Loading...
R-04-09-23-13C1 - 9/23/2004 RESOLUTION NO. R-04-09-23-13C1 WHEREAS, the City of Round Rock desires to retain professional legal services to represent the City in a lawsuit styled Western Rim Investors 2000-1, L.P. d/b/a Mansions on the Green I and 11 v. City of Round Rock, and WHEREAS, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel has submitted an engagement letter to provide said services, and WHEREAS, the City Council desires to enter into said engagement letter with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City said engagement letter with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 23rd day of September, 004 . NY WEL -,'Mayor City of Round Rock, Texas ATTES6 CHRISTINE R. MARTINEZ, City Secretary @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOL73PI/R40923C1.WPD/sc Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. 816 Congress Avenue Suite 1700 Austin,Texas 78701 (512)472-8021 Fax(512)320-5638 www.bickerstaff.com September 14, 2004 City of Round Rock, Texas c/o Mr. Steve Sheets Sheets & Crossfield, P.C. 309 E. Main Street Round Rock, TX 78664-0524 Re: Legal Services Dear Mr. Sheets: Thank you for selecting our law firm to represent the City of Round Rock, Texas. We appreciate your confidence in us and will do our best to continue to merit it. The purpose of this letter,together with the enclosed"Standard Terms of Engagement,"is to set out our understanding with respect to the specific terms of our relationship. Please review the Standard Terms of Engagement carefully and contact us promptly if you have any questions regarding our relationship. This letter,together with the Standard Terms of Engagement,constitutes our agreement with you(this "Agreement")under which our services will be provided. Identity of Client We will be representing the interests of the City of Round Rock, Texas (the"City"). Nature and Scope of Representation We understand that while in the future we may from time to time be employed on other matters, our present relationship is limited to representing the City in defending its sign ordinance, particularly in regard to Western Rim Investors 2000-1, L.P. d/b/a Mansions on the Green I and II v. City of Round Rock. Supervision and Delegation I will be the partner who will coordinate and supervise the services we perform on your behalf. I anticipate that I will perform most of the work on this matter. We routinely delegate selected responsibilities to other persons in our Firm when, because of special expertise, time availability or other reasons,they are in a better position to carry them out. In addition,we will try, E" HIBIT a ..I City of Round Rock, Texas September 14, 2004 Page 2 where feasible and appropriate,to delegate tasks to persons who can properly perform them at the least cost to you. Financial Arrangements The enclosed Standard Terms of Engagement,together with this letter,outlines the financial terms of our engagement. My hourly rate is $275.00 per hour. This contract will not exceed $50,000 without prior approval of the City Council. If anything in this letter or the Standard Terms of Engagement is unclear or presents a problem to you, please advise me promptly so we may discuss it and reach a full understanding. Acceptance of Terms If this arrangement is acceptable to you, please sign the enclosed duplicate original of this letter and return it to us at your earliest convenience. We truly appreciate the opportunity to be of service to you and look forward to working with you in a mutually beneficial relationship. Sincerely, C. Robert Heath AGREED TO AND ACCEPTED CITY OF ROUND ROCK, TEXAS By: James Nuse, City Manager Date: cc: Billing Department Round RocMestern Rim\Engagernent Itr-crh.wpd STANDARD TERMS OF ENGAGEMENT This statement sets forth the standard terms of our engagement as your attorneys. Unless modified in writing by mutual agreement,these terms will be an integral part of our agreement with you. Therefore,we ask that you review this statement carefully and contact us promptly if you have any questions. We suggest that you retain this statement in your file. 1. The Scope of Our Work You should have a clear understanding of the legal services we will provide. Any questions that you have should be dealt with promptly. We will provide services related only to matters as to which we have been specifically engaged. We will at all times act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of your legal matters are expressions of our best professional judgment,but are not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are expressed. We cannot guarantee the success of any given matter, but we will strive to represent your interests professionally and efficiently. 2. Fees For Legal Services Our charges for professional services are customarily based on the time devoted to the matter,the novelty and difficulty of the questions presented,the requisite experience,reputation and skill requested to deal with those questions,time limitations imposed by the circumstances,and the amount involved and the results obtained. Unless otherwise indicated in writing,our fees for legal services are determined on the basis of the hourly rates of the respective lawyers and paralegals who perform the services. These rates vary depending on the expertise and experience of the individual. We adjust these rates from time to time, increasing them as the individuals gain experience and expertise and to reflect current economic conditions. We will notify you in writing if this fee structure is modified. At the present time the standard billing rates for partners in this firm are between $350.00 and $195.00 per hour; the billing rates for associates are between $195.00 and $120.00 per hour; the billing rates for paralegals are between$90.00 and$70.00 per hour, and the billing rate for law clerks is $60.00 per hour(all fees quoted are in U.S. Dollars). 3. Other Charges All out-of-pocket expenses(such as long distance telephone charges,copying charges,travel expenses,messenger expenses and the like)incurred by us in connection with our representation of you will be billed to you as a separate item on your monthly statement. We have enclosed a description of the most common expenses. 4. Billing Procedures and Terms of Payment Our billing period begins on the 161 of the month and ends on the 15`t' of the following month. We will render periodic statements to you for legal services and expenses. We usually mail these periodic statements toward the end of the month following the latest date covered in the statement. Each statement is payable within 30 days of its stated date and must be paid in U.S. Dollars. If any statement is not paid within 30 days after its stated date, interest at the rate of 1 %2 percent per month(18 percent per annum)will accrue on the balance due. However, if at any time 18 percent per annum exceeds the highest interest rate permitted by applicable law,then the interest rate that will be applied to any overdue amounts will be reduced to the maximum rate permitted under applicable law. If you have any question or disagreement about any statement that we submit to you for payment, please contact me at your earliest convenience so that we can resolve any problems without delay. Typically,such questions or disagreements can be resolved to the satisfaction of both sides with little inconvenience or formality. 5. Termination of Services You have the right at any time to terminate our employment upon written notice to us, and if you do we will immediately cease to render additional services. We reserve the right to discontinue work on pending matters or terminate our attorney-client relationship with you at any time that payment of your account becomes delinquent. Additionally, in the event that you fail to follow our advice and counsel, or otherwise fail to cooperate reasonably with us, we reserve the right to withdraw from representing you upon short notice, regardless of the then status of your matter. No termination shall relieve you of the obligation to pay fees and expenses incurred prior to such termination. 6. Retention of Documents Although historically we have attempted to retain for a reasonable time copies of most documents generated by this Firm, we cannot be held responsible in any way for failure to do so, and we hereby expressly disclaim any such responsibility or liability. You must ultimately retain all originals and copies you desire among your own files for future reference. 7. Fee Estimates We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. Our attorneys do their best to estimate fees and expenses for particular matters when asked to do so. However,an estimate is just that,and the fees and expenses required are ultimately a function of many conditions over which we have little or no control, especially in litigation or negotiation situations where the extent of necessary legal services may depend to a significant degree upon the tactics of the opposition. Unless otherwise agreed in writing with respect to a specific matter, all estimates made by us shall be subject to your agreement and understanding that such estimates do not constitute maximum or fixed fee quotations and that the ultimate cost is frequently more or less than the amount estimated. 8. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Texas,United States of America. Venue of any case or controversy arising under or pursuant to this Agreement shall be in Travis County, Texas, United States of America. 9. Questions If you have any questions from time to time about any aspect of our arrangements,please feel entirely free to raise those questions. We want to proceed in our work for you with a clear and satisfactory understanding about every aspect of our billing and payment policies;and we encourage an open and frank discussion of any or all of the matters mentioned in this memorandum. Client Costs Advanced Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. The firm incurs expenses on behalf of clients only when required by the legal needs of the clients. Some cases or matters require extensive use of copy facilities, and other cases may not be so paper intensive. Standard services such as secretarial and word processing time,file setup,and file storage are not charged; however, other expenses such as long distance fees, copies, delivery fees,and fax charges are billed to the client needing those services. An explanation of the billing structure is as follows: Delivery Services Outside delivery services are used for pick-up and delivery of documents to the client as well as to courts, agencies,and opposing parties. Outside delivery fees are charged to the client at the rate charged to the firm. Overnight delivery services are also charged at the rate charged to the firm. Firm Office Services Department personnel may provide delivery service in urgent situations and charges for such in-house service will not exceed the charge that would be made by an outside service in a similar situation. Telephone Our long distance charges are based on the exact number of minutes per call as provided by our carriers. The rate applied to the call is equal to the per minute charge by our long distance carrier, plus applicable taxes and surcharges imposed by governmental entities. Cell phone charges will be charged at invoice rate if the call is long distance; otherwise, local cell phone charges will not be charged to the client. Postale Our postal equipment calculates exact US postage for all sizes and weights of posted material. The rate charged for postage is the same as the amount affixed to the material that is mailed. We will not charge clients for postage on routine correspondence; however,the cost of large-volume mail, certified mail, or other additional mail services will be charged to the client. Copies Our standard rate for copies made by firm personnel is $.15 per copy. This charge covers paper, equipment costs, and other supplies. If savings can be realized within the required time frame by sending copy jobs to subcontractors, the firm uses only qualified legal services copiers and the cost charged to the client is the same as the amount billed to the firm. Computerized Research If a case requires the use of computerized legal research,trained and skilled legal researchers are used to minimize on-line data charges. The per minute fees for on-line connect time are charged to the client at the rate charged to the firm. Fax Fax copies will be charged at the rate of$.25 per page. Travel Attorney and paralegal time spent traveling on behalf of a client is billed to the client. Hotel, meal, local transportation, and similar expenses are charged based on receipts and travel expense forms submitted by the attorney. Documentation is available to the client if requested. Other Expenses Expenses incurred to outside providers in connection with the client's legal services should be paid by the client directly to the outside provider unless specifically arranged in advance. If the firm agrees to pay outside providers,the cost charged to the client is the same as the amount billed to the firm. Examples of such charges include:court reporter fees,filing fees, newspaper charges for publication notices,expert witness fees,consultants and other similar expenses. Such expenses will be incurred only in conjunction with client-approved activities. DATE: September 17, 2004 SUBJECT: City Council Meeting - September 23, 2004 ITEM: 13.C.1. Consider a resolution authorizing the Mayor to execute an engagement letter with Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel to represent the City in a lawsuit styled Western Rim Investors 2000-1, L.P. d/b/a Mansions on the Green I and II v. City of Round Rock. Department: Administration Department Staff Person: Jim Nuse, City Manager Steve Sheets, City Attorney Justification: The City has been sued in Federal Court by Western Rim Investors 2000-1, L.P. challenging the enforcement and constitutionality of the City's ordinances regulating signs. Western Rim owns the Mansion on the Green apartments located on O'Connor Drive in the City's extraterritorial jurisdiction. Bob Heath of the Bickerstaff law firm was recommended by TML. Mr. Heath has recently successfully defended the city of Bee Caves in a challenge to its sign ordinance. Funding: Cost: This engagement letter is limited to $50,000.00 Source of funds: N/A Outside Resources: N/A Background Information: N/A Public Comment: N/A EXECUTED DOCUMENT FOLLOWS Y Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. 816 Congress Avenue Suite 1700 Austin,Texas 78701 (512)472-8021 Fax(512)320-5638 www.bickerstaff.com September 14, 2004 City of Round Rock, Texas c/o Mr. Steve Sheets Sheets & Crossfield, P.C. 309 E. Main Street Round Rock, TX 78664-0524 Re: Legal Services Dear Mr. Sheets: Thank you for selecting our law firm to represent the City of Round Rock, Texas. We appreciate your confidence in us and will do our best to continue to merit it. The purpose of this letter, together with the enclosed"Standard Terms of Engagement," is to set out our understanding with respect to the specific terms of our relationship. Please review the Standard Terms of Engagement carefully and contact us promptly if you have any questions regarding our relationship. This letter,together with the Standard Terms of Engagement,constitutes our agreement with you(this "Agreement")under which our services will be provided. Identity of Client We will be representing the interests of the City of Round Rock, Texas (the "City"). Nature and Scope of Representation We understand that while in the future we may from time to time be employed on other matters, our present relationship is limited to representing the City in defending its sign ordinance, particularly in regard to Western Rim Investors 2000-1, L.P. d/b/a Mansions on the Green I and II v. City of Round Rock. Supervision and Delegation I will be the partner who will coordinate and supervise the services we perform on your behalf. I anticipate that I will perform most of the work on this matter. We routinely delegate selected responsibilities to other persons in our Firm when, because of special expertise, time availability or other reasons,they are in a better position to carry them out. In addition,we will try, R-py-09-23-l3c� City of Round Rock, Texas September 14, 2004 Page 2 where feasible and appropriate, to delegate tasks to persons who can properly perform them at the least cost to you. Financial Arrangements The enclosed Standard Terms of Engagement,together with this letter,outlines the financial terms of our engagement. My hourly rate is $275.00 per hour. This contract will not exceed $50,000 without prior approval of the City Council. If anything in this letter or the Standard Terms of Engagement is unclear or presents a problem to you, please advise me promptly so we may discuss it and reach a full understanding. Acceptance of Terms If this arrangement is acceptable to you, please sign the enclosed duplicate original of this letter and return it to us at your earliest convenience. We truly appreciate the opportunity to be of service to you and look forward to working with you in a mutually beneficial relationship. Sincerely, C. Robert *eath _ AGREED TO AND ACCEPTED CITY OF ROUND ROCK, TEXA By: mA w L o� Date: cc: Billing Department Round Rock\Western Rim\Engagement Itr-crh.wpd STANDARD TERMS OF ENGAGEMENT This statement sets forth the standard terms of our engagement as your attorneys. Unless modified in writing by mutual agreement,these terms will be an integral part of our agreement with you. Therefore,we ask that you review this statement carefully and contact us promptly if you have any questions. We suggest that you retain this statement in your file. 1. The Scope of Our Work You should have a clear understanding of the legal services we will provide. Any questions that you have should be dealt with promptly. We will provide services related only to matters as to which we have been specifically engaged. We will at all times act on your behalf to the best of our ability. Any expressions on our part concerning the outcome of your legal matters are expressions of our best professional judgment,but are not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are expressed. We cannot guarantee the success of any given matter, but we will strive to represent your interests professionally and efficiently. 2. Fees For Legal Services Our charges for professional services are customarily based on the time devoted to the matter,the novelty and difficulty of the questions presented,the requisite experience,reputation and skill requested to deal with those questions,time limitations imposed by the circumstances,and the amount involved and the results obtained. Unless otherwise indicated in writing,our fees for legal services are determined on the basis of the hourly rates of the respective lawyers and paralegals who perform the services. These rates vary depending on the expertise and experience of the individual. We adjust these rates from time to time, increasing them as the individuals gain experience and expertise and to reflect current economic conditions. We will notify you in writing if this fee structure is modified. At the present time the standard billing rates for partners in this firm are between $350.00 and $195.00 per hour; the billing rates for associates are between $195.00 and $120.00 per hour; the billing rates for paralegals are between$90.00 and $70.00 per hour, and the billing rate for law clerks is $60.00 per hour(all fees quoted are in U.S. Dollars). 3. Other Charles All out-of-pocket expenses(such as long distance telephone charges,copying charges,travel expenses,messenger expenses and the like)incurred by us in connection with our representation of you will be billed to you as a separate item on your monthly statement. We have enclosed a description of the most common expenses. 4. Billing Procedures and Terms of Payment Our billing period begins on the 16`h of the month and ends on the 15" of the following month. We will render periodic statements to you for legal services and expenses. We usually mail these periodic statements toward the end of the month following the latest date covered in the statement. Each statement is payable within 30 days of its stated date and must be paid in U.S. Dollars. If any statement is not paid within 30 days after its stated date, interest at the rate of 1 %2 percent per month(18 percent per annum)will accrue on the balance due. However, if at any time 18 percent per annum exceeds the highest interest rate permitted by applicable law,then the interest rate that will be applied to any overdue amounts will be reduced to the maximum rate permitted under applicable law. If you have any question or disagreement about any statement that we submit to you for payment, please contact me at your earliest convenience so that we can resolve any problems without delay. Typically,such questions or disagreements can be resolved to the satisfaction of both sides with little inconvenience or formality. 5. Termination of Services You have the right at any time to terminate our employment upon written notice to us, and if you do we will immediately cease to render additional services. We reserve the right to discontinue work on pending matters or terminate our attorney-client relationship with you at any time that payment of your account becomes delinquent. Additionally, in the event that you fail to follow our advice and counsel, or otherwise fail to cooperate reasonably with us, we reserve the right to withdraw from representing you upon short notice, regardless of the then status of your matter. No termination shall relieve you of the obligation to pay fees and expenses incurred prior to such termination. 6. Retention of Documents Although historically we have attempted to retain for a reasonable time copies of most documents generated by this Firm, we cannot be held responsible in any way for failure to do so, and we hereby expressly disclaim any such responsibility or liability. You must ultimately retain all originals and copies you desire among your own files for future reference. 7. Fee Estimates We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. Our attorneys do their best to estimate fees and expenses for particular matters when asked to do so. However,an estimate is just that,and the fees and expenses required are ultimately a function of many conditions over which we have little or no control, especially in litigation or negotiation situations where the extent of necessary legal services may depend to a significant degree upon the tactics of the opposition. Unless otherwise agreed in writing with respect to a specific matter, all estimates made by us shall be subject to your agreement and understanding that such estimates do not constitute maximum or fixed fee quotations and that the ultimate cost is frequently more or less than the amount estimated. 8. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Texas,United States of America. Venue of any case or controversy arising under or pursuant to this Agreement shall be in Travis County, Texas, United States of America. 9. Questions If you have any questions from time to time about any aspect of our arrangements,please feel entirely free to raise those questions. We want to proceed in our work for you with a clear and satisfactory understanding about every aspect of our billing and payment policies;and we encourage an open and frank discussion of any or all of the matters mentioned in this memorandum. Client Costs Advanced Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, L.L.P. The firm incurs expenses on behalf of clients only when required by the legal needs of the clients. Some cases or matters require extensive use of copy facilities, and other cases may not be so paper intensive. Standard services such as secretarial and word processing time,file setup,and file storage are not charged; however, other expenses such as long distance fees, copies, delivery fees, and fax charges are billed to the client needing those services. An explanation of the billing structure is as follows: Delivery Services Outside delivery services are used for pick-up and delivery of documents to the client as well as to courts, agencies, and opposing parties. Outside delivery fees are charged to the client at the rate charged to the firm. Overnight delivery services are also charged at the rate charged to the firm. Firm Office Services Department personnel may provide delivery service in urgent situations and charges for such in-house service will not exceed the charge that would be made by an outside service in a similar situation. Telephone Our long distance charges are based on the exact number of minutes per call as provided by our carriers. The rate applied to the call is equal to the per minute charge by our long distance carrier, plus applicable taxes and surcharges imposed by governmental entities. Cell phone charges will be charged at invoice rate if the call is long distance; otherwise, local cell phone charges will not be charged to the client. Postage Our postal equipment calculates exact US postage for all sizes and weights of posted material. The rate charged for postage is the same as the amount affixed to the material that is mailed. We will not charge clients for postage on routine correspondence; however,the cost of large-volume mail, certified mail, or other additional mail services will be charged to the client. Copies Our standard rate for copies made by firm personnel is $.15 per copy. This charge covers paper, equipment costs, and other supplies. If savings can be realized within the required time frame by sending copy jobs to subcontractors, the firm uses only qualified legal services copiers and the cost charged to the client is the same as the amount billed to the firm. Computerized Research If a case requires the use of computerized legal research,trained and skilled legal researchers are used to minimize on-line data charges. The per minute fees for on-line connect time are charged to the client at the rate charged to the firm. r Fax Fax copies will be charged at the rate of$.25 per page. Travel Attorney and paralegal time spent traveling on behalf of a client is billed to the client. Hotel, meal, local transportation, and similar expenses are charged based on receipts and travel expense forms submitted by the attorney. Documentation is available to the client if requested. Other Expenses Expenses incurred to outside providers in connection with the client's legal services should be paid by the client directly to the outside provider unless specifically arranged in advance. If the firm agrees to pay outside providers, the cost charged to the client is the same as the amount billed to the firm. Examples of such charges include:court reporter fees,filing fees, newspaper charges for publication notices,expert witness fees,consultants and other similar expenses. Such expenses will be incurred only in conjunction with client-approved activities.