Barnes & Thornburg LLP/Mayor i//3//D ®3 0
BARNESÞBURG LLP 11 South Meridian Street
Indianapolis,IN 46204-3535 U.S.A.
(317)236-1313
Fax(317)231-7433
Brian L.Burdick
(317)231-7393 AF'e:?0'+;'_O AS TO FOAM BY www.btlaw.com
brian.burdick@btlaw.com
October 15, 2010
Honorable Jim Brainard
Mayor
City of Carmel
One Civic Square
Carmel, IN 46032
Re: General Municipal Law Matter
Dear Mayor Brainard:
The purpose of this letter is to confirm the terms and conditions under which our Firm will serve
as special counsel to the City of Carmel (the "City") regarding matters of general municipal law referred
to us from time to time and is delivered in response to Doug Haney's letter to Bob Grand earlier this year
for updated engagement letters for the City's file.
I am enclosing our Standard Terms of Engagement for Legal Services (September 2009) setting
forth the standard terms upon which our Firm accepts client engagements. Our engagement by the City in
this matter will be governed by these standard terms to the extent not expressly modified by this letter.
SCOPE OF SERVICES
As your counsel, we will advise the City on all matters of municipal law referred to us by you or
your representatives from time to time. We also will attend any meetings as requested by the City.
FEES AND CHARGES
Our fees in this matter will be based on the hours actually worked by each lawyer and legal
assistant involved in this matter. These fees will be computed using the hourly billing rates for the lawyer
and legal assistant and the type of work involved that are in effect at the time you are billed for the work.
Generally speaking, our billing rates vary in accordance with the experience and seniority of the lawyers
and legal assistants performing the services. Our billing rates are adjusted annually.
In representing our clients, we also make other charges in addition to our fees. Typical other
charges include messenger, courier and express delivery charges; printing and reproduction charges;
filing fees; travel expenses; and computerized legal research charges. Certain of these other charges may
represent more than our direct cost to cover our overhead. Our fees and other charges will be billed on a
monthly basis and are due upon receipt.
Atlanta Chicago Delaware Indiana Michigan Minneapolis Ohio Washington, D.C.
Mayor Jim Brainard
October 15, 2010
Page 2 of 4
CONFLICTS OF INTEREST
It is important from the outset of our relationship that we have a clear understanding as to the
identity of our client. Our only client in this matter is the City and not any of its other departments,
agencies, instrumentalities, officers, employees, or other affiliates. You have agreed that our
representation of you in this matter will not give rise to any attorney-client relationship between our Firm
and any other department, agency, instrumentality, officer, employee, or other affiliate of the City. You
have also agreed that, during the course of our representation of you in this matter, our Firm will not be
given any confidential information regarding any other department, agency, instrumentality, officer,
employee or other affiliate of the City. Accordingly, our Firn1's representation of you in this matter will
not give rise to any conflict of interest in the event other clients of our Firm are adverse to any other
department, agency, instrumentality, officer, employee, or other affiliate of the City.
As we have discussed, you are aware that our firm represents many other companies and
individuals in various matters unrelated to this engagement. It is possible that, during the time we are
representing you in this engagement, some of our present or future clients will have disputes or
transactions with you.
Under Rule 1.7(a) of the Indiana Rules of Professional Conduct, we are precluded from
representing a client if the representation of that client will be directly adverse to another client, unless (1)
we reasonably believe the representation will not adversely affect our relationship with the other client
and (2) each client consents after consultation. Furthermore, under Rule 1.7(b) of the Indiana Rules of
Professional Conduct, we are precluded from representing a client if the representation of that client may
be materially limited by our responsibilities to another client or to a third person, or by our own interests,
unless (1) we reasonably believe that representation will not be adversely affected and (2) our client
consents after consultation.
Loyalty is an essential element to a lawyer's relationship to a client. As a general proposition,
loyalty to a client prohibits undertaking representations directly adverse to that client without the client's
consent. Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an
appropriate course of action for the client because of the lawyer's other responsibilities or interests; the
conflict in effect forecloses alternatives that would otherwise be available to the client.
As a condition of our undertaking to represent you in this engagement, you agree and consent to
our firm's representation of any existing or new clients in any existing or new matters that are not
substantially related to our representation of you in this engagement, even if the interests of such clients in
such other matters are directly or indirectly adverse to your interests.
The City agrees, on behalf of itself and its departments, agencies, instrumentalities, officers,
employees or other affiliates, that we may continue to represent or may undertake in the future to
represent any existing or new client in any matter that is not substantially related to our work for the City
in this matter even if the interests of such client in such other matter are directly adverse to the City or any
of its departments, agencies, instrumentalities, officers, employees or other affiliates. We agree, however,
that the City's prospective consent to conflicting representation contained in the preceding sentence shall
not apply in any instance where, as a result of our representation of the City, we have obtained proprietary
or other confidential information of a nonpublic nature, that, if known to such other client, could be used
BARNESÞBURG LLP
Mayor Jim Brainard
October 15, 2010
Page 3 of 4
in such other matter by such other client to the material disadvantage of the City or any of its departments,
agencies, instrumentalities, officers, employees or other affiliates.
TERMINATION OF SERVICES
You may terminate our engagement as special counsel in this matter at any time simply by
notifying us. We may terminate our engagement for nonpayment of our fees and other charges and where
we are required or permitted to do so by the Rules of Professional Conduct after giving you reasonable
notice and allowing time for you to engage successor counsel, if necessary.
GENERAL
I will be the lawyer in charge of this effort and will assume primary responsibility for ensuring
that the City's needs are satisfied. Under my supervision, your work or parts of it may be performed by
other lawyers and legal assistants in the fine. This delegation may be for the purpose of involving
lawyers or legal assistants with experience and knowledge in a given area or for the purpose of providing
services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of
those lawyers and legal assistants who work on your matters. Bob Grand, Bruce Donaldson and Brad
Bingham will be three of those lawyers.
Our legal assistants are not lawyers but possess training, experience and skills that enable them to
assist our lawyers in discharging their responsibilities. They include law clerks (typically law students),
paralegals, investigators, research librarians, environmental analysts, translators, draftsmen and other
technical (non-lawyer) specialists.
I will coordinate our firm's work on this matter. From time to time other lawyers and legal
assistants at the firm will work on this matter, depending upon their expertise and experience. My
responsibilities include selecting personnel to provide our services to you in a cost-effective manner.
CONCLUSION
If this letter accurately sets forth our agreement and your understanding, please so indicate in the
space provided below and return a signed copy of this letter to me. We ask you to acknowledge that, in
reviewing and executing this letter, you have not relied on any advice provided by our Firm but instead
have acted solely in reliance upon the advice of other counsel.
BARNESÞBURG LLP
Mayor Jim Brainard
October 15, 2010
Page 4 of 4
We look forward to our continued relationship with you and hope this letter satisfied the City's
request for an updated engagement letter. If you have any questions, please call me.
Sincerely,
riL0Z7
Brian L. Burdick
BLB/ls
Enclosure
cc: Douglas C. Haney, City Attorney
AGREED AND ACKNOWLEDGED:
CITY OF CARMEL,INDIANA
By: Gej r /icU��aCY
ayor James Brainard
Date: OC 7 O 5I ? , a a s/
INDS01 BLB 1181976v1
BARNESÞBURG LLP
BARNES& THORNBURG LLP
STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES
This statement sets forth the standard terms upon which Barnes &Thornburg LLP accepts engagements to
act on behalf of its clients. Unless modified in writing by mutual agreement, these terms will be an integral part of
our agreement with you. Therefore, we ask that you review this statement carefully and write us promptly if you
have any questions. We suggest that you retain this statement in your file.
Our Client
The person or entity that we represent is the person or entity identified in our engagement letter and does
not include any affiliates or relatives of such person or entity. This means that, unless we specifically agree
otherwise, we do not have any lawyer-client relationship with your subsidiaries, parent company or other business
entities in a commonly controlled group, nor with your owners, shareholders, members, managers, partners,
directors, officers, employees or agents, nor, if you are an individual, with your spouse, children or other family
members. Therefore, our representation of you will not impair our ability to represent another client with interests
adverse to any such affiliate or family member without obtaining your consent.
The Scope of Our Work
With new clients, we follow the practice of describing the scope of our initial engagement in the letter we
send accepting employment. With existing clients, we may not provide a description as to new matters upon which
we are asked to provide services depending on the circumstances, but we will always be willing to provide such a
description if asked. In any engagement we will limit our services to those you ask us to perform and those we deem
reasonably necessary to accomplish the requested services. By way of illustration, we will not investigate or opine
on claims against third parties or insurance coverage that is or may be available unless it is so stated in our
engagement letter or you have specifically requested that we do so. Where you request specific services or advice or
otherwise limit our engagement, we will confine our activities to those limitations. In that event, you should
understand we will not investigate or advise you on other areas of law or potential consequences or issues arising
outside these parameters. We will likewise limit our engagement and scope of services as requested to
accommodate instructions to avoid incurring costs or to limit the amount of fees we incur. Such limitations may
result in our not taking steps or performing work that we would otherwise consider advisable.
At times we are asked by our clients to express our opinion as to outcome of the matters on which we are
working. When we are able to express opinions of this sort, they represent our best professional judgment but are
not guarantees. Our opinions are necessarily limited by our knowledge of the facts and are based on the state of the
law at the time they are expressed. The outcome of legal matters and proceedings cannot be predicted with
certainty.
Who Will Provide the Services
Customarily, each client of our Firm is served by a principal lawyer contact. The principal lawyer should
be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of
principal lawyer at any time. Under the supervision of the principal lawyer, your work or parts of it may be
performed by other lawyers and legal assistants in the Firm. This delegation may be for the purpose of involving
lawyers, legal assistants, or other professionals with experience and knowledge in a given area or for the purpose of
providing services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of
those lawyers, legal assistants and other professionals who work on your matters.
Our legal assistants and other professionals are not lawyers but possess training, experience and skills that
enable them to assist our lawyers in discharging their responsibilities. They include law clerks (typically law
students), paralegals, lobbyists, investigators, patent agents, research librarians, environmental analysts, translators,
draftsmen and other technical (non-legal) specialists.
How Fees Will Be Set
In determining the fees we will charge for the legal services we will render for you, we will consider a
number of factors, including:
• The time and labor required,the novelty and difficulty of the questions involved, and the skill requisite
to perform the legal services properly;
• The amount of money or value of property involved and the results obtained;
• The time limitations imposed by you as our client or by the circumstances of the engagement;
• The experience,reputation and ability of the lawyers performing the services; and
• The likelihood that the employment will preclude other employment by our Firm.
Among these factors, the time and effort required are typically weighted most heavily. We will keep records of the
time we devote to your work, including conferences (both in person and over the telephone), negotiations, court
appearances, factual and legal research and analysis, document preparation and revision, and other related matters.
We strongly believe that peer discussion and review is an important element of providing quality services, and so
our time records will often reflect discussions between lawyers within our Firm concerning the matters in which we
have been engaged.
The hourly rates of our lawyers and legal assistants applicable to the type of engagement have an important
bearing on the fees we charge but are not necessarily the sole basis on which those fees are charged. Even where
hourly rates are used as the primary basis of computing our fees, they can and will be adjusted up or down according
to the circumstances. Our hourly rates are reviewed at least annually and may be changed periodically to reflect
current levels of experience of the lawyers and legal assistants involved, changes in overhead costs, and other
factors. Our statements based on hourly rates will reflect our applicable rates at the date of the statement, regardless
when the work covered by the statement was performed.
We are sometimes requested to estimate the amount of fees and costs likely to be incurred in connection
with a particular matter. Whenever possible we will furnish such an estimate based upon our best professional
judgment, but always with a clear understanding that it is not a maximum or fixed fee quotation. The ultimate cost
is invariably more or less than the amount estimated.
Other Charges
In representing our clients, there typically are other charges in addition to our fees that we itemize
separately and bill to them. These include fees charged by government agencies and charges from service vendors,
as well as clerical charges. Typical of such charges are messenger, courier and express delivery charges;
photocopying, desktop publishing or printing and reproduction charges; filing fees and charges, including charges
for electronic filings with governmental agencies and courts; court reporter fees for deposition transcripts and the
like; witness fees; travel expenses; computerized legal research charges; and charges made by outside experts and
consultants, including accountants, appraisers and other legal counsel (unless arrangements have been made for such
outside experts and consultants to bill the client directly). Certain of these other charges may represent more than
our direct cost to contribute toward covering our overhead expenses. We incur outside charges as agents for our
clients, who agree that these charges will always be paid on a regular basis.
In some engagements that raise issues of foreign law it is necessary for us or the client to engage foreign
counsel. If we engage foreign counsel on your behalf, we will typically require you to pay us for the foreign
counsel's anticipated fees and charges before we remit payment to foreign counsel, and potentially before we engage
them. We are not guarantors of the work of foreign counsel nor are we in a position to review the adequacy of their
legal work or translation of documents. We engage foreign counsel to assist us specifically because we are not
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licensed or familiar with the applicable legal system and therefore are not in a position to provide those legal
services or judge their adequacy. If you wish to participate in the selection of foreign counsel,you may do so.
Terms of Payment
We will bill you on a regular basis, normally each month, for both fees and other charges. We rely on you
to pay us promptly. Our fees and charges are due when you receive our statement. Also, if you do not pay us within
30 days of our statement or as otherwise agreed, you agree that we may discontinue providing services immediately
and withdraw from representing you after providing reasonable notice of our intention to do so. After withdrawal,
we may pursue collection of your account. You also agree that until we are paid in full on all of your legal matters,
and except to the extent otherwise prohibited or limited by law, we shall have a lien on all papers and files in our
possession related to any of the matters in which we have represented you, and any property recovered or obtained
as a result of our work on your behalf. You agree to pay the costs of collecting the debt, including court costs, filing
fees and reasonable attorneys' fees.
The Firm also reserves the right in its sole discretion to require an advance deposit at any time based on
past payment history, creditworthiness or other factors that may cause the Firm to conclude it is appropriate to do so.
Advance Deposits
New clients of our Firm will ordinarily be asked to make an advance deposit with the Firm. Existing
clients may also be required to provide advance deposits for particular matters if the Firm believes that is
appropriate under the circumstances. Typically, the advance deposit is equal to the fees and other charges likely to
be incurred during a two-month period. The advance deposit is charged for fees and other charges as our legal
services are provided. Regular statements will be furnished to you for purposes of disclosing the fees and other
charges which have been deducted from the advance deposit and the amount which must be paid to replenish the
advance deposit to the agreed level. If the advance deposit proves insufficient to cover current fees and other
charges on the basis stipulated, we may request that the balance be increased. At the conclusion of our legal
representation or at such time as the advance deposit is no longer necessary or is appropriately reduced, the
remaining balance of it will be returned to you.
Any advance deposit we receive from you will be held in our trust account until it is charged for fees and
other charges for your account or is returned to you. No interest is paid on amounts held by us in our trust account.
In particular, court rules in jurisdictions in which we practice require that interest earned on pooled client trust
accounts is payable to a charitable foundation established in accordance with the court's rule. While your advance
deposit is held by us in our trust account, it remains your property. However, by making the initial advance deposit
and by replenishing or increasing it from time to time, you grant us a security interest in the balance of the advance
deposit we hold in our trust account from time to time to secure payment of incurred fees and other charges for
which you are responsible. You authorize us to apply the deposit to any fees and charges that you owe us for any
services we have provided.
Other deposits that we receive to cover specific items will also be held by us in our general trust account
(without interest)and disbursed as provided in our agreement with you,and you will be notified from time to time of
the amounts applied or withdrawn. Any amount remaining after disbursement will be returned to you.
Waiver of Certain Potential Conflicts of Interest
As you are aware, we have over 500 lawyers and other professionals representing thousands of clients in
various states, so it is foreseeable that our representation of our other clients may be or become directly adverse to
your interests from time to time in matters on which our firm is not representing you. The Rules of Professional
Conduct governing lawyers generally prohibit a lawyer or law firm from representing one client in a matter directly
adverse to another client unless the affected clients provide informed consent confirmed in writing. In accordance
with such Rules, by agreeing to our engagement letter, you consent that our Firm may represent any other clients in
matters that are not substantially related to the matters on which we are representing you, even where our
representation of such clients may be or become directly adverse to your interests. For example, such
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representations may include advising our other clients (i) on the scope of your property rights, (ii) in transactions
with you or negotiating or interpreting legal documents that affect your rights; (iii) on the existence, assertion or
defense of legal claims against you or that you may have against our other clients; or (iv) on any disputes with you,
even in court. You should bear in mind that your consent authorizes us to take on unrelated representations for other
parties or entities to whom we are adverse in matters, transactions or disputes on which we represent you. Of
course, the foregoing consent does not affect our obligation to protect confidential information you share with us in
connection with our representation of you and not to use such information to your detriment.
Client Responsibilities
You agree to be truthful with us, to cooperate fully with us, to provide promptly all information (including
documents and electronic data) known or available to you relevant to our representation. If your engagement
involves actual or potential claims or litigation, you have an obligation to preserve potentially relevant information,
including electronic data. It is important for you to ensure automatic deletions or record retention policies are
suspended as necessary to ensure this information is preserved. You should discuss these issues with us at the outset
of our engagement involving any claim or litigation, unless you have a sophisticated document retention policy and
program that addresses these matters and you are familiar with these requirements. You should also discuss these
issues with us as soon as a dispute or litigation related to any matter on which you have engaged us becomes
reasonably foreseeable. You also agree to respond promptly to our requests for direction and other communications
and to attend meetings and court proceedings at our request. You also agree to pay our statements for services and
other charges in accordance with these terms of engagement.
Termination and Withdrawal
You may terminate our representation of you at any time without cause simply by notifying us. Your
termination of our services will not affect your responsibility for payment of fees and other charges incurred before
termination and in connection with an orderly transition of the matter.
We are subject to the Rules of Professional Conduct that require or allow us to withdraw from representing
a client in various circumstances. These may include any circumstances in which withdrawal can be accomplished
without material adverse effect on the interests of the client. Among other circumstances that may give rise to
withdrawal, subject to the Rules of Professional Conduct, we may withdraw from representing you if you do not
fulfill your client responsibilities to us, including failure to pay our fees and charges, or if we determine that our
relationship has become impaired, such as by your failure to follow our advice relating to a representation.
We try to identify in advance and discuss with you any situation that may lead to our withdrawal and, if
withdrawal ever becomes necessary, will give you prompt written notice of our withdrawal.
Unless previously terminated, our representation of you in any matter will terminate upon our completion
of the services you retained us to perform. Generally, this will be indicated by your receipt of our final statement for
services rendered on that matter.
Other than original documents that we receive from you or others in connection with the matter, the records
and files we create and/or maintain during our representation belong to our Firm. We may maintain such records
and files in electronic form. During the course of our representation, we will provide you with copies of documents
and information that you may request so that you can keep and maintain your own file related to our representation.
Upon termination of our representation and payment of any fees and other charges that have been incurred on any of
the matters in which we have represented you, we will make certain parts of the file(such as correspondence, court
filings, documents produced in discovery) available to you or successor counsel for inspection and copying at your
expense. For various reasons, including the need to minimize unnecessary storage expenses, we reserve the right to
destroy or otherwise dispose of any documents or other materials retained by us after the termination of the
engagement. With respect to any engagement to which the Minnesota Rules of Professional Conduct apply,
Minnesota Rule 1.16 controls and takes precedence over any conflicting provision of this paragraph.
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Our representation of you in any matter is limited to that specific matter, and will not give rise to any
ongoing attorney-client relationship. After termination of our representation of you in any matter, we may from
time to time represent you in such subsequent matters as you may request. However, we are under no obligation to
represent you in any subsequent matters, and nothing herein should be construed to give rise to any attorney-client
relationship after such termination. If we do undertake to represent you in any subsequent matter, the scope and
duration of our representation will be limited to that specific subsequent matter and, unless we expressly establish
new terms of engagement with you at that time, these terms of engagement will apply.
Lawyers sometimes become personally entangled in court proceedings in connection with their clients'
matters. If our Firm or any of our lawyers or staff are named as a party, or are required to produce evidence or
appear, in a legal proceeding as a result of our services performed for you (other than as a result of our misconduct
or negligence), you agree, even after our representation has terminated, to pay us for our lawyers' and non-lawyers'
time and other charges and advances incurred in connection with our defense or participation in such proceeding, on
the same basis that applies to our standard hourly fees and charges in effect at the time.
After termination of our representation of you in any matter, changes may occur in applicable laws or
regulations that could have an impact upon your rights and liabilities. Unless you subsequently engage us to provide
such advice on the same matter, our Firm has no continuing obligation to advise you with respect to future legal
developments.
September 2009
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