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HomeMy WebLinkAboutResolution - 2015-R0110 - Professional Services Agreement: Bracewell And Giuliani LLP - 04/09/2015No. 2015-RO 110 April 9, 2015 Item No. 5.4 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 Professional Services Agreement between the City of Lubbock and Bracewell and Giuliani LLP to provide legal services to the City of Lubbock in Cause No. 14-0572 — Coyote Lake Ranch, LLC v. the City of Lubbock, before the Texas Supreme Court. Said Professional Services Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council on April 9, 2015 GLE OBER ON, MAYOR ATTEST: Rebec a Garza, City Secretary APPROVED AS TO CONTENT: 1�4'ao Je art el , Litigation Attorney APPROVED AS TO FORM: Chad Weaver, City Attorney vw:ccdocs/RES.PSA-Bracewell & Giuliani March 27, 2015 Resolution No. 2015-RO110 BRACEWELL &GIULIANI April 6, 2015 Via FedEx Mr. Chad Weaver, City Attorney Mr. Jeff Hartsell, Chief of Litigation City of Lubbock, Texas 1625 13th Street Lubbock, Texas 79401 Texas Dale Wainwright New York Partner Washington, DC Connecticut +1.512.494.3610 Office Seattle +1.800.404.3970 Fax Dubai London Dale.Wainwright@bglip.ccm Bracewell & Giuliani LLP 111 Congress Avenue Suite 2300 Austin, Texas 787014061 Re: No. 14-0572; Coyote Lake Ranch, LLC v. The City of Lubbock, In the Supreme Court of Texas (Coyote Lake Ranch Appeal) Dear Chad and Jeff: Thank you for engaging us to represent the City of Lubbock (Client) in connection with the matter described below. We appreciate the confidence you have shown in Bracewell & Giuliani LLP (B&G or Firm) and look forward to this opportunity to represent your interests. It is our practice to confirm the terms and conditions of our engagements, and that is the purpose of this Engagement Letter and the attached Terms of Engagement. This engagement has been approved by B&G subject to the conditions described in this letter. Scone of Engagement B&G will represent Client in connection with the Coyote Lake Ranch Appeal in the Supreme Court of Texas. This letter, and B&G's Standard Terms of Engagement, govern all projects and engagements for Client. This Engagement Letter may be supplemented to reflect new matters or issues that deviate from the current engagement in scope, billing arrangements, complexity, risk, or that otherwise require a substantial change in terms and conditions. The Terms of Engagement, however, will govern all projects and engagements for Client. Fees. Expenses and Billing Fees and expenses for the services set forth above will be based on a fixed fee of $105,000 for the preparation and filing of the Brief on the Merits. If the Petition for Review is granted and oral arguments are requested, the fees and expenses will be based on a fixed fee of $75,000 for preparation and performing oral argument. If additional briefing is required Mr. Chad Weaver Mr. Jeff Hartsell City of Lubbock, Texas April 6, 2015 Page 2 subsequent to oral argument, the City will pay an additional fixed fee of $25,000 for such briefing. Client agrees to pay the firm the sum of $50,000 on or before May 15, 2015 and will pay an additional $55,000 on or before June 30, 2015. If the Petition is granted and oral argument is requested by the Court, the Client agrees to pay the firm the sum of $75,000 on or before thirty (30) days after the Petition for Review is granted. If subsequent briefing is required subsequent to oral argument, the Client will pay an additional $25,000 on or before thirty (30) days after such briefing is completed. A billing summary of services rendered will be submitted monthly. It is important for you to bring any question regarding the fees or reimbursable expenses charged in this matter to my attention within 30 days after receipt. If this engagement is terminated, Client agrees to pay B&G pro rata for the portion of the project completed. Conflicts of Interest: Applicable Standard For purposes of evaluating conflicts of interests, you acknowledge that B&G relies upon the Texas Disciplinary Rules of Professional Conduct (Disciplinary Rules). B&G may represent other clients whose interests may be adverse to yours in matters that are not substantially related to this engagement, as provided in the Disciplinary Rules, and it may represent other clients within the same industry. Independent Review Client is encouraged to discuss the Terms and this Engagement Letter with in-house or separate independent counsel of your choice. If you have any questions about this Engagement Letter, or the Terms, or any aspect of the engagement or representation, please contact me as soon as possible. If this Engagement Letter and the Standard Terms accurately reflect our agreement, please sign this Engagement Letter below and return it to me at your earliest convenience. Thank you again for the opportunity to represent you in this matter. BRACEWELL & GIULIANI LLP TERMS OF ENGAGEMENT Introduction These are the Terms of Engagement adopted by Bracewell & Giuliani LLP ("B&G") and the addressee of the preceding Engagement Letter ("Client") and referred to in our Engagement Letter as the basis for our representation. Because they are an integral part of our agreement to provide representation, we ask that you review this document carefully and retain it for your files. If you have any questions after reading it, please promptly inform your principal contact at the Firm. Client of the Firm Because B&G has been engaged to represent the Client only, the engagement does not include the Client's family members, affiliated or related entities, or their respective individual officers, directors, partners, equity owners or employees. Unless otherwise specifically stated in the Engagement Letter, our representation does not include any parent, subsidiary, or affiliated entity; employee, officer, director, shareholder, member or partner of an entity; or, any commonly owned entity. For any trade association, our representation does not include any member of the trade association; and for individuals, our representation does not include any employer, partner, spouse, sibling, or other family member. In the event we are asked to undertake representation of any other entity in connection with this engagement, we will do so only by agreement defined in the Engagement Letter. Our Relationship with Others and Conflicts of Interest Conflict of Interest is a concern for B&G and its clients. We attempt to identify actual and potential conflicts at the outset of each engagement. 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. If a Conflict of Interest unrelated to this engagement develops between you and another client of B&G, you consent to the firm's adverse representation in the unrelated matter. B&G accepts this engagement on the understanding that our representation of you will not preclude us from accepting another engagement from a new or existing client provided that (1) such engagement is not substantially related to the subject matter of services we provide to you and (2) such other engagement would not impair the confidentiality of related client information. Staffingthe a Project In most cases, one attorney will be your primary contact. In order to provide you with the expertise of our firm, and to provide services on a cost effective basis, that attorney will delegate parts of your work to other lawyers, paralegals and professionals. Billine Arraneements and Terms of Pavment Fees for professional services and expenses are not contingent on the outcome of the project, unless expressly stated in the Engagement Letter. Interest on Past Due Accounts If Client fails to pay any invoice when due, the past due amount shall accrue interest at the rate of six percent (6%) per annum, beginning on the date due until paid in full. Such interest shall be calculated based upon a year of 365/366 days (as applicable) for the actual number of days the invoice has been outstanding beyond the due date, and shall be compounded monthly. Such interest shall be payable upon demand and will be invoiced separately. The total interest due on past due invoices is available upon inquiry. Taxes The Client agrees that all payments under the Engagement Letter shall be payable to B&G in U.S. Dollars, free and clear of any and all present and future taxes, levies, imposts, duties, deductions, withholdings, fees, liabilities and similar charges (the "Taxes"). If any Taxes are required to be withheld or deducted from any amount payable under the Engagement Letter, then the amount payable under the Engagement Letter shall be increased to the amount which, after deduction from such increased amount of all Taxes required to be withheld or deducted therefrom, will yield to B&G the amounts stated to be payable to B&G under the Engagement Letter. Termination Because B&G has been engaged to provide services in connection with the representation specifically defined in our Engagement Letter, the attomey-client relationship terminates upon our completion of those services. You may terminate the engagement at any time, with or without cause, by notifying us in writing. The firm also can terminate the engagement before the completion of its representation of you in the specified matter if (a) the continued representation would result in a violation of the applicable rules of professional conduct or other law; (b) the termination can be accomplished without material adverse effect on your interests; (c) you persist in a course of action that B&G reasonably believes is criminal or fraudulent, or you have used our services to perpetrate a crime or fraud, (d) the firm has a fundamental disagreement with the objective or tactics in this engagement; (e) you deliberately and substantially fail to discharge an obligation regarding this engagement, including the payment of fees and expenses and the duty of cooperation as provided in the Terms of Engagement; or (f) other good cause for termination exist. In the event that the firm intends to terminate the engagement, the firm will give reasonable notice and allow you access to your files relating to this engagement. For purposes of this Engagement Letter, this engagement terminates upon written notice of termination by Client or by B&G, or 120 days after the date of B&G's last substantive legal service billed to Client's account, whichever may first occur. -2- 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 project. 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. B&G has no continuing obligation to give advice with respect to any future legal developments that may relate to the project. Disposition and Retention of Materials B&G has adopted and implemented an information governance and records management program including a comprehensive policy and records retention schedule. At the close of any matter B&G may return Client documents and property, send them to a storage facility for a limited time, or have them destroyed according to our records retention schedule. At Client's request, Client documents and property will be returned to you upon receipt of payment for outstanding fees and costs. Your request must be specific and designate your representative to receive the files. Client is responsible for paying the reasonable cost to retrieve, duplicate and deliver the Client files. Your request for return of Client files must be delivered to B&G no later than 120 days after the last substantive service relating to the closed matter. A substantive service does not include audit letter research and preparation, or any other service that does not directly relate to the substantive discharge of a Client engagement. You agree that B&G owns and retains its own files, inclusive of related electronically stored information, pertaining to the engagement. You will not have the right or ability to require us to deliver such files (or copies thereof) to you. Examples of B&G files are: firm administrative materials, financial files and documents, time and expense reports, personnel and staffing materials, credit and accounting records, electronic mail correspondence (other than such correspondence which was sent to you by a member of our firm) and internal lawyer's work product, such as drafts, notes, memoranda and legal and factual research, including investigative reports prepared by or for the internal use of lawyers. It is important for Client to alert B&G in advance of special treatment, sensitive information, retention requirements and other unique conditions pertaining to Client files. Client agrees that it will notify B&G in a timely, written and specific manner, concerning any requirement for special or unusual handling or attention of its Client files. This includes any statutory or regulatory requirements relating to confidentiality and retention of Client files. Choice of Law Because B&G performs legal services in a number of jurisdictions, for consistency and predictability, the Client and B&G agrees that the Texas Disciplinary Rules of Professional Conduct (found at www.texasbar.com or www.txethics.orQ) will govern all issues of legal ethics and professionalism. ME Disclaimer 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. 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. By signing the Engagement Letter or otherwise indicating your acceptance of the Engagement Letter, you acknowledge that B&G 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. Your Cooperation To enable us to provide effective representation, you agree to: (1) disclose to us fully, 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; (4) provide updated information for conflicts purposes, if necessary; and (5) cooperate fully with us in all matters relating to the engagement. Modification of Our Aareement The Terms of Engagement reflect our agreement on the terms of all engagements, and are not subject to any oral agreements, modifications, or understandings. Any change in these Terms of Engagement must be made in writing signed by both B&G and Client. In Conclusion If you have questions or concerns, at any time, relating to the terms and conditions of this engagement, the services or advice provided by B&G, or the fees and expenses reflected in the invoices, please bring them to the attention of your principal contact at our firm, or B&G's General Counsel or Managing Partner. Im MEMORANDUM CITYATTORNEY'S OFFICE DATE: April 7, 2015 TO:N�ayor and City Council FROM Chad Weaver, City Attorney Jeff Hartsell, Deputy City Attorney RE: Agreement for services related to Coyote Lake Ranch litigation ATTORNEY - CLIENT COMMUNICATION - PRIVILEGED AND CONFIDENTIAL DO NOT DISCLOSE CONTENTS WITHOUT ADVICE OF COUNSEL AND PROPER AUTHORIZATION Attached hereto is the agreement between the City of Lubbock and Bracewell & Guilani for the provision of legal services to the City in the proceedings before the Texas Supreme Court. We received the originals of the agreement today and so a copy of the agreement is attached. The consideration of approval of this agreement is on the agenda for the April 9, 2015 City Council meeting as Item 5.4. If you have any questions, please call Chad Weaver or Jeff Hartsell. vw/CityAtt/Chad/Letters and Memos/MCMO-Coyote Lake Ranch Litigation Mr. Chad Weaver Mr. Jeff Hartsell City of Lubbock, Texas April 6, 2015 Page 3 Very truly yours, Bracewell & Giuliani LLP By: Dale Wainwright V Attachment AGREED AND ACCEPTED: CITY OF LUBBOCK, TEXAS By: GLEN C, ROBERTSON__Mavor Date: April 9, 2015