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HomeMy WebLinkAboutRes 00-39 Authorizing an Agreement with Jody Richardson of Akin, Gump, Strauss, Hauer and FeldTOWN OF WESTLAKE RESOLUTION NO. 00-39 A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS, AUTHORIZING THE TOWN MANAGER TO ENTER INTO AN AGREEMENT WITH JODY RICHARDSON, OF AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., FOR LEGISLATIVE OVERSIGHT. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE TOWN OF WESTLAKE, TEXAS: SECTION 1: That the Board of Aldermen of the Town of Westlake, Texas, hereby authorizes the Town Manager to enter into an agreement, attached as Exhibit A, with Jody Richardson of Akin, Gump, Strauss, Hauer & Feld, L.L.P., for legislative oversight. PASSED AND APPROVED ON THIS 9TH DAY OF OCTOBER, 2000. Scott Bradley, Mayor ATTEST: bin-jr Crosswy, ToQb Secretary Trent O. Petty, Town Mana9161'r, APPROVED AS TO FORM: Town Attorney AKIN, Gump, STRAUSS, HAUER & FELD, L.L.P. ATTORNEYS AT LAW AUSTIN BRUSSELS DALLAS HOUSTON LONDON LOS ANGELES MOSCOW NEW YORE( PHILADELPHIA SAN ANTONIO WASHINGTON. D.C. RIYADH - M AFFILIATION WITH THE LAW OFFICE OF ABDULAZIZ H. FAHAD VIA U.S. MAIL Mr. Trent Petty Town Manager City of Westlake 3 Village Circle Suite 207 Solana Westlake, Texas 76262 A REGISTERED LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS FROST BANK PLAZA 813 CONGRESS AVENUE SUITE 1900 AUSTIN, TEXAS 78701 (512) 499-6200 FAX (512) 499-6290 www.akingump.com WRITER'S DIRECT DIAL NUMBER 5 1 2-499-6238 WRITER'S E-MAIL ADDRESS jdchardson (@,` akingurnp.CDITI October t2, 2000 Re: Legislative Representation of Town of Westlake Dear Trent: This letter, when signed by a duly authorized representative of the Town of Westlake shall serve as the Ietter of engagement by and between the Town of Westlake ("Westlake") and my law firm, Akin, Gump, Strauss, Hauer & Feld, L.L.P. ("Akin Gump" or the "Firm"). We appreciate your confidence in our abilities and commitment to our clients. Our engagement will consist of providing Westlake with monitoring and advocacy services to be preformed before, during, and after the conclusion of the next Texas Legislative Session, scheduled to convene in January, 2001. We have agreed that primarily, Westlake is interested in municipal utility district matters as they may affect Westlake, municipal court of record, telecommunications and right of way management issues, and the authority for a town in two counties to hold a local option election to add wine to the allowable sales for off premise consumption. We have agreed to a fee of $60,000, split between monitoring and advocacy activities, but payable together. Our engagement will begin October 1, 2000 and terminate on September 31, 2001, unless extended by mutual agreement and under a separate agreement. We understand that we may bill Westlake also for expenses incurred directly on your behalf such as copying, telephone calls, faxing, travel costs, and secretarial or legal assistant overtime, if necessary, as well as a share of overall program costs such as the firm's subscription to the legislative service. In addition, we will charge Westlake for necessary and appropriate expenses. We will bill AKIN, Gump, STRAUSS, HAUER & FEL©, L.L.P. Letter to Trent Petty October 12, 2000 Page 2 Westlake monthly beginning in November, 2000, terminating in October, 2001, in twelve equal installments of $5,000 for services and the expenses incurred to the date of the invoice. Our relationship is to be terminable by either of us upon thirty (30) days notice to the other, and we would expect our fees and expenses incurred to date to be paid. If the Session has already begun when we receive notice of termination, however, the balance of the entire fee would become due and owed, and we would send Westlake an invoice for that amount. Akin Gump represents numerous clients at any one time, and conflicts between clients sometin-ies arise during a legal representation. With this engagement, Westlake is agreeing that it waives any conflicts that may exist or that may occur during the Finn's representation of Westlake. Of course, if Westlake becomes involved in litigation with a client of the Firm, the Finn will refrain from representing a party adverse to Westlake. The Finn has developed a set of Standard Tenns of Engagement and requires each client to agree to comply with such teens. A copy of the Terms is attached to this engagement letter. By signing this letter, you are agreeing to abide by the Ten -ns during the engagement period. If this letter is acceptable to you and Westlake, please have both copies signed and return one copy to ire. We are enthusiastic about working together with you and Westlake, and look forward to a successful Session. Sincerely, jvd-Y 4A Jody Richardson The undersigned has read and approved this engagement letter this -2�O day of Cc�aL�1 -1 2000. Town of Westlake Name: "k �t . Title:, JR/ggr Enclosure 049999.0007 AUSTIN 200051 v1049996.1909 AUSTIN 189119 v! TERMS OF ENGAGEMENT We appreciate your decision to retain Akin, Gump, Strauss, Hauer & Feld, L.L.P. as your legal counsel and look forward to developing our relationship with you in the course of our representation. Our engagement is limited to the matter identified in the engagement letter to which these Terms of Engagement are attached. Except as may be modified by the accompanying engagement letter, the following summarizes our billing practices and certain other terms that will apply to our engagement. 1. Determination of Fees. When establishing fees 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 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 security deposit in an amount which is appropriate with respect to the proposed representation. Unless otherwise agreed, the security deposit will be applied to statements rendered in connection with the representation, with any unused portion being returned to the client. In determining a reasonable fee for the time and labor required for a particular matter, we consider the ability, experience, and reputation of the lawyer 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. When selecting lawyers to perform services for a client, we generally seek to assign lawyers having the lowest hourly rates consistent with the skills, time demands, and other factors influencing the professional responsibility required for each matter. Of course, our internal allocation of values for lawyer time changes periodically (at least annually) to account for 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. The time for which a client will be charged will include, but will not be limited to, telephone and office conferences with a client and counsel, witnesses, consultants, court personnel and others; conferences among our legal personnel; factual investigation; legal research; responding to clients' requests for us to provide information to their auditors in connection with reviews or audits of financial statements; drafting of agreements, contracts, letters, pleadings, briefs and other documents; travel time; waiting time in court; and time in depositions and other discovery proceedings. In an effort to reduce legal fees, we utilize paralegal personnel. Time devoted by paralegals to client matters is charged at special billing rates, which also are subject to adjustment from time to time by the firm. Our current range of hourly rates for lawyers and legal assistants is referenced in the accompanying engagement letter. 2. Expenses. In addition to legal fees, our statements will include out-of-pocket expenses that we have advanced on behalf of the client and our internal charges (which may exceed direct costs) for certain support activities. Advanced costs generally will include such items as travel expenses, postage, filing, recording, certification, and registration fees charged by governmental bodies, Our internal charges typically include such items as long distance telephone calls, facsimile transmissions, messenger services, overnight courier services, charges for terminal time for computer research and complex document production, secretarial and paralegal overtime and charges for photocopying or printing materials sent to the client or third parties or required for our use. 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. During the course of our representation, it may be appropriate or necessary to hire third parties to provide services on your behalf. These services may include such things as consulting or testifying experts, investigators, providers of computerized litigation support, court reporters, providers of filing services and searches of governmental records and filings and local counsel. 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 costs. 3. Billings, We bill monthly throughout the engagement for a particular matter, and our monthly statements are due within 10 days after your receipt thereof. In instances in which we represent more than one person with respect to a matter, each person that we represent is jointly and severally liable for our fees with respect to the representation. Our statements contain a concise summary of each matter for which legal services were rendered and a fee was charged. We invite our clients to discuss freely with us any questions that they have concerning a fee 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 the client requires and in such customary form that it desires, and are willing to discuss with our clients any of the various billing formats we have available that best suits their needs. If any monthly statement is not paid within 60 days after the original statement date, we reserve the right to discontinue services on all pending matters for you until all of your accounts with us have been brought current. Additionally, if any statement is not paid within 60 days from the date of the original statement, we may, by written notice to you on a subsequent statement or otherwise, declare the overdue account to be delinquent. We have no obligation to declare any account delinquent. If we declare an account to be delinquent, the amount owing on that account will accrue interest at a rate equal to one percent (1.0%) per month (a 12% annual percentage rate) from the date of our delinquency notice to you until the balance is paid in full, but in no event shall such rate exceed the maximum rate permitted by 2 applicable law. Any payments made on past due statements are applied first to interest, if any, and then to the account balance, and shall be applied first to the oldest outstanding statement, In addition, we are entitled to attorneys' fees and costs if collection activities are necessary. 4. Scope of Engagement. We will provide services of a strictly legal nature of the kind generally described in the engagement letter that accompanies this attachment. It is understood that you are not relying on us for business, investment, or accounting decisions, or to investigate the character or credit of persons with whom you may be dealing, or to advise you about changes in the law that might affect you unless otherwise specified in the letter. We will keep you advised of developments as necessary to perform our services and will consult with you as necessary to ensure the timely, effective, and efficient completion of our work. Attorneys in the firm typically have several client matters pending and are required to coordinate the scheduling of activities required for each pending client matter. 5. Necessary Information. It is anticipated that you and any other entities affiliated with you will furnish us promptly with all information that we deem to be required to perform the services described in our engagement letter, including financial statements from qualified accountants and auditors, as appropriate, and documents prepared by other legal counsel employed by you in connection with prior or other matters. You will make such business or technical decisions or determinations as are appropriate to carry out our engagement. Our engagement is premised and conditioned upon your representation that you are not aware of any material facts, or any current or historical problem involving any of the following: court orders, injunctions, cease and desist orders, judgments, liabilities, litigation, administrative proceedings, crimes, prosecutions, bankruptcies or securities violations on the part of any person to be connected with you which you have not fully disclosed to us. You understand that the accuracy and- completeness of any document (including securities disclosure documents, litigation pleadings and court filings) prepared by us is dependent upon your. alertness to assure that it contains all material facts relating to the subject and purpose of such document and that such document must not contain any misrepresentation of a material fact nor omit information necessary to make the statements therein not misleading. To that end, you agree to review all documents prepared by us for their factual accuracy and completeness prior to any use thereof. You also acknowledge that this responsibility continues through our engagement in the event that such document becomes deficient in this regard. You hereby represent and warrant that any material, information, reports and financial statements, whether rendered orally or in writing, furnished to us by you will be accurate, and that we may rely upon the truth or accuracy of such information. 6. Confidentiality and Conflicts. 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 3 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 similar legal entity, our client relationship is with the entity and not with its individual executives, shareholders, directors, partners, or persons in ._ similar positions. In those cases, our professional responsibilities are owed to the entity. 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. Because we are a large, full-service law firm with offices located throughout Texas, in Washington D.C., Philadelphia, New York, Moscow, and Brussels, Belgium, lawyers in one office or practice area 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 foreclosed in an appropriate situation from retaining a law firm that competes with us, our firm wishes to be able to consider the representation of multiple competitors in your industry or other clients 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 governing the legal profession permit law firms to accept such multiple representations assuming certain criteria are met as discussed below. During the term of this engagement, we will not knowingly accept representation of another client to pursue interests that are directly adverse to your interests unless and until we have made full disclosure to you of all the relevant facts, circumstances and implications of our undertaking the two representations and you have consented to our representation of the other client. You agree, however, that you will be reasonable in evaluating such circumstances and that you will give your consent if we can confirm to you in good faith that the following criteria are met: (i) there is no substantial relationship between any matter in which we are representing or have represented you and the matter for the other client; (ii) our representation of the other client will not implicate any confidential information we have received from you; (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. By making this agreement, we are establishing the criteria that will govern the exercise of your right under applicable ethical rules to withhold consent to our representation of another client whose interests are adverse to yours. You will retain the right, of course, to contest in good faith our representation that the criteria have been met, in which event we would have the burden of supporting our representations to you. 7. _Termination of Engagement. 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 4 have expressly agreed to a continuation with respect to other matters. We hope, of course, that such a continuation will be the case. You have 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 the 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) 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 you or us shall relieve you of your obligations under the terms of our engagement to pay for services rendered, costs or expenses paid or incurred on your behalf or any indemnification payable with respect to services rendered prior to the date of such termination. In the unusual event that a court of competent jurisdiction refuses to permit us to withdraw upon termination, you 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, you agree to pay any and all attorneys' fees, court costs and/or other expenses incurred by us to recover such amounts due us pursuant to the terms of our engagement. 8. Indemnification. You agree to indemnify us and hold us harmless (including all our partners and employees) against and from any and all losses, claims, damages or liabilities, joint or several, which we incur, and to reimburse us for any legal or other expenses (including the costs of any investigation and preparation) incurred by us, arising out of or in connection with any inquiry, litigation or other proceeding, whether or not resulting in any liability and without regard to settlement of any claim, insofar as such losses, claims, damages, liabilities or expenses arise out of, or are based upon, (i) any claims asserted by others to any portion of any claim or recovery by you, (ii) any act taken or omitted to be taken by us at your direction if taken or omitted to be taken by us in the good faith belief that such act or omission was in your best interest, (iii) any untrue statement or alleged untrue statement of a material fact contained in any information furnished by you to us or the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, or (iv) your negligence or misconduct. You further agree that we shall bill to you at the billing rates in effect at the time, the amount of time spent by any partner or employee in connection with the preparation, response, or defense to any claim or other matter giving rise to a claim for indemnification hereunder and all expenses incurred in connection therewith. Statements for payment of costs, expenses, fees, Iosses, damages or liabilities for which we are indemnified are due upon receipt thereof. You will not be required to indemnify us to the extent that our losses are found by a court of competent jurisdiction, in a final judgment, to have arisen out of or been based upon fraud, gross negligence or malpractice by us in rendering the services contemplated in the engagement letter. We will notify you of our receipt of any claim for which you are to indemnify us and you will assume the defense of such action (including the employment of counsel, who shall be counsel satisfactory to us, and the payment of expenses in connection therewith). We have the right to employ separate counsel in any such action and to participate in the defense thereof, E but the fees and expenses of such counsel shall not be at your expense unless the employment of such counsel has been specifically authorized by you or there is in our judgment a conflict of interest that would prevent counsel for you from representing both you and us (in which case you shall not have the right to direct the defense of such action on our behalf). In order to provide for just and equitable contribution in circumstances in which the indemnification provided for above is due in accordance with its terms but is for any reason held by a court to be unavailable on grounds of policy or otherwise and we are found to be liable for any loss, we will contribute to the aggregate losses, claims, damages, liabilities and expenses to which we may be subject only in such proportion so that we are responsible for that portion represented by the percentage that the amount of legal fees actually collected and received by us from you in connection with this representation bears to the total capital raised or consideration received by you in connection with this representation and you are responsible for the balance; provided, however, that (i) in no case shall we be required to contribute in the aggregate any amount in excess of the amount of legal fees actually received by us from you in connection with this representation, and (ii) no person adjudged guilty of fraudulent misrepresentation (within the meaning of paragraph 11(f) of the Securities Act of 1933, as amended) by a court of competent jurisdiction, in a final judgment, shall be entitled to contribution from any person who was not adjudged guilty of such fraudulent misrepresentation. Any party entitled to contribution shall, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against you hereunder, notify you, but the omission to so notify you shall not relieve you from any other obligation you may have hereunder or otherwise. 9. Disagreements. Regarding Fees. In the event that you believe any statement for our services is erroneous for any reason, you shall notify us of the same within 10 business days after receipt of such statement stating the basis for your belief. If agreement cannot be reached with respect to the amount owed, you agree to promptly pay the nondisputed portion of our statement and submit the disputed portion for resolution by the appropriate committee of the Bar Association of the city where i our office rendering such services is located, or if none, by The Committee on Arbitration Relating to Fee Disputes (or similar committee) of the regulatory body governing the practice of law in the state or jurisdiction where our office rendering such services is located. 10. Governing Law. OUR ENGAGEMENT SHALL BE GOVERNED BY THE LAWS OF THE JURISDICTION WHERE OUR OFFICE RENDERING OUR SERVICES IS LOCATED AND, EXCEPT FOR DISAGREEMENTS REGARDING FEES SUBMITTED TO ARBITRATION PURSUANT TO PARAGRAPH S ABOVE, VENUE FOR ANY OTHER ACTION HEREUNDER SHALL BE IN THE COUNTY WHERE OUR OFFICE RENDERING SUCH SERVICES IS LOCATED. 11. Miscellaneous. The engagement letter to which these Terms of Engagement are attached constitutes our on entire understanding and agreement with respect to the terms of our engagement and supersedes any prior understanding and agreements, written or oral. 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 effect. Our engagement letter may only be amended in writing by the parties hereto. 12. Notice to Clients. THE STATE BAR OF TEXAS INVESTIGATES AND PROSECUTES PROFESSIONAL MISCONDUCT COMMITTED BY TEXAS ATTORNEYS. ALTHOUGH NOT EVERY COMPLAINT AGAINST OR DISPUTE WITH A LAWYER INVOLVES PROFESSIONAL MISCONDUCT, THE STATE BAR'S OFFICE OF GENERAL COUNSEL WILL PROVIDE YOU WITH INFORMATION ABOUT HOW TO FILE A COMPLAINT. PLEASE CALL 1-800-932-1900 TOLL-FREE FOR MORE INFORMATION. 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. 7