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R-06-11-21-10A1 - 11/21/2006RESOLUTION NO. R -06 -11 -21 -QA j WHEREAS, there is currently pending in the United States District Court for the Western District of Texas, Austin Division as Civil Action No. A05CA979LY a lawsuit styled National Association For the Advancement of Colored People Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc. And National Association of Home Builders, Inc. v. City of Kyle (the "Litigation"), and WHEREAS, the Plaintiffs in the Litigation are challenging the validity and enforceability of certain municipal ordinances, codes, and regulations relating to the manner of construction and materials used in the construction of residential structures in municipalities, and WHEREAS, several other central Texas cities have either retained or are presently considering retaining the law firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C. to represent the cities in the Litigation, and WHEREAS, the City Council has determined that it is in the City of Round Rock's best interests to intervene in the Litigation in an effort to protect the City's right to adopt and enforce ordinances regulating construction and to join with similarly situated cities in retaining the law firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C., 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 of Round Rock a Joint Defense/Common Interest Agreement Between and Among Certain Municipalities and the Southwestern @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R61121A1.WPD/MC Brick Institute and an Employment Contract with Lloyd Gosselink Blevins Rochelle & Townsend, P.C., copies of which documents are attached hereto as Exhibits A and B, respectively. 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 21st day of November, 006 NY EL Mayor City of Round Rock, Texas T ST; CHRISTINE R. MARTINEZ, City Sec Atary F JOINT DEFENSE/COMMON INTEREST AGREEMENT BETWEEN AND AMONG CERTAIN MUNICIPALITIES AND THE SOUTHWESTERN BRICK INSTITUTE This Joint Defense/Common Interest Agreement ("Agreement") is made by, between, and among the Cities of , Texas, and any other similarly situated parties as may subsequently enter into this Agreement (collectively, "the Municipalities") and the Southwestern Brick Institute ("SWBI") (the Municipalities and SWBI referred to collectively as "the parties"). RECITALS: A. The Municipalities and SWBI have common interests at issue in a case pending in the United States District Court for the Western District of Texas, Austin Division, as Civil Action No. A05CA979LY; styled National Association For the Advancement of Colored People Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc. and National Association of Home Builders, Inc. v. City of Kyle (the "Litigation"). Among those common interests (by way of example only and not by way of limitation) is an interest in ensuring the present and future validity and enforceability of certain municipal ordinances, codes, and regulations relating to the manner of construction and materials used in the construction of residential structures in municipalities, among other common interests. B. The Municipalities intend to intervene in the Litigation, and SWBI supports the Municipalities in their efforts in the Litigation. It is understood that SWBI does not intend to be a party to the Litigation. The parties believe that coordination of their efforts is desirable, and will affect economic and other efficiencies that are in the parties' joint interest. C. The Municipalities have retained or will retain the firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C. ("Lloyd Gosselink") to represent their interests as parties to the Litigation and SWBI has retained Lloyd, Gosselink to represent its interests in the subject matter of the Litigation. The parties expect, intend, and agree that SWBI shall be responsible for and shall timely pay all legal fees and expenses incurred by Lloyd Gosselink on behalf of the Municipalities in the Litigation, and understand that the Municipalities shall not be responsible to Lloyd Gosselink for any fees or expenses incurred by Lloyd Gosselink in the course of Lloyd Gosselink's representation of the Municipalities in the Litigation. Lloyd Gosselink has executed this Agreement for the purpose of evidencing its agreement to look solely to SWBI for the payment of its fees and expenses incurred in the course of its representation of the Municipalities in the Litigation. D. To the maximum extent possible under the law, the parties desire to protect from disclosure to or discovery by third parties, information relating to the Litigation that is shared between and among themselves pursuant to this Agreement, and each party shall make reasonable efforts to maintain that protection. The parties understand that there remains the possibility that a court may deem discoverable any or all of the information intended to be protected by the relationship and agreements memorialized in this Agreement. EXHIBIT 3 �� All Now therefore, in consideration of the following mutual covenants and promises, the parties hereto agree as follows: 1. _Recitals Incorporated. The foregoing Recitals are hereby incorporated by this reference. 2. Scone of Agreement. This Agreement covers all matters with respect to the Litigation, including all issues and facts that may relate in any way to the subject matter of the Litigation. 3. Information Sharing. In furtherance of the parties' common interests, all information provided or communicated to or by Lloyd Gosselink by the Municipalities, or any member Municipality, under this Agreement may be shared with all other signatory of this Agreement. Likewise, all information provided or communicated to or by Lloyd Gosselink to or by SWBI under this Agreement may be shared with all other signators of this Agreement. 4. Confidential Information. The parties each agree to maintain as confidential all information (hereafter "confidential information") received pursuant to the terms of this Agreement to the maximum extent allowed under applicable law. The parties agree that confidential information shall not be made available to any third party, other than (i) attorneys and their staff working for or on behalf of any party to this Agreement, (ii) client representatives of any party to this Agreement who have a reasonable need to know confidential information, and (iii) independent consultants and/or experts retained by or on behalf of any party to this Agreement relating to the Litigation. Notwithstanding the above, the parties agree and authorize Lloyd Gosselink to enter into, on their behalf, joint defense/common interest agreements similar to this Agreement with the City of Kyle, Texas, and with such other defendants not represented by Lloyd Gosselink, if any, as Lloyd Gosselink may deem suitable or appropriate under the circumstances. The parties further agree that any party with similar interests as the Municipalities which is represented by Lloyd Gosselink and which wishes to intervene in the Litigation at a later date may sign this Agreement and participate in the relationship memorialized herein in all respects, and the parties hereby consent to that participation. 5. Decision-making. To the extent that client authorization is sought or necessary for action to be taken on the Litigation, a decision shall be made by a majority vote of the member Municipalities subject to this Agreement. The member Municipalities subject to this Agreement understand and acknowledge that the City of Kyle, Texas and its counsel will not be bound by the terms of such a decision. Notwithstanding the foregoing, the decision of a member Municipality to participate in, withdraw from, or settle the Litigation is and will remain the sole decision of each member Municipality. 6. Confidentiality, No Waiver. This Agreement does not constitute a waiver by any party of any applicable privilege, and the obligations and privileges created by or subject to this Agreement shall survive the withdrawal from the Litigation, termination of the Agreement, or settlement of the Litigation by a party. a. Confidentiality of Information. The parties agree that they have interests in common in the Litigation and that the Municipalities shall litigate common claims and common legal theories therein, and that each party will benefit from open communication with Lloyd Gosselink and with one another about all matters relating to the litigation. The parties agree that such disclosures and communications are wholly consistent with the purpose of the attorney-client privilege and the attorney work product privilege, which is to safeguard mental impressions, opinions, strategies, work product and trial preparation. The parties agree that, from time to time, the mutual interests of the parties can best be served by sharing documents, factual material, mental impressions, memoranda, interview reports, legal research, expert data and other information herein referred to as "confidential materials." Subject to the terms of an appropriate joint defense agreement with the City of Kyle, Texas, (and possibly other parties defendant in the Litigation) these confidential materials are intended to be and remain privileged from disclosure to adverse parties or other third parties as a result of the attorney-client privilege, the attorney work product privilege, and other applicable privileges. All information that a party provides to another party or Lloyd Gosselink in furtherance of the purpose of this Agreement shall be considered confidential and may not be used for any other purpose. Information furnished by a party or Lloyd Gosselink to any other party to further the purposes of this Agreement may not be used by any other party in an action or proceeding adverse to the furnishing party. b. Survival. This section shall survive any partial or complete termination of this Agreement, except as otherwise provided by law. 7. Termination. This Agreement may be terminated by mutual agreement of all of the parties. The term of this Agreement shall be until the first of the following events occurs: a. Upon final conclusion or resolution of the Litigation, as it pertains to the Municipalities, at the District Court level, whether by order of the District Court, or by settlement or otherwise; or b. Upon termination by any Municipality or Municipalities; however, the Agreement shall be terminated only as to the terminating party or parties. Notwithstanding any such termination by any party or parties, the entire Agreement shall remain in effect as to all non -terminating parties until the Agreement is terminated with respect to the non -terminating parties pursuant to either (a) or (b) herein. Any such termination of this Agreement shall be prospective only, so that all confidential information shared prior to any such termination shall be and thereafter continue to remain confidential as between all of the Parties, those remaining and those terminating alike, and under no circumstances shall any party have the right to waive any privilege with respect to any confidential information shared pursuant to this Agreement prior to any party's termination hereof. Further, if the Agreement is terminated by fewer than all of the Municipalities, the payment obligations described in Recital C herein survive as to any fees and expenses already owing and/or that continue to be incurred by Lloyd Gosselink as to the remaining Municipalities, as contemplated therein. In the event of termination of this Agreement pursuant to (a) above, the parties may extend this Agreement through any or all appellate levels and processes, if any, by written agreement of all parties who wish to participate therein. Further, upon termination of this Agreement as to any or all parties, for any reason, the terminated party or parties shall remain bound by the provisions of Sections 4 and 6 (Confidential Information and Confidentiality, No Waiver) which shall survive termination of this Agreement to the maximum extent allowed by law. 8. Disclosure and Waiver of Conflicts. Lloyd Gosselink has disclosed and does hereby disclose that each party may have individual interests which differ from and conflict with another party's individual interest and the joint interests being represented in this lawsuit. In the event that such individual interests may conflict with another party's individual interest and the joint interests the subject of this representation, the parties each hereby WAIVE any and all such conflicts, and agree to fully INDEMNIFY AND HOLD LLOYD GOSSELINK HARMLESS from and against any such conflicts and damages that may arise as a result thereof. The parties acknowledge that they have had a full and frank discussion with Lloyd Gosselink regarding all known existing and potential conflicts, including the implications and possible adverse consequences of this joint representation. 9. Termination in the Event of Conflict. Further, in the event that (1) any such conflicts, in the judgment of Lloyd Gosselink, would cause the parties to be materially adversely affected by continuing joint representation, including any such belief caused by discovery of a material fact or event, or (2) a specific written withdrawal of this waiver by any party delivered to Lloyd Gosselink, render further representation of any or all parties jointly no longer practical or appropriate, the parties understand and agree that any or all agreements between and among the parties may be terminated by the firm at its discretion for such reasons at any time, thereby severing the attorney/client relationship. Nothing herein shall prevent the continued representation in the Litigation by Lloyd Gosselink of the remaining parties to this Agreement, following the termination of the relationship between Lloyd Gosselink and any other party or parties in the event of a conflict, and such continued representation in the Litigation by Lloyd Gosselink is hereby consented to by each party. 10. Communication with Subsequent Counsel. If at any time a dispute arises between or among the parties as to any issue in which the parties' interests may conflict that results in any party engaging independent counsel, the parties agree and understand that Lloyd Gosselink will not communicate any substantive information relating to this engagement to subsequent counsel without written authorization to do so by each party, or by an order of the Court. 11. Notice. Unless otherwise provided herein, any notice or delivery to be given hereunder by any party to any other party or parties may be effected by delivery in writing by either personal delivery, facsimile, or certified mail postage prepaid, return receipt requested. Notice shall be effective on the date received. Notice delivered in this manner to Lloyd Gosselink (and, in the event of notice to any Municipality, copied to its city attorney) shall be deemed notice to the desired party, unless and until a party changes its address or manner of notice via written notice in accordance with this paragraph. 12. Other Agreements. This Agreement is intended to be an exhibit to an Employment Contract between Lloyd Gosselink and each party hereto. This Agreement should be read and construed in harmony with the applicable Employment Contracts, to the extent possible. 13. Savings Clause. In the event that any condition or covenant herein is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect any other covenant or condition herein. If such condition, covenant, or other provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. 14. Amendment. This Agreement may be amended only by a writing signed by each of the parties hereto. If this Agreement has terminated with respect to any one or more parties, but survives as to remaining parties, the Agreement may be amended by a writing signed by each of the remaining parties. 15. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one instrument. 16. Advice of Counsel. Each Party hereto is entitled and advised to seek the advice of independent counsel before signing this Agreement Each Party also has the right to seek separate and independent counsel at any time regarding any matter within the scope of this Agreement. Signature of a Party shall be a representation to all parties that the signing Party has availed itself of its right to consult independent counsel 17. Authority. Each party represents that the person(s) executing this Agreement on behalf of the party are authorized to execute this Agreement and, upon such execution, this Agreement shall be binding upon that party. It is understood and agreed that this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, representatives, successors and assigns. 18. Effective Date. This Agreement shall be effective for each party on the date the party executes the Agreement with respect to all other parties that have already executed this Agreement on such date, and shall be effective for that party with respect to subsequently executing parties on such date(s) as such subsequent parties individually execute the Agreement. SOUTHWESTERN BRICK INSTITUTE By: Its: Date: CITY OF , TEXAS By: Its: Date: CITY OF , TEXAS By: Its: Date: CITY OF , TEXAS By: Its: Date: \1 811 \06\CASE ADMIN\Agt 060918 Joint Defense Agreement Between SWBI And Cities Final.Doc Lloyd ,, Gosselink � ATTORNEYS AT LAW Mr. Phillips' Direct Line: (512) 322-5890 Email: cphillips@lglawFirm.com 816 Congress Avenue, Suite 1900 Austin, Texas 78701 Telephone: (512) 322-5800 Facsimile: (5 12) 472-0532 www.Iglawfirrn.com CONFIDENTIAL PRIVILEGED ATTORNEY-CLIENT COMMUNICATION November 14, 2006 Mr. Stephan L. Sheets City Attorney City of Round Rock, Texas SHEETS & CROSSFIELD, P.C. 309 East Main Street Round Rock, TX 78664 RE: Employment Contract; Billing File 1811-06 Dear Mr. Sheets: E XHIBIT nBn i We want to express our appreciation for the opportunity for our firm to work with you and the City of Round Rock, Texas ("the City") as an intervenor in the below -referenced litigation. As part of our routine in opening new files, we provide clients with an engagement letter. The purpose of this letter is to set forth our understanding of the legal services to be performed by us for this engagement and the basis upon which we will be paid for those services. This letter confirms our agreement that the firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C. (the "Firm") will represent (i) the interests of the City as an intervenor in the below -referenced litigation [to the extent the interests of the City do not conflict with (a) the interests of certain other hereinafter referenced municipalities in the Central Texas area, (together with the City, the "Municipal Clients"), and (b) the interests of the Southwestern Brick Institute and/or its successors or assigns (collectively, "SWBI")], and (ii) the interests of the SWBI and such other Municipal Clientsl as are willing to have the Firm represent them in the intervention by such Municipal Clients on behalf of the City of Kyle in that certain lawsuit currently pending in the United States District Court for the Western District of Texas, Austin Division as Civil Action No. A05CA979LY; styled National Association For the Advancement of Colored People Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc. and National Association of Home Builders, Inc. v. City of Kyle (the "Litigation"). 1 It is contemplated that, in connection with the engagement of the Firm by the SWBI, the Firm will undertake the representation of other Municipal Clients, including the Cities of Manor, Texas, Lago Vista, Texas, and Jonestown, Texas. It is understood that this Firm ultimately may not undertake the representation of all of the foregoing municipalities, and that others may be substituted for one or more of these municipalities, so that the Municipal Clients for whom the Firm ultimately undertakes representation in the Litigation may differ from those hereinabove contemplated. The City understands and agrees to this. Lloyd Gosselink Blevins Rochelle & Townsend, P.C. Mr. Stephan L. Sheets November 14, 2006 Page 2 For the Firm to work on these matters on behalf of the City, in addition to the executing of this Employment Contract, we will need to enter into a Joint Defense/Common Interest Agreement between all Municipal Clients and the SWBI, in form and substance similar to that attached hereto as Exhibit "A," intended to (among other things) (i) waive known and potential conflicts between and among SWBI and each of the Municipal Clients, (ii) preserve confidentiality and privilege between SWBI and each of the Municipal Clients, and (iii) notwithstanding that SWBI will not be a party to the Litigation, SWBI and each of the Municipal Clients, acknowledge that the interests of SWBI and the Municipal Clients are so aligned in the Litigation that they each agree and consent that the Firm may share all confidential and attorney- client and attorney work product -privileged information (as well as any other privileged or confidential information) related to the Litigation with and amongst all clients, including SWBI, without waiver of any privilege exemption and with the permission of each client. For the present, unless otherwise directed by the City in writing, we will work under the direction of you as the city Attorney for the City. SWBI (to the exclusion of the City and all other Municipal Clients) will be responsible for all fees and expenses incurred by the Firm in connection with its representation of both SWBI's interests, and the interests of the Municipal Clients, in or in any way connected with the Litigation. The Firm will look only to SWBI for payment of its fees and expenses in connection with the Litigation. In keeping with technological advancements and the corresponding demands of clients, it is the practice of the Firm to use electronic (email) correspondence from time to time to communicate and to transmit documents. The Firm employs several security measures to prevent the interception of electronic transmissions and preserve confidentiality. Still, the possibility exists that electronic transmissions could be intercepted or otherwise received by third parties and lose their privileged nature if the method of communication is ruled to lack sufficient confidentiality. As with any correspondence regarding legal representation, regardless of the manner of transmission, we urge you to use caution in its dissemination in order to protect its confidentiality. By signing below, you agree that we may use email in the scope of our representation of the City, SWBI and the Municipal Clients . Periodically, the Firm is asked to provide a "Representative Client List" to prospective clients and in various legal directories (e.g., Martindale -Hubbell and the Texas Legal Directory). We would like confirmation that we may disclose to third parties the fact that our Firm represents the City. Lloyd Gosselink is not requesting authorization to disclose any privileged information obtained during its representation. By signing below you agree that we may reveal the fact that we represent the City to third parties. This agreement shall become effective upon our receipt of a counter -signed original of this letter. This agreement may be terminated by you at any time for any reason by written notice to us and the other Municipal Clients. This agreement may be terminated by this Firm on fifteen (15) days written notice to you and the Municipal Clients for any reason. Any Mr. Stephan L. Sheets November 14, 2006 Page 3 termination by either party may be subject to, or controlled by, orders of the court in which the Litigation is pending or another court of appropriate jurisdiction. If this agreement is acceptable, please sign the duplicate original provided herein, and return it to us for our records. We look forward to working with you. Yours very Janes Chrisman PHillips JCP/dmc L:\1811\06\Ltr061112\Engagement Ltr to City of Round Rock.doc ''1OU" (Client Signature) (Title) (Printed Name) Date SCHEDULE OF CHARGES As of January 1, 2006 Photocopies $ .20/page Telefax (sending only) $ 1.00/page Messenger/clerical services $ 10.00/hour Scanning $ .15/page CD burning or duplication $ 5.00/CD DATE: November 14, 2006 SUBJECT: City Council Meeting - November 21, 2006 ITEM: 10.A.1. Consider a resolution authorizing the engagement of the law firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C. to intervene in the lawsuit styled NAACP, Home Builders Association of Greater Austin, Inc. and National Association of Home Builders, Inc. v. City of Kyle Department: Administration Staff Person: Jim Nuse, City Manager Justification: The City of Kyle has requested that the City of Round Rock become a party to this lawsuit. The issue at hand is a challenge to the City's ability to legislate and enforce standards and fees that reflect the desires of the community for appearance, long term maintenance, and standards of development. Funding: Cost: N/A Source of funds: N/A Outside Resources: N/A Background Information: Brick Manufacturers are supporting this effort with the funds necessary. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS JOINT DEFENSE/COMMON INTEREST AGREEMENT BETWEEN AND AMONG CERTAIN MUNICIPALITIES AND THE SOUTHWESTERN BRICK INSTITUTE This Joint Defense/Common Interest Agreement ("Agreement") is made by, between, and among the Cities of , Texas and any other similarly situated parties as may subsequently enter into this Agreement (collectively, "the Municipalities") and the Southwestern Brick Institute and/or its successors or assigns' (collectively, "SWBI") (the Municipalities and SWBI referred to collectively as "the parties"). RECITALS: A. The Municipalities and SWBI have common interests at issue in a case pending in the United States District Court for the Western District of Texas, Austin Division, as Civil Action No. A05CA979LY; styled National Association For the Advancement of Colored People Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc. and National Association of Home Builders, Inc. v. City of' Kyle (the "Litigation"). Among those common interests (by way of example only and not by way of limitation) is an interest in ensuring the present and future validity and enforceability of certain municipal ordinances, codes, and regulations relating to the manner of construction and materials used in the construction of residential structures in municipalities, among other common interests. B. The Municipalities intend to intervene in the Litigation, and SWBI supports the Municipalities in their efforts in the Litigation. It is understood that SWBI does not intend to be a party to the Litigation. The parties believe that coordination of their efforts is desirable, and will affect economic and other efficiencies that are in the parties' joint interest. C. The Municipalities have retained or will retain the firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C. ("Lloyd Gosselink") to represent their interests as parties to the Litigation and SWBI has retained Lloyd, Gosselink to represent its interests in the subject matter of the Litigation. The parties expect, intend, and agree that SWBI shall be responsible for and shall timely pay all legal fees and expenses incurred by Lloyd Gosselink on behalf of the Municipalities in the Litigation, and understand that the Municipalities shall not be responsible to Lloyd Gosselink for any fees or expenses incurred by Lloyd Gosselink in the course of Lloyd Gosselink's representation of the Municipalities in the Litigation. Lloyd Gosselink has executed this Agreement for the purpose of evidencing its agreement to look solely to SWBI for the payment of its fees and expenses incurred in the course of its representation of the Municipalities in the Litigation. It is presently contemplated that the Southwest Brick Institute and the Brick Institute of America ("BIA"), headquartered in Reston, Virginia, will merge into a single entity. In the interim, pending consummation of the proposed merger, the parties understand and agree that both SWBI and BIA have similar interests and each may be treated as parties subject to this agreement. If it becomes necessary or appropriate, BIA may execute a copy of this agreement at a later date. Nothing herein shall alter Recital "C" herein as it relates to the Municipalities' non - responsibility for payment. R -M-11-21-10,91 D. To the maximum extent possible under the law, the parties desire to protect from disclosure to or discovery by third parties, information relating to the Litigation that is shared between and among themselves pursuant to this Agreement, and each party shall make reasonable efforts to maintain that protection. The parties understand that there remains the possibility that a court may deem discoverable any or all of the information intended to be protected by the relationship and agreements memorialized in this Agreement. Now therefore, in consideration of the following mutual covenants and promises, the parties hereto agree as follows: 1. Recitals Incorporated. The foregoing Recitals are hereby incorporated by this reference. 2. Scope of Agreement. This Agreement covers all matters with respect to the Litigation, including all issues and facts that may relate in any way to the subject matter of the Litigation. 3. Information Sharing. In furtherance of the parties' common interests, all information provided or communicated to or by Lloyd Gosselink by the Municipalities, or any member Municipality, under this Agreement may be shared with all other signators of this Agreement. Likewise, all information provided or communicated to or by Lloyd Gosselink to or by SWBI under this Agreement may be shared with all other signators of this Agreement. 4. Confidential Information. The parties each agree to maintain as confidential all information (hereafter "confidential information") received pursuant to the terms of this Agreement to the maximum extent allowed under applicable law. The parties agree that confidential information shall not be made available to any third party, other than (i) attorneys and their staff working for or on behalf of any party to this Agreement, (ii) client representatives of any party to this Agreement who have a reasonable need to know confidential information, and (iii) independent consultants and/or experts retained by or on behalf of any party to this Agreement relating to the Litigation. Notwithstanding the above, the parties agree and authorize Lloyd Gosselink to enter into, on their behalf, joint defense/common interest agreements similar to this Agreement with the City of Kyle, Texas, and with such other defendants not represented by Lloyd Gosselink, if any, as Lloyd Gosselink may deem suitable or appropriate under the circumstances. The parties further agree that any party with similar interests as the Municipalities which are represented by Lloyd Gosselink and which wishes to intervene in the Litigation at a later date may sign this Agreement and participate in the relationship memorialized herein in all respects, and the parties hereby consent to that participation. 5. Decision-making. To the extent that client authorization is sought or necessary for action to be taken on the Litigation, a decision shall be made by a majority vote of the member Municipalities subject to this Agreement. The member Municipalities subject to this Agreement understand and acknowledge that the City of Kyle, Texas and its counsel will not be bound by the terms of such a decision. Notwithstanding the foregoing, the decision of a member 2 1811\06\Agt06l 113 Jt def agrmt bet SWBI and City of Rd Rock, TX.doc Municipality to participate in, withdraw from, or settle the Litigation is and will remain the sole decision of each member Municipality. 6. Confidentiality No Waiver. This Agreement does not constitute a waiver by any party of any applicable privilege, and the obligations and privileges created by or subject to this Agreement shall survive the withdrawal from the Litigation, termination of the Agreement, or settlement of the Litigation by a party. a. Confidentiality of Information. The parties agree that they have interests in common in the Litigation and that the Municipalities shall litigate common claims and common legal theories therein, and that each party will benefit from open communication with Lloyd Gosselink and with one another about all matters relating to the litigation. The parties agree that such disclosures and communications are wholly consistent with the purpose of the attorney-client privilege and the attorney work product privilege, which is to safeguard mental impressions, opinions, strategies, work product and trial preparation. The parties agree that, from time to time, the mutual interests of the parties can best be served by sharing documents, factual material, mental impressions, memoranda, interview reports, legal research, expert data and other information herein referred to as "confidential materials." Subject to the terms of an appropriate joint defense agreement with the City of Kyle, Texas, (and possibly other parties defendant in the Litigation) these confidential materials are intended to be and remain privileged from disclosure to adverse parties or other third parties as a result of the attorney-client privilege, the attorney work product privilege, and other applicable privileges. All information that a party provides to another party or Lloyd Gosselink in furtherance of the purpose of this Agreement shall be considered confidential and may not be used for any other purpose. Information furnished by a party or Lloyd Gosselink to any other party to further the purposes of this Agreement may not be used by any other party in an action or proceeding adverse to the furnishing party. b. Survival. This section shall survive any partial or complete termination of this Agreement, except as otherwise provided by law. 7. Termination. This Agreement may be terminated by mutual agreement of all of the parties. The term of this Agreement shall be until the first of the following events occurs: a. Upon final conclusion or resolution of the Litigation, as it pertains to the Municipalities, at the District Court level, whether by order of the District Court, or by settlement or otherwise; or b. Upon termination by any Municipality or Municipalities; however, the Agreement shall be terminated only as to the terminating party or parties. Notwithstanding any such termination by any party or parties, the entire Agreement shall remain in effect as to all non -terminating parties until the Agreement is terminated with respect to the non -terminating parties pursuant to either (a) or (b) herein. Any such termination of this Agreement shall be prospective only, so that all confidential information shared prior to any such termination shall be and thereafter continue to remain confidential as between all of the Parties, those remaining and those terminating alike, and under no circumstances shall any party have the right to waive 3 1811\06\Agt061 113 It def agrmt bet SWBI and City of Rd Rock, TX.doc any privilege with respect to any confidential information shared pursuant to this Agreement prior to any party's termination hereof. Further, if the Agreement is terminated by fewer than all of the Municipalities, the payment obligations described in Recital C herein survive as to any fees and expenses already owing and/or that continue to be incurred by Lloyd Gosselink as to the remaining Municipalities, as contemplated therein. In the event of termination of this Agreement pursuant to (a) above, the parties may extend this Agreement through any or all appellate levels and processes, if any, by written agreement of all parties who wish to participate therein. Further, upon termination of this Agreement as to any or all parties, for any reason, the terminated party or parties shall remain bound by the provisions of Sections 4 and 6 (Confidential Information and Confidentiality, No Waiver) which shall survive termination of this Agreement to the maximum extent allowed by law. 8. Disclosure and Waiver of Conflicts. Lloyd Gosselink has disclosed and does hereby disclose that each party may have individual interests which differ from and conflict with another party's individual interest and the joint interests being represented in this lawsuit. In the event that such individual interests may conflict with another party's individual interest and the joint interests the subject of this representation, the parties each hereby WAIVE any and all such conflicts, and agree to fully INDEMNIFY AND HOLD LLOYD GOSSELINK HARMLESS from and against any such conflicts and damages that may arise as a result thereof. The parties acknowledge that they have had a full and frank discussion with Lloyd Gosselink regarding all known existing and potential conflicts, including the implications and possible adverse consequences of this joint representation. 9. Termination in the Event of Conflict. Further, in the event that (1) any such conflicts, in the judgment of Lloyd Gosselink, would cause the parties to be materially adversely affected by continuing joint representation, including any such belief caused by discovery of a material fact or event, or (2) a specific written withdrawal of this waiver by any party delivered to Lloyd Gosselink, render further representation of any or all parties jointly no longer practical or appropriate, the parties understand and agree that any or all agreements between and among the parties may be terminated by the firm at its discretion for such reasons at any time, thereby severing the attorney/client relationship. Nothing herein shall prevent the continued representation in the Litigation by Lloyd Gosselink of the remaining parties to this Agreement, following the termination of the relationship between Lloyd Gosselink and any other party or parties in the event of a conflict, and such continued representation in the Litigation by Lloyd Gosselink is hereby consented to by each party. 10. Communication with Subsequent Counsel. If at any time a dispute arises between or among the parties as to any issue in which the parties' interests may conflict that results in any party engaging independent counsel, the parties agree and understand that Lloyd Gosselink will not communicate any substantive information relating to this engagement to subsequent counsel without written authorization to do so by each party, or by an order of the Court. 11. Notice. Unless otherwise provided herein, any notice or delivery to be given hereunder by any party to any other party or parties may be effected by delivery in writing by 4 181 1\06\Agto61 1 13 Jt def agrmt bet SWBI and City of Rd Rock, TX.doc either personal delivery, facsimile, or certified mail postage prepaid, return receipt requested. Notice shall be effective on the date received. Notice delivered in this manner to Lloyd Gosselink (and, in the event of notice to any Municipality, copied to its city attorney) shall be deemed notice to the desired party, unless and until a party changes its address or manner of notice via written notice in accordance with this paragraph. 12. Other Agreements. This Agreement is intended to be an exhibit to an Employment Contract between Lloyd Gosselink and each party hereto. This Agreement should be read and construed in harmony with the applicable Employment Contracts, to the extent possible. 13. Saving Clause. In the event that any condition or covenant herein is held to be invalid or void by any court of competent jurisdiction, the same shall be deemed severable from the remainder of this Agreement and shall in no way affect any other covenant or condition herein. If such condition, covenant, or other provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law. 14. Amendment. This Agreement may be amended only by a writing signed by each of the parties hereto. If this Agreement has terminated with respect to any one or more parties, but survives as to remaining parties, the Agreement may be amended by a writing signed by each of the remaining parties. 15. Counterparts, This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one instrument. 16. Advice of Counsel. Each party hereto is entitled and advised to seek the advice of independent counsel before signing this Agreement Each party also has the right to seek separate and independent counsel at any time regarding any matter within the scope of this Agreement. Signature of a party shall be a representation to all parties that the signing party has availed itself of its right to consult independent counsel 17. Authority. Each party represents that the person(s) executing this Agreement on behalf of the party are authorized to execute this Agreement and, upon such execution, this Agreement shall be binding upon that party. It is understood and agreed that this Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, representatives, successors and assigns. 18. Effective Date. This Agreement shall be effective for each party on the date the party executes the Agreement with respect to all other parties that have already executed this Agreement on such date, and shall be effective for that party with respect to subsequently executing parties on such date(s) as such subsequent parties individually execute the Agreement. 5 1811\06\Agt061 l 13 Jt def agnmt bet SWBI and City of Rd Rock, TX.doc SOUTHWESTERN BRICK INSTITUTE By: Its: Date: CITY OF , TEXAS By: Its: Date: CITY OF , TEXAS By: Its: Date: CITY OF ROUND ROCK, TEXAS By: r 1 ' Name, typed or printed: W V L9 m Axw6W Its: Date: O n 1811\06\Agt061113 Jt def agrmt bet SWBI and City of Rd Rock, TX.doc LLOYD, GOSSELIN�BLEVINS, ROCHELLE & TOWNSEND, P.C. Date: \ ) / i 1811\06\Agt061113 Jt def agrmt bet SWBI and City of Rd Rock, TX.doc Lloyd ,& Gosselink �•••••� ATTORNEYS AT LAW Mr. Phillips' Direct Line: (512) 322-5890 Email: cphillips ci)IglawFirm.com 816 Congress Avenue, Suite 1900 Austin,Texas 78701 Telephone: (5 12) 322-5800 Facsimile: (5 12) 472-0532 www.iglawfiirm.com CONFIDENTIAL PRIVILEGED ATTORNEY-CLIENT COMMUNICATION November 14, 2006 Mr. Stephan L. Sheets City Attorney City of Round Rock, Texas SHEETS & CROSSFIELD, P.C. 309 East Main Street Round Rock, TX 78664 RE: Employment Contract; Billing File 1811-06 Dear Mr. Sheets: We want to express our appreciation for the opportunity for our firm to work with you and the City of Round Rock, Texas ("the City") as an intervenor in the below -referenced litigation. As part of our routine in opening new files, we provide clients with an engagement letter. The purpose of this letter is to set forth our understanding of the legal services to be performed by us for this engagement and the basis upon which we will be paid for those services. This letter confirms our agreement that the firm of Lloyd Gosselink Blevins Rochelle & Townsend, P.C. (the "Firm") will represent (i) the interests of the City as an intervenor in the below -referenced litigation [to the extent the interests of the City do not conflict with (a) the interests of certain other hereinafter referenced municipalities in the Central Texas area, (together with the City, the "Municipal Clients"), and (b) the interests of the Southwestern Brick Institute and/or its successors or assigns (collectively, "SWBI")], and (ii) the interests of the SWBI and such other Municipal Clients' as are willing to have the Firm represent them in the intervention by such Municipal Clients on behalf of the City of Kyle in that certain lawsuit currently pending in the United States District Court for the Western District of Texas, Austin Division as Civil Action No. A05CA979LY; styled National Association For the Advancement of Colored People Texas State Conference of NAACP Branches and Austin Branch of the NAACP, Home Builders Association of Greater Austin, Inc. and National Association of Home Builders, Inc. v. City of Kyle (the "Litigation"). 1 It is contemplated that, in connection with the engagement of the Firm by the SWBI, the Firm will undertake the representation of other Municipal Clients, including the Cities of Manor, Texas, Lago Vista, Texas, and Jonestown, Texas. It is understood that this Firm ultimately may not undertake the representation of all of the foregoing municipalities, and that others may be substituted for one or more of these municipalities, so that the Municipal Clients for whom the Firm ultimately undertakes representation in the Litigation may differ from those hereinabove contemplated. The City understands and agrees to this. R-06-11-2 .TOR Lloyd Gosselink Blevins Rochelle & Townsend, P.c. Mr. Stephan L. Sheets November 14, 2006 Page 2 For the Firm to work on these matters on behalf of the City, in addition to the executing of this Employment Contract, we will need to enter into a Joint Defense/Common Interest Agreement between all Municipal Clients and the SWBI, in form and substance similar to that attached hereto as Exhibit "A," intended to (among other things) (i) waive known and potential conflicts between and among SWBI and each of the Municipal Clients, (ii) preserve confidentiality and privilege between SWBI and each of the Municipal Clients, and (iii) notwithstanding that SWBI will not be a party to the Litigation, SWBI and each of the Municipal Clients, acknowledge that the interests of SWBI and the Municipal Clients are so aligned in the Litigation that they each agree and consent that the Firm may share all confidential and attorney- client and attorney work product -privileged information (as well as any other privileged or confidential information) related to the Litigation with and amongst all clients, including SWBI, without waiver of any privilege exemption and with the permission of each client. For the present, unless otherwise directed by the City in writing, we will work under the direction of you as the city Attorney for the City. SWBI (to the exclusion of the City and all other Municipal Clients) will be responsible for all fees and expenses incurred by the Firm in connection with its representation of both SWBI's interests, and the interests of the Municipal Clients, in or in any way connected with the Litigation. The Firm will look only to SWBI for payment of its fees and expenses in connection with the Litigation. In keeping with technological advancements and the corresponding demands of clients, it is the practice of the Firm to use electronic (email) correspondence from time to time to communicate and to transmit documents. The Firm employs several security measures to prevent the interception of electronic transmissions and preserve confidentiality. Still, the possibility exists that electronic transmissions could be intercepted or otherwise received by third parties and lose their privileged nature if the method of communication is ruled to lack sufficient confidentiality. As with any correspondence regarding legal representation, regardless of the manner of transmission, we urge you to use caution in its dissemination in order to protect its confidentiality. By signing below, you agree that we may use email in the scope of our representation of the City, SWBI and the Municipal Clients . Periodically, the Firm is asked to provide a "Representative Client List" to prospective clients and in various legal directories (e.g., Martindale -Hubbell and the Texas Legal Directory). We would like confirmation that we may disclose to third parties the fact that our Firm represents the City. Lloyd Gosselink is not requesting authorization to disclose any privileged information obtained during its representation. By signing below you agree that we may reveal the fact that we represent the City to third parties. This agreement shall become effective upon our receipt of a counter -signed original of this letter. This agreement may be terminated by you at any time for any reason by written notice to us and the other Municipal Clients. This agreement may be terminated by this Firm on fifteen (15) days written notice to you and the Municipal Clients for any reason. Any Mr. Stephan L. Sheets November 14, 2006 Page 3 termination by either party may be subject to, or controlled by, orders of the court in which the Litigation is pending or another court of appropriate jurisdiction. If this agreement is acceptable, please sign the duplicate original provided herein, and return it to us for our records. We look forward to working with you. Yours very s Chrisman Phillips JCP/dmc L:\181 1\06\Ltr061112\Engagement Ltr to City of Round Rock.doc APPROVED: nat e) pp � (Title) �JVLE m)�UWELC (Printe(f Name) ) I oto Date SCHEDULE OF CHARGES As of January 1, 2006 Photocopies Telefax (sending only) Messenger/clerical services Scanning CD burning or duplication $ .20/page $ 1.00/page $ 10.00/hour $ .15/page $ 5.00/CD