R-07-06-28-11D3 - 6/28/2007 RESOLUTION NO. R-07-06-28-11D3
WHEREAS, the City of Round Rock desires to retain professional
legal services to represent the City regarding Certificate of
Convenience and Necessity (CCN) issues, and
WHEREAS, Brown, McCarroll L.L.P. has submitted an engagement
letter to provide said services, and
WHEREAS, the City Council desires to enter into said engagement
letter with Brown, McCarroll L.L.P. , 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 Brown, McCarroll L.L.P. ,
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 28th day of June, 2
ayor
ATTEST City of Round Rock, Texas
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CHRISTINE R. MARTINEZ, City Secretary
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Brown McCarroll 111 Congress Avenue, Suite 1400,Austin. Texas 78701-4043
512-472-5456 fax $12-479-1101
L.P. direct (512) 479-1151 dworrcll®mailbmc.com
June 15,2007
VIA ELECTRONIC AND REGULAR MAIL
James R. Nuse,P.E.
City Manager
City.of Round Rock
221 East Main Street
Round Rock,Texas 78664
Dear Mr.Nuse:
Thank you for selecting Brown McCarroll, L.L.P. to represent the City of Round Rock
("the City"). We appreciate the confidence you have shown in our Finn, and we look forward to
the opportunity to represent the City.
We believe that a successful professional relationship begins with a mutual understanding
of expectations about the services we will provide, legal fees,and other important aspectsof our
representation. With this in mind,it is our practice to specify our engagement arrangements with
our clients, and that is the purpose of this letter and the attached Standard Terms of Engagement.
Our Finn encourages open and candid communications with clients. Please let me know as soon
as possible if you have questions about this letter, the Standard Terms of Engagement, or if you
are concerned about any aspect of the representation.
Description and Scone of the Representation: Identification of Client
Brown McCarroll is being retained to assist the City on amending its CCN for water and
sewer services, and the City is our only client in this matter. The scope of initial work on this
project includes providing input on development of the CCN amendment application and
conducting an analysis of issues affecting the project and providing the City with an assessment
of its likelihood of success. It is understood that the budget for initial work on this project is not
to exceed$30,000, and budgets for subsequent,additional work on this project must be agreed to
by the Firm and the City, We want to clarify that Brown McCarroll does not represent any other
person or entity other than as set forth above.
Our representation is limited to this matter, and the Finn has not been retained to
represent the City generally or in connection with any other matter unless we modify this
engagement letter by a subsequent letter agreement. The Firm understandsthat we are to
perform all reasonable services and take all such action as may be appropriate and necessary in
our professional judgment to further the City's interests in this matter.
It is understood that the Firm is being retained to provide legal services and that we are
not responsible for providing business or financial advice to the City.
Austin • Dallas• Houston • Longview • El Paso nAtt
James R.Nuse,P.E.
June 15,2007
Page 2
Attorneys Handling Your Representation
I will be the primary attorney handling this matter and Ken Ramirez, Rod Johnson, and
Cindy Tom may also assist in the representation from time to time. The Firm also uses legal
assistants in providing professional services when we believe that their use will reduce legal
costs and improve efficiency.
Legal Fees
Brown McCarroll generally charges for our services based upon the time and effort
devoted to the matter and the hourly rates of the lawyers and legal assistants who work on the
representation. My hourly rate for this matter will be $250.00, Ken Ramirez's will be $275.00,
Rod Johnson's will be $235.00, and Cindy Tom's will be $200.00. Hourly rates for legal
assistants range from $135.00 to $115.00. We review our billing rates annually and will let you
know in advance if our hourly rates are modified.
Costs and Expenses
In addition to legal fees, the Firm charges for out-of-pocket costs and expenses incurred
in representing you. Please refer to the Standard Terms of Engagement for examples of such
costs and expenses and how these will be handled and billed to you.
Payment of Fees and Expenses
Brown McCarroll's statements for fees and expenses are due upon receipt, and we expect
that our monthly statements will be paid no later than 21 days after receipt. By entering into this.
representation agreement, you agree to timely payment of the Firm's invoices for fees and
expenses related to the representation.
Conclusion
Once again, Brown McCarroll is pleased to have this opportunity to represent the City in
this matter. If you have any questions or concerns about any of the above or the Standard Terms
of Engagement, please contact me as soon as possible. If this letter and the Standard Terms of
Engagement accurately reflect our agreement,please have this letter signed and return it to me at
your earliest convenience.
Very truly yours,
Danny W ell
Enclosures
392775.!
cc: Stephan L. Sheets
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James R.Nuse,P.E.
June 15,2007
Page 3
AGREED AND ACCEPTED
AS OF ,2007.
City of Round Rock
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By:
Mayor Nyle Maxwell
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STANDARD TERMS OF ENGAGEMENT
These are the Standard Terms of Engagement referred to in our engagement letter. Because they
are an integral part of our agreement to provide legal services, we ask that you review this
document carefully and retain it for your files. If you have any questions after reading it, please
contact us promptly.
Who Will Provide the Legal Services?
In most cases, one attorney will be your principal contact. From time to time,that attorney may
delegate parts of your work to other lawyers or to legal assistants or nonlegal professionals in the
firm. For example, we do this in order to involve those with special knowledge or experience in
an area and to provide service to you in a timely and efficient manner.
The Scope of the Representation
As lawyers, we undertake to provide representation and advice on the legal matters for which we
are engaged, and it is important that we both have a clear understanding of the legal services that
the firm has agreed to provide. In our engagement letter with you,we specify the matter in which
we will provide representation and the scope of the services we will provide. If there are any
questions about the terms of engagement, including the scope of the representation that we are to
provide in the matter, please raise those questions promptly with your principal contact at the
firm.
We cannot guarantee the outcome of any matter. Any expression of our professional judgment
regarding your matter or the potential outcome is, of course, limited by our knowledge of the
facts and based on the law at the time of expression. It is also subject to any unknown or
uncertain factors or conditions beyond our control.
Who Is Our Client?
It is our policy to represent only the person or entity identified in our engagement letter and not
any affiliates. For example, unless otherwise specifically stated in our engagement letter, if you
are a corporation or partnership, our representation does not include any parents, subsidiaries,
employees, officers, directors, shareholders, or partners of the corporation or partnership, or
commonly owned corporations or partnerships; if you are a trade association, our representation
excludes members of the trade association; if you are an individual, our representation does not
include your employer,partners,spouse,siblings,or other family members.
Your Cooperation
To enable us to provide effective representation, you agree to: (1)disclose to us, fully and
accurately and on a timely basis, all facts and documents that are or might be material or that we '
may request, (2)keep us apprised on a timely basis of all. developments relating to the
representation that are or might be material, (3) attend meetings, conferences, and other
proceedings when it is reasonable to do so,and(4)otherwise cooperate fully with us.
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Our Relationships With Others
Our law firm represents many companies and individuals. In some instances, the applicable rules
of professional conduct may limit our ability to represent clients with conflicting or potentially
conflicting interests. Those rules of conduct often allow us to exercise our independent judgment
in determining whether our relationship with one client prevents us from representing another. In
other situations, we may be permitted to represent a client only if the other clients consent to that
representation.
If a controversy unrelated to the subject matter of the representation develops between you and
any other client of the firm, we will follow the applicable rules of professional responsibility to
determine whether we may represent either you or the other client in the unrelated controversy.
In making this determination, we will consider your agreement to the Conflicts of Interest
provisions in these Standard Terms of Engagement.
In addition to our representation of other companies and individuals, we also regularly represent
lawyers and law firms. As a result, opposing counsel in the matter may be a lawyer or law firm
that we may represent now or in the future. Likewise, opposing counsel in the matter may
represent our firm now or in the future. Further, we have professional and personal relationships
with many other attorneys, often because of our participation in bar associations and other
professional organizations. We believe that these relationships with other attorneys do not
adversely affect our ability to represent any client and, in some circumstances, may enhance our
representation. Your acceptance of our engagement letter means you consent to any such
relationships between our firm and other lawyers or law firms, even counsel who is representing
a party that is adverse to you in the matter that is the subject of this engagement or in some other
matter.
Conflicts of Interest
Increasingly, conflict of interest is a concern for lawyers and their clients today. We attempt to
identify actual and potential conflicts at the outset of any engagement, and may request that you
sign a conflict waiver before we accept an engagement from you. Occasionally, other clients or
prospective clients may ask us to seek a conflict waiver from you so that we can accept an
engagement on their behalf. Please do not take such a request to mean that we will represent you
less zealously; we make such requests because we take our professional responsibilities to all
clients and prospective clients very seriously.
Unfortunately, conflicts sometimes arise or become apparent after work begins on an
engagement. When that happens, we will do our best to address and resolve the situation in the
manner that best serves the interests of all of our affected clients.
Because we are a large firm, we may be asked to represent someone whose interests may be
adverse to yours. We are accepting this engagement on the understanding that our representation
of you will not preclude us from accepting any other engagement from any existing or new
client, including litigation adverse to you, provided that (i)such engagement is not substantially
related to the subject matter of any services we are providing to you and (ii)in accepting such
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other engagement we would not impair the confidentiality of proprietary, sensitive or otherwise j.
confidential information you have provided to us.
Rules concerning conflicts of interest vary with the jurisdiction. In order to avoid any '
uncertainty, our policy is that the Texas.Disciplinary Rules of Professional Conduct will be
applicable to the representation. Your acceptance of our engagement letter means you agree with
that policy, unless the engagement letter specifically states that some other rules of professional
responsibility will govern our attorney-client relationship.
How We Set Our Fees
The basis for determining our fee for legal services is set forth in the engagement letter itself. If
you are unclear about the basis for determining your fee, please raise any questions you may
have with your principal contact at the firm.
Clients frequently ask us to estimate the fees and other charges they are likely to incur in
connection with a particular matter. We are pleased to respond to such requests, whenever
possible, with an estimate based on our professional judgment. This estimate always carries the
understanding that, unless.we agree otherwise in writing, it does not represent a maximum,
minimum, or fixed-fee quotation. The ultimate cost frequently is more or less than the amount
estimated.
Charges For Other Expenses And Services
As an adjunct to providing legal services, we may incur and pay a variety of charges on your
behalf or charge for certain ancillary support services. Whenever we incur such charges on your
behalf or charge for such ancillary support services, we will bill them to you as part of your
monthly invoice. Accordingly, our invoices usually will include amounts, not only for legal
services rendered, but also for other expenses and services. Examples include charges for filing
fees, document reproduction, postage, travel and conference expenses, delivery charges,
computerized research, and facsimile and other electronic transmissions. Outside expenses will
generally be billed at cost, while some in-house expenses (e.g., document reproduction,
facsimile, computer services and electronic research) will include a reasonable allocation of
overhead. In appropriate cases, reimbursable expenses may also include overtime charges for
secretaries and other staff.
You authorize us to retain third-parties, such as consultants, experts and investigators, as may be
necessary to the representation. Although we advance third-party disbursements in reasonable
amounts, we will ask you to pay larger third-party invoices(usually those over$200.00) directly
to the third party providing the services. Because we often have ongoing professional '
relationships with the persons who render such services, we also ask that you pay such bills
promptly and send us notice of your payment.
Billing Arrangements and Terms of Payment
We will bill you on a regular basis, normally each month, for both fees and other charges. You
agree to make payment within thirty(30)days of the daze of our invoice.
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Should your account become delinquent and in the event satisfactory payment terms are not
arranged as permitted under the rules regulating our profession, we will be required to withdraw
from the representation. In most cases, and except as prohibited by ethical considerations, if your
account becomes more than sixty(60)days delinquent, we will cease representation until we can
arrive at a mutually satisfactory arrangement for payment of the delinquent account and the
resumption of services.
If the representation will require a concentrated period of activity, such as a trial, arbitration, or
hearing, we reserve the right to require the payment of all amounts then owing to us and the
prepayment to us of the fees and expenses we'estimate will be incurred in preparing for and
completing the trial, arbitration, or hearing, as well as arbitration fees likely to be assessed. If
you fail to timely pay any additional deposit requested, we will have the right to cease
performing further work and the night to withdraw from the representation.
Payment of our fees and costs is not contingent on the ultimate outcome of our representation.
We look to you, the client, for payment regardless of whether you are insured to cover the
particular risk. From time-to-time, we assist clients in pursuing third parties for recovery of
attorneys' fees and other charges resulting from our services. These situations include payments
under contracts, statutes or insurance policies. However, it remains your obligation to pay all
amounts due to us within thirty(30)days of the date of our statement.
Termination
Because our firm has been engaged to provide legal services in connection with the
representation specifically defined in our engagement letter, the attorney-client relationship
terminates upon our completion of our services related to the representation in the matter. After
completion of the representation, however, changes may occur in the applicable laws or
regulations that could affect your future rights and liabilities in regard to the matter. Unless we
are actually engaged after the completion of the representation to provide additional advice on
such issues, the firm has no continuing obligation to give advice with respect to any future legal
developments that may relate to the matter.
If you later retain us to perform further or additional services, our attorney-client relationship
will be subject to the terms of engagement agreed to at that time; in the abience of any specific
agreement, these Standard Terms of Engagement shall apply to the further or additional
representation.
We look forward to the opportunity to complete our representation of you in the specified matter.
You may, however, terminate our representation at any time, with or without cause, by notifying
us in writing. We will return your papers and other property to you promptly upon receipt of
your request for those materials unless they are appropriately subject to a lien. You agree that we
will own and retain our own files pertaining to the matter or case, including, for example, firm
administrative records, time and expense reports, personnel and staffing materials, credit and
accounting records, and internal lawyers' work product such as drafts, notes, internal
memoranda,and legal and factual research including investigative reports,prepared by or for the
internal use of lawyers.
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The termination of our services will not affect your responsibility for payment of legal services
rendered and other charges incurred before termination and in connection with an orderly
transition of the matter.
Document Retention
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While we try to retain closed files for an extended period of time, we do reserve the right to
destroy or otherwise dispose of all files, without further notice to you and in a manner which
preserves the confidential and secret nature of their contents. You are to receive, along with the
final bill or documents concluding the case, a notice that the file will be retired and stored for a
designated retention period. I or the attorney immediately responsible for handling this case will
advise you to obtain any papers from the file not previously famished to you. The file may
thereafter, without additional notice to you, be destroyed by the Firm following the designated
retention period in which the file is retained. Only upon my written authorization will the file be
partially destroyed, destroyed in its entirety,retained for an additional period of time,or returned
to you for safekeeping. If you or your company has a Records Retention Policy in place with
which outside counsel will need to comply,please let me know so that I may inform our Records
Department. In the event you instruct us to return your file to you at the end of the retention
period, we will use the last known address in the file to return your file (excluding the work
product subfiles); our Firm will not retain a copy.
Disclaimer
By signing the engagement letter or otherwise indicating your acceptance of the engagement
letter, you acknowledge that Brown McCarroll, L.L.P. has made no promises or guarantees to
you about the outcome of the representation,and nothing in these terms of engagement shall be
construed as such a promise or guarantee. Either at the commencement or during the course of
the representation, we may express opinions or beliefs about the ,matter or various courses of
action and the results that might be anticipated. Any expressions on our part concerning the
outcome of the representation,or any other legal matters,are based on our professional judgment
and are not guarantees.
Our Professional Responsibility
The code of professional responsibility to which we are subject lists several types of conduct or
circumstances that require or allow us to withdraw from representing a client. These include, for
example, nonpayment of fees or charges, misrepresentation or failure to disclose material facts,
action contrary to our advice,and conflict of interest with another client.
We try to identify in advance and discuss withour clients any situation that may lead to our
withdrawal. If withdrawal ever becomes necessary, we give our client written notice as soon as
practicable.
Under rules of the Texas Supreme Court and the State Bar of Texas, we advise our clients of the
contents of the Texas Lawyer's Creed, a copy of which is enclosed. In addition,we advise clients
that the State Bar of Texas investigates and prosecutes complaints of professional misconduct
against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is
available at all of our offices and is likewise available upon request. A client that has any
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questions about the State Bar's disciplinary process should call the Office of the General Counsel
of the State Bar of Texas at 1-800-932-1900(toll free).
Modification Of Our Agreement
The engagement letter and these Standard Terms of Engagement reflect our entire agreement on
the terms of this engagement. These written terms of engagement are not subject to any oral I
agreements or understandings,and any change in those terms can only be made in writing signed
by both Brown McCarroll, L.L.P. and you.
In Conclusion
We look forward to a long and mutually satisfying relationship with you. Again, if at any time
you have a question or concern, please feel free to bring it to the attention of your principal
contact at our firm.
Enclosure: THE TEXAS LAWYER'S CREED
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THE TEXAS LAWYER'S CREED--A Mandate for Professionalism I
The Texas Supreme Court and the Texas Court of Criminal Appeals adopted this
Creed with the requirement that lawyers advise their clients of its contents when
undertaking representation.
I am a lawyer; I am entrusted by the People of treat adverse parties and witnesses with fairness
i
Texas to preserve and improve our legal system. and due consideration. A client has no right to
I am licensed by the Supreme Court of Texas. I demand that I abuse anyone or indulge in any
must therefore abide by the Texas Disciplinary offensive conduct. I will advise my client that
Rules of Professional Conduct, but I know that we will not pursue conduct which is intended
Professionalism requires more than merely primarily to harass or drain the financial
avoiding the violation of laws and rules. I am resources of the opposing party. I will advise my
committed to this Creed for no other reason that client that we will not pursue tactics which are
it is right. intended primarily for delay. I will advise my
client that we will not pursue any course of
1. OUR LEGAL SYSTEM.A lawyer owes action which is without merit. I will advise my
to the administration of justice personal dignity, client that I reserve the right to determine
integrity, and independence. A lawyer should whether to grant accommodations to opposing
always adhere to the highest principles of counsel in all matters that do not adversely
professionalism. I am passionately proud of my affect my client's lawful objectives. A client has
profession. Therefore, "My word is my bond." I no right to instruct me to refuse reasonable
am responsible to assure that all persons have requests made by other counsel. I will advise my
access to competent representation regardless of client regarding the availability of mediation,
wealth or position in life. I commit myself to an arbitration, and other alternative methods of
adequate and effective pro bono program. I am resolving and settling disputes.
obligated to educate my clients, the public, and
other lawyers regarding the spirit and letter of III. LAWYER TO LAWYER. A lawyer
this Creed. I will always be conscious of my owes to opposing counsel, in the conduct of
duty to the judicial system. legal transactions and the pursuit of litigation,
courtesy, candor, cooperation, and scrupulous
II. LAWYER TO CLIENT. A lawyer owes observance of all agreements and mutual
to a client allegiance, learning, skill, and understandings.III feelings between clients shall
industry. A lawyer shall employ all appropriate not influence a lawyer's conduct, attitude, or
means to protect and advance the client's demeanor toward opposing counsel. A lawyer
legitimate rights, claims, and objectives. A shall not engage in unprofessional conduct in
lawyer shall not be deterred by any real or retaliation against other unprofessional conduct.
imagined fear of judicial disfavor or public I will be courteous,civil,and prompt in oral and
unpopularity, nor be influenced by mere self- written communications. I will not quarrel over
interest.I will advise my client of the contents of matters of form or style, but I will concentrate
this Creed when undertaking representation. I on matters of substance. I will identify for other
will endeavor to achieve my client's lawful counsel or parties all changes I have made in
objectives in legal transactions and in litigation documents submitted for review. l will attempt
as quickly and economically as possible. I will to prepare documents which correctly reflect the
be loyal and committed to my client's lawful agreement of the parties. I will not include
objectives, but I will not permit that loyalty and provisions which have not been agreed upon or
commitment to interfere with my duty to provide omit provisions which are necessary to reflect
objective and independent advice. I will advise the agreement of the parties. I will notify
my client that civility and courtesy are expected opposing counsel, and, if appropriate, the Court
and are not a sign of weakness. I will advise my or other persons, as soon as practicable, when
client of proper and expected behavior. I will hearings, depositions, meetings, conferences or
Texas Lawyers Creed—Page 1
Updated 8-22-06
i
closings are canceled. I will agree to reasonable questions which are reasonably understandable.
requests for extensions of time and for waiver of I will neither encourage nor permit my witness
procedural formalities, provided legitimate to.quibble about words where their meaning is
objectives of my client will not be adversely reasonably clear. I will not seek Court
affected. I will not serve motions or pleadings in intervention to obtain discovery which is clearly
any manner that unfairly limits another party's improper and not discoverable. I will not seek
opportunity to respond. I will attempt to resolve sanctions or disqualification unless it is
by agreement my objections to matters necessary for protection of my client's lawful
contained in pleadings and discovery requests objectives or is fully justified by the
and responses. I can disagree without being circumstances.
disagreeable. I recognize that effective
representation does not require antagonistic or IV. LAWYER AND JUDGE. Lawyers and
obnoxious behavior. I will neither encourage nor judges owe each other respect,diligence,candor,
knowingly permit my client or anyone under my punctuality, and protection against unjust and
control to do anything which would be unethical improper criticism and attack. Lawyers and
or improper if done by me. I will not, without judges are equally responsible to protect the
good cause, attribute bad motives or unethical dignity and independence of the Court and the
conduct to opposing counsel nor bring the profession. I will always recognize that the
profession into disrepute by unfounded position of judge is the symbol of both the
accusations of impropriety. I will avoid judicial system.and administration of justice. I
disparaging personal remarks or acrimony will refrain from conduct that degrades this
towards opposing counsel,parties and witnesses. symbol. I will conduct myself in court in a
I will not be influenced by any ill feeling professional manner and demonstrate my respect
between clients. I will abstain from any allusion for the Court and the law: I will treat counsel,
to personal peculiarities or idiosyncrasies of opposing parties, the Court, and members of the
opposing counsel. I will not take advantage, by Court staff with courtesy and civility. I will be
causing any default or dismissal to be rendered, punctual.I will not engage in any conduct which
when I know the identity of an opposing offends the dignity and decorum of proceedings.
counsel, without first inquiring about that I will not knowingly misrepresent,
counsel's intention to proceed. I will promptly mischaracterize, misquote or miscite facts or
submit orders to the Court. I will deliver copies authorities to gain an advantage. I will respect
to opposing counsel before or the rulings of the Court. I will give the issues in
contemporaneously with submission to the controversy deliberate, impartial and studied
court. I will promptly approve the form of orders analysis and consideration. I will be considerate
which accurately reflect the substance of the of the time constraints and pressures imposed
rulings of the Court.I will not attempt to gain an upon the Court, Court staff and counsel in
unfair advantage by sending the Court or its staff efforts to administer justice and resolve disputes.
correspondence or copies of correspondence. I
will not arbitrarily schedule a deposition, Court
appearance, or hearing until a good faith effort
has been made to schedule it by agreement. I
will readily stipulate to undisputed facts in order
to avoid needless costs or inconvenience for any
party. I will refrain from excessive and abusive
discovery. I will comply with all reasonable
discovery requests. I will not resist discovery
requests which are not objectionable. I will not
make objections nor give instructions to a
witness for the purpose of delaying or
obstructing the discovery process. I will
encourage witnesses to respond to all deposition
Texas Lawyers Creed—Page 2
SCHEDULE OF CHARGES FOR NON.-LEGAL SERVICES
ITEM RATE
CD Copying $5.00 per CD.
Computer Assisted Legal Research(includes but is
not limited to): Lexis,Courtlink,PACER,Westlaw Actual cost.
Courier Deliveries/Pick-Ups Actual cost.
Document Reproduction—Copies,prints and scans $.12 per page copy/print/scan
$.90 per pa e color copy/print
DVD Copying $10.00 ver DVA
Express Courier: Lone Star Overnight,FedEx,UPS Actual cost.
Facsimiles $.20 per page for outgoing transmissions. No
charge for incoming facsimiles.
File Conversion f to tiff,etc. $0.03 per paRe.
Finishing/Binding:
Deposition $1.00 per item.
GBC/S iral,Velo $2.50 per item.
Imaging
Black&white $0.15 per page.
Color $0.80 per page.
Mileage $0.445 per mile.
OCR(optical character recognition) $0.03 per page.
Office Supplies: Actual cost when quantity is beyond the amount
3-Ring Binders,Boxes or Other Su lies re uired in the normal course of business.
Postage Actual cost for large mailings,certified or
express mail
Prints from image $0.06 per page.
Retrieving Retired Records $46.00 ASAP trip charge(Austin).
$66.00 ASAP trip charge(Dallas).
$52.00 ASAP trip char (Houston).
Telephone-Long Distance Actual cost.
Trial Exhibits(Copy Center) $20 large.
$10 small.
Video Digitizing $50.00 er video hour.
Video Editing Actual cost.
Video Ta s $5.00 per to
Video Synchronization $65.00 Per video hour.
Updated 8-22-06
DATE: June 21, 2007
SUBJECT: City Council Meeting - June 28, 2007
ITEM: 11D3. Consider a resolution authorizing the Mayor to execute an engagement
letter with Brown McCarroll L.L.P. for legal services for Certificate of
Convenience and Necessity (CCN) issues.
Deoart,_ment: Administration
Staff Person: Jim Nuse, City Manager
Justification:
The City is facing CCN challenges from several utility companies regarding service within our
future city limits. Staff researched firms to assist us with the expertise necessary to Ole
application and provide appropriate response to these challenges with the state.
Fungi
Cost: Not to exceed $30,000
Source of funds: Utility Funds
Outside Resources: Brown McCarroll, LLP
Background Information: N/A
Public Comment: N/A
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Brown McCarroll 111 Congress Avenue, Suite 1400, Austin, Texas 78701-4043
512-472-5456 fax 512-479-1101
L.L.P. direct (512) 479-1151 dworrell@mailbmc.com
June 15,2007
VIA ELECTRONIC AND REGULAR MAIL
James R.Nuse,P.E.
City Manager
City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Dear Mr.Nuse:
Thank you for selecting Brown McCarroll, L.L.P. to represent the City of Round Rock
("the City"). We appreciate the confidence you have shown in our Firm, and we look forward to
the opportunity to represent the City.
We believe that a successful professional relationship begins with a mutual understanding
of expectations about the services we will provide, legal fees, and other important aspects of our
representation. With this in mind, it is our practice to specify our engagement arrangements with
our clients, and that is the purpose of this letter and the attached Standard Terms of Engagement.
Our Firm encourages open and candid communications with clients. Please let me know as soon
as possible if you have questions about this letter, the Standard Terms of Engagement, or if you
are concerned about any aspect of the representation.
Description and Scope of the Representation: Identification of Client
Brown McCarroll is being retained to assist the City on amending its CCN for water and
sewer services, and the City is our only client in this matter. The scope of initial work on this
project includes providing input on development of the CCN amendment application and
conducting an analysis of issues affecting the project and providing the City with an assessment
of its likelihood of success. It is understood that the budget for initial work on this project is not
to exceed$30,000, and budgets for subsequent,additional work on this project must be agreed to
by the Firm and the City. We want to clarify that Brown McCarroll does not represent any other
person or entity other than as set forth above.
Our representation is limited to this matter, and the Firm has not been retained to
represent the City generally or in connection with any other matter unless we modify this
engagement letter by a subsequent letter agreement. The Firm understands that we are to
perform all reasonable services and take all such action as may be appropriate and necessary in
our professional judgment to further the City's interests in this matter.
It is understood that the Firm is being retained to provide legal services and that we are
not responsible for providing business or financial advice to the City.
Austin • Dallas • Houston • Longview • El Paso
James R.Nuse,P.E.
June 15, 2007
Page 2
Attorneys Handling Your Representation
I will be the primary attorney handling this matter and Ken Ramirez, Rod Johnson, and
Cindy Tom may also assist in the representation from time to time. The Firm also uses legal
assistants in providing professional services when we believe that their use will reduce legal
costs and improve efficiency.
LegalFees
Brown McCarroll generally charges for our services based upon the time and effort
devoted to the matter and the hourly rates of the lawyers and legal assistants who work on the
representation. My hourly rate for this matter will be $250.00, Ken Ramirez's will be $275.00,
Rod Johnson's will be $235.00, and Cindy Tom's will be $200.00. Hourly rates for legal
assistants range from $135.00 to $115.00. We review our billing rates annually and will let you
know in advance if our hourly rates are modified.
Costs and Expenses
In addition to legal fees, the Firm charges for out-of-pocket costs and expenses incurred
in representing you. Please refer to the Standard Terms of Engagement for examples of such
costs and expenses and how these will be handled and billed to you.
Payment of Fees and Expenses
Brown McCarroll's statements for fees and expenses are due upon receipt, and we expect
that our monthly statements will be paid no later than 21 days after receipt. By entering into this
representation agreement, you agree to timely payment of the Firm's invoices for fees and
expenses related to the representation.
Conclusion
Once again, Brown McCarroll is pleased to have this opportunity to represent the City in
this matter. If you have any questions or concerns about any of the above or the Standard Terms
of Engagement, please contact me as soon as possible. If this letter and the Standard Terms of
Engagement accurately reflect our agreement,please have this letter signed and return it to me at
your earliest convenience.
Very y yours,
Danny W ell
Enclosures
392775.1
cc: Stephan L. Sheets
James R.Nuse, P.E.
June 15, 2007
Page 3
AGREED AND ACCEPTED
AS OF J WJ6 , 2007.
City of Round Rock
By:
or Nye axwell
STANDARD TERMS OF ENGAGEMENT
These are the Standard Terms of Engagement referred to in our engagement letter. Because they
are an integral part of our agreement to provide legal services, we ask that you review this
document carefully and retain it for your files. If you have any questions after reading it, please
contact us promptly.
Who Will Provide the Legal Services?
In most cases, one attorney will be your principal contact. From time to time, that attorney may
delegate parts of your work to other lawyers or to legal assistants or nonlegal professionals in the
firm. For example, we do this in order to involve those with special knowledge or experience in
an area and to provide service to you in a timely and efficient manner.
The Scope of the Representation
As lawyers, we undertake to provide representation and advice on the legal matters for which we
are engaged, and it is important that we both have a clear understanding of the legal services that
the firm has agreed to provide. In our engagement letter with you,we specify,the matter in which
we will provide representation and the scope of the services we will provide. If there are any
questions about the terms of engagement, including the scope of the representation that we are to
provide in the matter, please raise those questions promptly with your principal contact at the
firm.
We cannot guarantee the outcome of any matter. Any expression of our professional judgment
regarding your matter or the potential outcome is, of course, limited by our knowledge of the
facts and based on the law at the time of expression. It is also subject to any unknown or
uncertain factors or conditions beyond our control.
Who Is Our Client?
It is our policy to represent only the person or entity identified in our engagement letter and not
any affiliates. For example, unless otherwise specifically stated in our engagement letter, if you
are a corporation or partnership, our representation does not include any parents, subsidiaries,
employees, officers, directors, shareholders, or partners of the corporation or partnership, or
commonly owned corporations or partnerships; if you are a trade association, our representation
excludes members of the trade association; if you are an individual, our representation does not
include your employer,partners, spouse,siblings, or other family members.
Your Cooperation
To enable us to provide effective representation, you agree to: (1)disclose to us, fully and
accurately and on a timely basis, all facts and documents that are or might be material or that we
may request, (2)keep us apprised on a timely basis of all developments relating to the
representation that are or might be material, (3) attend meetings, conferences, and other
proceedings when it is reasonable to do so, and(4)otherwise cooperate fully with us.
1
Our Relationships With Others
Our law firm represents many companies and individuals. In some instances, the applicable rules
of professional conduct may limit our ability to represent clients with conflicting or potentially
conflicting interests. Those rules of conduct often allow us to exercise our independent judgment
in determining whether our relationship with one client prevents us from representing another. In
other situations, we may be permitted to represent a client only if the other clients consent to that
representation.
If a controversy unrelated to the subject matter of the representation develops between you and
any other client of the firm, we will follow the applicable rules of professional responsibility to
determine whether we may represent either you or the other client in the unrelated controversy.
In making this determination, we will consider your agreement to the Conflicts of Interest
provisions in these Standard Terms of Engagement.
In addition to our representation of other companies and individuals, we also regularly represent
lawyers and law firms. As a result, opposing counsel in the matter may be a lawyer or law firm
that we may represent now or in the future. Likewise, opposing counsel in the matter may
represent our firm now or in the future. Further, we have professional and personal relationships
with many other attorneys, often because of our participation in bar associations and other
professional organizations. We believe that these relationships with other attorneys do not
adversely affect our ability to represent any client and, in some circumstances, may enhance our
representation. Your acceptance of our engagement letter means you consent to any such
relationships between our firm and other lawyers or law firms, even counsel who is representing
a party that is adverse to you in the matter that is the subject of this engagement or in some other
matter.
Conflicts of Interest
Increasingly, conflict of interest is a concern for lawyers and their clients today. We attempt to
identify actual and potential conflicts at the outset of any engagement, and may request that you
sign a conflict waiver before we accept an engagement from you. Occasionally, other clients or
prospective clients may ask us to seek a conflict waiver from you so that we can accept an
engagement on their behalf. Please do not take such a request to mean that we will represent you
less zealously; we make such requests because we take our professional responsibilities to all
clients and prospective clients very seriously.
Unfortunately, conflicts sometimes arise or become apparent after work begins on an
engagement. When that happens, we will do our best to address and resolve the situation in the
manner that best serves the interests of all of our affected clients.
Because we are a large firm, we may be asked to represent someone whose interests may be
adverse to yours. We are accepting this engagement on the understanding that our representation
of you will not preclude us from accepting any other engagement from any existing or new
client, including litigation adverse to you, provided that (i) such engagement is not substantially
related to the subject matter of any services we are providing to you and (ii)in accepting such
2
other engagement we would not impair the confidentiality of proprietary, sensitive or otherwise
confidential information you have provided to us.
Rules concerning conflicts of interest vary with the jurisdiction. In order to avoid any
uncertainty, our policy is that the Texas Disciplinary Rules of Professional Conduct will be
applicable to the representation. Your acceptance of our engagement letter means you agree with
that policy, unless the engagement letter specifically states that some other rules of professional
responsibility will govern our attorney-client relationship.
How We Set Our Fees
The basis for determining our fee for legal services is set forth in the engagement letter itself. If
you are unclear about the basis for determining your fee, please raise any questions you may
have with your principal contact at the firm.
Clients frequently ask us to estimate the fees and other charges they are likely to incur in
connection with a particular matter. We are pleased to respond to such requests, whenever
possible, with an estimate based on our professional judgment. This estimate always carries the
understanding that, unless we agree otherwise in writing, it does not represent a maximum,
minimum, or fixed-fee quotation. The ultimate cost frequently is more or less than the amount
estimated.
Charges For Other Expenses And Services
As an adjunct to providing legal services, we may incur and pay a variety of charges on your
behalf or charge for certain ancillary support services. Whenever we incur such charges on your
behalf or charge for such ancillary support services, we will bill them to you as part of your
monthly invoice. Accordingly, our invoices usually will include amounts, not only for legal
services rendered, but also for other expenses and services. Examples include charges for filing
fees, document reproduction, postage, travel and conference expenses, delivery charges,
computerized research, and facsimile and other electronic transmissions. Outside expenses will
generally be billed at cost, while some in-house expenses (e.g., document reproduction,
facsimile, computer services and electronic research) will include a reasonable allocation of
overhead. In appropriate cases, reimbursable expenses may also include overtime charges for
secretaries and other staff.
You authorize us to retain third-parties, such as consultants, experts and investigators, as may be
necessary to the representation. Although we advance third-party disbursements in reasonable
amounts, we will ask you to pay larger third-party invoices (usually those over$200.00)directly
to the third party providing the services. Because we often have ongoing professional
relationships with the persons who render such services, we also ask that you pay such bills
promptly and send us notice of your payment.
Billing Arrangements and Terms of Payment
We will bill you on a regular basis, normally each month, for both fees and other charges. You
agree to make payment within thirty(30)days of the date of our invoice.
3
The termination of our services will not affect your responsibility for payment of legal services
rendered and other charges incurred before termination and in connection with an orderly
transition of the matter.
Document Retention
While we try to retain closed files for an extended period of time, we do reserve the right to
destroy or otherwise dispose of all files, without further notice to you and in a manner which
preserves the confidential and secret nature of their contents. You are to receive, along with the
final bill or documents concluding the case, a notice that the file will be retired and stored for a
designated retention period. I or the attorney immediately responsible for handling this case will
advise you to obtain any papers from the file not previously furnished to you. The file may
thereafter, without additional notice to you, be destroyed by the Firm following the designated
retention period in which the file is retained. Only upon my written authorization will the file be
partially destroyed, destroyed in its entirety,retained for an additional period of time, or returned
to you for safekeeping. If you or your company has a Records Retention Policy in place with
which outside counsel will need to comply,please let me know so that I may inform our Records
Department. In the event you instruct us to return your file to you at the end of the retention
period, we will use the last known address in the file to return your file (excluding the work
product subfiles); our Firm will not retain a copy.
Disclaimer
By signing the engagement letter or otherwise indicating your acceptance of the engagement
letter, you acknowledge that Brown McCarroll, L.L.P. has made no promises or guarantees to
you about the outcome of the representation, and nothing in these terms of engagement shall be
construed as such a promise or guarantee. Either at the commencement or during the course of
the representation, we may express opinions or beliefs about the matter or various courses of
action and the results that might be anticipated. Any expressions on our part concerning the
outcome of the representation, or any other legal matters, are based on our professional judgment
and are not guarantees.
Our Professional Responsibility
The code of professional responsibility to which we are subject lists several types of conduct or
circumstances that require or allow us to withdraw from representing a client. These include, for
example, nonpayment of fees or charges, misrepresentation or failure to disclose material facts,
action contrary to our advice, and conflict of interest with another client.
We try to identify in advance and discuss with our clients any situation that may lead to our
withdrawal. If withdrawal ever becomes necessary, we give our client written notice as soon as
practicable.
Under rules of the Texas Supreme Court and the State Bar of Texas, we advise our clients of the
contents of the Texas Lawyer's Creed, a copy of which is enclosed. In addition,we advise clients
that the State Bar of Texas investigates and prosecutes complaints of professional misconduct
against attorneys licensed in Texas. A brochure entitled Attorney Complaint Information is
available at all of our offices and is likewise available upon request. A client that has any
5
questions about the State Bar's disciplinary process should call the Office of the General Counsel
of the State Bar of Texas at 1-800-932-1900(toll free).
Modification Of Our Agreement
The engagement letter and these Standard Terms of Engagement reflect our entire agreement on
the terms of this engagement. These written terms of engagement are not subject to any oral
agreements or understandings, and any change in those terms can only be made in writing signed
by both Brown McCarroll, L.L.P. and you.
In Conclusion
We look forward to a long and mutually satisfying relationship with you. Again, if at any time
you have a question or concern, please feel free to bring it to the attention of your principal
contact at our firm.
Enclosure: THE TEXAS LAWYER'S CREED
6
THE TEXAS LAWYER'S CREED--A Mandate for Professionalism
The Texas Supreme Court and the Texas Court of Criminal Appeals adopted this
Creed, with the requirement that lawyers advise their clients of its contents when
undertaking representation.
I am a lawyer; I am entrusted by the People of treat adverse parties and witnesses with fairness
Texas to preserve and improve our legal system. and due consideration. A client has no right to
I am licensed by the Supreme Court of Texas. I demand that I abuse anyone or indulge in any
must therefore abide by the Texas Disciplinary offensive conduct. I will advise my client that
Rules of Professional Conduct, but I know that we will not pursue conduct which is intended
Professionalism requires more than merely primarily to harass or drain the financial
avoiding the violation of laws and rules. I am resources of the opposing party.I will advise my
committed to this Creed for no other reason that client that we will not pursue tactics which are
it is right. intended primarily for delay. I will advise my
client that we will not pursue any course of
1. OUR LEGAL SYSTEM.A lawyer owes action which is without merit. I will advise my
to the administration of justice personal dignity, client that I reserve the right to determine
integrity, and independence. A lawyer should whether to grant accommodations to opposing
always adhere to the. highest principles of counsel in all matters that do not adversely
professionalism. I am passionately proud of my affect my client's lawful objectives. A client has
profession. Therefore, "My word is my bond." I no right to instruct me to refuse reasonable
am responsible to assure that all persons have requests made by other counsel.I will advise my
access to competent representation regardless of client regarding the availability of mediation,
wealth or position in life. I commit myself to an arbitration, and other alternative methods of
adequate and effective pro bono program. I am resolving and settling disputes.
obligated to educate my clients, the public, and
other lawyers regarding the spirit and letter of III. LAWYER TO LAWYER. A lawyer
this Creed. I will always be conscious of my owes to opposing counsel, in the conduct of
duty to the judicial system. legal transactions and the pursuit of litigation,
courtesy, candor, cooperation, and scrupulous
II. LAWYER TO CLIENT. A lawyer owes observance of all agreements and mutual
to a client allegiance, learning, skill, and understandings. Ill feelings between clients shall
industry. A lawyer shall employ all appropriate not influence a lawyer's conduct, attitude, or
means to protect and advance the client's demeanor toward opposing counsel. A lawyer
legitimate rights, claims, and objectives. A shall not engage in unprofessional conduct in
lawyer shall not be deterred by any real or retaliation against other unprofessional conduct.
imagined fear of judicial disfavor or public I will be courteous, civil, and prompt in oral and
unpopularity, nor be influenced by mere self- written communications. I will not quarrel over
interest.I will advise my client of the contents of matters of form or style, but I will concentrate
this Creed when undertaking representation. I on matters of substance. I will identify for other
will endeavor to achieve my client's lawful counsel or parties all changes I have made in
objectives in legal transactions and in litigation documents submitted for review. I will attempt
as quickly and economically as possible. I will to prepare documents which correctly reflect the
be loyal and committed to my client's lawful agreement of the parties. I will not include
objectives, but I will not permit that loyalty and provisions which have not been agreed upon or
commitment to interfere with my duty to provide omit provisions which are necessary to reflect
objective and independent advice. I will advise the agreement of the parties. I will notify
my client that civility and courtesy are expected opposing counsel, and, if appropriate, the Court
and are not a sign of weakness. I will advise my or other persons, as soon as practicable, when
client of proper and expected behavior. I will hearings, depositions, meetings, conferences or
Texas Lawyers Creed—Page 1
Updated 8-22-06
closings are canceled. I will agree to reasonable questions which are reasonably understandable.
requests for extensions of time and for waiver of I will neither encourage nor permit my witness
procedural formalities, provided legitimate to quibble about words where their meaning is
objectives of my client will not be adversely reasonably clear. I will not seek Court
affected.I will not serve motions or pleadings in intervention to obtain discovery which is clearly
any manner that unfairly limits another party's improper and not discoverable. I will not seek
opportunity to respond. I will attempt to resolve sanctions or disqualification unless it is
by agreement my objections to matters necessary for protection of my client's lawful
contained in pleadings and discovery requests objectives or is fully justified by the
and responses. I can disagree without being circumstances.
disagreeable. I recognize that effective
representation does not require antagonistic or N. LAWYER AND JUDGE. Lawyers and
obnoxious behavior. I will neither encourage nor judges owe each other respect,diligence,candor,
knowingly permit my client or anyone under my punctuality, and protection against unjust and
control to do anything which would be unethical improper criticism and attack. Lawyers and
or improper if done by me. I will not, without judges are equally responsible to protect the
good cause, attribute bad motives or unethical dignity and independence of the Court and the
conduct to opposing counsel nor bring the profession. I will always recognize that the
profession into disrepute by unfounded position of judge is the symbol of both the
accusations of impropriety. I will avoid judicial system and administration of justice. I
disparaging personal remarks or acrimony will refrain from conduct that degrades this
towards opposing counsel,parties and witnesses. symbol. I will conduct myself in court in a
I will not be influenced by any ill feeling professional manner and demonstrate my respect
between clients. I will abstain from any allusion for the Court and the law. I will treat counsel,
to personal peculiarities or idiosyncrasies of opposing parties, the Court, and members of the
opposing counsel. I will not take advantage, by Court staff with courtesy and civility. I will be
causing any default or dismissal to be rendered, punctual. I will not engage in any conduct which
when I know the identity of an opposing offends the dignity and decorum of proceedings.
counsel, without first inquiring about that I will not knowingly misrepresent,
counsel's intention to proceed. I will promptly mischaracterize, misquote or miscite facts or
submit orders to the Court. I will deliver copies authorities to gain an advantage. I will respect
to opposing counsel before or the rulings of the Court. I will give the issues in
contemporaneously with submission to the controversy deliberate, impartial and studied
court. I will promptly approve the form of orders analysis and consideration. I will be considerate
which accurately reflect the substance of the of the time constraints and pressures imposed
rulings of the Court. I will not attempt to gain an upon the Court, Court staff and counsel in
unfair advantage by sending the Court or its staff efforts to administer justice and resolve disputes.
correspondence or copies of correspondence. I
will not arbitrarily schedule a deposition, Court
appearance, or hearing until a good faith effort
has been made to schedule it by agreement. I
will readily stipulate to undisputed facts in order
to avoid needless costs or inconvenience for any
party. I will refrain from excessive and abusive
discovery. I will comply with all reasonable
discovery requests. I will not resist discovery
requests which are not objectionable. I will not
make objections nor give instructions to a
witness for the purpose of delaying or
obstructing the discovery process. I will
encourage witnesses to respond to all deposition
Texas Lawyers Creed—Page 2
SCHEDULE OF CHARGES FOR NON-LEGAL SERVICES
ITEM RATE
CD Copying $5.00 perD.
Computer Assisted Legal Research(includes but is
not limited to):Lexis,Courtlink,PACER,Westlaw Actual cost.
Courier Deliveries/Pick-Ups Actual cost.
Document Reproduction—Copies,prints and scans $.12 per page copy/print/scan
$.90 per page color copy/print
DVD Copying $10.00 per DVD.
Express Courier: Lone Star Overnight FedEx,UPS Actual cost.
Facsimiles $.20 per page for outgoing transmissions. No
charge for incoming facsimiles.
File Conversion f to tiff,etc. $0.03 per page.
Finishing/Binding:
Deposition $1.00 per item.
GBC/S iral,Velo $2.50 per item.
Imaging
Black&white $0.15 per page.
Color $0.80 per page.
Mileage $0.445 per mile.
OCR(optical character recognition) $0.03 per age.
Office Supplies: Actual cost when quantity is beyond the amount
3-Ring Binders,Boxes or Other Supplies required in the normal course of business.
Postage Actual cost for large mailings,certified or
express mail.
Prints from image $0.06 Mr age.
Retrieving Retired Records $46.00 ASAP trip charge(Austin).
$66.00 ASAP trip charge(Dallas).
$52.00 ASAP trip charge(Houston).
Telephone-Lon Distance Actual cost.
Trial Exhibits(Copy Center) $20 large.
$10 small.
Video Digitizing $50.00 per video hour.
Video Editing Actual cost.
Video Tapes $5.00 per tape.
Video Synchronization $65.00 per video hour.
Updated 8-22-06