ1864719.DOCX;1/98100.000005/ } ovouSignEnvelope ID: neens000-F41o4Aus-8u10-4000c1o1omae Amanda Harvey February 7,2U1Q Page I HEREBY WAIVE the conflict of interest as set forth above. (sxZ1uaw1o.uocx1/9umuououo5/)