Loading...
21.01.13 KKR Engagement Letter -Tennessee Pass Rail LineKAPLAN KIRSCH ROCKWELL January 8, 2021 Sarah Smith Hymes Mayor, Town of Avon 100 Mikaela Way P.O. Box 975 Avon, CO 81620 Re: Engagement for Legal Services Dear Mayor Smith Hymes: DENVER BOSTON NEW YORK SAN FRANCISCO WASHINGTON, DC We are very pleased that the Town of Avon (the "Town") wishes to retain Kaplan Kirsch & Rockwell LLP (the "Firm") to represent the Town in connection with its advocacy, negotiation and regulatory efforts related to the proposed activation of freight service on the Tennessee Pass rail line and matters related to potential uses of the Union Pacific rail line through the Tennessee Pass ("Tennessee Pass Matters"). This letter sets forth the terms under which the Firm will represent the Town on this matter and any other matters as directed by you. As you know, and as requested by the Town, the Firm will also be jointly representing Eagle County with regard to the Tennessee Pass Matters. It is also our understanding that the Town and Eagle County (collectively referred to as "consortium") may be seeking to include other towns and counties in a consortium on these same Tennessee Pass Matters, and that we would be then asked to represent jointly all of these entities in the consortium. The understanding between the Town and Eagle County is that each would be responsible for, and pay, fifty percent (50%) of the Firm's fees and expenses, as set forth below, for representation on the Tennessee Rail Matters and that the Town and Eagle County each consent to this arrangement. While we are reluctant to be overly formal, we have found that a detailed retainer letter is the best way to satisfy our ethical obligations and to be sure that each parties' obligations are clearly set forth in writing. The effective date of our representation is January 7, 2021. I will be the partner -in -charge of this engagement, and Allison Fultz and I will be the contact person for the Firm on this matter. At any time during our representation, you and your colleagues should always feel free to contact Kaptan Kirsch & Rockwell LLP 1675 Broadway tel: 303.825.7000 Attorneys at Law Suite 2300 1 fax. 303.825.7005 Denver, CO 80202 kaplankirsch.com Mayor Sarah Smith Hymes January 8, 2021 Page 2 Allison Fultz or me or any other Firm partner if you have any questions or concerns about our work on your behalf. Also, Allison Fultz will be the lead attorney on the Tennessee Pass Matter. Scope of Our Representation. The Town is engaging the Firm to advise it on matters as set forth above and other matters to which we may jointly agree in writing. The scope of our representation is limited to these matters. Attorneys within the Firm are licensed to practice law before the U.S. Supreme Court, most federal appellate and many federal district courts, as well the highest court in many states. To the extent that you seek advice with respect to states where Firm attorneys are not licensed, we will provide advice in a manner consistent with the rules of professional conduct applicable to the practice of law in that state. Opinions on Likely Outcomes. Either at the commencement or during the' course of our representation, attorneys in the Firm may express opinions or conclusions concerning the likely outcome of the matters or various courses of action and the results that might be anticipated. We trust that you understand that, while we will always endeavor to give you candid and accurate assessments, any such statements will be an expression of our opinion based on information available to us at the time and are not a promise or guarantee. Fees and Charges. The Firm will charge for its services according to the fees set out herein. As indicated, Allison Fultz will be the lead attorney, and other attorneys, including Bob Randall and myself, will be involved as needed. Our hourly rates, as we have set forth to you, are $450 for partners, $375 for associates, and $160 for paralegals and law clerks. The Firm charges fees in six -minute (1110 hour) increments. These rates will be effective until at least the end of 2021. The Firm annually evaluates its rates and will notify you in advance of any anticipated changes in rates. Please note that our rates are discounted from our normal rates, reflecting a public sector discount. In addition to the hourly fee for services, the Firm will charge you for all necessary and incidental out-of-pocket expenses, including, but not limited to, travel costs, office expenses, computerized legal research, court reporting services, and court or other filing fees. We do not generally charge for routine photocopying and long-distance telephone or cell phone calls but do charge for especially large copying jobs, color copies and hosting conference calls, in some instances. Out-of-pocket expenses are charged at our actual cost. Please let us know if you have any special requirements for the expenditure or reporting of expenses. Invoices. It is the Firm's practice to send our clients a consolidated monthly invoice showing the amounts billed for particular matters during the period covered by the invoice. We can, however, prepare that invoice in any format that meets your needs. We urge you to raise any Mayor Sarah Smith Hymes January 8, 2021 Page 3 questions regarding our invoices as soon as they arise so that we can resolve any problems promptly. We require that the Town pay our fees promptly on a monthly basis. We consider any invoice more than 30 days old to be overdue. if the Town does not inform the Firm, in writing, of any questions or concerns with respect to the charges contained on an invoice within 30 days of receipt, the Firm will assume and the Town agrees that such charges are acceptable to the Town. The Firm reserves the right to charge interest of one percent per month on any outstanding amounts on invoices over 60 days old. We acknowledge that the Town will be seeking additional parties with whom to share costs in connection with this matter. As of the date of this letter, we understand that Eagle County has agreed to share costs on a 50150 basis with the Town, and we will accommodate revisions to the cost-sharing arrangement as necessary should others become involved in this arrangement. Unless requested otherwise, we will produce a comprehensive invoice reflecting total costs and effort on a monthly basis as described above, with a breakdown reflecting the allocated share for each participant. Conflicts Evaluation. Common representation of the members of the consortium is permissible where the members of the consortium are generally aligned in interest, even if the is some difference of opinion between them. However, the Firm's common representation of the members of the consortium presents a number of potential conflicts for the Firm. An attorney generally is prohibited from representing a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person unless (1) the lawyer reasonably believes the representation will not be adversely affected, and (2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation must include explanation of the implications of the common representation and the advantages and risks involved. While the Firm does not expect our representation of the Town and Eagle, and perhaps others to be added, to be materially limited by any responsibility to a single client or a third party, we think it is prudent nonetheless to obtain the Town's consent, as well as that of Eagle County and future members of the consortium. As we have discussed, common representation by the Firm may present certain advantages to the members of the consortium in efficiently facilitating and coordinating responses to the proposed use(s) of the Tennessee Pass rail line, in negotiating on these matters with the Union Pacific and others, in addressing regulatory matters, in advocacy and in cost sharing. However, as we also discussed, issues may arise on which the members of the consortium's interests may diverge. These include, by way of example, acceptable use of the Tennessee Pass rail line for freight use only. In addition, there will likely be circumstances when the Firm has or gains knowledge of confidential information from members of the consortium, including the Town. The Firm does not and will not disclose such information or use it to the Mayor Sarah Smith Hymes January 8, 2021 Page 4 disadvantage of the Town or any one or more other members of the consortium without consent after consultation with the appropriate member(s) of the consortium. Accordingly, if at any time the future, should the firm believe that the interests of one or more members of the consortium are materially adverse with respect to each other on any issue or topic that arises during the common representation on the Tennessee Pass Matters, the other members of the consortium will consent to the following: (a) the Firm will immediately notify the other members of the consortium; (b) the Firm will, if requested by any member of the consortium, withdraw from representing such member of the consortium; (c) the Firm will continue to represent the remaining members of the consortium; and (d) the members of the Firm working on the Tennessee Pass Matters will continue to maintain in confidence all confidential information gained from any past or present member of the consortium. The Firm will also withdraw from representation of the remaining members of the consortium if the resulting conflict of interest would, in our view, render our continuing representation of the remaining members of the consortium unlawful or unethical, or the Firm and the members of the consortium agree on alternative arrangements. Notwithstanding the foregoing waiver and consent, such waiver and consent does extend to any litigation, mediation, or arbitration proceedings between any members of the consortium, and the Firm shall not use any confidential information of a non-public nature obtained by the Firm from representation of the members of the consortium in connection with the Firm's representation of the members of the consortium in any other matter without their consent. Further, this waiver and consent is conditioned upon the Finn's agreement that if any litigation, mediation or arbitration arises between one or more members of the consortium and any other member or members of the consortium in connection with the Tennessee Rail Matters, the Firm will not undertake the representation of any of the members of the consortium that are parties to such litigation, mediation or arbitration. In accordance with the applicable ethical rules, we have confirmed that we have no current actual conflicts between Town and any Firm clients. Further, we are not aware of any potential conflicts. As you are aware, the Firm represents a number of public sector and private sector clients. We cannot foreclose the possibility that, at some time in the future, any existing or future Firm client may be adverse to the Town on matters completely unrelated to this engagement. it is also possible that an existing Firm client is currently adverse to the Town on a matter of which we are unaware or in which we have no involvement. The Town understands and agrees that the Firm may represent new and existing clients in any matter that is not substantially related to our work for the Town even if the interest of such other clients may be directly adverse to the Town or to any entity or person related to the Town, with one exception: This prospective consent to conflicting representation will, of course, not apply to any matter Mayor Sarah Smith Hymes January 8, 2021 Page S where, as a result of our work for the Town, we have obtained sensitive, proprietary, or otherwise confidential information that could be used by such other clients to the material disadvantage of the Town. Should we be involved in other matters for the Town, the conflict evaluation will be done at that time on a case-by-case basis. Also, as we discussed yesterday with the Town team, we provide representation to Eagle County related to the Eagle County Regional Airport. While this representation does result in a conflict, we wanted to again document it should you have any questions. Termination of Our Engagement. Upon completion or termination of our representation on the matters described above, the attorney-client relationship will end unless the Town and the Firm have agreed to a continuation with respect to other matters. The Town has the right, at any time, to terminate our services and representation upon written notice to the Firm. We reserve the right to withdraw from our representation if, among other things, you fail to honor the terms of this engagement letter, you fail to cooperate or follow our advice on a material matter or any fact or circumstance (including any conflict of interest with another client) that would, in our view, render our continuing representation unlawful or unethical. If we elect to withdraw, you will take all steps necessary to free us of any obligation to perform further, including the execution of any documents necessary to complete our withdrawal. No termination of our representation by the Town or the Firm will relieve you of your obligations under the terms of our engagement to pay for services rendered or for costs or expenses paid or incurred on your behalf. In the unusual event that a court of competent jurisdiction refuses to permit us to withdraw upon termination, you would remain responsible for fees and costs. In the event we are compelled to intervene in a pending lawsuit or initiate any proceeding in order to recover any amount due under the terms of our engagement, the prevailing party is entitled to be reimbursed for any and all reasonable attorneys' fees, court costs, and expenses incurred in such proceeding. Entire Understanding of Terms of Our Representation. This engagement letter constitutes our entire understanding and agreement with respect to the terms of our engagement and supersedes any prior understandings and agreements, written or oral, regarding representation on this matter. If any provision of our engagement letter is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and erect. This engagement letter may only be amended in writing by the Firm and the Town. Mayor Sarah Smith Hymes January 8, 2021 Page 6 If the terms described above are satisfactory, please so indicate by signing this letter and returning one signed copy to me. We look forward to working with you and your colleagues on this matter, and we look forward to a mutually satisfactory relationship. Thank you again for your interest in engaging the Firm. Sincerely, Kaplan Kirsch &Rockwell LLP By: ACCEPTED AND AGREED ON BEHALF OF TOWN OF AVON By: klvla� 4"4j - Ms. Sarah Smith Hymes Mayor J, Town of Avon, Colorado Date: Ot I o /'2 l CC: Eric Heil, Town Manager Paul Wisor, Town Attorney