Loading...
HomeMy WebLinkAboutRes 09-25 Ratifying the Action to Retain Brown McCarroll for Legal ServicesTOWN OF WESTLAKE RESOLUTION 09-25 RATIFYING THE ACTION OF THE TOWN MANAGER TO RETAIN BROWN McCARROLL, L.L.P. FOR LEGAL SERVICES RELATED TO STATE LEGISLATIVE MONITORING AND ADVOCACY SERVICES FOCUSED ON HB 2110. WHEREAS, the Westlake Town Council has recently adopted new oil/gas related ordinances to regulate oil/gas drilling and production and Westlake; and, WHEREAS, the Westlake Town Council has invested extensive direct and indirect costs into developing these oil/gas related ordinances and wishes to protect that investment on behalf of its citizens; and, WHEREAS, the Town Council has determined that local control of surface issues related to oil/gas drilling and production is important to the quality of life of Westlake residents that it does not wish to totally relinquish to the State; and, WHEREAS, proposed HB 2110 (Hughes) would effectively remove a municipality's ability to regulate surface aspects of oil/gas drilling and production by making mineral interests a property right and thus, create a potential takings issue for drilling permits that might not be approved; and, WHEREAS, efforts may be made, if HB 2110 is not voted on by the House of Representatives, to attach it to another bill that is farther along in the legislative process and legal services present in Austin familiar with all aspects of the legislative process are needed to protect Westlake's interests in this regard; and, WHEREAS, the Town has funding available to cover these costs subject to a subsequent budget amendment that would be brought to Council for approval; and WHEREAS, the Town Council feels that the passage of this Resolution is in the best interest of the citizens of Westlake. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1. THAT, all matters stated in the Recitals hereinabove are found to be true and correct and are incorporated herein by reference as if copied in their entirety. SECTION 2. THAT, the Town Council of the Town of Westlake, Texas, hereby ratifies the action of the Town Manager to retain Brown McCarroll L.L.P. for legislative monitoring and advocacy services attached hereto as outlined in the Terms of Engagement (Exhibit 'A'q; and further authorize the Town Manager to execute said agreement on behalf of the Town of Westlake. PASSED AND APPROVED ON THIS 18TH DAY OF MAY 2009. n Laura Wheat, Mayor ter, TRMC, Town Secretary Thomas E./T�" anager 2 Brown McCarroll 111 Congress Avenue, Suite 1400, Austin, Texas 78701-4043 512-472-5456 fax 512-479-1101 L . L . R Direct 512-479-9750 May 12, 2009 Laura Wheat, Mayor c% Tom Brymer, Town Manager TOWN OF WESTLAKE 3 Village Circle, Suite 202 Westlake, TX 76262 Dear Mayor Wheat: Thank you for selecting Brown McCarroll, L.L.P. to represent the Town. We appreciate the confidence you have shown in our Firm, and we look forward to the opportunity to represent you. We believe that a successful professional relationship begins with a mutual understanding of expectations about the services we will provide, legal fees, and other important aspects of our representation. With this in mind, it is our practice to specify our engagement arrangements with our clients, and that is the purpose of this letter and the attached Standard Terms of Engagement. Our Firm encourages open and candid communications with clients. Please let me know as soon as possible if you have questions about this letter, the Standard Terms of Engagement, or if you are concerned about any aspect of the representation. Description and Scope of the Representation: Identification of Client Brown McCarroll is being retained to represent the Town of Westlake ("Westlake" or the "Town") for purposes of monitoring legislation and advocating the Town's position as it relates to state law and regulations concerning charter school legislation, as well as any other legislation of interest to the Town that could affect the operation of the municipality. The term of this engagement will begin on May 12, 2009, and terminates on June 1, 2009. Should the Town desire work related to a veto by the Texas governor, a new agreement will be required. The representation contemplated in this engagement letter is limited to this matter and is outside the scope of any local government lobbying. The Firm understands that we are to perform all reasonable services and take all such action as may be appropriate and necessary in our professional judgment to further your interests in this matter. Austin - Dallas • Houston • El Paso Laura Wheat May 12, 2009 Page 2 It is understood that the Firm is being retained to provide legal and legislative services and that we are not responsible for providing business or financial advice to you. Attorneys Handling Your Representation I will be the primary attorney handling this matter. We anticipate that there may be other attorneys who will assist in the representation from time to time. The Firm also uses legal assistants in providing professional services when we believe that their use will reduce legal costs and improve efficiency. Legal -Fees Brown McCarroll generally charges for our services based upon the time and effort devoted to the matter and the hourly rates of the lawyers and legal assistants that work on the representation. My current hourly rate is $450, and our legal assistant's rate is $125 per hour. We will provide the services described above for a minimum fee of $10,000 plus actual expenses, and we will charge for our time above the $10,000 minimum fee at our normal hourly rate. Costs and Expenses In addition to legal fees, the Firm charges for out-of-pocket costs and expenses incurred in representing you. Please refer to the Standard Terms of Engagement for examples of such costs and expenses and how these will be handled and billed to you.. Due to the nature of legislative advocacy, we may incur expenses for entertainment. Should those aggregate expenses exceed $1000 in a single month, Brown McCarroll will obtain approval for expenses exceeding $1000. Payment of Fees and Expenses Brown McCarroll's statements for fees and expenses are due upon receipt, and we expect that our monthly statements will be paid no later than 30 days after receipt. By entering into this representation agreement, you agree to timely payment of the Firm's invoices for fees and expenses related to the representation. Laura Wheat May 12, 2009 Page 3 Conclusion Brown McCarroll is pleased to have this opportunity to represent you in this matter. If you have any questions or concerns about any of the above or the Standard Terms of Engagement, please contact me as soon as possible. If this letter and the Standard Terms of Engagement accurately reflect our agreement, please sign the enclosed copy of this letter and return it to me. Very truly yours, Jody Richardson Enclosure AGREED AND ACCEPTED AS OF A'G % , 200 TOWN OF WESTLAKE By: /rGd 1 LG Printed Name: Title: �j [; STANDARD TERMS OF ENGAGEMENT These are the Standard Terms of Engagement referred to in our engagement letter. Because they are an integral park of our agreement to provide legal services, we ask that you review this document carefully and retain it for your files. If you have any questions after reading it, please contact us promptly. Who Will Provide the Legal Services? In most cases, one attorney will be your principal contact. From time to time, that attorney may delegate parts of your work to other lawyers or to legal assistants or nonlegal professionals in the firm. For example, we do this in order to involve those with special knowledge or experience in an area and to provide service to you in a timely and efficient manner. The Scope of the Representation As lawyers, we undertake to provide representation and advice on the legal matters for which we are engaged, and it is important that we both have a clear understanding of the legal services that the firm has agreed to provide. In our engagement letter with you, we specify the matter in which we will provide representation and the scope of the services we will provide. If there are any questions about the terms of engagement, including the scope of the representation that we are to provide in the matter, please raise those questions promptly with your principal contact at the firm. We cannot guarantee the outcome of any matter. Any expression of our professional judgment regarding your matter or the potential outcome is, of course, limited by our knowledge of the facts and based on the law at the time of expression. It is also subject to any unknown or uncertain factors or conditions beyond our control. Who Is Our Client? It is our policy to represent only the person or entity identified in our engagement letter and not any affiliates. For example, unless otherwise specifically stated in our engagement letter, if you are a corporation or partnership, our representation does not include any parents, subsidiaries, employees, officers, directors, shareholders, or partners of the corporation or partnership, or commonly owned corporations or partnerships; if you are a trade association, our representation excludes members of the trade association; if you are an individual, our representation does not include your employer, partners, spouse, siblings, or other family members. Your Cooperation To enable us to provide effective representation, you agree to: (1) disclose to us, fully and accurately and on a timely basis, all facts and documents that are or might be material or that we may request, (2) keep us apprised on a timely basis of all developments relating to the representation that are or might be material, (3) attend meetings, conferences, and other proceedings when it is reasonable to do so, and (4) otherwise cooperate fully with us. Our Relationships With Others Our law firm represents many companies and individuals. In some instances, the applicable rules of professional conduct may limit our ability to represent clients with conflicting or potentially conflicting interests. Those rules of conduct often allow us to exercise our independent judgment in determining whether our relationship with one client prevents us from representing another. In other situations, we may be permitted to represent a client only if the other clients consent to that representation. If a controversy unrelated to the subject matter of the representation develops between you and any other client of the firm, we will follow the applicable rules of professional responsibility to determine whether we may represent either you or the other client in the unrelated controversy. In making this determination, we will consider your agreement to the Conflicts of Interest provisions in these Standard Terms of Engagement. In addition to our representation of other companies and individuals, we also regularly represent lawyers and law firms. As a result, opposing counsel in the matter may be a lawyer or law firm that we may represent now or in the fixture. Likewise, opposing counsel in the matter may represent our firm now or in the future. Further, we have professional and personal relationships with many other attorneys, often because of our participation in bar associations and other professional organizations. We believe that these relationships with other attorneys do not adversely affect our ability to represent any client and, in some circumstances, may enhance our representation. Your acceptance of our engagement letter means you consent to any such relationships between our firm and other lawyers or law firms, even counsel who is representing a party that is adverse to you in the matter that is the subject of this engagement or in some other matter. Conflicts of Interest Increasingly, conflict of interest is a concern for lawyers and their clients today. We attempt to identify actual and potential conflicts at the outset of any engagement, and may request that you sign a conflict waiver before we accept an engagement from you. Occasionally, other clients or prospective clients may ask us to seek a conflict waiver from you so that we can accept an engagement on their behalf. Please do not take such a request to mean that we will represent you less zealously; we make such requests because we take our professional responsibilities to all clients and prospective clients very seriously. Unfortunately, conflicts sometimes arise or become apparent after work begins on an engagement. When that happens, we will do our best to address and resolve the situation in the manner that best serves the interests of all of our affected clients. Because we are a large firm, we may be asked to represent someone whose interests may be adverse to yours. We are accepting this engagement on the understanding that our representation of you will not preclude us from accepting any other engagement from any existing or new client, including litigation adverse to you, provided that (i) such engagement is not substantially related to the subject matter of any services we are providing to you and (ii) in accepting such other engagement we would not impair the confidentiality of proprietary, sensitive or otherwise confidential information you have provided to us. Rules concerning conflicts of interest vary with the jurisdiction. In order to avoid any uncertainty, our policy is that the Texas Disciplinary Rules of Professional Conduct will be applicable to the representation. Your acceptance of our engagement letter means you agree with that policy, unless the engagement letter specifically states that some other rules of professional responsibility will govern our attorney-client relationship. How We Set Our Fees The basis for determining our fee for legal services is set forth in the engagement letter itself. If you are unclear about the basis for determining your fee, please raise any questions you may have with your principal contact at the firm. Clients frequently ask us to estimate the fees and other charges they are likely to incur in connection with a particular matter. We are pleased to respond to such requests, whenever possible, with an estimate based on our professional judgment. This estimate always carries the understanding that, unless we agree otherwise in writing, it does not represent a maximum, minimum, or fixed -fee quotation. The ultimate cost frequently is more or less than the amount estimated. Charges For Other Expenses And Services As an adjunct to providing legal services, we may incur and pay a variety of charges on your behalf or charge for certain ancillary support services. Whenever we incur such charges on your behalf or charge for such ancillary support services, we will bill them to you as part of your monthly invoice. Accordingly, our invoices usually will include amounts, not only for legal services rendered, but also for other expenses and services. Examples include charges for filing fees, document reproduction, postage, travel and conference expenses, delivery charges, computerized research, and facsimile and other electronic transmissions. Outside expenses will generally be billed at cost, while some in-house expenses (e.g., document reproduction, facsimile, computer services and electronic research) will include a reasonable allocation of overhead. In appropriate cases, reimbursable expenses may also include overtime charges for secretaries and other staff, You authorize us to retain third -parties, such as consultants, experts and investigators, as may be necessary to the representation. Although we advance third -party disbursements in reasonable amounts, we will ask you to pay larger third -parry invoices (usually those over $200.00) directly to the third party providing the services. Because we often have ongoing professional relationships with the persons who render such services, we also ask that you pay such bills promptly and send us notice of your payment. Billing Arrangements and Terms of Payment We will bill you on a regular basis, normally each month, for both fees and other charges. You agree to make payment within thirty (3 0) days of the date of our invoice. Should your account become delinquent and in the event satisfactory payment terms are not arranged as permitted under the rules regulating our profession, we will be required to withdraw from the representation. In most cases, and except as prohibited by ethical considerations, if your account becomes more than sixty (60) days delinquent, we will cease representation until we can arrive at a mutually satisfactory arrangement for payment of the delinquent account and the resumption of services. If the representation will require a concentrated period of activity, such as a trial, arbitration, or hearing, we reserve the right to require the payment of all amounts then owing to us and the prepayment to us of the fees and expenses we estimate will be incurred in preparing for and completing the trial, arbitration, or hearing, as well as arbitration fees likely to be assessed. If you fail to timely pay any additional deposit requested, we will have the right to cease performing further work and the right to withdraw from the representation. Payment of our fees and costs is not contingent on the ultimate outcome of our representation. We look to you, the client, for payment regardless of whether you are insured to cover the particular risk. From time -to -time, we assist clients in pursuing third parties for recovery of attorneys' fees and other charges resulting from our services. These situations include payments under contracts, statutes or insurance policies. However, it remains your obligation to pay all amounts due to us within thirty (30) days of the date of our statement. Termination Because our firm has been engaged to provide legal services in connection with the representation specifically defined in our engagement letter, the attorney-client relationship terminates upon our completion of our services related to the representation in the matter. After completion of the representation, however, changes may occur in the applicable laws or regulations that could affect your future rights and liabilities in regard to the matter. Unless we are actually engaged after the completion of the representation to provide additional advice on such issues, the firm has no continuing obligation to give advice with respect to any future legal developments that may relate to the matter. If you later retain us to perform further or additional services, our attorney-client relationship will be subject to the terms of engagement agreed to at that time; in the absence of any specific agreement, these Standard Terms of Engagement shall apply to the further or additional representation. We look forward to the opportunity to complete our representation of you in the specified matter. You may, however, terminate our representation at any time, with or without cause, by notifying us in writing. We will return your papers and other property to you promptly upon receipt of your request for those materials unless they are appropriately subject to a lien.. You agree that we will own and retain our own files pertaining to the matter or case, including, for example, firm administrative records, time and expense reports, personnel and staffing materials, credit and accounting records, and 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. The termination of our services will not affect your responsibility for payment of legal services rendered and other charges incurred before termination and in connection with an orderly transition of the matter. Document Retention While we try to retain closed files for an extended period of time, we do reserve the right to destroy or otherwise dispose of all files, without further notice to you and in a manner which preserves the confidential and secret nature of their contents. You are to receive, along with the final bill or documents concluding the case, a notice that the file will be retired and stored for a designated retention period. I or the attorney immediately responsible for handling this case will advise you to obtain any papers from the file not previously furnished to you. The file may thereafter, without additional notice to you, be destroyed by the Firm following the designated retention period in which the file is retained. Only upon my written authorization will the file be partially destroyed, destroyed in its entirety, retained for an additional period of time, or returned to you for safekeeping. If you or your company has a Records Retention Policy in place with which outside counsel will need to comply, please let me know so that I may inform our Records Department. In the event you instruct us to return your file to you at the end of the retention period, we will use the last known address in the file to return your file (excluding the work product subfiles); our Firm will not retain a copy. Disclaimer By signing the engagement letter or otherwise indicating your acceptance of the engagement letter, you acknowledge that Brown McCarroll, L.L.P. has made no promises or guarantees to you about the outcome of the representation, and nothing in these terms of engagement shall be construed as such a promise or guarantee. Either at the commencement or during the course of the representation, we may express opinions or beliefs about the matter or various courses of action and the results that might be anticipated. Any expressions on our part concerning the outcome of the representation, or any other legal matters, are based on our professional judgment and are not guarantees. Our Professional Responsibility The code of professional responsibility to which we are subject lists several types of conduct or circumstances that require or allow us to withdraw from representing a client. These include, for example, nonpayment of fees or charges, misrepresentation or failure to disclose material facts, action contrary to our advice, and conflict of interest with another client. We try to identify in advance and discuss with our clients any situation that may lead to our withdrawal. If withdrawal ever becomes necessary, we give our client written notice as soon as practicable. Under rules of the Texas Supreme Court and the State Bar of Texas, we advise our clients of the contents of the Texas Lawyer's Creed, a copy of which is enclosed. In addition, we advise clients that the State Bar of Texas investigates and prosecutes complaints of professional misconduct against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is available at all of our offices and is likewise available upon request. A client that has any questions about the State Bar's disciplinary process should call the Office of the General Counsel of the State Bar of Texas at 1-800-932-1900 (toll free). Modification Of Our Agreement The engagement letter and these Standard Terms of Engagement reflect our entire agreement on the terms of this engagement. These written terms of engagement are not subject to any oral agreements or understandings, and any change in those terms can only be made in writing signed by both Brown McCarroll, L.L.P. and you. In Conclusion We look forward to a long and mutually satisfying relationship with you. Again, if at any time you have a question or concern, please feel free to bring it to the attention of your principal contact at our firm. Enclosure: THE TEXAS LAWYER'S CREED closings are canceled. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party. I will refrain from excessive and abusive discovery. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will Texas Lawyers Creed —Page 8 encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances. IV. LAWYER AND JUDGE. Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility. I will be punctual. I will not engage in any conduct which offends the dignity and decorum of proceedings. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage. I will respect the rulings of the Court. I will give the issues in controversy deliberate, impartial and studied analysis and consideration. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes. SCHEDULE OF CHARGES FOR NON -LEGAL SERVICES ITEM RATE CD Copying $10.00 per CD. Computer Assisted Legal Research (includes but is not limited to): Lexis, Courtlink, PACER, Westlaw Actual cost. Courier Deliveries/Pick-Ups Actual cost. Document Reproduction -- Copies, prints and scans $.12 per page copy/print/scan $.90 per page color copy/print DVD Copying $15.00 per DVD. Express Courier: Lone Star Overnight, FedEx, UPS Actual cost. Facsimiles $.20 per page for outgoing transmissions. No charge for incoming facsimiles. File Conversion ( df to tiff, etc.) $0.03 per age. Finishing/Binding: Deposition GBC/S iral, Velo $1.04 per item. $2.54 per item. Imaging Black & white Color $0.15 per page. $0.80 per page. Mileage $0.585 per mile. OCR (optical character recognition) $4.03 per page. Office Supplies: 3 -Ring Binders, Boxes or Other Supplies Actual cost when quantity is beyond the amount required in the normal course of business. Postage Actual cost for large mailings, certified or ex rens mail. Prints from image $0.06 per page. Retrieving Retired Records Actual cost of Rush Trip charge. Trial Exhibits (Copy Center) $20 large. $10 small. Video Digitizing $50.40 er video hour. Video Editing Actual cost. Video Tapes $5.00 per tape. Video Synchronization $65.00 per video hour. Updated 8-27-08 4275669.1 1.182