From: Jennifer Cline
Sent: Thu Nov 12 15:44:51 2015
To: Chad Jacobs; Dan Huff; Christine Hein; J.W. Ring
Subject: RE: Nursery Checklist
Importance: Normal
Attachments: Jennifer Cline Contact Info; Here’s proof I spoke with Jim on the phone back on May 4th. I never received a return call or visit in person by Jim. As you can see in the email, I also provided him with a copy of the agreement. Jennifer Cline, P.E. | Public Works Director Licensed in OR, WA 117 N Molalla Ave. | PO Box 248 * |Molalla, OR 97038 O: 503.759.0218 | F: 503.829.3676 From: Chad Jacobs [mailto:Chad@gov-law.com] Sent: Thursday, November 12, 2015 3:39 PM To: Dan Huff <dhuff@cityofmolalla.com>; Christine Hein <CHein@ringbenderlaw.com>; J.W. Ring <JWRing@ringbenderlaw.com>; Jennifer Cline <jcline@cityofmolalla.com> Subject: RE: Nursery Checklist ATTORNEY/CLIENT COMMUNICATION PRIVILEGED AND CONFIDENTIAL Hi, My experience with this law firm, although somewhat limited, is that they will push the envelope on their legal and factual arguments to an extreme level, resulting in lots of attorney fees. My hope is that we can kill this in its tracks as soon as possible. To that end, I think we need to focus on the 2007 agreement, which was signed, and not necessarily the new agreement, which was never signed. Our argument is that he didn’t sign the new agreement so we had no obligation to provide him water, but their argument is going to be that he was relying upon the 2007 agreement. I can imagine all sorts of creative detrimental reliance, contract breach, and takings arguments from these folks. That’s why we need to focus on whether and how we notified him that we wouldn’t be supplying water under the 2007 agreement. As I read the 2007 agreement, it very clearly provides that we have no obligation to provide him with water due to orders from regulatory agencies (section 4.1) or if we or DEQ determine that the requirements of OAR Chapter 340 are not being met. I assume that one or both of these exceptions apply here given that we needed a new agreement to satisfy DEQ. If we can demonstrate this through communications from DEQ as well as in communications from us to the nursery, then I think we might be able to kill this thing before having to put up with their “creative” arguments. In other words, our best bet to kill this thing is to be able to demonstrate why the 2007 contract was no longer valid – not necessarily to focus on the proposed 2014 agreement that was never signed. Holler if you want/need to discuss. Best, Chad Chad A. Jacobs Beery Elsner & Hammond, LLP 1750 SW Harbor Way, Suite 380 Portland, OR 97201 t (503) 226 7191 | f (503) 226 2348 Caution! This communication may contain a privileged attorney-client communication or attorney work product. Please do not distribute, forward or retransmit without prior approval. If you have received this e-mail by mistake, please notify me by reply e-mail and delete all copies. P Please consider the environment before printing this email. From: Dan Huff [mailto:dhuff@cityofmolalla.com] Sent: Thursday, November 12, 2015 3:26 PM To: Christine Hein; Chad Jacobs; J.W. Ring; Jennifer Cline Subject: RE: Nursery Checklist Then he never showed up or responded. From: Christine Hein [mailto:CHein@ringbenderlaw.com] Sent: Thursday, November 12, 2015 3:25 PM To: Chad Jacobs <Chad@gov-law.com>; Dan Huff <dhuff@cityofmolalla.com>; J.W. Ring <JWRing@ringbenderlaw.com>; Jennifer Cline <jcline@cityofmolalla.com> Subject: RE: Nursery Checklist Thanks- I knew I had seen something similar. From the emails I found, it looks like Jon Patrick was in discussions with Jim manual about the new recycled water agreements in 2014. You may recall we needed the new agreements for all the land application sites to satisfy DEQ- the new agreements added language stating that the site owners could also be held responsible for not complying with the City’s Recycled Water Use Plan. It looks like Jennifer continued the discussions with Jim and sent him a final draft of a new agreement in April of this year. That is the last I can find about this site in my email files, except that we finalized a daily checklist for it along with the other sites to comply with the Consent Decree. Tina Christine L. Hein Ring Bender LLLP Direct: 503.964.6726 Cell: 503.314.0958 P Please consider the environment before printing this e-mail. From: Chad Jacobs [mailto:Chad@gov-law.com] Sent: Thursday, November 12, 2015 3:21 PM To: Christine Hein; Dan Huff; J.W. Ring; Jennifer Cline Subject: RE: Nursery Checklist They did in 2013, but as far as I can tell nothing further ever happened. Attached is a copy of the 2013 tort notice. Once we have a better grasp on what occurred here, I’d like to draft a response letter, which I’m happy to run by everyone, but let’s limit our communications with the nursery’s law firm. Thanks, CJ Chad A. Jacobs Beery Elsner & Hammond, LLP 1750 SW Harbor Way, Suite 380 Portland, OR 97201 t (503) 226 7191 | f (503) 226 2348 Caution! This communication may contain a privileged attorney-client communication or attorney work product. Please do not distribute, forward or retransmit without prior approval. If you have received this e-mail by mistake, please notify me by reply e-mail and delete all copies. P Please consider the environment before printing this email. From: Christine Hein [mailto:CHein@ringbenderlaw.com] Sent: Thursday, November 12, 2015 3:13 PM To: Dan Huff; Chad Jacobs; J.W. Ring; Jennifer Cline Subject: RE: Nursery Checklist I vaguely recall that he may have sent a similar notice of breach previously. Does that ring a bell for you? Christine L. Hein Ring Bender LLLP Direct: 503.964.6726 Cell: 503.314.0958 P Please consider the environment before printing this e-mail. From: Dan Huff [mailto:dhuff@cityofmolalla.com] Sent: Thursday, November 12, 2015 3:11 PM To: Chad Jacobs; Christine Hein; J.W. Ring; Jennifer Cline Subject: RE: Nursery Checklist Yes. Jen called him and even Marc Howatt called him. He never responded. From: Chad Jacobs [mailto:Chad@gov-law.com] Sent: Thursday, November 12, 2015 2:39 PM To: Christine Hein <CHein@ringbenderlaw.com>; Dan Huff (dhuff@cityofmolalla.com) <dhuff@cityofmolalla.com>; J.W. Ring <JWRing@ringbenderlaw.com>; Jennifer Cline (jcline@cityofmolalla.com) <jcline@cityofmolalla.com> Subject: RE: Nursery Checklist Thanks – did we ever send them anything explaining the need for the new agreement and notice of termination of the old agreement? Best, CJ Chad A. Jacobs Beery Elsner & Hammond, LLP 1750 SW Harbor Way, Suite 380 Portland, OR 97201 t (503) 226 7191 | f (503) 226 2348 Caution! This communication may contain a privileged attorney-client communication or attorney work product. Please do not distribute, forward or retransmit without prior approval. If you have received this e-mail by mistake, please notify me by reply e-mail and delete all copies. P Please consider the environment before printing this email. From: Christine Hein [mailto:CHein@ringbenderlaw.com] Sent: Thursday, November 12, 2015 2:34 PM To: Dan Huff (dhuff@cityofmolalla.com); J.W. Ring; Chad Jacobs; Jennifer Cline (jcline@cityofmolalla.com) Subject: Nursery Checklist We did finalize a daily checklist for the nursery as well as the other sites. Jennifer, was this ever provided to Jim? Christine L. Hein Ring Bender LLLP Direct: 503.964.6726 Cell: 503.314.0958 P Please consider the environment before printing this e-mail.