Bingham McHale/HR Line Item No. 1201/404 Consulting
Amount Not to Exceed $5,000.00; P.O. No. 14011
Bingham McHale LLP
attorneys at l a w
Linda Nichols Kenny
• Attorney
Direct:317.968.5391
September 15, 2005 lkenny@binghammchale.com
PERSONAL AND CONFIDENTIAL
Ms. Barbara A. Lamb •
Director of Human Resources
One Civic Square
Carmel, IN 46032
Re: Engagement Letter for Retirement Plan Work
Dear Barbara:
Thank you for contacting me on September.8th. Bingham McHale stands ready to help the
City of Carmel!
I am writing to confirm our proposed representation of the City of Cannel, Hamilton
County, Indiana("Carmel") in connection with the following three projects:
• Finalizing a 457(b)plan document previously prepared by Baker&Daniels;
• Preparing a 401(a) plan for receipt of Carmel's matching contributions and merger
of four prior 401(a) plans into this new 401(a)plan; and
• Preparing an opinion letter on paid military leave and whether that pay should be
reported on an IRS Form W-2 and subject to federal, state and local income tax
withholding.
The terms of our representation are set forth below and in the accompanying document entitled
"Terms of Engagement."
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Scope of Representation
Carmel sponsors an eligible 457(b) plan that is not subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") since it is a government plan. Carmel has
requested that the firm assist in finalizing a 457(b) document that was initially prepared by Baker&
Daniels. We are not responsible for looking at the prior 457(b) documents used through four
insurance companies. Carmel has also asked our assistance in preparing a 401(a)plan document for
its matching contribution deposited with various insurance companies. Finally, Carmel has asked
for an opinion letter regarding the tax aspects of paid military leave.
2700 Market Tower • 10 West Market Street . Indianapolis, Indiana 46204-4900
Telephone 317.635.8900 • Facsimile 317.236.9907 • binghammchale.com ,
Indianapolis Jasper Noblesville
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Bingham • McHaleu.P
attorneys at taw
Ms. Barbara A. Lamb -
September 15, 2005
Page 2 of 8
Fees and Expenses
Our firm will handle these matters on an hourly basis. I (Linda Kenny) will be performing
the work, but I may obtain assistance from an associate and/or a paralegal. My hourly rate for any
• ERISA work is $290 an hour; and the associate and paralegal work would be $160-$190 for an
associate and $110 an hour for a paralegal. We will also bill for expenses as described in the
accompanying document. Note: The firm will offer Carmel a 5% discount on all hourly rates.
The firm will send you monthly billing statements at the above address (to the attention of
Barbara Lamb)with a duplicate copy sent to the Douglas Haney, Carmel City Attorney, at the same
address. The bills will provide a full report of the date, person performing the work, time incurred,
and description of the work performed.
At the present time, no retainer is being requested from Carmel.
Consent to our Representation
If you have any objections to proceeding as forth above,please let me know immediately so
that we can resolve them as soon as possible. Otherwise, please confirm your understanding of and
agreement to the terms of our representation as set forth above and in the accompanying document
by signing your extra copy of this letter enclosed herewith and returning it to me as soon as possible
in the enclosed self-addressed, stamped envelope. Again, thank you for the opportunity to be of
service in these matters.
Very truly yours,
Linda Nichols Kenny
985575
Enclosure
cc: Randy Seger,Esq. (w/o Enclosure)
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Bingham McHa1eur
attorneys a' t Law
Ms. Barbara A. Lamb
September 15, 2005
Page 3 of 8
I agree to Bingham McHa1e LLP's representation as set forth above and in the
accompanying Terms of Engagement.
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
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James Brainard,Presiding Officer Date
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Burke, Board Member Date
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Lori Wa 'on,Bo tuber Date
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iana Cordray IAMC, Cie 'Treasurer Date
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Bingham a McHa1e wr
a t t o r n e y s a t law
Ms.Barbara A. Lamb 1
September 15, 2005
Page4of8.
TERMS OF ENGAGEMENT
We appreciate your decision to retain Bingham McHale LLP as your legal counsel. This
document explains how we work, our obligations to you, your obligations to us, what we will do on
your behalf, and how our charges will be determined and billed. Experience has shown that an
understanding of these matters will contribute to a better relationship between us, and that in turn
makes our efforts more productive. •
Our engagement and the services that we will provide to you are limited to the matter
identified in the accompanying letter. Any changes in the scope of our representation as described
in the letter must be approved in writing. We will provide services of a strictly legal nature related
to the matters described in that letter. You will provide us with the factual information and
materials we require to perform the services identified in the letter, and you will make such business
or technical decisions and determinations as are appropriate. You will not rely on us for business,
investment, or accounting decisions, or expect us to investigate the character of credit of persons or
entities with whom you may be dealing, unless otherwise specified in the letter.
Confidentiality and Related Matters
Regarding the ethics of our profession that will govern our representation, several points
deserve emphasis. As a matter of professional responsibility, we are required to preserve the
confidences and secrets of our clients. This professional obligation and the legal privilege for
attorney-client communications exist to encourage candid and complete communication between a
client and his lawyer. We can perform truly beneficial services for a client only if we are aware of
all information that might be relevant to our representation. Consequently, we trust that our
attorney-client relationship with you will be based on mutual confidence and unrestrained
communication that will facilitate our proper representation of you. Additionally, you should be
aware that, in instances in which we represent a corporation or other entity, our client relationship is
with the entity and not with its individual executives, shareholders, directors,partners, or persons in
similar positions that are adverse to individual persons or business organizations who have a
relationship to you. Of course, we can also represent individual executives, shareholders, partners,
and other persons related to the entity in matters that do not conflict with the interests of the entity,
but any such representation will be the subject of a separate engagement letter.
Fees and Billing
When establishing fee for services that we render, we are guided primarily by the time and
labor required, although we also consider other appropriate factors, such as the novelty and
difficulty of the legal issues involved; the legal skill required to perform the particular assignment;
time-saving use of resources (including research, analysis, data and documentation) that we have
previously developed and stored electronically or otherwise in quickly retrievable form; the fee
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Bingham e McHa1e,lr
attorneys at taw
Ms. Barbara A. Lamb
September 15, 2005
Page 5 of 8
customarily charged by comparable firms for similar legal services; the amount of money involved
or at risk and the results obtained; and the time constraints imposed by either the client or the
circumstances. The firm generally requires a retainer in an amount that is appropriate with respect
to the proposed representation.
In determining a reasonable fee for the time and labor required for a particular matter, we
consider the ability, experience, and reputation of the Jawyer or lawyers in our firm who perform the
services. To facilitate this determination, we internally assign to each lawyer an hourly rate based
on these factors.
Of course, our internal hourly rates change periodically to account for the increases in our
cost of delivering legal service, other economic factors, and the augmentation of a particular
lawyer's ability, experience, and reputation. Any such changes in hourly rates are applied
prospectively, as well as to unbilled time previously expended. We record and bill our time in one-
tenth hour(six minute) increments.
When selecting lawyers to perform services for you, we generally seek to assign lawyers
having the lowest hourly rates consistent with the skills,time demands, and other factors influencing
the professional responsibility involved in each matter. That does not mean that we will always
assign a lawyer with a lower hourly rate than other lawyers. As circumstances require, the services
of lawyers in the firm with special skills or experience may be sought when that will either (a)
reduce the legal expense to you, (b) provide a specialized legal skill needed, or (c) help move the
matter forward more quickly. However, we specifically agree to charge you only for the time spent
by the highest hourly-rated attorney involved in intra-office conferences and to charge you at one-
half the hourly rate for travel time.
Out-of-Pocket Expenses. In addition to legal fees, our statements will include reasonable
out-of-pocket expenses that we have advanced on your behalf and our internal charges (which may
exceed direct costs and allocated overhead expenses) for certain support activities. Advanced
expenses generally will include such items as travel, postage, filing, recording, certification, and
registration fees charged by governmental bodies. Our internal charges typically include such items
as toll calls, facsimile transmissions, overnight courier services, certain charges for terminaltime for
computer research and complex document production, and charges for photocopying materials sent
to the client or third parties or required for our rise. We may request an advance cost deposit (in
addition to the advance fee deposit) when we expect that we will be required to incur substantial
costs on behalf of the client. We specifically agree to charge no more than: (a) ten cents ($0.10)per
copy for in-house photocopies and (b) nothing ($0.00) for facsimile transmissions, except for
outgoing long distance facsimile transmissions, which shall be charged at cost.
During the course of our representation, it may be appropriate to hire third parties to
provider services on your behalf. These services may include such things as consulting or testifying
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Bingham ® McHaleL,.P
attorneys a t - t a w
Ms. Barbara A. Lamb
September 15, 2005
Page 6 of 8
experts, investigators, providers of computerized litigation support, and court reporters. Because of
the legal "work product"protection afforded to services that an attorney requests from third parties,
in certain situations our firm may assume responsibility for retaining the appropriate service
providers. Even if we do so, however, you will be responsible for paying all fees and expenses
directly to the service providers or reimbursing us for these expenses. A third party will not be
engaged unless and until we have your written consent to such engagement.
Billing. We bill periodically throughout-the engagement for a particular matter, and our
periodic statements are due when rendered. Our statements will be rendered monthly. Our
statements contain a concise summary of each matter for which legal services are rendered and a fee
is charged, and will be broken down into 1/10 hour increments, complete with a detailed
explanation of the service provided and by whom.
If our statements are not paid in a timely manner, we reserve the right to discontinue
services in accordance with the Rules of Professional Conduct. Any payments made on past due
statements are applied first to the oldest outstanding statement. We are entitled to attorneys' fees
and expenses if collection activities are necessary.
Questions About Our Bills. We invite you to discuss freely with us any questions that you
have concerning a fee or cost charged for any matter. We want our clients to be satisfied with both
the quality of our services and the reasonableness of the fees that we charge for those services. We
will attempt to provide as much billing information as you require and in such customary form that
you desire, and are willing to discuss with you any of the various billing formats we have available
that best suits your needs.
Relationships with Other Clients
Because we are large, full-service law firm we may be (and often are) asked to represent a
client with respect to interests that are adverse to those of another client who is represented by the
firm in connection with another matter. Just as you would not wish to be prevented in an
appropriate situation from retaining a law firm that competes with Bingham McHale, LLP, our firm
wishes to be able to consider the representation of other persons who may be competitors in,your
industry or who may have interests that are potentially adverse to yours, but with respect to matters
that are unrelated in any way to our representation of you. The ethics that govern us permit us to
accept such multiple representations, assuming certain requirements are met.
During the term of this engagement, we agree that we will not accept representation of
another client to pursue interests that are directly adverse to your interests unless and until we make
full written disclosure to you of all the relevant facts, circumstances, and implications of our
undertaking the two representations, and confirm to you in good faith that we have done so and that
the following criteria are met: (i) there is not substantial relationship between any matter in which
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Bingham e McHale,,,,p
attorneys at taw
Ms. Barbara A. Lamb
September 15, 2005
Page 7 of 8
we are representing or have represented you and the matter for the other client; (ii) any confidential
information that we have received from you will not be available to the lawyers and other Bingham
McHale, LLP personnel involved in the representation of the other client; (iii) our effective
representation of you and the discharge of our professional responsibilities to you will not be
prejudiced by our representation of the other client; and (iv) the other client has also consented in
writing based on our full disclosure of the relevant facts, circumstances, and implications of our
undertaking the two representations. If the foregoing conditions are satisfied, you agree that we
may undertake the adverse representation and that all conflict issues will be deemed to have been
resolved or waived by you.
By making this agreement, we are establishing the criteria that will govern the exercise of
your right under applicable ethical rules to object to our representation of another client whose
interests are adverse to yours. If you contest in good faith the facts underlying our confirmation to
you that the specified criteria have been met, then we will have the burden of reasonably supporting
those facts.
Termination
Upon completion of the matter .to which this representation applies, or upon earlier
termination of our relationship, the attorney-client relationship will end unless you and we have
expressly agreed to a continuation with respect to other matters. We hope, of course, that such a
continuation will be the case. The representation is terminable at will by either of us, subject to the
Rules of Professional Responsibility. The termination of the representation will not terminate your
obligation to pay fees and expenses incurred prior to the termination.
Your agreement to this engagement constitutes your acceptance of the foregoing terms and
conditions. If any of them is unacceptable to you, please advise us now so that we can resolve any
differences and proceed with a clear, complete, and consistent understanding of our relationship.
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