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FY2000-03 Counsel Arbitration ServicesKodiak Island Borough AGENDA STATEMENT Meeting of.- February 3, 2000 ITEM N0. 13.A.1 Contract No. 2000-03 Contract No. 2000-03 Legal Counsel Retainer Agreement for Arbitration Proceedings. This contract for retainer is with the law firm of Davis Wright Tremaine. Borough attorney Matt Jamin represents that his firm has a conflict of interest in representing the Borough manager in arbitration in the mater of the dismissal of Borough employee Chris Lynch. The Borough insurer AMUJ1A will cover costs associated with the arbitration at 50% not to exceed $10,000. The estimated total costs for the legal services is between $7,500 and $15,000. FISCAL NOTES KIB minimum KIB maximum $3,750 $7,500 ACCOUNT NO: APPROVAL FOR AGENDA: `r \fi A �P ,/ V t JAMIN, EBELL, SCHMITT & MASON A ry1p 91p GORFOINTION ANCHORAGE OFFICA: ATTORNEYS AT LAW 12001 iTKER.suRS 704 729 CAROLYN STREET ANCNORA9E. AWKA 99601 MATTHEW D. JAMIN KODIAK. ALASKA 99616 TLLEMHONE: (9071 278-6100 ATTORNEY AT LAW SEATTLE OFFICE ADMITTED TO ALASKA BAR - TELEPHONE: E: 68-6024 L ING 700 MUTGas E-MAIL: ilECC6i6i01C9Q.0061 907) 4 FACSIMILE; (9O7) 466-6112 604 MR Ava"Ut IIHINIIff mm" iGTTL[. WA9NIN9MN 90106 1 TELVNONL (206)622-7636 REPLY TO KOJAK OFFICE FACBIMjM (2051 623-7621 January 31, 2000 DELIVERY VIA FAX (907) 257-5399 and EXPRESS MAIL [ �(%I'vlD I s Parry E. Grover 4 Davis Wright Tremaine p s— 2 W i 701 West Eight Avenue, Suite 800 Anchorage, AK 99501 Re: Kodiak Island Borough and Chris Lynch ( �: r" Dear Parry: As I indicated last week when I was with you in Anchorage, Kodiak Island Borough would like to retain you and your firm to assist with arbitration proceedings initiated by Chris Lynch in connection with the termination of her employment on January 6, 2000. Before then, Ms. Lynch served as Director of the Kodiak Island Borough Engineering and Facilities Department. Though our firm normally serves as counsel to the borough, I've made a decision that we should not work any further on this case because both Chris and I serve as officers of a non-profit corporation, Threshold Services, Inc., here in Kodiak (Chris is secretary and I am president). You should communicate directly with Kodiak Island Borough's manager, Dave Jensen on this matter, though we will certainly act to get you all the information and documents within our control to assist with the transition in counsel. I know Dave is hopeful that Davis Wright will be willing to bill this matter at $150 per hour for your time; that is the rate at which we would have billed on this matter had we been able to proceed. You should also know that Borough Assembly permission must be secured for any expenditures in excess of $5,000, so I expect that the assembly will have to (and of course will ) approve your retention at its next meeting. Thank you again for your willingness to help. The enclosures consist of the following items: Tab Date 01/06/00 01/12/00 Document Description Termination letter Letter from Chris Lynch regarding the attachments Letter to Parry E. Grover January 31, 2000 Page 2 of 3 Tab Date Document Description III 01/19/00 Letter from Alan Schmitt to Chris Lynch IV Pages 1-51 of the KIB Personnel Manual V 01/24/00 Notice of Non -Monetary Determination A-1 06/20/95 Agreement for Engineering Services (CH2M Hill, Inc.) with Exhibit A - KIB Scope of Work dated June 12, 1995 Exhibit B - CH2M Hill, Inc. Cost Schedule Exhibit C - CH2M Hill, Inc. Hourly Fee Schedule (Contract No. C95-17) A-2 10/03/97 Addendum No. 1 - Agreement for Engineering Services with Exhibit D - Scope of Work dated September 16,1997 (Contract No. C95 -17A) A-3 12/21/98 Contract Change Order No. 2 - Contract No. 95-17B A-4 06/23/99 Two Letters from State of Alaska to Linda Freed, Interim Manager Re: Change Orders A-5 10/14/99 Letter from State of Alaska to Dave Jensen, Manager Re: Eligibility Determination B-1 05/07/98 Agenda Statement Re: Contract No. 98-16 - Stage 1 Closure; Regular Assembly Meeting Minutes dated May 7, 1998; and Section 00700 General Conditions B-2 05/22/98 Owner -General Contractor Agreement (No. 98-16) and Notice of Intent to Award B-3 12/16/99 Agenda Statement Re: Proposed Change Order No. 3 to Contract No. 98-16 and attachments 05/20/99 Regular Assembly Meeting Minutes 05/13/99 Assembly Work Session Notes 05/20/99 Agenda Statement Re: Proposed Change Order No. 2 to Contract No. 98-16A and attachments 09/30/98 Contract Change Order No.1 to Contract No. 98-16 and attachments B-4 01/03/00 Memorandum from Chris Lynch to Dave Jensen, Manager Re: Change Order No. 3 - KIB Landfill; Same memorandum except a paragraph was added Letter to Parry E. Grover January 31, 2000 Page 3 of 3 Tab Date Document Description A Employee Notices and Policy ChangestTraining Material B Awards/Certificates of Training C Evaluations (01/30/98 - 0730/98) and (01/30/98 - 01/30/99) D Personnel Action Forms/Notes E Employee Applications and Letters to Borough Supervisor and 09/02/99 Emergency Contact Information F Employment History with Borough Re: Pay and Position Dave Jensen's Notes and copy of KIBC 3.16. 100 2 12/02/99 Regular Assembly Meeting Minutes 11/16/99 Special Assembly Meeting Minutes 11/11/99 Special Assembly Meeting Minutes 10/21/99 Regular Assembly Meeting Minutes 09/28/99 Regular Assembly Meeting Minutes 09/23/99 Assembly Work Session Notes 09/02/99 Regular Assembly Meeting Minutes 08/31/99 Assembly Work Session Notes 08/16/99 Assembly Work Session Notes 07/15/99 Regular Assembly Meeting Minutes 05/25/99 Assembly Work Session Notes 07/06/98 Assembly Work Session Notes 06/22/98 Assembly Work Session Notes 3 12/30/99 Facsimile from Jim Graham (AK Construction) to Dave Jensen (Manager) Re: Kodiak Landfill Sincerely yours, JAMIN, EBEI,I„ SCHMITT & MASON Matthew D. Enclosures cc: David Jensen, Kodiak Island Borough Manager / Gary Stevens, Kodiak Island Borough Mayor 470M a.OM Davis Wright Tremaine LLP ANCHORAGE BELLEVUE BOISE CHARLOTTE HONOLULU LOS ANGELES NEW YORK PORTLAND RICHLAND SAN FRANCISCO SEATTLE WASHINGTON. D.C. SHANGHAI PARRY GROVER SUITE 800 TEL (907) 2575000 Direct (907) 257.5741 701 WEST EIGHTH AVENUE FAX (907) 257-5799 parrygrover®dwt.Com ANCHORAGE, AK 99501.0408 Ww W.dwt.com February 4, 2000 Mr. David A. Jensen Manager Kodiak Island Borough 710 Mill Bay Road Kodiak, AK 99618 Dear Mr. Jensen: FEB KIB DIED Thank you for selecting Davis Wright Tremaine LLP to represent you in certain legal matters. This letter confirms our representation of the Kodiak Island Borough (the "Borough"). Scope of Representation. We understand that we will be representing the Borough in the Chris Lynch arbitration regarding termination of her employment with the Borough earlier this year. Based on our discussions to date, we expect that our services will include defense of the Borough in the arbitration proceedings and legal advice regarding same. Engagement Terms. At Davis Wright Tremaine LLP, we believe it is essential that our clients and we have the same understanding of the client -attorney relationship. With this in mind, enclosed for your review is a copy of our Standard Terms of Engagement for Legal Services, which describes in greater detail the basis on which we provide legal services to our clients. As supplemented by this letter, the Standard Terms of Engagement comprises our engagement agreement. Therefore, we ask that you review it carefully and contact us promptly if you have any questions about our relationship. Legal Fees. Fees for services are based on a variety of factors including, for example, time and effort involved, the experience of those doing the work, the complexity of the matter, and the amount II Mr. David A. Jensen February 4, 2000 Page 2 involved. Of these and other considerations, the time devoted and the experience of those providing the services will be given the most weight. For example, my regular rate is $245.00 per hour. As you know, Matt Jamin requested that I discount my hourly rate. I discussed his request with the Partner -In -Charge of our Anchorage office. He authorized me to reduce my rate to $175.00 per hour for this case. We are pleased that you are entrusting your work to us, and we will do our best to provide you with prompt, high quality legal counsel. It is important for us to know how our clients feel about the services we provide. If you ever feel that we are not meeting this commitment or you have other questions about our relationship, please do not hesitate to call me or our Anchorage Partner -in -Charge, David W. Oesting. We look forward to serving you. Very truly yours, DAVIS WRIGHT TREMAINE LLP Garr Encl. cc: Central Records David W. Oesting Anchorage Office 701 W. 8th Avenue. Suite 800 Anchorage, Alaska 99501.3048 (907)257-5300 Davis Wright Tremaine LLP Bellevue Office 1800 Bellevue Place 10500 N.E. 8th Street Bellevue, Washington 98004-4300 (425) 646-6100 Standard Terms of Engagement Boise office for Legal Services 877 West Main Street, Suite 604 Boise, Idaho 83702-5858 (208)338.8200 Charlotte Office 200 Providence Road, suite 200 This statement sets forth the standard terms of our Charlotte. North Carolina 28207.1418 engagement as your lawyers. Unless modified in writing (704)332-0800 by mutual agreement, these terms will be an integral part Honolulu once 1360 Pauahi Tower of our agreement with you. Therefore, we ask that you 1001 Bishop Street review this statement carefully and contact us promptly if Honolulu, Hawaii 96813-3429 (909) 538-3360 you have any questions. We suggest that you retain this Las Angeles Office statement in your file. 1000 Wilshire Boulevard. Suite 600 Los Angeles, California 90017-2463 (213)633-6800 New York Office The Scope of Our Work 1740 Broadway New York, New York 10019-4315 (212)489.8230 You should have a clear understanding of the legal Portland Office services we will provide. Any questions that you have 1300 S.W. Fifth Avenue, Suite 2300 should be dealt withrola tl p p y' Portland. Oregon 97201.5682 (503) 241-2300 We will at all times act on your behalf to the best of Richland Office 601 Williams Blvd, Suite 3A our ability. Any expressions on our part concerning the Richland. Washington 99352-3258 outcome of your legal matters are expressions of our best (509)943-7700 professional judgment, but are not guarantees. Such San Francisco Office one Embarcadero Center, Suite 600 opinions are necessarily limited by our knowledge of the San Francisco. California 94111-3834 facts and are based on the state of the law at the time they (415) 276.6500 are expressed. Seattle Office 2600 Century Square It is our policy that the person or entity that we 1501 Fourth Avenue Seattle. Washington 98101-1688 represent is the person or entity that is identified in our (206) 622-3150 engagement letter and does not include any affiliates of Shanghai Office such person or entity (L4., if you are a corporation or Suite 450 Fast Tower ShanghaiCentm partnership, any parents, subsidiaries, employees, 1376 Nanjing xi Lu officers, directors, shareholders or partners of the Shanghai. China 200040 011-8621-6279-8560 corporation or partnership, or commonly owned Washington, D.C. Office corporations or partnerships; or, if you are a trade 1155 Connecticut Ave. N.W.. Suite 700 association, any members of the trade association). Washington. D.C. 20036 (202)508-6600 Website: hitp://www.dwt.com 10;98 Accordingly, for conflict of interest purposes, we may represent another client with interests adverse to any such affiliate without obtaining your consent. It is also our policy that the attorney-client relationship will be considered terminated upon our completion of any services that you have retained us to perform. If you later retain us to perform further or additional services, oui attorney-client relationship will be revived subject to these terms of engagement, as they may be supplemented at that time. Who Will Provide the Legal Services Customarily, each client of the firm is served by a principal attorney contact. The principal attorney should be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of principal attorney at any time. Subject to the supervisory role of the principal attorney, your work or parts of it may be performed by other lawyers and legal assistants in the firm. Such delegation may be for the purpose of involving lawyers or legal assistants with special expertise in a given area or for the purpose of providing services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of those attorneys and legal assistants who work on your matters. How Fees Will Be Set In determining the amount to be charged for the legal services we provide to you we will consider: - The time and effort required, the novelty and complexity of the issues presented, and the skill required to perform the legal services promptly; - The fees customarily charged in the community for similar services and the value of the services to you; -The amount of money or value of property involved and the results obtained; The time constraints imposed by you as our client and other circumstances, such as an emergency closing, the need for injunctive relief from court, or substantial disruption of other office business; The nature and longevity of our professional relationship with you; The experience, reputation and expertise of the lawyers performing the services; The extent to which office procedures and systems have produced a high-quality product efficiently. Among these factors, the time and effort required are typically weighted most heavily. We will keep accurate records of the time we devote to your work, including conferences (both in person and over the telephone), negotiations, factual and legal research and analysis, document preparation and revision, travel on your behalf, and other related matters. We record our time in units of tenths of an hour. The hourly rates of our lawyers and legal assistants have an important bearing on the fees we charge. These rates are adjusted annually to reflect current levels of legal experience, changes in overhead costs, and other factors. We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. Whenever possible, we will furnish such an estimate based upon our professional judgment. but always with a clear understanding that it is not a maximum or fixed -fee quotation. The ultimate cost frequently is more or less than the amount estimated. For certain well-defined services (for example, a simple business incorporation), we will quote a flat fee. It is our policy not to accept representation on a flat -fee basis except in such defined -service areas or pursuant to a special arrangement tailored to the needs of a particular client. In all such situations, the flat fee arrangement will be expressed in a letter, setting forth both the amount of the fee and the scope of the services to be provided. In undertaking representation of a client with a personal injury or wrongful death claim, we will, in appropriate circumstances, provide legal services on a contingent fee basis. Any such contingent fee arrangement must be reflected in a written contingent fee agreement approved by our contingent fee review committee. Additional Charges Typically, we will charge our clients not only for legal services rendered, but also for other ancillary services provided. Examples include charges for long- distance telephone calls, in-house messenger deliveries, computerized research services, and the use of our facsimile and photocopy machines. While our charges for these services are measured by use, they do not, in all instances, reflect our actual out-of-pocket costs. For many of these items, the true cost of providing the service is difficult to establish. While we are constantly striving to maintain these charges at rates which are lower than those maintained by others in our markets, in some instances, the amounts charged exceed the actual costs to the firm. We would be pleased to discuss the specific schedule of charges for these additional services with you and to answer any questions that you may have. If you would prefer, in some situations we can arrange for these ancillary services to be provided by third -parties with direct billing to you. Retainer and 'rust Deposits New clients of the firm are commonly asked to deposit a retainer with the firm. If you deposit a retainer with us, you grant us a security interest in that deposit. Typically, the retainer is equal to the fees and costs likely to be incurred during a two-month period. Unless otherwise agreed, the retainer deposit will be credited toward your unpaid invoices, if any, at the conclusion of services. At the conclusion of our legal representation or at such time as the deposit is unnecessary or is appropriately reduced, the remaining balance or an appropriate part of it will be returned to you. If the retainer deposit proves insufficient to cover current expenses and fees on at least a two-month basis, it may have to be increased. Deposits which are received to cover specific items will be disbursed as provided in our agreement with you, and you will be notified from time to time of the amounts applied or withdrawn. Any amount remaining after disbursement will be returned to you. All trust deposits we receive from you, including retainers, will be placed in a trust account for your benefit. By court rule in each jurisdiction in which the firm has an office, your deposit will be placed in a pooled account if it is not expected to cam a net return, taking into consideration the size and anticipated duration of the deposit and the transaction costs. Other trust deposits will also be placed in the pooled account unless you request a segregated account. By court rule in each of these jurisdictions, interest earned on the pooled account is payable to a charitable foundation established in accordance with such court rule. Interest earned on the segregated trust account will be added to the deposit for your benefit and will be includable in your taxable income. Termination You may terminate our representation at any time, with or without cause, by notifying us. If such termination occurs, papers and property which you have provided to us will be returned to you promptly upon receipt of payment for outstanding fees and costs. Our own files pertaining to the case' will be retained. Your termination of our serLices will not affect your responsibility for payment of legal services rendered and additional charges incurred before termination and in connection with an orderly transition of the matter. We are subject to the codes of professional responsibility for the jurisdictions in which we practice, which list several types of conduct or circumstances that require or allow us to withdraw from representing a client, including for example: nonpayment of fees or costs, misrepresentation or failure to disclose material facts, action contrary to our advice, and conflict of interest with another client. We try to identify in advance and discuss with our client any situation which may lead to our withdrawal and if withdrawal ever becomes necessary we give the client written notice of our withdrawal. Billing Arrangements and Terms of Paymepts We will bill you on a regular basis, normally each month, for both fees and disbursements. You agree to make payment within 30 days of receiving our statement. Unpaid fees and disbursements accrue interest at the maximum rate permitted by state law (noncompounded), but not exceeding 1% per month from the beginning of the month in which they became overdue. (Where fees and disbursements are regularly paid out of a retainer deposit, no interest will be charged.) We will give you prompt notice if your account becomes delinquent, and you agree to bring the account or the retainer deposit current. If the delinquency continues and you do not arrange satisfactory payment terms, we will withdraw from the representation and pursue collection of your account. You agree to pay the costs of collecting the debt, including court costs, filing fees and a reasonable attorney's fee. Your Right to Arbitrate 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 partner. Typically, such disagreements are resolved to the satisfaction of both sides with little inconvenience or formality. In the event of a fee dispute which is not readily resolved, you have the right to request arbitration under supervision of the state or district bar associations for the jurisdictions in which we practice, and we agree to participate fully in that process.