1997-103A \TNRCCORD
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 DENTONVS MUNICIPAL SOLID WASTE PERMIT NO. 1590A AND RELATED
ACTIVITIES; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVID1NGAN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
S_~ That the City Manager is hereby authorized to
execute an Employment Contract for Professional Legal Services w~th
Kelly, Hart & Hallman, P.C., a copy of which Contract is attached
hereto and incorporated herein.
~ That the expenditure of funds as provlded in the
attached Contract is hereby authorlzed.
~ That this ordinance shall become effective
Immediately upon its passage and approval
PASSED AND APPROVED this the /~ day of ~~_ , 1997
JA~MILLER, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
EMPLOYMENT CONTRACT FOR
PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
This AGREEMENT, made and entered into this ] ~t day of ~, 1997,
by and between KELLY, HART & HALLMAN, P C, a Texas Profession~d Corporation, with
Susan Zachos having full authomy to execute th~s Agreement on behalf of Kelly, Hart &
Hallman, P C, 301 Congress Avenue, State 2000, AusUn, Texas 78701, hereinafter referred
to as "Consultant", and the CITY OF DENTON, a Texas Mumc~pal Corporation, 215
E McKmney, Denton, Texas 75201, hereinafter referred to as "City"
WITNESSETH
WHEREAS, the C:ty needs to employ legal counsel to provtde professional legal serwces
related to the Amendment to the C~ty of Denton's Mumc~pal Sohd Waste Permit No 1590A,,
and
WHEREAS, the Consultant ~s willing to perform such services in a professional manner
as an independent contractor, and,
WHEREAS, the C~ty desires to engage the Consultant to render the services as described
below and the Consultant Is willing to provide such services
NOW, THEREFORE, m cons~derauon of the promises and mutual obhgaUons herein,
the pames hereto do mutually agree as follows
~t~la~,~,l:~a~.'
A The Consultant's chent m th~s matter will be the C~ty, not any of its employees
or elected offlctals md~wdually The Consultant shall serve as the City's legal
counsel w~th regard to the City's amendment to as Municipal Solid Waste Permit
No 1590A, now pending at the Texas Natural Resource Conservation
Commission ("TNRCC") The Consultant's preliminary hst of the tasks that may
be reqmred for th~s representaUon, and the assumpUons used to prepare that hst,
were presented to Mr Howard Martin under cover of our January 20, 1997
letter t Although the exact tasks the Consultant will perform, and the tune those
The January 20, 1997 letter and 1ts attached hst of tasks and budget estimate contain Denton's trial
strategy and must be protected from pubhc d~sclosure
17816 I
tasks wall take, cannot be determined with ceI~lnty at this time, an general, the
Consultant wall represent the City, and prepare and file necessary documentation,
m coaneCtlon with the antac~pated hearmg before the State Office of
Admlmstratave Heanngs CSOAH") and will pursue that matter to an ultamate
conclusaon, e~ther by order of the TNRCC or by settlement The foregoang
representation as referred to below as the "Serrates"
B The Consultant wall coordanate wath Mr Howard Martin, the Darector of
Environmental Operations, and those under lus darect~on and/or his successors,
regardmg the Services The City may lman or expand the scope of the Work
from time to t~me, provided that any substantial expansion must be agreed to by
the Consultant The City agrees to cooperate fully wath the Consultant and to
provide promptly all mformataon known or available to tt relevant to the Work
II. Term: The services of Consultant shall commence upon the executaon of thas
Agreement, and shall continue untal all servaces hereunder have been performed Th~s
Agreement may be sooner terminated m accordance wath the provaslons of
paragraph IX
III. Comnensation and Method of Payment:
A The Consultant's fees wall be based on the bfllang rate for each attorney and legal
assastant devotmg time to thas matter Those bdlang rates for attorneys currently
range from $70 per hour for new associates to $300 per hour for semor partners
Susan Zachos and Mary Mendoza wall be the Consultant's attorneys prmaanly
responsable for the work Susan Zachos' bllhng rate is $175 per hour and Mary
Mendoza's blllmg rate as $105 per hour Bflhng rates for legal assastants
currently range from $70 to $80 per hour All bflhng rates are subject to change
from rune to ume The Consultant will assagn portaons of the Work to associates
or legal assastants, as appropriate, m order to perform the work efficiently Wath
each bill, the Consultant wall provade the detaded mformataon maantamed an ~ts
accounting database concerning time expended by each attorney and legal assistant
an connectaon w~th the Services covered by the bill, as well as each charge ~tem
by the firm
B The fees and costs relating to th~s matter are not preAactable, however, the
Consultant provided an esmnate of the anticipated costs for the Work of
$175,000, excluding expenses (which may be substantial), and including the
assumpUons on which the estimate was based, m ~ts January 20, 1997 letter to
Mr Howard Martin (the "Fee Estimate") The Fee Estanate does not ~ncorporate
the expenses associated wath engaging other professmnals, such as engineers and
testifying experts, for whach the C~ty will be responsible Based on the Fee
Estanate, the Caty 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 Serwces that would result ~n ~ts total monthly bflhngs from the
date of executton of thas Agreement forward exceeding $175,000, however, af
circumstances indicate that the legal fees for the Services, ancludang all expenses,
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wlll exceed the $175,000 author~zaUon, Consultant will discuss the c~rcumstances
w~th the C~ty and submit an appropriate request for add~tlonal funds If the
request for additional funding ~s demed, then Consultant shall have no further
obhgatlon to perform addmonal Services hereunder
C Statements normally w~ll be rendered monthly for work performed and expenses
incurred the prewous month Payment is due w~th~n tharty (30) days of recelpt
of our statement If any statement remains unpaid for more than 60 days, the
Consultant may cease performxng servaces for the Caty until arrangements
satisfactory to the Consultant have been made for payment of outstandmg
statements and the payment of future fees and expenses and such default wall
constatute authorazataon for the Consultant to wathdraw from representation
D It as also expressly understood that payment of the ftrm's fees and costs is in no
way contingent on the ufumate outcome of the matter
IV. Professional Competency:
A The Consultant agrees that m the performance of these professtonal services,
Consultant shall be responstble 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 s~malar types of work For the purpose of th~s
Agreement, the key persons who w~ll be performmg most of the work hereunder
shall be Susan Zachos and Mary Mendoza However, nothing herean shall limit
Consultant from using other quahfied and competent members of tts firm to
perform the services required herean
B Pleadings, motaons, orders, nottces, ~nstmments, dlscovery documents, reports,
and other legal documents prepared or obtained under the terms of th~s
Agreement are instruments of the Service and the C~ty shall retain ownershap and
a property tnterest there~n
V. Establlshment and Maintenance of Records: Full and accurate records shall be
maintained by the Consultant at ~ts place of business wlth respect to all matters covered
by th~s Agreement Such records shall be maintained for a per~od of at least four years
after receapt of final payment under this Agreement
VI. A I ~o : At any t~me during normal bus~ness hours and upon reasonable
noUce to the Consultant, there shall be made avmlable to the City all of the Consultant's
records wath respect to all matters covered by th~s Agreement The Consultant shall
permat the Clty, at ats expense, to audit, examine, and make excerpts or transcripts from
such records, and to make audats of contracts, invoices, materials, and other data
relaUng to all matters covered by thas Agreement
VII. g~a0~mnigv and Independent Contractor Relationshm'
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A The Consultant shall perform all services as an independent contractor not under
the direct supervision and control of the C~ty Nothing hereto shall be construed
as creating a relationship of employer and employee between the part~es The
Consultant agrees to defend, ~ndemmfy and hold harmless the City and all of ~ts
officers, agents, servants, and employees against any and all clauns to the extent
that such claims are actually covered by Consultant's professional liability pohcy
and Consultant's ~nsurance carrier has ~ssued payment for those claims
B The Consultant agrees to maintain ~n effect during the terms of Its services under
th~s Agreement a Professional Ltabthty Insurance Pohcy in an amount not less
than $1,000,000 00 with an insurer hcensed to do business ~n the State of Texas
Such insurer shall have a Standard & Poors Rating of AA or better The
Consultant will provide an ~nsurance certificate ewdenclng this insurance coverage
w~thm five (5) days after the execution of th~s Agreement
VIII. Termination of Agreement:
A The Consultant or the C~ty may terminate the Agreement at any t~me for any
reason by written not,ce, subject on the Consultant's part to apphcable rules of
professional conduct In the event that the Consultant terminates the Agreement,
~t will take such steps as are reasonably practicable to protect the C~ty's interests
in the projects and, ~f the City so requests, the Consultant will suggest possible
successor counsel and prowde to ~t all necessary documents If perm:sslon for
withdrawal ~s reqmred by a court or adm~mstrat~ve agency, the Consultant will
promptly apply for such perm:sslon, and the City agrees to engage successor
counsel to represent it
B Unless prewously terminated, the Consultant's representation of the C~ty for the
Serwces wdl terminate upon the Consultant sending the final statement for
services rendered m this matter Following such termination, any otherwise
nonpubhc reformation the C~ty has supplted which is retained by the Consultant
will be kept confidential m accordance w~th applicable rules of professional
conduct
IX. Alternate Dispute Resolution: The part,es may agree to settle any disputes under th~s
Agreement by submitting the d~spute to arbitration or other means of alternate d~spute
resolution such as mediation No arbitration or alternate d~spute resolution arising out
of or relating to this Agreement ~nvolvmg one party's disagreement may ~nclude the
other party to the dlsagreemant without the other's approval
X. Y~l]i:~lI: This Agreement constitutes the complete and final expression of
the agreement of the parties and ~s intended as a complete and exclnslve 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 m connection with the subject matter hereof
XI. i i h : The Consultant shall comply w:th all federal, state, and local
laws, rules, regulataons, and ordinances apphcable to the work covered hereunder as
they may now read or hereinafter be amended, ancludlng, but not limited to, the Texas
Dasclpllnary Rules of Professional Conduct
XII. ~: For the purpose of determ:mng place of agreement and law govermng
same, this Agreement is entered anto the City and County of Denton, State of Texas,
and shall be governed by the laws of the State of Texas Venue and jur~sdactaon of any
stat or cause of actlun ar~smg under or in connection with this Agreement shall be
exclusively in a court of competent jur~sdlctaon sattmg in Denton County
XIII. Discrimination Prohibited: In performing the services reqmred hereunder, the
Consultant shall not dlscrunlnate against any person on the bas:s of race, color,
religion, sex, national or,gm or ancestry, age, or physical handicap
XIV. Personnel and Conflicts of Interest: The Consultant represents other compames,
~ndavaduals, mumc~pahtles and legal entitles It ~s possible that while it as representing
the C~ty, some of the Consultant's present or future clients will have dasputes or
transactions with the City The City agrees that the Consultant may continue to
represent or may undertake m the future to represent existing or new chents m any
matter that is not substantially related to ats work for the City, even ff the anterests of
such clients m those other matters are directly adverse to the City The Consultant
agrees, however, that the C~ty's prospective consent to conflactlng representation shall
not apply in any instance where the Consultant has obtained propraetary or confadent:al
information from the City that, af known to any other client of the firm could be used
in such other matter by such chent to the City's mater:al d:sadvantage
XV. Notices: All notices, invoices, and payments shall be made m wrmng and may be
g~ven by personal delivery or by mall Notices, lnvoaces, and payments sent by mall
shall be addressed, respectively, to Ted Benawdes, Caty Manager, Caty of Denton, 215
E McKlnney, Denton, Texas 76201, or to Susan G Zachos, Kelly, Hart & Hallman,
P C, 301 Congress Avenue, State 2000, Austin, Texas 78701 When so addressed,
the not~ce, invoice, and/or payment shall be deemed given upon deposit :n the Umted
States Mall, postage prepaad In all other instances, notices, mvmces, and/or payments
shall be deemed given at the time of actual dehvery 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, prowded reasonable notice is given
XVI i.~: The Consultant shall not assign any mterest m this Agreement and shall
not transfer any interest an this Agreement (whether by assignment, novataon, or
otherwise) wathout the prior written consent of the Caty thereto
XVII. Scverabihtv: If any provision of th~s Agreement as held to be illegal, mvahd or
unenforceable under present or future laws, such provasaon shall be fully severable and
this Agreement shall be construed and enforced as af such illegal, lnvahd or
unenforceable provision is not a part thereof, and the remalmng provisions thereof shall
remain an full force and effect In beu of any :llegal, anvahd or unenforceable provasaon
17816 I 5
thereto, there shall be added automatically as a part of this Agreement a provision as
similar m its terms to such illegal, mvahd or unenforceable prows~on as may be
possible and be legal, vahd and enforceable
XVIII. Modification of A;,reement: No waiver or modification of this Agreement or of any
covenant, condition, or hmitat~on herein contaxned shall be vahd unless m writing and
duly executed by the party to be charged therewith and no evidence of any waiver or
modification shall be offered or received ~n 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 ~s in writing, duly executed as
aforesaid
XIX. Captions: The captions of th~s Agreement are for reference only and shall not m any
way modify or affect th~s Agreement
XX. ~: This Agreement shall be binding upon and inure to the benefit of the
part,es hereto and their respective be~rs, executors, adm~mstrators, legal representatives,
successors, and assigns where permitted by this Agreement
IN WITNESS WHEREOF, the City of Denton, Texas has caused th~s Agreement to
be executed by its duly authorized City Manager and Consu. l~ant has executed this Agreement
through its duly authorized undersigned officer, dated the ] Jq' day of ~z~/A~. ,
1997
CITY OF DENTON
Ted Benawdes, City Manager
ATTEST,
Jenmfer Walters, City Secretary
By//~(~'~'9~'~t'""~ /A~)~
APPROVED AS TO LEGAL FORM
Herbert L Prouty, City Attorney
By
KELLY, HART & HALLMAN, P C
Susan G Zachos, V~'l~esldent
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