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CM-08-03-059DATE: February 28, 2008 SUBJECT: City Manager - March 7, 2008 ITEM: Consider city manager approval for legal representation for the special event center project. Department: Administration Staff Person: Jim Nuse/David Kautz Justification: Legal services are required to prepare an MOU and an agreement for the special events center. Funding: Cost: $25,000 Source of funds: Hotel Occupancy Tax Capital Project Fund Outside Resources: Dietz & Jarrard, P.C. Background Information: Staff requests that Mark Dietz assist the city in the negotiations for the special events center. Public Comment: N/A DIETZ & JARRARD, P.C. ATTORNEYS AND COUNSELORS AT LAW 106 Fannin Avenue East Round Rock, Texas 78664-5219 Telephone (512) 244-9314 Facsimile (512) 244-3766 www.lawdietz.com R. Mark Dietz Melissa G. Dietz J. Lee Jarrard, Jr. February 22, 2008 Mr. Jim Nuse City Manager City of Round Rock 211 E. Main Street Round Rock, Texas 78664 Re: Engagement Agreement Dear Mr. Nuse: Douglas G. Cornwell V. Blayre Pena Via Hand Delivery Enclosed please find two originals of our firm's engagement agreement for your review. Once you have had a chance to review, please sign both originals. Retain one for your file and return the other to our office at your earliest convenience. If you should have any questions, please feel free to contact our office. Sincerely, Ccs C.C,Cy,L ck.s Carolyn C. Wi liams Legal Assistant to R. Mark Dietz /ccw Enclosures CR- 0`6-03- O3el DIETZ & JARRARD, P.C. ATTORNEYS AND COUNSELORS AT LAW 106 Fannin Avenue East Round Rock, Texas 78664-5219 Telephone (512) 244-9314 Facsimile (512) 244-3766 www.lawdietz.com R. Mark Dietz Melissa G. Dietz J. Lee Jarrard, Jr. February 22, 2008 Mr. Jim Nuse City Manager City of Round Rock 211 E. Main Street Round Rock, Texas 78664 Re: Legal Representation regarding special events center Dear Mr. Nuse: Douglas G. Cornwell V. Blayre Pena We appreciate your selection of Dietz & Jarrard, P.C. (the "Firm") to represent you in the above -referenced matter. The purpose of this letter is to set forth the nature of our representation, the terms upon which that representation is to be accomplished, and to provide you with some information on the cost of legal services. First of all, you are purchasing a service rather than a product. Even though a service may be provided, the ultimate desired result may or may not occur. This is because we cannot control all of the factors involved in handling your legal matter. If all of the factors were completely under our control, it would then be possible to guarantee a desired result. However, since that is not possible, the attorney devotes to you his time and effort and for that, of course, he like any other businessman, needs to charge a fee. The fee includes time, energy, professional judgment, experience, and knowledge in a particular area of law. Lawyers also have business overhead which must be included in the fee. This includes but is not limited to attorneys, legal assistants or paralegals, and capital equipment such as law libraries, computers, copy machines, printers, and telecopiers. Fees of our Firm are based principally upon the amount of time expended to accomplish the work. However, we also give consideration to the degree of responsibility and to the results we achieve for the client. Different hourly rates apply for the different lawyers in the office and, at times, different rates are used for the same lawyer depending on whether the particular matter involves an area in which that lawyer has special knowledge and whether or not the lawyer's time is required to be spent away from his office and whether or not his time is required to be spent above the normal work week. We will provide you our best effort in accomplishing your objectives. You will receive a monthly itemization of efforts expended, for which you will be charged. Each billing will set forth a summary of legal work performed, costs incurred on your behalf, and the resulting amount owed to our Firm. Mr. Jim Nuse City of Round Rock February 22, 2008 Page 2 Under the Firm's structure the hourly rate for the attorneys' time is $175.00 per hour for R. Mark Dietz, $175.00 per hour for J. Lee Jarrard, Jr., $150.00 per hour for Douglas G. Cornwell and $100.00 per hour for V. Blayre Pena. Legal Assistant/Paralegal time is billed at $70.00 per hour. Please note that these rates may be subject to change in the future. Attorneys and office staff keep track of their time to the nearest one-tenth of an hour. Time record notations are made for any and all work performed, including but not limited to, office conferences, legal research, preparation of legal instruments, telephone and personal conferences, trips to and from the office to the courthouse or client's office, and any other billable legal services. Furthermore, our time charges do not include, and the client is responsible for, all out-of-pocket expenses, including but not limited to, filing fees, postage, copying charges at $.25 per copy, telecopying charges at $.25 per page, long distance telephone charges, messenger or delivery services, travel expenses (including the current IRS rate for automobile travel), on-line Westlaw research charges at $5.00 per minute, parking fees, court costs and depositions. Please note that these rates may be subject to change in the future. The monthly statement will not only reflect the time charges, but also will reflect the aforementioned expenses. In the event a third party is called upon for his expertise in a specific matter, whether as a consultant or as a testifying expert, the Client is responsible for the cost of retaining such expert, and may be asked to advance those funds at the time of hiring the expert. It is expected that the time charges and expenses incurred will be due upon receipt of the statement. Furthermore, unpaid time charges and expenses not paid within 30 days of the statement date shall accrue interest at the rate often percent per annum until paid. If you have more than one account with our Firm your payments when received may be credited to the oldest past due account unless you instruct us otherwise. A retainer in the amount of $ -0- shall be paid to the Firm upon your acceptance of this agreement, and shall be held in trust until all matters undertaken by the Firm on your behalf have been resolved and outstanding fees and expenses have been paid to the date of final billing. This is not a prepayment of attorneys' fees and expenses, but is instead a deposit to secure the payment of your bill on a monthly basis. The Firm may offset against the retainer if any monthly bill is not paid timely. Subsequent payment of the bill will replenish the retainer. The retainer shall be applied to the final balance due with any excess funds therefrom being refunded to the client. If you have more than one account or more than one retainer on deposit, our Firm reserves the right to offset against any or all retainers you have on deposit with our Firm to satisfy any past due account, regardless of which account the retainer was designated to secure. We understand that the billings are not to exceed $25,000.00 without additional written approval by you. Our representation is also subject to the understanding that you may terminate us as your counsel for any reason you choose, upon 30 days written notice to this law Firm. It is also understood that we may terminate our representation upon 30 days written notice to you. In order to serve you in this matter, the Firm needs absolute cooperation from you. In conjunction with this requirement, you agree to immediately notify the Firm of any changes in your address and/or telephone number. The Firm shall have the right to cease legal work if you fail to furnish the Firm with all necessary, complete and truthful information and documents, and/or if you do not cooperate fully with the Firm in the handling of this matter. NOTICE TO CLIENT: 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 Mr. Jim Nuse City of Round Rock February 22, 2008 Page 3 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. The Supreme Court of Texas adopted a Creed which mandates professionalism in the conduct of attorneys. We have adopted the Lawyer' s Creed and conduct our affairs in accordance with its terms. A copy of the Lawyer' s Creed can be found at http://www.txethics.org/reference_creed.asp or from the Firm upon request. While we cannot guarantee accomplishment of any particular result, we do agree to provide you with our best advice and to exert our best efforts on your behalf. We appreciate the opportunity to work with you and be of service to you. NOTICE TO CLIENT: At the conclusion of any matter the Firm will retain the original documents for a period of time. However, it is our policy not to retain documents more than four (4) years from the date the file is closed. At the conclusion of the representation, we encourage you to make arrangements to pick up your file or have the Firm send it to you. Should you choose not to take possession of your file, you must notify us of any changes in your address during the four years after your file is closed, so that we can notify you prior to destroying your file. If the foregoing is an accurate statement of your understanding of our agreement, please so indicate by signing in the appropriate location, and return the original communication to us along with your retainer check. The enclosed copy is for your files. APPROVED: City of Round Rock By Ji se, City Manager Sincerely, DIETZ & JARRARD, P.C. By: v R. Mark Dietz State Bar No. 05