HomeMy WebLinkAboutResolution - 2011-R0222 - Letter Of Engagement - High Plains Diversified Energy Corporation V. Greg Abbott - 05/10/2011Resolution No. 2011—RO222
May 10, 2011
Item No. 5.2
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock, a Letter of Engagement for
representation in the case styled High Plains Diversified Energy Corporation v. Greg
Abbott, Attorney General of the State of Texas, et. al., Cause No. 2011-556,897 filed in
the 237th District Court of Lubbock County, Texas, by and between the City of Lubbock
and Vinson & Elkins, LLP, Attorneys at Law, and related documents. Said Letter of
Engagement is attached hereto and incorporated in this resolution as if fully set forth
herein and shall be included in the minutes of the City Council.
Passed by the City Council on May 10, 2011
TOM MARTIN, MAYOR
ATTEST:
— I Is 61-3 - -
Rebec a Garza, City Secret
APPROVED AS TO CONTENT:
Andy Burcham, Chief Finance Officer
ade, LP&L General Council
vw:ccdocs/RE S. Engagement Ltr-Vinson & Elkins
April 29, 2011.
Resolution No. 2011-Ro222
Vinsono"Z-Elkins
Jennifer Taffe jtaffeOvelaw.00m
Tel 214.220.7941 Fax 214.999.7941
May 10, 2011
The Honorable Mayor and City Council Members
City of Lubbock, Texas
1625 13th Street
Lubbock, Texas 79457
Re: High Plains Diversified Energy Corporation v. Greg Abbott, Attorney General of the
State of Texas, et. al.; Cause No. 2011 556897; In the 2371h District Covert of Lubbock
County, Texas.
Ladies and Gentlemen:
We appreciate being asked to provide legal services in this matter. The purpose of
this letter and the attached Additional Terms of Engagement is to set out the roles and
responsibilities of our law firm and yours as the client.
Client
The client for this engagement is City of Lubbock, Texas (the "City"). This
engagement does not create an attorney-client relationship with any other persons or entities,
including parents, subsidiaries, affiliates, joint venture entities, successors, acquirers,
employees, officers, directors, shareholders, partners, members, or trustees, even if you
exercise operational control over any of these persons or entities.
Scone of Engap-ement
As your counsel, we will represent the City in connection with the above -referenced
litigation. This engagement will include only the matter described in this paragraph. If you
engage us for any related or additional matters, we will describe them in a separate
engagement letter or in a written supplement to this letter.
Fees and Other Charges
Our fees will be based on the time spent by the attorneys and other timekeepers who
work on the matter. Billing rates vary according to the experience of the individuals and, in
some instances, the location or nature of the work. The billing rates for this matter will range
from $350 to $520 per hour for attorneys. In an effort to reduce overall legal costs, we utilize
non -lawyer personnel whenever appropriate. We review and adjust our billing rates from
Vinson & Elkins LLP Attorneys at Law
Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston
London Moscow New York Palo AYto Shanghai Tokyo Washington
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Trammell Crow Center, 2001 Ross Avenue, Suite 3700
Dallas, TX 75201-2975
Tel +1.214.220.7700 Fax +1.214.220.7716 www.velaw.Com
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time to time, generally on an annual basis, and thus they may be changed with respect to this
engagement, but only with advance notice to you.
In addition to fees for our legal services, you will be charged for photocopying,
reprographics, couriers, travel, certain long distance telephone calls, faxes, postage, overtime
for non -legal staff, certain computerized legal research, practice support, records retrieval,
filing fees, and other items associated with representing you in this matter. We may charge
for those items whether that work is performed by outside vendors or in-house. The current
schedule of our in-house charges is attached as Exhibit A.
Other Clients and Consent to Adverse Representation
We have run a conflicts check on the parties involved in this matter of whom we are
aware, Republic Power Partners LP, John N. Crew, West Texas Municipal Power Agency
and High Plains Diversified Energy Corporation, and believe that we are free to represent
you. You agree to promptly tell us if you learn of any other person or entity that might
become involved in this matter so that we can do additional checking for conflicts.
As you know, we are a large law firm and represent many other clients, particularly in
the energy and financial services industries. It is possible that, during the time we are
representing you, some of our current or future clients might have dealings, transactions,
disputes, or litigation with you. Those clients could have interests different from yours, and
their actions could adversely affect your business, legal, or financial interests.
By engaging us, you agree that we may represent other current and future clients in
any other matter, including in litigation, unless we conclude that (i) those other matters are
substantially related to the matters in which we are representing you or (ii) we cannot
properly represent you because we are materially Iimited by a duty to or a relationship with
someone else. For purposes of this agreement, two matters are substantially related if the
facts in the first matter are so closely related to the facts in the second matter that a genuine
threat exists that confidential information revealed by the client in the first matter will be
divulged to that client's adversary in the second matter. We would be materially limited only
when our representation of another client or our relationship with someone else would
materially affect our ability to represent you competently and diligently.
Accordingly, you agree that our representation of you in this matter will not
disqualify us from representing other clients in other matters that are not substantially related
to this one or where our ability to represent you would not be materially limited, even if the
interests of those other clients are directly adverse to yours. In those situations, we will not
use to your disadvantage any of your confidential information that we acquire while
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representing you. Likewise, we will not share with you or use for your benefit confidential
information that we receive from other clients.
Finally, if one of our other clients hires another law firm and becomes adverse to you
in this matter, you consent to our representation of that client in other matters. If that
situation arises, we will continue to competently and diligently represent you and take
appropriate steps to protect your confidential information.
Termination
This engagement and the attorney-client relationship created by this matter will end
when we have completed the legal services covered by this engagement letter. If you later
engage us for any related or additional matter, that engagement and its scope must be
confirmed in a separate engagement letter or in a written supplement to this letter.
You may terminate the engagement at any time and for any reason by informing us in
writing. Similarly, we may terminate or withdraw from our representation of you at any
time, provided we comply with the applicable rules of professional conduct. If we decide to
withdraw for any reason, you agree to take all steps necessary to release us from any further
obligation to represent you, including signing any documents necessary to complete our
withdrawal. In the event of a termination or our withdrawal, you will pay us any outstanding
fees and other charges.
Finally, after the conclusion of this matter, you might ask us, or we might be
compelled, to undertake certain post -engagement tasks relating to this matter, such as
responding and objecting to subpoenas, searching for and producing documents, preparing
for testimony, testifying, performing transition work, and other similar activities. In such
case, we will promptly notify you, and you agree to compensate us for the fees and expenses
we incur, including payment for the time spent by our attorneys and other timekeepers
calculated at our then -current hourly rates. However, nothing in this engagement obligates
our attorneys or personnel to submit to interviews or to provide testimony, and any post -
engagement work shall not constitute the performance of legal services for you or create or
revive an attorney-client relationship between us.
Other
You are encouraged to consult with other counsel of your choosing regarding the
terms and conditions of our engagement.
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This letter, including the provisions in the attached Additional Terms of Engagement,
sets forth the complete agreement between us. No other agreements, promises,
understandings, or representations, except for our discussion about the risks of conflicts and
adverse representation, have been made or relied upon in reaching this agreement. If you, an
insurance carrier, or anyone else provides us with outside counsel guidelines, electronic
billing requirements, or other similar documents at the outset of this engagement, we will
abide by them to the extent practicable. However, this agreement cannot be modified in any
material respect by the tender of such guidelines, without a writing signed by both of us.
If this letter, including the provisions in the attached Additional Terms of
Engagement, correctly reflects your understanding of the terms and conditions of our
representation, please sign the enclosed copy of this letter in the space provided and return it
to me. If we do not hear from you promptly (in no event longer than 14 days), we will
consider that you have agreed to and accepted the terms of this engagement letter and the
attached Additional Terms of Engagement.
We are pleased to have this opportunity to be of service, and we look forward to
working with you. Please contact me if you have any questions.
Attachments
AGREED TO AND ACC PIED:
City of Lubbock, Texas
TOM MARTIN, Mayor
ATTEST:
Reb ca Garza, City Se et ry
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Very truly yours,
VINSON & ELKINS LLP
BIN
May 10, 2011 Pago 5
VINSON & ELKINS LLP
Additional Terms of Engagement
This attachment contains additional terms of engagement that are an integral part of
our agreement with you. Please review these additional terms and contact us promptly if you
have any questions. You should keep this attachment in your file with the engagement letter.
The Scope of Our Work
You should understand that we provide only legal services. We do not provide
investment, insurance, underwriting, accounting, financial, or technical advice, and you may
not rely on us for such advice. Similarly, we do not make business decisions for you, and we
do not investigate the character or credit of persons with whom you may be dealing.
Unless specifically included under "Scope of Engagement" in the attached
engagement letter, this engagement does not include advice about (i) your disclosure
obligations concerning the matter under any applicable law or regulation, including the
federal securities laws or (ii) the tax consequences concerning the matter. We also are not
responsible for review of your insurance policies to determine the possibility of coverage for
any claim asserted in this matter or for notification of your insurance carriers about the
matter. We encourage you to address those matters with other advisers or professionals.
You agree that we have no attorney-client relationship with and owe no duties to
persons or entities not expressly identified by name as clients in the engagement letter, even
if you might owe them fiduciary or other duties. This agreement has no third -party
beneficiaries, including trust or estate beneficiaries, trustees, partners, limited partners,
members, corporate shareholders and owners, successors, agency principals, agents, officers,
directors, employees, representatives, your clients, and/or your insurers, insureds,
indemnitors, or indemnitees.
You also agree that we will not provide any contractual indemnity to you, any client
constituent, related entity, co -counsel, outside contractor, service provider, consultant, expert,
or any other person or entity in connection with this matter.
You are engaging us to provide legal services in connection with the specific matter
described in the "Scope of Engagement" paragraph in the engagement letter. Ater the end of
the matter, circumstances might change, and changes might occur in the applicable laws or
regulations that could affect your future rights and obligations. Unless you engage us after
completion of the matter to provide additional legal services on issues arising from the
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matter, we have no obligation to advise you about future legal developments or your future
rights and obligations.
Effect of Merger or Other Reorganization
If you acquire, are acquired by, merge, or affiliate with another company, you will
provide us with sufficient notice to permit us to decide whether to continue as your or the
entity's attorneys in this matter (which must be confirmed in writing) or to withdraw if we
determine that such acquisition, merger, or affiliation creates a conflict of interest with any of
our clients or it is not in our best interests to represent the entity.
Cooperation and No Guarantees
To help us provide legal services, you agree to cooperate fully with us, tell us the
facts accurately and completely, give us the relevant documents and information, respond
promptly to our requests, and inform us of all information and developments relating to this
matter. We necessarily rely on the accuracy and completeness of the information that you
provide us, and we may rely on that information without independently verifying it. You
also agree to make yourself or your representatives available to attend or participate in
conference calls, meetings, conferences, discovery proceedings, hearings, and any other
proceedings related to this matter.
We will try to achieve a result in this matter that is satisfactory to you. But we make
no promises or guarantees concerning the outcome, whether it involves business, tax, or
regulatory advice, a transaction, or an adversarial proceeding such as litigation. For example,
we cannot assure you that negotiations will be successful, a proposed transaction will be
completed, or the conclusion of this matter will result in an outcome that is favorable to you.
Outcomes in litigation are especially hard to predict because of many factors that are beyond
the control of clients or counsel. Any statements we make concerning possible outcomes of
this matter, the legal significance of possible outcomes, or any other legal matters reflect our
professional judgment at that time, but they are not guarantees. Those statements necessarily
are limited by our knowledge of the facts and are based on the state of the law at the time
they are made.
Billing Arrangements and Terms
Our billing rates are based on the assumption of prompt payment. Unless other
arrangements are agreed to, fees for legal services and other charges will be billed monthly,
and invoices are payable within thirty days of receipt.
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By engaging us, you acknowledge that you are responsible for payment of our fees,
expenses, and other charges. In appropriate matters, as an accommodation to you, we may
agree to send our bills to third -party payors (e.g., an insurer, a borrower), but you agree that
you will remain fully responsible for timely payment of our bills if for any reason the third
party does not timely pay our bills. Likewise, even when a third party pays our bills, we owe
our professional obligations to you, and we owe no duties to that third party.
Advances
We might ask you to make an advance payment as security for the payment of our
fees. Unless otherwise agreed to, we will charge our fees for legal services and additional
charges against the advance and credit them on our billing statements. If the fees for legal
services and other charges exceed the advance deposited with us, we will bill you monthly
for the excess or we may request additional advances based on estimates of future work. At
the end of the matter, we will refund, without interest, any unused portion of amounts
advanced.
Representing Other Attorneys
We represent a number of attorneys and law firms in professional liability, business,
tax, and other matters. This means that we may represent in another matter an attorney or
law firm who opposes your interests in a matter in which we represent you. This will not
affect the diligence or vigor with which we represent your interests in any matters on which
you engage us.
Individual Investments By Firm Attorneys
Many of our attorneys, directly or beneficially, own interests in corporations and
other entities or in real property. Although our computerized system used for checking
conflicts of interest tracks investments made in the name of the Firm, it does not contain data
about personal investments made individually by our attorneys, through a Firm -sponsored or
administered plan, or otherwise. If you are concerned about investments in a particular
entity, please ask us to canvass our attorneys about any individual investments in that entity.
Law Firm Privilege and Possible Conflict of Interest
Although unlikely, in representing you, an occasion might arise when it is appropriate
for us to consult with our own counsel—our General Counsel, other Firm attorneys working
with our General Counsel who do not perform work for you on this matter, or with our
outside counsel. We will do this at our own expense. To the extent that we are addressing
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our duties, obligations, or responsibilities to you, it is possible that a conflict of interest might
exist between you and the Firm regarding our discussions with counsel. Such a conflict is
more likely if a dispute were to arise between us regarding this matter. If there is such a
conflict, and if we have not obtained your consent, we might have to choose between
continuing to represent you in this matter and consulting with our own counsel. Thus, as a
condition of this engagement, you agree that we may consult with our own counsel, and you
waive any claim of conflict of interest that might arise out of those consultations. You agree
that our communications with our own counsel are protected from disclosure to you and
others by the Firm's attorney-client privilege and that you will not seek to discover or inquire
into those communications.
Confidentiality
Just as we will protect confidential information that you provide us, you acknowledge
that we will not share with you information that we obtain in confidence from others, even if
such information might help you in this matter, and you waive any objection or conflict of
interest that might result.
You agree that we may disclose the existence of our attorney-client relationship with
you and, subject to our confidentiality and professional responsibility obligations, certain
other limited information about our representation of you in order to obtain consent or a
conflicts waiver from another client,
In Firm brochures and other materials or information about our practice, you agree
that we may indicate the general nature of our representation of you, your identity as a Firm
client, and examples of engagements handled on your behalf (including this matter). If you
do not wish to have your name mentioned in those materials, please inform us in writing.
Electronic Communications
During the course of this engagement, we may exchange electronic documents and
e-mails with you using commercially available software. Such communications are
occasionally attacked by computer viruses, destructive electronic programs, or other
methods. Our anti-virus scanning software may occasionally reject a communication that
you send to us, or your system might reject something that we send you. We believe these
infrequent occurrences are part of the ordinary course of business. If you would prefer or
require that we not use electronic communications or that we follow special instructions or
encrypt e-mail or other communications, you should promptly inform us in writing of your
preferences or requirements so that we can determine if we can accommodate your request.
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Document Retention and Destruction
We will keep the documents and materials that you give us in the files or folders that
we will create for this matter. While representing you, we likely will receive or create
documents and materials that are directly and substantively related to that representation,
such as correspondence, research memoranda, pleadings, exhibits, transcripts, physical
evidence, various agreements, transaction documents, and other documents and materials
substantively related to the representation (collectively, "Client Materials"). We may
maintain some or all of those Client Materials solely in electronic form, and you agree that
we may do so.
We also may create and maintain our own materials pertaining to this matter which
will belong to and will be retained by us ("Firm Materials"). Firm Materials are prepared for
our internal use and include, for example, Firm administrative records, conflicts and new
business intake materials and reports, time and billing reports, personnel and staffing
materials, credit, expense, and accounting records, administrative and routine internal
documents, Firm form files (even if referred to in the course of this matter) and other
materials and internal communications not directly related to the substance of the
representation.
After the conclusion of the matter, upon your request, we will send you the Client
Materials at your expense. You must tell us which Client Materials you wish to receive, and
you agree to cooperate with us regarding their delivery. We will send those materials after
we receive payment of all outstanding fees and other charges, unless we are otherwise
required by law to do so sooner. We reserve the right to retain a copy of the Client Materials.
If you ask us to send you paper copies of documents that we maintain solely in electronic
form, you agree to pay the costs of converting those documents to paper form or to any
different electronic format that you request.
If you do not request the Client Materials when this matter ends, we will keep them
for a period of time (currently seven years) after the conclusion of the matter. In so doing,
we will follow our own records retention policy, not yours. Retaining those or other
materials does not constitute the performance of legal services for you and does not create or
revive an attorney-client relationship between us.
Ultimately, unless you request the Client Materials, we may destroy the Client
Materials, without any additional notice to you, in accordance with our records retention
schedule then in effect.
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Outside Contractors and Service Providers
Like many law firms and other organizations, from time to time we use or deal with
outside contractors, third -party service providers, and others in connection with certain areas
of our practice or operations. These persons may include vendors, consultants, advisors,
experts, investigators, court reporters, registered agents, local counsel, or other service
providers in areas such as litigation support, filing or document services, document
management, storage, cloud computing, information technology, hardware and software
systems, law firm practice management, accounting and financial matters, electronic billing
vendors, and the like. Additionally, we may use temporary or contract attorneys and
paralegals in certain situations. In performing their services, those persons may have some
access to confidential information, and we will take appropriate steps obligating them to
preserve the confidentiality of any such information. You consent to our allowing outside
contractors and service providers' access to such information as described.
Unless special arrangements are made, you are responsible for paying the bills from
outside contractors and service providers used on this matter. We will instruct them to bill
you directly for their services. Unless otherwise agreed, those outside contractors and
service providers are deemed to be directly engaged by you even if their bills or invoices are
addressed to us. If they send bills or invoices to us, we will re -direct them to you for
payment. In our discretion, we may pay outside bills or invoices for small amounts and
include those sums in our invoices to you, although we will seldom do this for sums greater
than $500.
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Exhibit A to Enaaaement Letter
Standard Schedule of Charges
January 1, 2011
We appreciate the continuing opportunity to serve as your counsel. As part of our ongoing communication with
clients, the current costs for charges most commonly incurred in the course of our representation of clients are
shown below. These charges are reviewed periodically and may be adjusted to reflect changes in the Firm's costs
and other factors. Should you have any questions, please contact the attorney handling your representation.
Travel Airfare, hotel, meals, ground transportation and other travel related costs are
billed at the Firm's actual costs, including negotiated discounts.
Telephone There is no charge for domestic long distance calls originating in the Firm's U.S.
offices. Other long distance calls, including international long distance, audio
conferencing services, and calling card calls, are billed at the Firm's actual cost.
Production Services Black and white duplicating and scanning, including printing electronic and
scanned images and printing for duplication purposes: $0.15/copy (up to
8.5" x 14")
Black and white oversized scanning: $1.00/sq. ft. (over 11" x 17")
Color duplicating and scanning, including printing electronic and scanned
images and printing for duplication purposes: $0.65/copy up to 8.5" x 14" and
$1.30/copy for 11" x 17"
Color oversized duplicating and scanning, including digital color duplicating:
$5.00/sq. ft. (over 11" x 17")
Lamination: 8.5" x 11': $1.00/page
Lamination: 8.5" x 14': $1.50/page
Lamination: 11 " x 17": $3.00/page
Oversize Lamination: $4/sq. ft. up to 24" wide
Blowbacks (volume printing of individual documents): $0.15/page
Bates labels: $0.03Aabel
Custom recreated tabs: $0.35/fab including insertion
CD to CD copies (including packaging): $10/first copy and $5/copy each
additional copy
DVD to DUD copies (including packaging): $15/first copy and $10/copy each
additional copy
VHS to VHS video copies (including packaging): $35/copy
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VHS to DVD video conversion (including packaging): $50 one time conversion
charge
Video conferencing for calls initiated from the Firm: $100/hour per client site (no
charge for calls initiated outside the Firm)
Digital photography (including all processing): $50/hour
Video taping for trial preparation: $80/hour
Internet conferencing: Billed at the Firm's actual cost
There is no charge for binding, binding supplies, and other miscellaneous
supplies relating to production services.
Courier Courier services, which may vary depending on the service provider and the
service provided, are billed at the Firm's actual cost.
Facsimile There is no charge for incoming faxes. Outgoing facsimile transmissions,
including those sent from individual computers, are charged at $0.25/page.
Computer -Assisted Charges for services are billed at the Firm's actual cost.
Legal Research
Overtime Weekday and Weekend — Texas Offices: $45/hour
Weekday and Weekend — New York and Washington Offices: $55/hour
Holiday—Texas Offices: $60/hour
Holiday — New York and Washington Offices: $65/hour
Postage All postage is billed at the Firm's actual cost.
Records Costs may vary by Firm office.
Off-site file retrieval (standard): $1.50 — $3.00/file
Off-site file box retrieval (standard): $1.50 - $2.70/box
Off-site file retrieval (rush): $2.84 - $7.29/file
Off-site box retrieval (rush): $3.16 - $6.56/box
Record transportation fee incurred for all rush/evening/weekend/after-hours
retrievals: $90 - $192
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Other Third -Party Services Unless special arrangements are made, fees and expenses of outside
contractors and service providers (such as experts, investigators, consultants,
and court reporters) will be the responsibility of the client. Those services
should be billed directly to, and paid directly by, the client. Outside contractors
and service providers are deemed to be directly engaged by the client even if
bills are addressed to the Firm. Invoices sent to the Firm will be re -directed to
the client for payment. The Firm, in its discretion, may pay outside invoices and
include those sums (at the Firm's actual costs) in the Firm's invoice to the client,
although it generally will not do this for amounts in excess of $500.
Supplies There is no charge for general office supplies. Extraordinary supplies relevant to
a specific engagement (such as supplying a data room) are billed at the Firm's
actual cost.
Confidentiality From time to time, the Firm uses third parties, including vendors, consultants,
advisors, and other service providers, in connection with certain areas of its
practice or operations. In some cases, these third parties may have access to
client confidential information. All third parties with such access are subject to
appropriate confidentiality arrangements obligating them to preserve the
confidentiality of any such information.
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