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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, 17816 I 2 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' 17816 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 17816 I 6