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HomeMy WebLinkAboutFoster Pepper, PLLC - 071618 1 tin 1 itcylei( W,1).\ -- ) -lite.1 -- 01 ti'c - li i . _ ,4 TA. I a( . 1'C' , 1-*(1} Appendix A Terms for Engagement of Services Thank you for choosing Foster Pepper PLLC. Our Engagement Letter and these "Terms" constitute our agreement with you for performing the engagement described in that letter. We pride ourselves on responsive and vigorous representation and strive to develop excellent working relationships with our clients. Therefore, we wish to share with you the terms of our engagement as your lawyers and tell you about our firm. Our web page (www.foster.com) contains additional information about the firm and its capabilities. If you have questions or concerns, please contact us immediately. Scope of Work Our policy-and the foundation of a sound client-attorney relationship-is to ensure that we understand your legal needs and that you understand the nature of the services we will provide. Communication between us is critical. We regularly will keep you informed of our activities on your behalf and will act in your interest at all times to the best of our abilities, subject to our knowledge of the facts and the state of the law during the representation. Generally, one lawyer will be responsible for and will oversee your representation. Other lawyers and legal assistants may work on your behalf-especially when special skill or expertise is required or when delegation is more expeditious and cost- effective, or for other appropriate reasons. Your responsible lawyer will be your point of contact for all aspects of your representation. If at any time you are unhappy with any person working on your behalf, please tell your responsible lawyer or the Chair of the firm's Executive Committee. The situation will be addressed immediately. We need your help to represent you to the best of our abilities. We rely on you to be candid with and responsive to us, as we will be with you. Please inform us immediately of any change of circumstance affecting the representation or our ability to contact you. We both must respond promptly and completely to inquiries and requests to enable us to represent you effectively. While we cannot assure a successful result in any engagement, we pledge to use our best efforts on your behalf. You may terminate our representation of you at any time and for any reason. In addition, we may choose to withdraw from the representation, but only in accordance with the applicable Rules of Professional Conduct in effect in the jurisdiction where our relationship exists. If we choose to withdraw as your lawyers, we will notify you in writing. At termination or withdrawal, you will remain obligated to pay us promptly for all charges for legal services rendered as well as charges resulting from the termination or withdrawal, including working with any successor counsel. We will cooperate with successor counsel to assure a smooth transfer of the representation. Conflicts of Interest Because our representation of you is limited in scope and because we have a large number of clients, we wish to clarify the extent to which our representation of you may affect our ability to represent other clients in other matters, including matters in which you may be involved. We employ internal procedures to ensure that our representation of other clients will not cause a conflict of interest with 6 you. Your identity as our client is the person or entity named as the client in our Engagement Letter and does not include any of your affiliates, officers, directors, principals or other related parties unless so specified. Accordingly, we may represent another client with interests adverse to any such affiliate without obtaining your consent, and we respectfully decline to be bound by any contrary policy. If we discover any actual or potential conflict of interest affecting our representation of you, we will notify you promptly. Depending upon our relationship, at the conclusion of the engagement described in the Engagement Letter, you will no longer be considered a current client of the firm. As a former client, you may expect that we will not represent another person in the same or a substantially related matter if that client's interests are adverse to your interests unless you have consented in writing to the representation after consultation and full disclosure of material facts. You may also expect that we will preserve appropriately the confidentiality of your information and secrets. Without your prior written consent, we will not represent a client adverse to you in a different matter if we have obtained confidences or secrets from you that are material to that matter. Records Retention We maintain policies regarding retention and destruction of records. Records include our files and related electronic documentation, including e-mails. Records (including materials provided by you to us and all electronic documentation) relating to this engagement will be destroyed according to our policies unless you request that they be returned to you. Our own files pertaining to the matter will be retained in accordance with the policies. Our own files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, internal lawyers' work product such as drafts, notes, internal memoranda, and legal and factual research, including investigative reports, prepared by or for the internal use of lawyers. We retain client files for ten years after a matter is closed. We will endeavor to remind you of this policy on completion of the engagement, but we reserve the right to destroy records in accordance with our policy without further notice to you. Fees for Services We generally charge on an hourly basis for time expended on your behalf. This includes, for example, telephone conversations, face-to-face conferences, strategy development and planning, document preparation and review, research, drafting, negotiating, court appearances and travel. Through hourly billing, you pay only for work performed on your behalf. We maintain daily time records that include a brief description of the work done so that you will understand why you are being billed. We record our time in units of tenths of an hour. Upon request, we will work with you to produce an estimate of the anticipated legal fees and costs for a particular engagement. Any such estimate will be based on our prior experience with similar engagements as well as information you provide us about your particular needs. Unless we reach a clear, written understanding that the fee will be a fixed amount, any estimate we make may be revised based upon the facts and circumstances we encounter during your representation. Our rates (which are subject to change prospectively with notice) should always be discussed in advance with your responsible attorney. Generally, rates are revised annually and adjustments will be reflected in our invoices in the month following any adjustment. On occasion, and after discussion with you, we may perform services on a non-hourly basis. Our agreement with you to do so will be in writing. We strive to keep fees and charges at a level appropriate to the task. 7 Expenses In addition to fees for legal services, you will be charged for expenses advanced on your behalf and ancillary costs incurred by us during the course of your representation. Such charges may be revised from time to time and will be reflected in our invoice in the month following any revision approved by you. These charges include such things as photocopying, document binding, external messenger service, electronic records searches, special mailing or courier services, and costs associated with managing electronically stored information [e.g., scanning, image processing, data collection, database services, web hosting, document summaries, etc.]. You will not be billed for long distance telephone charges, facsimile transmissions or standard postage charges. Please note that should your work require secretarial overtime (not caused by a secretary working for another client during the regular work day), you will be charged for such service. You may be asked to pay certain non-routine expenses directly to the service provider. These may include travel expenses, filing fees, and fees and expenses of independent professionals• such as appraisers, accountants, investigators, court reporters, and other consultants and experts. Often, these expenses must be paid in advance. Normally, we will send the charge directly to you for payment or obtain in advance funds from you to pay such costs. While we are under no obligation to do so, we may advance payment of such expenses and subsequently bill you for the charges. Billing Policy Usually, you will be billed monthly. For your convenience, the billing statement will describe briefly the matter and legal services performed and will set forth the fees and expenses relating to the legal services provided. The bill typically will contain charges incurred during the prior month. Charges for some expense items such as copy and delivery charges may not be processed and billed until sometime after the expense has been incurred. Bills are due upon receipt, and may be paid by check, wire transfer, Visa, MasterCard or American Express. We strive to provide clear and prompt billing statements. If you have any questions regarding your invoice, please promptly call your responsible attorney or our accounting department. Advance Fee and Trust Deposits If required by your Engagement Letter, you must pay in advance an amount equal to our estimate of the fees and costs for some or all of the work contemplated by the scope of the engagement. Any amount remaining at the conclusion of the engagement will be returned to you. If, after commencing work, it appears the advance payment will be insufficient to cover legal fees and costs, you may be asked to advance additional amounts. If required by your Engagement Letter, you must pay a retainer to secure our availability for a given period of time, which is considered earned by us when paid. Amounts you pay to us in trust, including advance payments for fees and costs, will be deposited in a trust account that we maintain for the benefit of our clients as required by the Rules of Professional Conduct. Under these rules, if your deposit is not expected to earn a"positive net return" given its size, the expected duration of the deposit and prevailing interest rates (less reasonable bank and administrative charges), we will place the deposit into a pooled account. The interest earned on this account must be paid to a charitable foundation established by court rule. If your deposit likely will earn a"positive net return", you may request that it be placed into a segregated account and interest earned 8 on that account will be added to your deposit and will be reported by our bank to the Internal Revenue Service as taxable income to you. If you wish us to place such funds into a segregated account for your benefit, you must provide us with your Federal Tax Identification Number. Attorney-Client Privilege Our attorneys and staff recognize our duty to maintain confidentiality. The attorney-client privilege protects communications between us, whether oral or written, as long as neither of us discloses those communications to anyone else. Privileged communications cannot be used in court without your consent. Therefore, to preserve the privilege and confidentiality of our communications, you should not show our written communications or discuss any oral communications between us with anyone. Furthermore, certain communications and documents prepared in anticipation of litigation are also privileged even if no attorney is involved. Because disputes can arise as to whether certain communications are privileged, if you have any questions regarding what you can do, be sure to seek advice from the lawyer with whom you are working. We are not acting as your counsel with respect to the provisions of this statement of Terms for Engagement of Services and to do so would be a conflict of interest. If you wish to seek advice from independent counsel of your choice about whether you should agree to these terms, please do so. In addition, if you have any questions or would like additional information, we are happy to discuss this statement with you further. These terms of engagement will govern our relationship, however, unless we reach a different agreement in writing. Independent Contractor We are an independent contractor and no member or employee of our firm shall be deemed to be your employee. Indemnity and Insurance We shall indemnify Client against and hold the County harmless from any claim against you for damages made by a vendor who provided goods or services to us in connection with the engagement. We will have in effect professional liability insurance ("errors and omissions") that provides coverage for errors and omissions by us for the engagement that has limits in the full amount customarily carried by us. This errors and omissions insurance shall be primary if any allegation is made of professional malpractice arising from our representation of you. We will place such insurance with insurers licensed to do business in the State of Washington and have A.M. Best Company ratings of no less than A-VII, with the exception that excess and umbrella coverage used to meet the requirements for limits of liability or gaps in coverage need not be placed with insurers or reinsurers licensed in the State of Washington. We shall furnish the County with properly executed certificates of insurance or a signed policy endorsement which will clearly evidence all insurance required within 10 days after the effective date of this Engagement Letter. The certificate(s)or endorsement(s) shall,at a minimum, list limits of liability and coverage. The certificate(s)or endorsement(s)will provide that the underlying insurance contract may not be canceled,or allowed to expire, except on 30-days' prior written notice to the County. Any certificate or endorsement limiting or negating the insurer's obligation to notify the County of cancellation or changes must be amended so as not to negate the intent of this provision. 9 If applicable, we will request that the Washington State Department of Labor and Industries, Workers Compensation Representative, send written verification to your risk manager that we are currently paying workers' compensation. Written notice of cancellation or change in errors and omissions insurance shall be provided by Attorneys to County at the following address: County Risk Manager Jefferson County P.O. Box 1220 Port Townsend, WA 98368 We shall provide a copy of all insurance policies required above upon request of your risk manager. Appointment as a Special Deputy Prosecuting Attorney Our representation is conditioned on an appointment by the Jefferson County Prosecuting Attorney pursuant to RCW 36.27.040 and that we are subject to billing guidelines agreed upon between us and the Jefferson County Prosecuting Attorney's Office, a copy of which is attached as Appendix B. Where the agreed upon billing guidelines and these terms conflict,the billing guidelines control. We understand that you have selected us not only for our expertise, but also for our reputation as responsive and creative counsel. Be assured that we will strive to live up to your expectations. If you have any questions, please do not hesitate to call. Seattle: Foster Pepper PLLC Spokane: Foster Pepper PLLC 1111 Third Avenue, Suite 3000 618 West Riverside Avenue, Suite 300 Seattle, Washington 98101-3299 Spokane, Washington 99201-5102 Phone: (206) 447-4400 or (800) Phone: (509) 777-1600 995-5902 Facsimile: (509) 777-1616 Facsimile: (206) 447-9700 or 9283 10 Appendix B Billing Guidelines for Outside Counsel Working On Behalf of Jefferson County 1. Approval as Counsel Required Before Billing. Appointment as a special deputy prosecuting attorney pursuant to RCW 36.27.040 must be obtained outside counsel working on behalf of the County(outside counsel) and a contract must be approved by the Jefferson County Board of Commissioners (Board)prior to submission of any invoice for payment. 2. Conflicts of Interest. Jefferson County(the County) expects outside counsel to be free of any conflict of interest and the appearance of any conflict of interest during the course of representation of the County. Jefferson County recognizes that a conflict between outside counsel and its representation of the County may arise, and the County will consider waiving a conflict of interest when the County's interests are not impaired or compromised. If any ethical or business conflict arises, outside counsel shall contact the Jefferson County Prosecuting Attorney (Prosecuting Attorney) immediately. 3. Staffing Philosophy. Outside counsel are retained by the County because of their expertise in the matter for which they are retained. The County expects that all matters handled on behalf of the County will be properly, economically and effectively staffed. The lead or managing attorney at a firm representing the County is responsible for appropriately staffing the matter to ensure minimal duplication of efforts and to ensure tasks are assigned to staff at the appropriate level of expertise and billing rate. The goal is to minimize the number of timekeepers involved in the effective completion of tasks necessary for representation in the matter. 4. Staffing Approval. Outside counsel shall propose,and the Prosecuting Attorney shall approve,the initial staffing of the matter. New timekeepers may be added to the representation of the County only with the approval of the Prosecuting Attorney,which approval shall not be unreasonably withheld. 5. Status Reporting. Outside counsel shall provide status reports as required by the Prosecuting Attorney. The Prosecuting Attorney's strong preference is for oral, not written status reports. 6. Settlements. No settlement can be made without obtaining a recommendation from the Prosecuting Attorney and approval by the Board. 7. Third-Party Vendors. No third-party vendor shall be hired without prior discussion with and approval by the Prosecuting Attorney. The County shall not accept any invoice from a third- party vendor without prior discussion and approval in advance of the initiation of billing activity by the third-party vendor. 8. Legal Research. Legal research should be included in the outside counsel's overhead and shall not be billed to the County without prior approval. 9. Temporary or Contract Employees. Temporary or contract employees (including summer associates) shall not be used by outside counsel without prior approval of the Prosecuting Attorney. The County shall only pay the actual cost of temporary or contract employees. 11 10. Rates. The County shall pay outside counsel based on hourly rates or flat fees previously approved by the County, as set forth in a written document sent to the Prosecuting Attorney. A request to increase hourly rates may be made by outside counsel once per year during the term of the engagement. No unilateral rate increase shall be honored. Long-term travel of more than 50 miles(100 miles including the return) shall be billed at V2 the hourly rate, when the timekeeper cannot bill for the work. 11. Billing Procedure. The County shall pay only for the actual,reasonable and necessary work spent completing at task or series of tasks. Each billing entry shall list the date, the identity of the timekeeper and the task being billed in a manner sufficient for the County to determine what task was accomplished and why the work was necessary for the progress of the matter. Duplicate work by multiple timekeepers or the same timekeeper shall not be billed. The minimum billing entry shall be 0.10 of an hour. Tasks on a given day that take less than one minimum entry shall be grouped as one minimum entry. Each individual task(or a grouping of minimum tasks) shall be stated separately for each timekeeper on an invoice. Expenses shall be separately documented, billed and copies of the receipts, invoices, or other backup for the expenses shall be provided with each invoice. 12. Billing Frequency. Invoices shall be submitted at least quarterly,monthly is strongly preferred. 13. Overhead Expenses Not Reimbursable. Unless approved in advance by the County, overhead expenses are not reimbursable and include but are not limited to: Internal copying or scanning costs of over 10 cents per page; costs for converting paper materials in to electronic materials and vice versa; overtime charges for salaries,meals or transportation, rent or utilities; continuing legal education or attendance at seminars; conference rooms or facilities; software and equipment rental; refreshments or meals during meetings; any alcoholic beverages; gratuities in excess of 15%; local travel (less than 50 miles and 100 miles including the return); travel agent or booking service fees; temporary employee agency fees; incoming faxes; markups of costs; computerized legal research such as Westlaw or LexisNexis; internet connections; case management or litigation software systems; or, cell phone charges. 14. No Billing for Local Travel. Costs for travel of less than 50 miles(100 miles including the return) shall not be billed. 15. Invoice Submission, Review and Payment Procedure. Invoices shall be submitted to the Prosecuting Attorney for review with standards of reasonableness, necessity and efficiency. After this review for consistency,the Prosecuting Attorney shall submit all approved amounts for processing by the County Auditor. Payment of any invoice by the County does not constitute a waiver of the County's right to subsequently review, dispute, seek reimbursement of, compromise or request future credits of legal fees from outside counsel. Payment of hourly rates that have not been approved does not constitute acceptance of those hourly rates. Any adjustments to invoices shall be detailed in an invoice report that shall be sent to outside counsel by email. Outside counsel may request reconsideration of any material adjustments to an invoice by making such request to the Prosecuting Attorney within 60-days of receipt of an invoice report. 16. No Interest Shall Be Charged on Invoices. Interest shall not be charged due to any claim of late payment of any invoice. 12 ACKNOWLEDGED &ACCEPTED this 1 j 'day of4 , 2018. JEFFERSON COUNTY WASHINGTON Board of County Commissioners Jefferson Count Washington By: ���� Davi u ligan, Chair Date SEAL l . ATTEST:.3. : k . a . Aid 3 7/6, /, Carol Gallaway / Date Deputy Clerk of the Board Approved as to form only: a C. 7 ,//er Philip C. Hunsucker Date Chief Civil Deputy Prosecuting Attorney 5 JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA REQUEST TO: Board of Commissioners FROM: Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney 1)l Ll 15 DATE: July 16,2018 RE: Foster Pepper Law Firm Special Deputy Prosecuting Attorney Retention to Represent the County on Long-Term,Long-Distance Solid Waste Contract STATEMENT OF ISSUE: The County's current long-haul solid waste contract comes to an end in April 2019. Given the complexity of the contract, including the need to comply with solid waste law, and the total amount of the contract over many years, beginning the bidding process as soon as possible is important. Public Works has requested that the Prosecuting Attorney approve the law firm of Foster Pepper(http://www.foster.com/)to act as a special deputy prosecuting attorney pursuant to RCW 36.27.040. ANALYSIS: RCW 36.27.040 provides, in its relevant part: The prosecuting attorney may appoint one or more special deputy prosecuting attorneys upon a contract or fee basis whose authority shall be limited to the purposes stated in the writing signed by the prosecuting attorney and filed in the county auditor's office. Such special deputy prosecuting attorney shall be admitted to practice as an attorney before the courts of this state but need not be a resident of the county in which he or she serves and shall not be under the legal disabilities attendant upon prosecuting attorneys or their deputies except to avoid any conflict of interest with the purpose for which he or she has been engaged by the prosecuting attorney. The prosecuting attorney shall be responsible for the acts of his or her deputies and may revoke appointments at will. The Prosecuting Attorney agrees that Foster Pepper should be appointed a special deputy prosecuting attorney pursuant to RCW 36.27.040,provided: (1) The Board of County Commissioners approves the funding of and reasonable terms for the Foster Pepper contract; (2) Foster Pepper is subject to the supervision of the Prosecuting Attorney or designee; and, (3) Foster Pepper agrees to reasonable billing guidelines and other reasonable contract provisions. Foster Pepper is particularly well suited to the appointment as a special deputy prosecuting attorney for this project for at least the following reasons: 1 • Foster Pepper is one of the few firms with extensive solid waste management experience that does not represent the private sector. • Foster Pepper's extensive waste management experience includes representation of: (a) King County in Rabanco v. King County, 125 Wn. App. 794 (2005), confirming that county's flow control authority; (b) Klickitat County for decades with respect to the planning, development and ongoing maintenance of the Roosevelt Regional Landfill. See Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619 (1993); (c) Clark County in its recurring issues with Waste Connections, including new contracts, contract amendments and the successful defense of the County regarding development of the Washougal Transfer Station; (d) Cowlitz County in a potential procurement regarding that county's headquarters landfill; (e) Spokane County in litigation regarding that county's flow control authority; and, (1) Island County in its various solid waste contract issues. • Foster Pepper has a long history of serving as bond counsel and as special deputy prosecuting attorney in resolving disputes, including with a County software vendor; litigation with Western Industrial over the Queets Bridge painting contract (case settled in 2015); and, ongoing work regarding planning and development of the Port Hadlock waste water facilities ULID. In short, Foster Pepper is a highly regarding law firm with extensive applicable experience. Foster Pepper possesses the necessary depth of experience in solid waste law this project requires that the Prosecuting Attorney's Office lacks. The proposed contract attached as Appendix 1 meets the three requirements outlined above. FISCAL IMPACT: Public Works already accounted for the retention of outside counsel in its budget for this project. The project is not funded through the general fund) LT.- `c s f,-fain / h— 5,6,tf t? �v ;�& 6.v 2. RECOMMENDATION: Approve the contract in Appendix 1 for Foster Pepper to be paid as a special deputy prosecuting attorney for the purpose of representing the County in connection with the drafting, bidding and any bid defense required for the long-range solid waste contract. DEPARTMENT CONTACT: Philip C. Hunsucker, Chief Civil Deputy Prosecuting Attorney at Extension 219. REVIEWED BY: 011, � . 77/ P ' ' Y, y � orley, '."� Admi istrato Date 2 CONTRACT REVIEW FORM CONTRACT WITH: Foster Pepper,PLLC (Contractor) CONTRACT FOR: _Special Deputy Prosecuting Attorney Services TERM: Upon Completion Pursuant to RCW 36.27.040;Lonl-Term,Lon: Distance Solid Waste og 4 ,1y 5 ,` ltr ;�a:x,;53 i <y4k ofi $. ,.. "fes 'x ' ° ., , ,., e= ' 4itax : + 1 //,"1, 7 ./ftp cif t3 74 V ,tJ Y •g • s 1' ff mr � � //c/o,44 ` / "4: �4• r, 4r ^X r AMOUNT: $22,500 PROCESS: Z. Exempt from Bid Process Consultant Selection Process Revenue: Cooperative Purchase Expenditure: ^ Competitive Sealed Bid Matching Funds Required: Small Works Roster Source(s) of Matching Funds: Vendor List Bid RFP or RFQ Step 1: REVIEW BY Rte ; ,ze: ENT Review 0191 4,09 . ro- Date Reviewed: APPROVED FORM Ej Returned for revision(See comments) Comments: Step 2: REVIEW BY PROSECUTING TTORNEY Review by: u?. C ` Date Reviewed: / 3 I /g APPROVED AS TO FORM ( Returned for revision(See comments) Comments: Step 3: DEPARTMENT MAKES REVISIONS Have contractor sign appropriate number of originals. Step 4: SUBMIT TO PROSECUTING ATTORNEY FOR FINAL SIGN OFF Step 5: SUBMIT TO BOCC FOR APPROVAL Submit originals and 9 copies of Contract,Review Form,and Agenda Bill to BOCC Office. Place"Sign Here"markers on all places the BOCC needs to sign. MUST be in BOCC Office by 5 p.m.TUESDAY for the following Monday's agenda. (This form to stay with contract throughout the contract review process.) • APPENDIX 1 VIA E-MAIL and U.S. MAIL Mr. Philip Hunsucker Chief Civil Deputy Prosecuting Attorney P.O. Box 1220 Port Townsend, WA 98368 Re: Solid Waste Procurement Dear Mr. Hunsucker: In response to Jefferson County's request, we provide a brief synopsis of our past relationship with Jefferson County, our experience in assisting counties with solid waste management issues, and the approach to assisting the County regarding potential procurement and contracting for long-haul solid waste services. Foster Pepper has a long history of serving as bond counsel and special counsel for Jefferson County. I have been directly involved as special deputy prosecutor attorney in resolving disputes with a County software vendor(Spillman) with respect JeffCom and computer assisted dispatch; the litigation with Western Industrial over the Queets Bridge painting contract (case settled in 2015); and, ongoing work regarding planning and development of the Port Hadlock waste water facilities ULID. We are available to assist the County with its solid waste issues as well. We are one of the few firms with extensive solid waste management experience that does not represent the private sector. We represented Klickitat County for decades with respect to the planning, development and ongoing maintenance of the Roosevelt Regional Landfill. See Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619 (1993). We represent Clark County in its recurring issues with Waste Connections, including new contracts, contract amendments and the successful defense of the County regarding development of the Washougal Transfer Station. We are currently representing Cowlitz County in a potential procurement regarding that county's headquarters landfill. We represent Spokane County in current litigation regarding that county's flow control authority. We represented King County in Rabanco v. King County, 125 Wn. App. 794 (2005) confirming that county's flow control authority. We also represent Island County in its various solid waste contract issues. We have long history representing government in Jefferson County in addition to the County, including the PUD and City of Port Townsend. We understand that the County seeks our initial review and comment on potential issues and opportunities arising from draft contracts for solid waste procurement, and for a limit on fees for such service. We can limit our fees when there is a predictability of the work. In other cases, we can provide an estimated budget. The budget is only an estimate and actual fees may exceed budget for reasons outside our control(such as protracted contract negotiations). In discussions with Tom Boatman,we have established the following schedule of tasks and fixed or estimated fees. • Assistance in preparing the initial RFP to potential solid waste vendors: $10,000. This is a fixed budget and will not be exceeded absent separate County approval. The following are additional tasks, with only an estimated budget for each task. 3 • • Assistance in responding to vendors in RFP process and in subsequent negotiations. This service may also include defense of County from challenges to procurement process or County decisions: $5,000. • Draft amendments to County solid waste code, including an ordinance to provide for control of flow to County-designated facilities: $2,500. This task may also entail work on an interlocal agreement with the City of Port Townsend. • Address post-contracting issues or disputes, including defense of County in contract litigation relating to the County's solid waste services: $5,000. By separate transmittal we provide a rate sheet and sample form of authorizing resolution. However, this assignment only may be authorized by appointment by the Prosecuting Attorney as a special deputy prosecuting attorney pursuant to RCW 36.27.040. Our services will be subject to the prosecuting attorney's oversight. We endeavor to have the work performed at the most efficient and cost-effective level to serve the County's interest. A copy of our Terms for Engagement of Services is attached as Appendix A. We will employ billing guidelines acceptable to the office of prosecuting attorney attached as Appendix B. If there are any questions in this regard, please do not hesitate to contact us. Additionally, should you need references (although you are already familiar with our experience in this area),please do not hesitate to ask. If the foregoing is acceptable to the County, the engagement will be approved by the Board of County Commissioners. We look forward to the further opportunity to be of service to Jefferson County. Very truly yours, FOSTER PEPPER PLLC P. Stephen DiJulio Managing Partner Enclosures cc: Tom Boatman 4 Julie Shannon From: Philip Hunsucker Sent: Tuesday, July 24, 2018 5:39 PM To: Julie Shannon Cc: Philip Morley Subject: Fully Executed Foster Pepper Agreement Attachments: 2018 07 16 Jefferson County Engagement Letter- FULLY EXECUTED.pdf Julie: Attached is the fully executed Foster Pepper agreement. Philip Philip C. Hunsucker Chief Civil Deputy Prosecuting Attorney Jefferson County Prosecuting Attorney's Office P.O. Box 1220, Port Townsend,WA 98368 Ph: 360-385-9219 (direct) Fax: 360-385-0073 All e-mail sent to this address has been received by the Jefferson County e-mail system and is therefore subject to the Public Records Act,a state law found at RCW 42.56. Under the Public Records law the County must release this e-mail and its contents to any person who asks to obtain a copy(or for inspection)of this e-mail unless it is also exempt from production to the requester according to state law,including RCW 42.56 and other state laws. 1 FOSTER PEPPER Direct Phone (206)447-8971 Direct Facsimile (206)749-1927 steve.dljuilo@foster.com July 16, 2018 VIA E-MAIL and U.S. MAIL Mr. Philip Hunsucker Chief Civil Deputy Prosecuting Attorney P.O. Box 1220 Port Townsend, WA 98368 Re: Solid Waste Procurement Dear Mr. Hunsucker: In response to Jefferson County's request, we provide a brief synopsis of our past relationship with Jefferson County, our experience in assisting counties with solid waste management issues, and the approach to assisting the County regarding potential procurement and contracting for long-haul solid waste services. Foster Pepper has a long history of serving as bond counsel and special counsel for Jefferson County. I have been directly involved as special deputy prosecutor attorney in resolving disputes with a County software vendor (Spillman) with respect JeffCom and computer assisted dispatch; the litigation with Western Industrial over the Queets Bridge painting contract (case settled in 2015); and, ongoing work regarding planning and development of the Port Hadlock waste water facilities ULID. We are available to assist the County with its solid waste issues as well. We are one of the few firms with extensive solid waste management experience that does not represent the private sector. We represented Klickitat County for decades with respect to the planning, development and ongoing maintenance of the Roosevelt Regional Landfill. See Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619 (1993). We represent Clark County in its recurring issues with Waste Connections, including new contracts, contract amendments and the successful defense of the County regarding development of the Washougal Transfer Station. We are currently representing Cowlitz County in a potential procurement regarding that county's headquarters landfill. We represent Spokane County in current litigation regarding that county's flow control authority. We represented King County in Rabanco v. King County, 125 Wn. App. 794 (2005) confirming that county's flow control authority. We also represent Island County in its various solid waste contract issues. We have long history representing government in Jefferson County in addition to the County, including the PUD and City of Port Townsend. We understand that the County seeks our initial review and comment on potential issues and opportunities arising from draft contracts for solid waste procurement, and for a limit on fees for such 1111 Third Avenue,Suite 3000,Seattle,Washington 98101-3299 teL 206A47.4400 fax 206.447.9700 foster.com July 16, 2018 Page 2 service. We can limit our fees when there is a predictability of the work. In other cases, we can provide an estimated budget. The budget is only an estimate and actual fees may exceed budget for reasons outside our control (such as protracted contract negotiations). In discussions with Tom Boatman, we have established the following schedule of tasks and fixed or estimated fees. • Assistance in preparing the initial RFP to potential solid waste vendors: $10,000. This is a fixed budget and will not be exceeded absent separate County approval. The following are additional tasks,with only an estimated budget for each task. • Assistance in responding to vendors in RFP process and in subsequent negotiations. This service may also include defense of County from challenges to procurement process or County decisions: $5,000. • Draft amendments to County solid waste code, including an ordinance to provide for control of flow to County-designated facilities: $2,500. This task may also entail work on an interlocal agreement with the City of Port Townsend. • Address post-contracting issues or disputes, including defense of County in contract litigation relating to the County's solid waste services: $5,000. By separate transmittal we provide a rate sheet and sample form of authorizing resolution. However, this assignment only may be authorized by appointment by the Prosecuting Attorney as a special deputy prosecuting attorney pursuant to RCW 36.27.040. Our services will be subject to the prosecuting attorney's oversight. We endeavor to have the work performed at the most efficient and cost-effective level to serve the County's interest. A copy of our Terms for Engagement of Services is attached as Appendix A. We will employ billing guidelines acceptable to the office of prosecuting attorney attached as Appendix B. If there are any questions in this regard,please do not hesitate to contact us. Additionally, should you need references (although you are already familiar with our experience in this area), please do not hesitate to ask. If the foregoing is acceptable to the County, the engagement will be approved by the Board of County Commissioners. We look forward to the further opportunity to be of service to Jefferson County. Very truly yours, FOSTER PEPPER PLLC /.9;/// • P. Stephen DiJulio Managing Partner Enclosures cc: Tom Boatman ACKNOWLEDGED&ACCEPTED this 4day of tii (7 ,2018. JEFFERSON COUNTY WASHINGTON Board of County Commissioners Jefferson Cou , ashington 74 /ji By: Q� t _ /"..1 lc David Sullivan,Chair Date / SEL: i , . 1 ft. V' , 1 . .V � t r : u. ATTEST- ...,. . , Carol ktway Date Deputy Clerk of the Board Approved as to form only: 0 (1- 7:4112 .,, 7/1h Philip C.Hunsucker Date Chief Civil Deputy Prosecuting Attorney 5 Appendix A Terms for Engagement of Services Thank you for choosing Foster Pepper PLLC. Our Engagement Letter and these "Terms" constitute our agreement with you for performing the engagement described in that letter. We pride ourselves on responsive and vigorous representation and strive to develop excellent working relationships with our clients. Therefore, we wish to share with you the terms of our engagement as your lawyers and tell you about our firm. Our web page (www.foster.com) contains additional information about the firm and its capabilities. If you have questions or concerns, please contact us immediately. Scope of Work Our policy-and the foundation of a sound client-attorney relationship-is to ensure that we understand your legal needs and that you understand the nature of the services we will provide. Communication between us is critical. We regularly will keep you informed of our activities on your behalf and will act in your interest at all times to the best of our abilities, subject to our knowledge of the facts and the state of the law during the representation. Generally, one lawyer will be responsible for and will oversee your representation. Other lawyers and legal assistants may work on your behalf-especially when special skill or expertise is required or when delegation is more expeditious and cost- effective, or for other appropriate reasons. Your responsible lawyer will be your point of contact for all aspects of your representation. If at any time you are unhappy with any person working on your behalf, please tell your responsible lawyer or the Chair of the firm's Executive Committee. The situation will be addressed immediately. We need your help to represent you to the best of our abilities. We rely on you to be candid with and responsive to us, as we will be with you. Please inform us immediately of any change of circumstance affecting the representation or our ability to contact you. We both must respond promptly and completely to inquiries and requests to enable us to represent you effectively. While we cannot assure a successful result in any engagement, we pledge to use our best efforts on your behalf. You may terminate our representation of you at any time and for any reason. In addition, we may choose to withdraw from the representation, but only in accordance with the applicable Rules of Professional Conduct in effect in the jurisdiction where our relationship exists. If we choose to withdraw as your lawyers, we will notify you in writing. At termination or withdrawal, you will remain obligated to pay us promptly for all charges for legal services rendered as well as charges resulting from the termination or withdrawal, including working with any successor counsel. We will cooperate with successor counsel to assure a smooth transfer of the representation. 4 Conflicts of Interest Because our representation of you is limited in scope and because we have a large number of clients, we wish to clarify the extent to which our representation of you may affect our ability to represent other clients in other matters, including matters in which you may be involved. We employ internal procedures to ensure that our representation of other clients will not cause a conflict of interest with you. Your identity as our client is the person or entity named as the client in our Engagement Letter and does not include any of your affiliates, officers, directors, principals or other related parties unless so specified. Accordingly, we may represent another client with interests adverse to any such affiliate without obtaining your consent, and we respectfully decline to be bound by any contrary policy. If we discover any actual or potential conflict of interest affecting our representation of you,we will notify you promptly. Depending upon our relationship, at the conclusion of the engagement described in the Engagement Letter, you will no longer be considered a current client of the firm. As a former client, you may expect that we will not represent another person in the same or a substantially related matter if that client's interests are adverse to your interests unless you have consented in writing to the representation after consultation and full disclosure of material facts. You may also expect that we will preserve appropriately the confidentiality of your information and secrets. Without your prior written consent, we will not represent a client adverse to you in a different matter if we have obtained confidences or secrets from you that are material to that matter. Records Retention We maintain policies regarding retention and destruction of records. Records include our files and related electronic documentation, including e-mails. Records (including materials provided by you to us and all electronic documentation) relating to this engagement will be destroyed according to our policies unless you request that they be returned to you. Our own files pertaining to the matter will be retained in accordance with the policies. Our own files include, for example, firm administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, internal lawyers' workproduct such as drafts, notes, internal memoranda, and legal and factual research, including investigative reports, prepared by or for the internal use of lawyers. We retain client files for ten years after a matter is closed. We will endeavor to remind you of this policy on completion of the engagement, but we reserve the right to destroy records in accordance with our policy without further notice to you. Fees for Services We generally charge on an hourly basis for time expended on your behalf. This includes, for example, telephone conversations, face-to-face conferences, strategy development and planning, document preparation and review, research, drafting, negotiating, court appearances and travel. Through hourly billing, you pay only for work performed on your behalf. We maintain daily time records that include a brief description of the work done so that you will understand why you are being billed. We record our time in units of tenths of an hour. Upon request, we will work with you to produce an estimate of the anticipated legal fees and costs for a particular engagement. Any such estimate will be based on our prior experience with similar 5 engagements as well as information you provide us about your particular needs. Unless we reach a clear, written understanding that the fee will be a fixed amount,any estimate we make may be revised based upon the facts and circumstances we encounter during your representation. Our rates (which are subject to change prospectively with notice) should always be discussed in advance with your responsible attorney. Generally, rates are revised annually and adjustments will be reflected in our invoices in the month following any adjustment. On occasion, and after discussion with you, we may perform services on a non-hourly basis. Our agreement with you to do so will be in writing. We strive to keep fees and charges at a level appropriate to the task. Expenses In addition to fees for legal services, you will be charged for expenses advanced on your behalf and ancillary costs incurred by us during the course of your representation. Such charges may be revised from time to time and will be reflected in our invoice in the month following any revision approved by you. These charges include such things as photocopying, document binding, external messenger service, electronic records searches, special mailing or courier services, and costs associated with managing electronically stored information [e.g., scanning, image processing, data collection, database services, web hosting, document summaries, etc.]. You will not be billed for long distance telephone charges, facsimile transmissions or standard postage charges. Please note that should your work require secretarial overtime (not caused by a secretary working for another client during the regular work day), you will be charged for such service. You may be asked to pay certain non-routine expenses directly to the service provider. These may include travel expenses, filing fees, and fees and expenses of independent professionals• such as appraisers, accountants, investigators, court reporters, and other consultants and experts. Often, these expenses must be paid in advance. Normally, we will send the charge directly to you for payment or obtain in advance funds from you to pay such costs. While we are under no obligation to do so, we may advance payment of such expenses and subsequently bill you for the charges. Billing Policy Usually, you will be billed monthly. For your convenience, the billing statement will describe briefly the matter and legal services performed and will set forth the fees and expenses relating to the legal services provided. The bill typically will contain charges incurred during the prior month. Charges for some expense items such as copy and delivery charges may not be processed and billed until sometime after the expense has been incurred. Bills are due upon receipt, and may be paid by check, wire transfer, Visa, MasterCard or American Express. We strive to provide clear and prompt billing statements. If you have any questions regarding your invoice, please promptly call your responsible attorney or our accounting department. Advance Fee and Trust Deposits If required by your Engagement Letter,you must pay in advance an amount equal to our estimate of the fees and costs for some or all of the work contemplated by the scope of the engagement. Any amount remaining at the conclusion of the engagement will be returned to you. If, after commencing work, it appears the advance payment will be insufficient to cover legal fees and costs, you may be asked to advance additional amounts. 6 If required by your Engagement Letter,you must pay a retainer to secure our availability for a given period of time, which is considered earned by us when paid. Amounts you pay to us in trust, including advance payments for fees and costs,will be deposited in a trust account that we maintain for the benefit of our clients as required by the Rules of Professional Conduct. Under these rules,if your deposit is not expected to earn a"positive net return"given its size,the expected duration of the deposit and prevailing interest rates(less reasonable bank and administrative charges),we will place the deposit into a pooled account. The interest earned on this account must be paid to a charitable foundation established by court rule. If your deposit likely will earn a"positive net return",you may request that it be placed into a segregated account and interest earned on that account will be added to your deposit and will be reported by our bank to the Internal Revenue Service as taxable income to you. If you wish us to place such funds into a segregated account for your benefit,you must provide us with your Federal Tax Identification Number. Attorney-Client Privilege Our attorneys and staff recognize our duty to maintain confidentiality. The attorney-client privilege protects communications between us, whether oral or written, as long as neither of us discloses those communications to anyone else. Privileged communications cannot be used in court without your consent. Therefore, to preserve the privilege and confidentiality of our communications, you should not show our written communications or discuss any oral communications between us with anyone. Furthermore, certain communications and documents prepared in anticipation of litigation are also privileged even if no attorney is involved. Because disputes can arise as to whether certain communications are privileged, if you have any questions regarding what you can do,be sure to seek advice from the lawyer with whom you are working. We are not acting as your counsel with respect to the provisions of this statement of Terms for Engagement of Services and to do so would be a conflict of interest. If you wish to seek advice from independent counsel ofyour choice about whether you should agree to these terms,please do so. In addition, if you have any questions or would like additional information, we are happy to discuss this statement with you further. These terms of engagement will govern our relationship, however, unless we reach a different agreement in writing. Independent Contractor We are an independent contractor and no member or employee of our firm shall be deemed to be your employee. Indemnity and Insurance We shall indemnify Client against and hold the County harmless from any claim against you for damages made by a vendor who provided goods or services to us in connection with the engagement. We will have in effect professional liability insurance ("errors and omissions") that provides coverage 7 for errors and omissions by us for the engagement that has limits in the full amount customarily carried by us. This errors and omissions insurance shall be primary if any allegation is made of professional malpractice arising from our representation of you. We will place such insurance with insurers licensed to do business in the State of Washington and have A.M. Best Company ratings of no less than A-VII, with the exception that excess and umbrella coverage used to meet the requirements for limits of liability or gaps in coverage need not be placed with insurers or reinsurers licensed in the State of Washington. We shall furnish the County with properly executed certificates of insurance or a signed policy endorsement which will clearly evidence all insurance required within 10 days after the effective date of this Engagement Letter. The certificate(s)or endorsement(s) shall, at a minimum, list limits of liability and coverage. The certificate(s) or endorsement(s)will provide that the underlying insurance contract may not be canceled, or allowed to expire, except on 30-days' prior written notice to the County. Any certificate or endorsement limiting or negating the insurer's obligation to notify the County of cancellation or changes must be amended so as not to negate the intent of this provision. If applicable, we will request that the Washington State Department of Labor and Industries, Workers Compensation Representative, send written verification to your risk manager that we are currently paying workers' compensation. Written notice of cancellation or change in errors and omissions insurance shall be provided by Attorneys to County at the following address: County Risk Manager Jefferson County P.O. Box 1220 Port Townsend, WA 98368 We shall provide a copy of all insurance policies required above upon request of your risk manager. Appointment as a Special Deputy Prosecuting Attorney Our representation is conditioned on an appointment by the Jefferson County Prosecuting Attorney pursuant to RCW 36.27.040 and that we are subject to billing guidelines agreed upon between us and the Jefferson County Prosecuting Attorney's Office, a copy of which is attached as Appendix B. Where the agreed upon billing guidelines and these terms conflict, the billing guidelines control. We understand that you have selected us not only for our expertise, but also for our reputation as responsive and creative counsel. Be assured that we will strive to live up to your expectations. If you have any questions, please do not hesitate to call. Seattle: Foster Pepper PLLC Spokane:Foster Pepper PLLC 1111 Third Avenue, Suite 3000 618 West Riverside Avenue, Suite Seattle, Washington 98101-3299 300 Phone: (206) 447-4400 or(800) Spokane, Washington 99201-5102 995-5902 Phone: (509) 777-1600 Facsimile: (206)447-9700 or 9283 Facsimile: (509) 777-1616 8 Appendix B Billing Guidelines for Outside Counsel Working On Behalf of Jefferson County 1. Approval as Counsel Required Before Billing. Appointment as a special deputy prosecuting attorney pursuant to RCW 36.27.040 must be obtained outside counsel working on behalf of the County(outside counsel) and a contract must be approved by the Jefferson County Board of Commissioners(Board)prior to submission of any invoice for payment. 2. Conflicts of Interest. Jefferson County(the County) expects outside counsel to be free of any conflict of interest and the appearance of any conflict of interest during the course of representation of the County. Jefferson County recognizes that a conflict between outside counsel and its representation of the County may arise, and the County will consider waiving a conflict of interest when the County's interests are not impaired or compromised. If any ethical or business conflict arises,outside counsel shall contact the Jefferson County Prosecuting Attorney(Prosecuting Attorney) immediately. 3. Staffing Philosophy. Outside counsel are retained by the County because of their expertise in the matter for which they are retained. The County expects that all matters handled on behalf of the County will be properly, economically and effectively staffed. The lead or managing attorney at a firm representing the County is responsible for appropriately staffing the matter to ensure minimal duplication of efforts and to ensure tasks are assigned to staff at the appropriate level of expertise and billing rate. The goal is to minimize the number of timekeepers involved in the effective completion of tasks necessary for representation in the matter. 4. Staffing Approval. Outside counsel shall propose, and the Prosecuting Attorney shall approve,the initial staffing of the matter. New timekeepers may be added to the representation of the County only with the approval of the Prosecuting Attorney,which approval shall not be unreasonably withheld. 5. Status Reporting. Outside counsel shall provide status reports as required by the Prosecuting Attorney. The Prosecuting Attorney's strong preference is for oral, not written status reports. 6. Settlements. No settlement can be made without obtaining a recommendation from the Prosecuting Attorney and approval by the Board. 7. Third-Party Vendors. No third-party vendor shall be hired without prior discussion with and approval by the Prosecuting Attorney. The County shall not accept any invoice from a third-party vendor without prior discussion and approval in advance of the initiation of billing activity by the third-party vendor. 8. Legal Research. Legal research should be included in the outside counsel's overhead and shall not be billed to the County without prior approval. 9 9. Temporary or Contract Employees. Temporary or contract employees(including summer associates) shall not be used by outside counsel without prior approval of the Prosecuting Attorney. The County shall only pay the actual cost of temporary or contract employees. 10. Rates. The County shall pay outside counsel based on hourly rates or flat fees previously approved by the County, as set forth in a written document sent to the Prosecuting Attorney. A request to increase hourly rates may be made by outside counsel once per year during the term of the engagement. No unilateral rate increase shall be honored. Long-term travel of more than 50 miles(100 miles including the return) shall be billed at 1/2 the hourly rate,when the timekeeper cannot bill for the work. 11. Billing Procedure. The County shall pay only for the actual, reasonable and necessary work spent completing at task or series of tasks. Each billing entry shall list the date,the identity of the timekeeper and the task being billed in a manner sufficient for the County to determine what task was accomplished and why the work was necessary for the progress of the matter. Duplicate work by multiple timekeepers or the same timekeeper shall not be billed. The minimum billing entry shall be 0.10 of an hour. Tasks on a given day that take less than one minimum entry shall be grouped as one minimum entry. Each individual task(or a grouping of minimum tasks) shall be stated separately for each timekeeper on an invoice. Expenses shall be separately documented, billed and copies of the receipts, invoices,or other backup for the expenses shall be provided with each invoice. 12. Billing Frequency. Invoices shall be submitted at least quarterly, monthly is strongly preferred. 13. Overhead Expenses Not Reimbursable. Unless approved in advance by the County, overhead expenses are not reimbursable and include but are not limited to: Internal copying or scanning costs of over 10 cents per page; costs for converting paper materials in to electronic materials and vice versa; overtime charges for salaries,meals or transportation, rent or utilities; continuing legal education or attendance at seminars; conference rooms or facilities; software and equipment rental; refreshments or meals during meetings; any alcoholic beverages; gratuities in excess of 15%; local travel (less than 50 miles and 100 miles including the return); travel agent or booking service fees; temporary employee agency fees; incoming faxes; markups of costs; computerized legal research such as Westlaw or LexisNexis; internet connections;case management or litigation software systems; or, cell phone charges. 14. No Billing for Local Travel. Costs for travel of less than 50 miles (100 miles including the return) shall not be billed. 15. Invoice Submission, Review and Payment Procedure. Invoices shall be submitted to the Prosecuting Attorney for review with standards of reasonableness, necessity and efficiency. After this review for consistency,the Prosecuting Attorney shall submit all approved amounts for processing by the County Auditor. Payment of any invoice by the County does not constitute a waiver of the County's right to subsequently review, dispute, seek reimbursement of, compromise or request future credits of legal fees from outside 10 counsel. Payment of hourly rates that have not been approved does not constitute acceptance of those hourly rates. Any adjustments to invoices shall be detailed in an invoice report that shall be sent to outside counsel by email. Outside counsel may request reconsideration of any material adjustments to an invoice by making such request to the Prosecuting Attorney within 60-days of receipt of an invoice report. 16. No Interest Shall Be Charged on Invoices. Interest shall not be charged due to any claim of late payment of any invoice. 11