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HomeMy WebLinkAbout1997-103A \TNRCCORD ORDINANCE NO. 9 / r' D3 AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN EMPLOYMENT CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH KELLY, HART & HALLMAN, P.C. FOR LEGAL SERVICES RELATING TO THE AMENDMENT TO THE CITY OF DENTON'S MUNICIPAL SOLID WASTE PERMIT NO. 1590A AND RELATED ACTIVITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. That the City Manager is hereby authorized to execute an Employment Contract for Professional Legal Services with Kelly, Hart & Hallman, P.C., a copy of which Contract is attached hereto and incorporated herein. SECTION II. That the expenditure of funds as provided in the attached Contract is hereby authorized. SECTION III. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the 1/ft day of ((.ff1.0 , 1997 JAI MILLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APP OVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: EMPLOYMENT CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON This AGREEMENT, made and entered into this L day of _Qj".Z , 1997, by and between KELLY, HART & HALLMAN, P C , a Texas Professional Corporation, with Susan Zachos having full authority to execute this Agreement on behalf of Kelly, Hart & Hallman, P C , 301 Congress Avenue, Suite 2000, Austin, Texas 78701, hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas Municipal Corporation, 215 E McKinney, Denton, Texas 75201, hereinafter referred to as "City " WITNESSETH WHEREAS, the City needs to employ legal counsel to provide professional legal services related to the Amendment to the City of Denton's Municipal Solid Waste Permit No 1590A„ and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor, and, WHEREAS, the City desires to engage the Consultant to render the services as described below and the Consultant is willing to provide such services NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the parties hereto do mutually agree as follows I. Scope of Services A The Consultant's client in this matter will be the City, not any of its employees or elected officials individually The Consultant shall serve as the City's legal counsel with regard to the City's amendment to its Municipal Solid Waste Permit No 1590A, now pending at the Texas Natural Resource Conservation Commission ("TNRCC") The Consultant's prelimmary list of the tasks that may be required for this representation, and the assumptions used to prepare that list, were presented to Mr Howard Martin under cover of our January 20, 1997 letter 1 Although the exact tasks the Consultant will perform, and the time those The January 20, 1997 letter and its attached list of tasks and budget estimate contain Denton's trial strategy and must be protected from public disclosure 17816 1 tasks will take, cannot be determined with certainty at this time, in general, the Consultant will represent the City, and prepare and file necessary documentation, in connection with the anticipated hearing before the State Office of Administrative Hearings ("SOAH") and will pursue that matter to an ultimate conclusion, either by order of the TNRCC or by settlement The foregoing representation is referred to below as the "Services " B The Consultant will coordinate with Mr Howard Martin, the Director of Environmental Operations, and those under his direction and/or his successors, regarding the Services The City may limit or expand the scope of the Work from time to time, provided that any substantial expansion must be agreed to by the Consultant The City agrees to cooperate fully with the Consultant and to provide promptly all information known or available to it relevant to the Work H. Term: The services of Consultant shall commence upon the execution of this Agreement, and shall continue until all services hereunder have been performed This Agreement may be sooner terminated in accordance with the provisions of paragraph IX III. Compensation and Method of Payment: A The Consultant's fees will be based on the billing rate for each attorney and legal assistant devoting time to this matter Those billing rates for attorneys currently range from $70 per hour for new associates to $300 per hour for senior partners Susan Zachos and Mary Mendoza will be the Consultant's attorneys primarily responsible for the work Susan Zachos' billing rate is $175 per hour and Mary Mendoza's billing rate is $105 per hour Billing rates for legal assistants currently range from $70 to $80 per hour All billing rates are subject to change from time to time The Consultant will assign portions of the Work to associates or legal assistants, as appropriate, in order to perform the work efficiently With each bill, the Consultant will provide the detailed information maintained in its accounting database concerning time expended by each attorney and legal assistant in connection with the Services covered by the bill, as well as each charge item by the firm B The fees and costs relating to this matter are not predictable, however, the Consultant provided an estimate of the anticipated costs for the Work of $175,000, excluding expenses (which may be substantial), and including the assumptions on which the estimate was based, in its January 20, 1997 letter to Mr Howard Martin (the "Fee Estimate") The Fee Estimate does not incorporate the expenses associated with engaging other professionals, such as engineers and testifying experts, for which the City will be responsible Based on the Fee Estimate, the City has approved an amount up to, but not to exceed, $175,000 for the Services, including fees and expenses The Consultant agrees not to perform any portion of the Services that would result in its total monthly billings from the date of execution of this Agreement forward exceeding $175,000, however, if circumstances indicate that the legal fees for the Services, including all expenses, 178161 2 will exceed the $175,000 authorization, Consultant will discuss the circumstances with the City and submit an appropriate request for additional funds If the request for additional funding is demed, then Consultant shall have no further obligation to perform additional Services hereunder C Statements normally will be rendered monthly for work performed and expenses incurred the previous month Payment is due within thirty (30) days of receipt of our statement If any statement remains unpaid for more than 60 days, the Consultant may cease performing services for the City until arrangements satisfactory to the Consultant have been made for payment of outstanding statements and the payment of future fees and expenses and such default will constitute authorization for the Consultant to withdraw from representation D It is also expressly understood that payment of the firm's fees and costs is in no way contingent on the ultimate outcome of the matter IV. Professional Com eta encv_: A The Consultant agrees that in the performance of these professional services, Consultant shall be responsible to the level of competency and shall use the same degree of skill and care maintained generally by other practicing professionals performing the same or similar types of work For the purpose of this Agreement, the key persons who will be performing most of the work hereunder shall be Susan Zachos and Mary Mendoza However, nothing herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein B Pleadings, motions, orders, notices, instruments, discovery documents, reports, and other legal documents prepared or obtained under the terms of this Agreement are instruments of the Service and the City shall retain ownership and a property interest therem V. Establishment and Maintenance of Records: Full and accurate records shall be maintained by the Consultant at its place of business with respect to all matters covered by this Agreement Such records shall be maintained for a period of at least four years after receipt of final payment under this Agreement VI. Audits and Inspection: At any time during normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by this Agreement The Consultant shall permit the City, at its expense, to audit, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement VII. Indemnity and Independent Contractor Relationship• 17816 1 3 A The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City Nothing herein shall be construed as creating a relationship of employer and employee between the parties The Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, agents, servants, and employees against any and all claims to the extent that such claims are actually covered by Consultant's professional liability policy and Consultant's insurance carrier has issued payment for those claims B The Consultant agrees to maintain in effect during the terms of its services under this Agreement a Professional Liability Insurance Policy in an amount not less than $1,000,000 00 with an insurer licensed to do business in the State of Texas Such insurer shall have a Standard & Poors Rating of AA or better The Consultant will provide an insurance certificate evidencing this insurance coverage within five (5) days after the execution of this Agreement VHL Termination of Agreement: A The Consultant or the City may terminate the Agreement at any time for any reason by written notice, subject on the Consultant's part to applicable rules of professional conduct In the event that the Consultant terminates the Agreement, it will take such steps as are reasonably practicable to protect the City's interests in the projects and, if the City so requests, the Consultant will suggest possible successor counsel and provide to it all necessary documents If permission for withdrawal is required by a court or administrative agency, the Consultant will promptly apply for such permission, and the City agrees to engage successor counsel to represent it B Unless previously terminated, the Consultant's representation of the City for the Services will terminate upon the Consultant sending the final statement for services rendered in this matter Following such termination, any otherwise nonpublic information the City has supplied which is retained by the Consultant will be kept confidential in accordance with applicable rules of professional conduct IX. Alternate Dispute Resolution: The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution such as mediation No arbitration or alternate dispute resolution arising out of or relating to this Agreement involving one party's disagreement may include the other party to the disagreement without the other's approval X. Entire Agreement: This Agreement constitutes the complete and final expression of the agreement of the parties and is intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof 17816 1 4 XI. Compliance with Laws: The Consultant shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended, including, but not limited to, the Texas Disciplinary Rules of Professional Conduct XII. Governing Law: For the purpose of determining place of agreement and law governing same, this Agreement is entered into the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas Venue and jurisdiction of any suit or cause of action arising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County XIII. Discrimination Prohibited: In performing the services required hereunder, the Consultant shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap XIV. Personnel and Conflicts of Interest: The Consultant represents other compames, individuals, municipalities and legal entities It is possible that while it is representing the City, some of the Consultant's present or future clients will have disputes or transactions with the City The City agrees that the Consultant may continue to represent or may undertake in the future to represent existing or new clients in any matter that is not substantially related to its work for the City, even if the interests of such clients in those other matters are directly adverse to the City The Consultant agrees, however, that the City's prospective consent to conflicting representation shall not apply in any instance where the Consultant has obtained proprietary or confidential information from the City that, if known to any other client of the firm could be used in such other matter by such client to the City's material disadvantage XV. Notices: All notices, invoices, and payments shall be made in writing and may be given by personal delivery or by mail Notices, invoices, and payments sent by mail shall be addressed, respectively, to Ted Benavides, City Manager, City of Denton, 215 E McKinney, Denton, Texas 76201, or to Susan G Zachos, Kelly, Hart & Hallman, P C , 301 Congress Avenue, Suite 2000, Austin, Texas 78701 When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mail, postage prepaid In all other instances, notices, invoices, and/or payments shall be deemed given at the time of actual delivery Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable notice is given XVI Assignability: The Consultant shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the City thereto XVII. Severabilrtv: If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision is not a part thereof, and the remaining provisions thereof shall remain in full force and effect In lieu of any illegal, invalid or unenforceable provision 178161 5 therem, there shall be added automatically as a part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable XVIII. Modification of Agreement: No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the parry to be charged therewith and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such wavier or modification is in writing, duly executed as aforesaid XIX. Captions: The captions of this Agreement are for reference only and shall not in any way modify or affect this Agreement XX. Binding Effect: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager and Consultant has executed this A reement through its duly authorized undersigned officer, dated the At day of 1997 CITY OF DENTON By TZ52W Ted Benavides, City Manager ATTEST, Jennifer Walters, City Secretary By AP ROVED AS TO LEGAL FORM Herbert L Prouty, City Attorney By KELLY, HART & HALLMAN, P C BY 5L/J��/ ��kf� Susan G Zachos, Vic •esident 17816 1