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HomeMy WebLinkAboutLegal Representation Services Agreement - JDBY v. City of EvanstonFOLEY & LARDNER LLP May 13, 2010 W. Grant Farrar, Esq. Corporation Counsel City of Evanston 2100 Ridge Avenue Evanston, IL 60201 Re: Engagement Letter Agreement Dear Mr. Farrar: ATTORNEYS AT LAW 321 NORTH CLARK STREET, SUITE 2800 CHICAGO, IL 60654 5313 312,832.4500 TEL 312.832.4700 FAX foley.Com Thank you for selecting Foley & Lardner LLP (the "Firm") to represent the City of Evanston in connection with the lawsuit entitled JDBY v. City of Evanston. We strive to deliver high quality, cost effective legal services and to work in your best interests, subject to our duties of professional responsibility. Please do not hesitate to contact us if you have any concerns. Although we regret the length and formality of this Engagement Letter Agreement ("Agreement'), it is important that we have a clear understanding of our working relationship going forward. 1. Scone of Engagement This Agreement confirms the terns of this matter. As we discussed, the scope of our engagement will be to handle certain land use litigation (the "Matter"). Should the City of Evanston retain the Finn for subsequent matters, the specifics of this Agreement will remain the same unless otherwise conummicated. 2. Staffing Bill McKenna and I will have primary responsibility for the Matter, but will utilize other Firm attorneys and paraprofessionals when that is appropriate and cost effective. We will keep you informed of our progress, and will utilize our best efforts to respond to you as promptly as possible. In return, you agree to keep us informed of any developments that affect the Matter as soon as you become aware of them, and to be available when we need to consult with you. 3. Conflicts of Interest We have checked our records based on the information you have provided to us at this time. We have determined that there is no conflict of interest that prevents us from working on the Matter, a. This Agreement creates an attorney/client relationship only between the Firm and you. Therefore, you agree that this engagement does not create an attorney/client relationship between the Firm and any business entities with which you are affiliated unless BOSTON JACKSONVILLE MILWAUKEE SAN DIEGO SILICON VALLEY BRUSSELS LOS ANGELES NEW YORK SAN DIEGO/DEL MAR TALLAHASSEE CHICAGO MADISON ORLANDO SAN FRANCISCO TAMPA DETROIT MIAMI SACRAMENTO SHANGHAI TOKYO WASHINGTON, D.C. CHIC_4782514.1 :FOLEY FOLEY & LARDNER LLP May 13, 2010 Page 2 subject to a separate engagement Agreement. You will not provide the Firm with any confidential information about any of your other affiliates and the Firm will not provide services to you and your affiliates unless the Firm represents such affiliate associations. You agree that our representation of you will not create any conflicts of interest in the event that other clients of the Firm are adverse to an affiliate of yours (unless that affiliate also is represented by the Firm). 4. Advance Waiver of Conflict a. You agree that the Firm may represent current or new clients in work directly adverse to you, provided such work is not substantially related to the Matter and the Firm does not use any of your confidential information in representing such clients. This consent includes our being trial counsel in litigation adverse to you. In addition, you agree that, even though the Firm represents you in this Matter, the Firm may represent in the future other parties who are adversely involved in the Matter, or who may later become involved in the Matter, as long as that representation of other parties is substantially unrelated to the Matter. By way of examples only, and assuming such representations are not substantially related to the Matter, we may represent one or more parties in bankruptcy cases that may have interests adverse to you, we may represent clients with regard to intellectual property rights that may be adverse to those of you, or we may represent clients in contract or other business disputes adverse to you. The Firm agrees that it will not use any of your confidential information in representing such other clients and, when needed, we will establish an ethical wall to assure that confidential information is not exchanged between those working on the Matter and those working for such other clients. b. Our Finn policy requires that any advance waiver of future conflicts be in writing, and by signing and returning a copy of this Agreement, you agree to this advance waiver. 5. Fees and Billing The fees and costs for the Matter are not predictable. Therefore, we cannot promise what fees or expenses will be necessary to resolve or complete the Matter. Any fees and costs we might have previously discussed are estimates only. You also understand that the payment of the Finn's fees and costs is not contingent upon the outcome of the Matter. a. We have agreed upon the following billing arrangement for the Matter. We will use the blended rate of $395.00 for fiscal year 2011 and the blended rate of $410.00 for fiscal year 2012. b. Our fees will be based on the ethical rules governing our practice. The amount of our invoice will be the fair value of the services provided taking into account the time and effort involved, the type of service we are being asked to perform, any special level CHIC 4782514.1 :FOLEY FOLEY & LARDNER LLP May 13, 2010 Page 3 of expertise required, the size and scope of the Matter, the results obtained and other relevant considerations. C. We will bill you for support services, such as photocopy and facsimile, messenger and delivery service, online research, travel, word processing, court costs, and search and filing fees. We do not bill long distance telephone charges; we will bill for conference calls using an "800" number service at $.47 per minute per participant. If we arrange a video conference on your behalf, we will bill at rates established by the service provider. We currently charge $.15 per page for photocopies, and faxes are billed at $.50 per page. We charge for word processing or secretarial services only if done on an overtime basis and with your consent. Certain support services that involve equipment or staffing or that require payments to third parties may include additional charges that reflect our internal costs. It is our policy to provide the most cost effective and efficient support systems available. d. You agree that we can make arrangements to have you billed directly by third parties, or you will pay directly invoices which we receive for costs from third parties, such as costs for consultants, appraisers, court reporters, technical support, foreign attorneys, or other parties that render billable services during the Matter. If arrangements have not been made for direct billing or direct payment by you for third -party costs, you agree that we may pay these invoices on your behalf after we have first been paid by you for such costs e. Invoices are normally sent to you each month and reflect the services and expenses incurred the previous month. Payment is due promptly upon receipt. We are entitled to assess a late charge of 1 % per month on any outstanding balance older than 60 days. In addition, subject to our rules of professional responsibility, we may also cease performing services for you until satisfactory arrangements have been made for payments of amounts outstanding in excess of 60 days and the payment of future amounts. 6. Retainer Requirements Our representation will not commence until we receive from you a certified check in the amount of $2,500.00. These funds will be deposited in our client trust account, and we will draw against said funds to satisfy our monthly invoices, copies of which will be sent to you for your information. Upon depletion of the retainer, we will so advise you, and you agree to pay all further invoices upon receipt. Limitations of Liability Foley & Lardner LLP is a limited liability partnership under the laws of Wisconsin. This means your right to recover damages in a legal malpractice action that may exceed our insurance and Firm assets is limited to the personal assets of the attorneys whose acts or omissions gave rise to your claim. CHIC_4782514.1 :FOLEY FOLEY & LARDNER LLP May 13, 2010 Page 4 8. Termination of Representation a. Either of us may terminate this Agreement at any time for any reason by written notice. The Firm is subject to applicable rules of professional conduct when terminating a client engagement. If we terminate the engagement, the Firm will take all reasonable and practical steps to protect your interests in the Matter and, at your request, suggest possible new counsel. We will provide new counsel with any papers you have given us. If permission from the court is necessary for withdrawal, we will promptly apply for it, and you will engage new counsel to represent you. b. Unless previously terminated, our representation of you in the Matter will end when we send our final invoice. After the Matter ends, there might be changes in laws or regulations that might affect your future rights and liabilities, but the Firm does not have an obligation to continue to advise you about future legal developments, unless you engage us to do so. 9. Disposition of Files and Records a. Following the conclusion of the Matter, we will maintain the confidentiality of any of your confidential information provided us in accordance with applicable rules of professional conduct. Any documents provided by you, or provided by a third party, will be returned to you unless you authorize destruction of them. b. We will retain our own files pertaining to the Matter, including material prepared by or for the internal use of our attorneys. These include the Firm's administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, internal attorneys' work product (such as drafts, notes, internal memoranda and legal and factual research), written and electronic communications, pleadings, and investigative reports. The Firm has internal policies that determine the retention periods for closed representation files. Therefore, if you [&doldoes&] not request return of this file material, the Firm reserves the right to destroy it at the end of the defined retention period. Upon your reasonable request, the Firm will provide such portions of these file materials to you as required by the applicable rules of professional responsibility or other legal requirements. Unless applicable rules of professional responsibility require an earlier return, we may retain such file material pending receipt of payment of any outstanding fees or costs. 10. Communication a. We often send to our clients information about the Firm or legal matters we think might be of interest to them. You agree that we may send you this material, either by electronic mail or other means. You also agree that we may communicate with you about this Matter by electronic mail on an unencrypted basis. CHIC_4782514.1 ®FOLEY FOLEY & LARDNER LLP May 13, 2010 Page 5 b. Either at the beginning or during representation, we might express opinions or beliefs concerning the Matter and the results that might be anticipated. Any such statement made by us is an expression of opinion only and is not a promise or guarantee of results. C. You agree that the Firm may list you on publicly disclosed lists and other materials as a client that the Firm represents. 11. Arbitration Any dispute over fees and/or costs (a "Dispute") will be submitted to and settled exclusively by binding arbitration, in accordance with the provisions of this section, subject only to any applicable requirement of law that the parties engage in a preliminary non -binding mediation or arbitration regarding fee disputes. Binding arbitration shall be conducted in accordance with the Judicial Arbitration and Mediation Service Streamlined Rules & Procedures (the "JAMS Rules"), Arbitration shall be held in the County of Cook, before an arbitrator selected pursuant to the JAMS Rules who will have no personal or pecuniary interest, either directly or indirectly, from any business or family relationship with either of the parties. All decisions of the arbitrator will be final, binding, and conclusive on the parties. The parties will equally share the costs of the arbitrator and the arbitration fee (if any). Each party will bear that party's own attorneys' fees and costs, and the prevailing party will not be entitled to reimbursement by the other party of any of its fees or costs incurred in connection with the arbitration hereunder, regardless of any rule to the contrary in the applicable arbitration rules. Either party may seek confirmation of the arbitration award in the Circuit Court of Cook County, and each party hereby consents to the exclusive jurisdiction and venue of the Circuit Court of Cook County in any claim or action arising hereunder. By signing this Agreement containing this provision, you agree to waive any and all rights to a jury trial regarding any Dispute. You also waive your rights under Part 137 of the Rules of the Chief Administrator of the Courts of New York to mediate and/or arbitrate any fee dispute if the fee is between $1,000 and $50,000 and to commence an action for review in a court of competent jurisdiction if you are aggrieved by the award. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without the use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration. Please confirm your approval of this Agreement by signing and returning the enclosed duplicate copy in the envelope provided. If you have any questions, or if this Agreement does not accurately set forth our arrangement, please let me know. We look forward to working with you on this Matter. CMC_4782514.1 FOLEY FOLEY & LARDNER LLP May 13, 2010 Page 6 Very truly yours, FOLEY & LARDNER LLP Donnaf Pugw AGREED AND ACCEPTED: CITY OF EVANSTON / BY: 4 1 ' W. Grant Farrar Corporation Counsel sin) 10 Date ' I CHIC_4782514.1