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CM-12-11-233ROUND ROCK, TEXAS PURPOSE PASSION. PROSPERITY. Item Caption: Diti-j2-1(-253 RECEIVED NOV 01 2012 City Manager Approval Form Consider executing Engagement Agreement with Bourland Law Firm regarding representation in Cause No. 12-0774-C368, City of Round Rock, Texas v. Union Pacific Railroad Company. Approval Date: November 2, 2012 Department Name: Legal Project Manager: Assigned Attorney: Steve Sheets Item Summary: This engagement letter will authorize the Bourland Law Firm to assist the City Attorney in the complex litigation with the Union Pacific Railroad. No. of Originals Submitted: 2 Project Name: Union Pacific Railroad Cost: $50,000 Source of Funds: Select Source Fund Source of Funds (if applicable): Select Source Fund Account Number: Finance Director Approval: (J,k)75( Date: 14 31 1 I Department Director Approval: Date: **Electronic signature by the Director is acceptable. Please only submit ONE approval form per item. ** CIP n n Budget n n Purchasing n El Accounting n N/A OK N/A OK N/A OK N/A OK ITEMS WILL NOT BE PLACED ON THE COUNCIL OR CM AGENDA W/OUT PRIOR FINANCE AND/OR LEGAL APPROVAL REV. 6/20/11 BOURLAI(HEAW FIRM September 14, 2012 VIA ELECTRONIC MAIL Steve Norwood, City Manager City of Round Rock 221 E. Main Street Round Rock, Texas 78664 Re: Engagement Agreement Dear Mr. Norwood: 1 CHISHOLM TRAIL, SUITE 150 ROUND ROCK, TEXAS 78681 TEL 512.477.0100 FAX 512.477.0154 W W W.BOU RLAN DLAW.COM Please allow this letter to serve as an engagement agreement for the City of Round Rock (the "Client") to hire our firm for representation in Cause No. 12-0774-C368, City of Round Rock, Texas v. Union Pacific Railroad Company, in the 368th District Court, Williamson County, Texas. The attorneys' fees associated with our representation will be capped at $50,000 unless further authorized in writing by the Client. Given the type and scope of this litigation, it is likely that the fees will exceed $50,000, and if and when the fees draw near that amount, we will advise you accordingly so that the City can determine how to proceed. The following paragraphs outline the terms of the agreement with regard to this matter. It is my distinct honor and pleasure to be able to represent the City of Round Rock, and I look forward to working with you on this case. This letter will cover our billing practices and the scope of our representation. Our billing practices are slightly different from most typical law firms and hopefully will be viewed favorably by you. We do not charge for internal office expenses such as copying, long distance phone calls, facsimile charges, secretarial overtime or other related overhead items. It is our belief that when we are paid our hourly fee, it is our obligation to cover these types of expenses. It is necessary, however, for us to pass along charges incurred from outside vendors such as court reporters, process servers, expert witnesses, copy services (for large copying projects) and Federal Express/UPS charges, as well as court costs, filing fees and any travel costs related to your case. Additionally, if your case requires electronic research, you will be charged a fee for that service, which will be based on the duration of usage and discounted from the market rate set by the provider. Please understand that all outside vendor invoices in an amount of $400.00 or above will be forwarded to you, and it is your responsibility to timely pay the vendors directly. You will still be responsible for outside charges that are less than $400.00, but we will pay those directly and they will be included as a pass-through expense on our monthly firm bill. Each month, we will send you a bill, due upon receipt, that specifically sets forth all work that has been performed and any pass-through expenses that have been incurred for the !Z -Ll -Z33 Engagement Agreement September 14, 2012 Page 2 of 3 month. At that time, we would encourage you to closely scrutinize your bill. We are very conscious of attorneys' fees and expenses and will prudently try to ensure that you are billed fairly and responsibly. Should you ever have any questions or comments regarding our bills, we request that you let us know immediately so that we can have an opportunity to discuss your concerns and attempt to resolve them to your satisfaction. I will be the lead attorney working on this matter; however, if it becomes necessary or cost-effective to assign tasks to others in our office, I will do so. The hourly rates for the individuals in our office are: Cindy Olson Bourland $325.00 Anna Eby $225.00 Associate Attorneys $150.00 Paralegals $ 50.00 Law Clerks $ 50.00 The hourly fee amount is billed to our clients based on 1/10 of an hour increments. For example, 0.1 hours is equal to 6 minutes, 0.2 hours is equal to 12 minutes, etc. While we will strive to keep your legal fees to a minimum, it is important that you pay your bill when it becomes due. Please note that our firm accepts Visa, MasterCard and American Express, and that we accept credit card payments over the phone and in person. The place of performance of this agreement is Williamson County, Texas. All fees and expenses are payable at the address of the law firm. The Client acknowledges that the law firm has not made any representation or guarantee as to the outcome of this case, and that the nature of litigation makes it very hard to predict any total amount of legal fees that will be incurred. This written agreement contains the entire agreement of the parties. There are no terms of our agreement that are not contained in this written agreement. Please be advised that the Client may discharge the law firm at any time. If the Client becomes displeased or dissatisfied with any aspect of the legal services of the law firm, the Client shall give written notice to the law firm. The notice shall be by certified mail, return receipt requested. The Client and the law firm will make all reasonable efforts to resolve any problem that arises. If no resolution is reached, the law firm will withdraw at the Client's written request. The law firm may also withdraw from further representation for any of the following reasons: the Client fails to pay fees or expenses required under this agreement; the Client fails to cooperate and comply fully with any reasonable request of the law firm; the Client engages in conduct or makes statements that render it unreasonably difficult for the law firm to carry out the purposes of its employment; and/or the Client fails to abide by any of the terms of this agreement. Before the law firm withdraws from its representation of the Client, the law firm shall give ten days' written notice to the Client. The notice shall be by certified mail, return receipt requested. YOU AGREE AND ACKNOWLEDGE THAT THE FIRM MAY WITHDRAW IF YOU FAIL EITHER TO PAY AN INVOICE IN FULL OR TO REPLENISH YOUR RETAINER (WHEN APPLICABLE) WITHIN SIXTY (60) DAYS. Engagement Agreement September 14, 2012 Page 3 of 3 It is our firm policy to maintain your files for a period of five (5) years after the conclusion of our representation of you. You hereby authorize us to destroy your files five (5) years from the conclusion and/or resolution of your case, unless you instruct us otherwise before the end of said five (5) year period. It is our intention to vigorously represent you in this matter. While we believe that we are very aggressive trial lawyers, we are also very careful to follow the ethical guidelines and the local customs and practices. If a situation ever arises where we feel that the actions being requested by the Client violate any of the local practices and customs or the ethical rules, we will certainly inform you. To ensure that there is no confusion regarding our fee agreement, I would like for you to sign this letter in the space provided below indicating your agreement to the terms and conditions of our representation. Should you have any questions or comments regarding this agreement, please contact me before you sign it so that we can discuss them. Please do not hesitate to contact me if you need additional information at this time. COB/ds AGREED: City of Round Rock Sincerely, BOURLAND LAW FIRM, P.C. By: Cindy on Bourland 41411‘34(141 - By: Steve Norwood, City Manage cc: Steve Sheets, City Attorney