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BAKERBAKER 41 DANIELS
EST.1863
JOSEPH L SMITH,JR. BAKER&DANIELS LLP
Partner 300 North Meridian Street,Suite 2700
Direct 317.237.1009 Indianapolis,Indiana 46204-1782
joseph.smith@bakerd.com Tel 317.237.0300 Fax 317.237.1000
www.bakerdaniels.com
September 24, 2010
Mayor James Brainard
Carmel City Hall
One Civic Square
Carmel, IN 46032
Re: 911 Wireless Fees/2011 Indiana Legislature
Dear Mayor Brainard:
Our purpose in writing this letter is to confirm that the "Hamilton County
Coalition" has engaged Baker & Daniels LLP to represent it as described below and outline the
terms of our engagement. This letter is directed to each of the members of the Hamilton County
Coalition, including the City of Carmel. Please be advised that while our client is the Hamilton
County Coalition and not the individual members of the Coalition, it is the individual members
that are responsible for paying our work on behalf of the Hamilton County Coalition.
Although we would prefer to confirm these matters in a less formal manner, it is
now our regular practice to use a standard engagement letter, including the attached "Terms and
Conditions of Engagement," because experience has demonstrated that the attorney/client
relationship is enhanced by a mutual understanding of our services and fee arrangements. If you
have other terms or guidelines you regularly use for outside counsel, please let us know, and we
will be happy to review them. However, the terms of our engagement will be governed by this
engagement letter and the attachment, unless we agree otherwise in writing.
You have engaged us to pursue legislation that will provide a funding solution for
a consolidated emergency communication center in Hamilton County. In addition, we will
explore legislation to address the differences with 911 wired and wireless user fees. Our desire
is to provide a stable funding source for a consolidated emergency communication center. The
fee for our services is $20,000.00. The first installment of$10,000 will be invoiced to you in
January 2011. The second and final invoice will be sent in March 2011. You are free to
discontinue our legislative relationship with thirty (30) days notice. Should you chose to
discontinue the engagement, you will only be responsible for the amount incurred up to that
point.
As referenced herein, additional terms and conditions are set forth in the
attachment hereto. We would encourage you to pay particular attention to the provision
regarding (a) the definition of our client and the fact that we will not treat affiliates and
constituents as our client in this engagement, as set forth under "Scope of Engagement," and (b)
the information set forth under "Consent to Conflicts."
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Mayor James Brainard -2- September 24, 2010
We trust this letter and attached "Terms and Conditions of Engagement" are
satisfactory to you. Your signature will confirm that you have read and agreed to all such terms,
including the attached Terms and Conditions of Engagement. This agreement will take effect on
the date of your signature or when we first perform services, whichever is earlier. Please date
and sign the original of this letter and retain it for your own files, and date and sign the enclosed
copy of this letter and return it to us. Please let us know immediately if that is not the case.
Otherwise, we will proceed in our representation of you with the express understanding that you
have accepted the terms set forth in this letter, including the attached Terms and Conditions of
Engagement.
Of course, feel free to contact me if you have any questions regarding the terms
set forth in this engagement letter, and feel free to discuss with me any aspect of the firm's
representation, including personnel and billing, at any time during the course of our
representation of you.
We appreciate this opportunity to serve you and look forward to working with
you. We commit to represent your interests vigorously and efficiently.
Sincerely,
BAKER & DANIELS LLP
By:
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Terms and Conditions of Engagement
The following terms and conditions of engagement shall apply to representation by Baker&
Daniels LLP as set forth in the letter to which this "Terms and Conditions of Engagement" is
attached. (When we use the pronoun "you" in this letter, we mean our client in this engagement.
When the client is an entity, we have addressed this letter to the client's authorized
representative, but the pronoun "you" refers to the entity client.)
Scope of Engagement. The scope of our engagement is set forth in the letter to which this
"Terms and Conditions of Engagement" is attached. The scope of our engagement may change
if you ask us to provide different services, and we agree in writing to provide them or we
actually provide them and bill you for them. If our engagement changes, the terms set out in this
letter will apply to the changed engagement, unless we enter into a further agreement modifying
or superseding this one. Our engagement may be terminated by either one of us by written
notice to the other.
In representing a client that is an entity, we do not thereby also separately represent affiliates,
parents, subsidiaries or other legal persons related to the entity ("Affiliates"), nor do we
separately represent the owners, officers, directors, founders, managers, members, general
partners, limited partners or employees of the entity (the "Constituents") in their individual
capacities or with respect to their individual affairs. We will rely upon you to inform them of
this fact where appropriate. We will look to the addressee of this engagement letter for our
instructions on behalf of the entity, unless you inform us otherwise in writing. Therefore, for
purposes of applying ethical rules relating to conflicts, you agree that: (1) we may treat the
addressee entity of this letter as our sole client, and our client does not include any Affiliate or
Constituent; and (2) our representation of you will not give rise to any conflict of interest in the
event other clients of ours are adverse to any Affiliate or Constituent.
Professional Responsibility. We will provide strictly legal services to you in connection with
this engagement. In providing legal services, we shall be guided by, and will not adopt positions
or engage in conduct that would violate the letter or the spirit of, the Rules of Professional
Conduct in effect in the jurisdictions in which we practice. You are not relying upon us for, and
we are not providing, any financial, investment or accounting advice or decisions or any
investigation of the character or credit of persons with whom you may be dealing. And, of
course, you understand that we cannot and do not guarantee any particular outcome in any matter
we are requested to handle.
Fees and Expenses. The general basis for our charges for services is set forth in the letter to
which this "Terms and Conditions of Engagement" is attached. Unless we have agreed in
writing to be bound by a specific amount, any estimate will be just that- a good faith estimate
and not a guarantee or a "not-to-exceed" figure.
We reassess our hourly rates from time to time, usually on an annual basis; but rates may change
more often. Changes may or may not apply across the board to all timekeepers. Unless
otherwise agreed with you, our bills will show timekeepers' time recorded on this engagement in
minimum increments of one-tenth of an hour, even though the actual time expended may be less.
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We are committed to providing quality legal services and value that exceeds the cost of our
services. We will attempt to discharge this engagement efficiently and cost-effectively. To
those ends, the individuals who we assign to work on this engagement may include attorneys and
paralegals who are resident at the firm's multiple offices. We have found that this approach to
staffing enables us to deploy on our clients' behalf the skills that we believe are needed,
regardless of the individual's location. We encourage your comments on staffing. We also use
independent contractors and "contract" attorneys and paralegals from time to time. On occasion
at the request of a client, we will attempt in good faith to estimate the fees and costs of a
particular matter.
In addition to fees, you will be responsible to pay for disbursements and certain other expenses
incurred as a result of this engagement. Our charges for these expenses generally reflect our
direct and indirect costs, but charges for certain items exceed our actual costs. We currently
charge 150 per page for photocopies and 950 per page for outgoing faxes. Certain ancillary
services, such as computer research and document reproduction, are used more extensively in
connection with some matters than others. Consequently, such services are billed on the basis of
direct utilization. Generally, we do not advance costs for disbursements to third parties; you will
be billed direct for such costs.
Billing Practices. Our standard practice is to bill monthly for both services and costs. Payment
will be considered to be past due after 30 days of receipt, and a late charge of 1% per month will
be charged on amounts not paid within 30 days from the first day of the month following the date
of the invoice. If you have any questions or concerns about how your bill was calculated or the
form in which it was presented, please bring it to our attention promptly.
To facilitate prompt payment, unless we are instructed otherwise in writing, bills will be
rendered only to you, and responsibility for payment will be yours solely. If we have more than
one client in this engagement, each is jointly and severally obligated to pay us, unless we
expressly agree otherwise in writing. Any outside arrangements you may have for
reimbursement, insurance, indemnification or the like will not change your obligation. Regular,
timely payment in full is a condition to our continuing to render legal services. You agree that
we may suspend or terminate our services and may withdraw from this engagement in the event
our fees, other charges and retainer requirements are not timely paid or funded. In addition, if
our engagement is terminated by either one of us for any reason, you will, of course, remain
obligated to pay us all fees and other charges to and including the termination date. Unless we
agree otherwise in writing, your obligation to pay us is not contingent upon a settlement,
judgment or closing. If our representation results in a monetary recovery by litigation or
arbitration award,judgment or settlement, or by other realization of proceeds, you hereby grant
us an attorneys' lien on those funds in the amount of any sums due us.
Consent to Conflicts
In the future, we may be asked to represent debtors in possession, creditors' committees or other
parties in interest in bankruptcy cases in matters adverse to you. Such matters for such clients
would be unrelated to our work for you. This letter confirms that you have kindly consented to
all such future representations adverse to you, and you agree that you will not use our acceptance
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or continuance of representations for you as a basis to attempt to disqualify us from representing
clients adverse to you in such matters. Of course, the firm will not accept an engagement
adverse to you that is the same or substantially related to any representation the firm is
discharging or has discharged for you.
Also currently and in the future, we may be asked to represent investment banking firms or other
financial institutions, real estate development companies, builders, other businesses, institutions
or individuals in matters adverse to you, including representations in connection with municipal
finance transactions, matters relating to seeking economic development incentives, zoning
approvals, land use approvals, development plan approvals, variances, dispute resolutions and
other proceedings and property tax appeals. Such matters for such clients would be unrelated to
our work for you. This letter confirms that you have kindly consented to all such existing and
future representations adverse to you, and you agree that you will not use our acceptance or
continuance of representations for you as a basis to attempt to disqualify us from representing
clients adverse to you in such matters.
As we previously discussed, we represent a number of clients that may own and develop real
estate in Hamilton County, Indiana. Because you are a public body governing persons who
reside or transact business in your jurisdiction, some of our clients, including these land owners
and developers, may have business before you from time to time. Because of this fact, we
cannot participate in any discussions or decisions concerning how a proposed zoning ordinance,
tax abatement or other similar matter would affect a specific project pending before the Council
or regarding a specific parcel of real estate without having first identified ownership and other
interests in the real estate to determine if a conflict exists and, if necessary, clearing such conflict
with the owner or developer. As provided above, if we determine after that review that such a
conflict exists, and we determine to refrain from providing services to you in connection with
that matter, this letter confirms that you consent to our representation of those other parties, and
you agree that you will not use our acceptance or continuance of representations for you as a
basis to attempt to disqualify us from representing clients adverse to you in such matters. Again,
the firm will not accept an engagement adverse to you that is the same or substantially related to
any representation the firm is discharging or has discharged for you.
As one example of a matter that we will refrain from representing you in connection with, and
that you consent to our continued representation of our other clients in, we represent Browning
companies and its affiliates and associates in development matters before the Council.
Confidentiality, Electronic Communication and Course of Conduct. Baker & Daniels LLP is
committed to maintaining the confidentiality of information that our clients entrust to us. As
lawyers, this is our ethical duty. It is also a principle of client service that is of paramount
importance to us.
Email, Extranet and other forms of electronic communication are increasingly important business
tools; and we make appropriate use of them in communicating with our clients. However, there
are risks associated with them. While we have no reason to suppose that our own email or other
electronic communication systems are not secure, you should be aware that information sent or
stored electronically might be accessed by third parties. When appropriate, we may communicate
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with you by email unless you ask us not to do so. Please note that email can be subject to delays
and non-delivery. In appropriate circumstances you should confirm with us that we have
received and read your email communication. We have measures in place to protect against
sending or receiving viruses, but we cannot guarantee that these will be completely effective.
We trust that you take your own precautions against possible virus infection.
In order to assist you effectively and efficiently, we expect you will provide us with the factual
information which relates to this subject matter of this engagement and that you will make any
appropriate business or technical decisions. We believe you should be actively involved in the
strategy and management of your legal affairs, and our goal is to encourage candid and frequent
communication between us. We will consult with you at appropriate junctures as the
engagement progresses. Ordinarily, such consultations are conducted in person or by telephone;
but if you desire that we communicate in writing in a particular instance, please let us know. In
addition, we may on occasion choose to communicate with you in writing.
In the course of this engagement, you may be asked to read and perhaps sign various legal
documents. Please read the documents carefully so that you thoroughly understand them. If you
have any question whatsoever, you should address it to us right away.
You hereby consent to our sharing information concerning your representation with personnel of
our consulting arm, B&D Consulting, when we conclude that such sharing may enable such
personnel to aid us in providing comprehensive service to you. We also advise you that in some
situations, our lawyers may designate such consulting personnel to act as paralegals in directly
aiding our lawyers in the provision of legal services.
Unless you indicate otherwise, we will include you on our electronic mailing list to receive legal
updates, newsletters and general information from the firm.
Files and Records. After this engagement has ended and you have paid us for all services, you
may request the return of your files. (If you have not paid us, we will have the right to assert a
retaining lien on your files.) We will retain your files for ten years following the conclusion of
this engagement. If you do not request the files in writing before the end of that ten-year period,
upon the expiration of that period, we will have no further obligation to retain the files and may
in our discretion, destroy the files without further notice to you. You acknowledge that all
client-supplied materials are your property and are subject to your record retention policy, not
ours. Through this provision, we seek to limit the inadvertent retention of your property in our
files over and beyond the time frame required by your record retention policy.
Termination of Engagement. This engagement will terminate upon the completion of the matters
for which we have been engaged and that are described in this letter, unless you have expanded
the scope of the engagement or retained us on a separate matter
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