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HomeMy WebLinkAboutResolution 1999-100 Resolution No. 99-100 Be it resolved by the City Council of the City of North Richland Hills, Texas, that: 1. The Mayor be, and is hereby authorized to execute the attached contract for professional services with Rex McEntire for legal services for the City of North Richland Hills through January 10, 2002. PASSED AND APPROVED this 13th day of December 1999. APPROVED: / (//. f./ 1./ . / 1/ ' . ___ ,-f'- .... .., .77. -1"1/ , t C . r1- \..lí / I ,. ~ .. / V ,"-, / Charles Scoma, Mayor ATTEST 7(>/' ;, ,. ./'// /1'" .' i .. /,' ,..Ii',.,. ~> I .... ¡ .,~~ je"."., ( .. 1_ ;'( ( /"'''it t. __:_.I{,) .~- " -Patricia Hutson, City Secretary PROFESSIONAL SERVICES CONTRACT THIS PROFESSIONAL SERVICES CONTRACT ("Contract") is made and entered into this, the & day of December 1999, by and between the CITY OF NORTH RICHLAND HILLS ("City") and REX McENTIRE ("Attorney"). WIT N E SSE T H: WHEREAS, Attorney has been retained as the attorney for the City by the City for a number of years; and WHEREAS, the Attorney has been employed under and pursuant to a written agreement ("Agreement") with City dated June 10, 1991, as modified and extended on January 9, 1995, and it is the desire of the City Council of the City to terminate, supersede and replace the Agreement with this Contract; and WHEREAS, Attorney desires to continue to be retained as the attorney for the City; and NOW, THEREFORE, the City and the Attorney, for and in consideration of the terms hereinafter established, have agreed, and do hereby agree, as follows: I. Term 1.1 The City Council, by and on behalf of the City, does hereby retain the Attorney, and the Attomey does hereby accept engagement as the attorney for the City for a term of two (2) years, commencing on January 10, 2000, and ending on January 10, 2002. Attorney and City stipulate and agree that there is no understanding, agreement, warranty, representation or consideration, express or implied, direct or implicit, that the term of this Contract will be extended beyond January 10, 2002, and both parties further contemplate that the Attorney will cease to be the attorney for the City and will cease to perform any of the duties of attorney for the City on January 10, 2002, unless this Contract is sooner terminated in accordance with its terms. II. Engagement 2.1 Duties. The Attorney is the attomey for the City and shall faithfully perform the duties of attorney for the City as assigned to Attorney by the City Council and/or its lawfully designated representative in compliance with the City Charter, and shall comply with all applicable and lawfully permissible City, state and federal laws, ordinances, resolutions, orders, directives, policies, rules, and regulations as they exist or may hereafter be amended and the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure, as amended (collectively referred to hereinafter as the "Ethical Rules") applicable to the State Bar of Texas. The Attorney shall provide all legal services required and complying with the terms of this Contract, including, but not limited to, (i) advising and consulting with City Staff and elected officials, as directed by the City Council and/or its lawfully designated representative~ (ii) reviewing, revising and approving all proposed ordinances and resolutions prepared by City Staff and/or City Council, (iii) researching and drafting ordinances and resolutions on request of the City Council and/or City Manager, (iv) reviewing, recommending changes and/or approving proposed all City contracts and PROFESSIONAL SERVICES CONTRACT CIWPDOCSILlSA'SIFINISHED CONTRACT. DOC PAGE 1 OF 9 agreements referred to Attorney by the City Council and/or its designated representative~ (v) researching and preparing documents and instruments of conveyance of real and personal property to or from the City on request on the City Council and/or its designated representative, (vi) attendance at all City Council Meetings, regular and special, unless excused by the City Council and/or its designated representative~ (vii) attendance at other meetings of staff, boards, and/or commissions of the City on request of the City Council and/or its designated representative, (viii) other general legal services to the City Staff and departments of the City as directed by the City Council and/or its designated representative, (ix) representation of the City and the employees and officials of the City in all Litigation (defined below) referred to Attorney by action of the City Council or direction of its designated representative~ (x) consultation and advice as requested by the City Council and/or its designated representative, with other attorneys which may be engaged by the City to represent the City on complex, novel, unique or other matters determined by the City Council in sole discretion, and (xi) all related duties required by the Ethical Rules. 2.2 Availability of Attorney. The Attorney agrees to designate in writing in advance the number of hours each week when he will be available to the City Council and City for consultation and advice on City legal matters. Such designation shall include all meetings, regular and special, of the City Council (unless Attorney is expressly excused therefrom pursuant to the express terms of this Contract) and a reasonable number of hours, on reasonable availability, to perform all of the other duties and functions assigned to Attorney under and pursuant to the terms of this Contract. All such designation(s) of availability shall be immediately delivered to the City Secretary. Provided that the requirements for designation of hours of availability comply with the provisions of this Contract, Attorney shall be entitled to modify the designation of his availability by giving prior notice thereof to the City Secretary. Notwithstanding anything to the contrary in this Contract, Attorney shall provide City with an average of at least twenty (20) hours of legal services for each week during the term of this Contract and shall (unless excused pursuant to the express terms of this Contract) attend all meetings, regular and special, of the City Council. 2.3 City Council Meetings. The Attomey shall attend all public meetings of the City Council. The Attorney shall also attend all closed meetings of the City Council, with the exception of those closed meetings devoted to the consideration of any action or lack of action on the Attorney's Contract, or the Attorney's compensation and benefits as set forth in this Contract, or the Attorney's professional evaluation, or to interpersonal relationships between individual City Council members and/or Staff members, or to such other matters where the City Council deems that the Attorney's presence is not necessary or desirable. 2.4 Criticisms, Complaints, and Suggestions. The City Council, individually and collectively, shall refer to the Attorney all substantive criticisms, complaints, and suggestions regarding the Attorney and his duties under this Contract which are called to the City Council's attention for study and appropriate action, and the Attorney shall investigate such matters and inform the City Council of the results of such efforts. 2.5 Personal Service Contract; No Designee. This is a personal service contract and all of the duties of Attorney under this Contract and the performance thereof shall be exclusively performed by Attorney. The Attorney shall not assign or delegate the performance of the principal duties of Attorney under this Contract to any other attorney without the prior written consent of the City Council. Any consent granted by the City Council to the assignment or delegation of anyone task or duty to an attorney other than Attorney, shall not be construed or interpreted as consent, approval or waiver of consent or approval as to any future delegation or be construed as PROFESSIONAL SERVICES CONTRACT C:\WPDOCS\LlSA'S\FINISHED CONTRACTDOC PAGE 2 OF 9 the blanket approval, assignment or delegation of any other duties required to be performed thereafter pursuant to this Contract. 2.6 Professional Certification. The Attorney shall at times during the term of this Contract hold and maintain a valid license to practice in all courts of the State of Texas and a valid and current license from the State Bar of Texas. 2.7 Outside Legal Activities of Attorney. Subject to and on compliance with the conditions set forth below, the Attorney may represent persons and entities other than the City on matters which unrelated to Attorney's representation of the City and the duties of Attorney under this Contract ("outside clients"). Without the express prior written authorization and consent of the City Council, such outside representation shall be subject to and performed in accordance with the following terms and conditions: A. Attorney shall control or limit the presence of such outside clients at the City Hall so as to create a minimum interference or intrusion on the business and affairs of the City. B. All depositions and other meetings and activities associated with such outside clients shall be conducted away from the City Hall. C. Attorney shall pay and reimburse the City for the proportionate share of the equipment, fixtures, furniture, paralegal expense and other cost incurred in connection with such outside clients, based on the proportionate share of the expense for such items incurred for outside clients and the City, respectively. The City and Attorney estimate that the average cost of such proportionate expenses for outside clients is $250.00 per month, which estimate shall be adjusted to actual cost based on the reasonable request of the City or Attorney to the other. D. The time commitments of Attorney to such outside clients shall not materially interfere with the duties of Attorney under this Contract. E. The representation of such outside clients shall not: (i) create a conflict of interest with Attorney's representation of the City, (ii) be likely to create a conflict of interest in the future legal matters involving the City, (iii) result in, or be likely to result in, a duty of Attorney to withdraw or provide written disclosure to or obtain consent from the City or such outside client(s) regarding such representation or the future representation of the City and its employees and officials with respect to official City business and actions. Without limiting other sections which should be considered by Attorney, in determining the matters under this subsection, Attorney shall consider Sections 1.05 (b). 1.06 (b) and (c), 1.09 (a), and 1.10 (a),(c) and (e) of the Ethical Rules, and Attorney shall consider that such outside clients will be former clients in future matters of his representation of the City. Due to the application of these Sections, Attorney agrees not to represent current elected officials, appointed officials and employees of the City without the written consent of the City and the compliance the applicable Ethical Rules. For the purposes of Section 1.10 of the Ethical Rules, Attorney shall be deemed to be a public officer during the term of this Contract. PROFESSIONAL SERVICES CONTRACT C:IW PDOCSILlSA'SIFI N I SH E 0 CONTRACT. DOC PAGE 3 OF 9 F. The representation of such outside clients shall not create: (i) an appearance that the Attorney's relationship with the City is a factor of any kind in such representation of, the fees charged to or the selection of Attorney by such outside client or (ii) any other appearance of impropriety. (See Section of the Ethical Rules.) A breach or violation of this Section 2.7 by Attorney shall be deemed conclusively as a material breach of this Contract. III. Compensation and Expenses 3.1 Retainer and Compensation. The City shall provide the Attorney with an annual retainer (the "Retainer") in the sum of Sixty-eight Thousand and No/100 DOLLARS ($68,000.00). The Retainer will be paid in monthly installments of $5,666.67 during the term of this Contract. Attorney agrees that the Retainer is full and adequate consideration for the performance by Attorney of all duties described above, other than the representation of City in litigation, court proceedings, arbitration proceedings, mediation proceedings and all other formal hearings adjudicating or determining any interest of the City before any State or Federal agency, board, commission or political subdivision (collectively referred to as "Litigation"). 3.2 Litigation Fees. With respect to Litigation in which the Attorney represents the City, the time the Attorney devotes exclusively to such Litigation, to the extent not included in the other duties of Attorney described above, will be billed to the City at the rate of $100.00 per hour, including time for court room appearances and actual trial and hearing matters. Statements reflecting billings for Litigation services will be in writing given monthly to the City for Litigation time rendered in the previous month, covering Litigation services rendered as well as disbursements of other charges and out of pocket expenses incurred by Attorney in connection with such Litigation. Such expenses, disbursements and charges may include long distance telephone charges, special postage, delivery charges, facsimile transmission charges, travel, photocopying, filing fees and the use of other service providers such as printers or experts, if needed, but only to the extent not paid for directly or otherwise provided directly or reimbursed by the City. Notwithstanding the above language regarding monthly billing statements, the Attorney, in his reasonable discretion, may elect to bill for his services at the end of any particular project; provided that he provides the City with estimates of the status of his billings for such project every month. 3.3 No Employment. Attorney is an .independent contractor of the City and is not, and shall not be, an employee of the City. 3.4 Benefits. Attorney shall not receive retirement, health and accident insurance or any other benefits as are provided by the City to any of its employees. The Attorney shall not be entitled to receive or be compensated in any way for vacation, holiday, sick leave or other benefits provided to employees of the City. No automobile or automobile expenses shall be provided or reimbursed to Attorney except as otherwise expressly provided for in this Contract for out of town travel. Attorney shall be responsible for paying all liability, property damage and comprehensive insurance and for the purchase or lease, operation, maintenance, repair and regular replacement of any automobiles utilized by Attorney in performing the responsibilities of Attorney under this Contract. PROFESSIONAL SERVICES CONTRACT CIWPDOCSILlSA'SIFINISHED CONTRACTDOC PAGE 4 OF 9 3.5 Vacation, Holiday, Sick Leave. The Attomey may take, at the Attorney's choice, subject to the City Council's approval, the same number of days of vacation authorized by policies adopted by the City Council for administrative employees at Attorney's length of engagement, the days to be in a single period or at different times. The vacation days taken by the Attorney will be taken at such time or times as, in the Attorney's reasonable discretion, will least interfere with the performance of the Attorney's duties as set forth in this Contract. The Attorney shall observe the same legal holidays as provided by City policies for administrative employees. The Attorney shall receive no compensation payment or other consideration for any vacation time taken or not taken by Attorney, and all consideration for such time is included in and shall be deemed a part of the compensation which Attorney is entitled to receive under Section 3.1 and 3.2 above. 3.6 Professional Development. City will pay for or reimburse Attorney for reasonable transportation, lodging and tuition expenses to attend required continuing legal education seminars in the State of Texas, and other seminars, courses or meetings approved in advance by the City. Unless otherwise approved in advance, the City will pay for or reimburse Attorney for only one out- of-town continuing education seminar during each calendar year. 3.7 Expenses. A. Leqal assistant. The City agrees to hire a paralegal or legal assistant, whose services will be provided exclusively to assist Attorney in the performance of his duties under this Agreement. The paralegal or legal assistant will be mutually acceptable to Attorney and City, but will be subject to the policies, procedures, rules, supervision and pay schedules and other employment procedures of the City which are applicable to all employees of the City. Unless otherwise agreed by the City, the job classification and salary schedule of the paralegal or legal assistant provided under this Section shall be the same as that currently in place for the paralegal currently employed by the City as of the effective date hereof pursuant to the Agreement. The Attorney may make arrangements with such paralegal or assistant to provide other services to Attorney outside the scope of the arrangement between Attorney and City under this Contract, including but not limited to supplementing the pay of such paralegal or legal assistant for extra work for clients of Attorney other than the City. B. Law Library. The City has previously budgeted and expended funds to acquire and maintain a small reference law library in the Attorney's office. All such law library materials heretofore or hereafter purchased or acquired with funds of the City shall remain with the City at the conclusion of this Contract. All law library materials heretofore or hereafter purchased or acquired with Attorney's funds which have not been reimbursed by the City shall remain with the Attorney at the conclusion of this Contract. Any City expenditures for additional books, services, or legal materials for the law library shall require the mutual consent of City and Attorney. C. Office. During the term of this Contract, the City shall furnish Attorney with an office with furnishings of comparable quality, quantity and size to those currently provided by the City to the Attorney under the Agreement. The City shall furnish the office with one private, unlisted phone line and a phone line with the standard City extension for the use by Attorney in performing his duties under this Agreement. The Attorney shall bear the cost and expense of all telephone charges and other PROFESSIONAL SERVICES CONTRACT c:\w PDOCSILlSA'SIFI N I SH ED CONTRACT. DOC PAGE 5 OF 9 expenses incurred by Attorney for matters not directly related to the performance of his duties for the City under this Contract. In the event such calls or expenses have been incurred by Attorney, Attorney shall, upon request of the City Manager, reimburse the City for any and all such non-City calls and expenses. D. Other expenses. The City shall pay to or reimburse the Attorney for reasonable, necessary, actual and customary expenses incurred for the exclusive benefit of the City by the Attorney in the continuing performance of Attorney's duties to the City under this Contract in accordance with reasonable policies adopted by the City Council. The prior consent of the City Council and/or City Manager shall be required when the aggregate amount of such reasonable, necessary, actual and customary expenses for any single expenditure, event, conference or activity is reasonably anticipated to exceed $1,500.00. The prior consent of the City for any expense shall be deemed granted to Attorney if such expense is included in any Budget adopted by the City. 3.8 Retirement Benefits. The City shall not provide or pay any TMRS or other retirement benefits for the Attorney. 3.9 Indemnification. ATTORNEY SHALL DEFEND, SAVE HARMLESS AND INDEMNIFY CITY AGAINST ANY CLAIMS, DEMANDS. ACTIONS, DAMAGES, COSTS, EXPENSES AND DAMAGES IN ANY CAUSE OF ACTION, SUIT IN EQUITY, OR ARBITRATION PROCEEDING, WHETHER ARISING UNDER STATUTE, CONSTITUTION, CONTRACT, TORT, PROFESSIONAL LIABILITY OR OTHER LEGAL CAUSE OF ACTION, WHETHER GROUNDLESS OR OTHERWISE, AND ARISING OUT OF THE ATTORNEY'S CURRENT OR PRIOR REPRESENTATION OF ANY OUTSIDE CLIENT NOT IN THE EXPRESS COURSE AND SCOPE OF THE REPRESENTATION OF THE CITY'S INTERESTS UNDER THE TERMS OF THIS CONTRACT. IV. Termination of Contract 4.1 Mutual Agreement. This Contract shall be terminated by the mutual agreement of the Attorney and the City Council in writing, upon such terms and conditions as may be mutually agreed upon. 4.2 Retirement or Death. This Contract shall be terminated upon the permanent Disability (defined below), retirement or death of the Attorney. 4.3 Dismissal for Good Cause. Subject to the satisfaction of applicable requirements of the City Charter~ the City Council may terminate this Agreement and dismiss the Attorney during the term of this Contract for good cause. The term "good cause" is defined as follows: (a) Failure to fulfill the material duties or responsibilities of the Attorney as set forth under the terms and conditions of this Contract; (b) Failure to make reasonable efforts to comply with lawful, reasonable written City Council directives; PROFESSIONAL SERVICES CONTRACT C:IWPDOCSILlSA'SIFINISHED CONTRACT DOC PAGE 6 OF 9 (c) Failure to comply with reasonable, lawfully permitted City policies; (d) Material neglect of duties; (e) Conviction of a felony or crime involving moral turpitude; (f) Disability, not otherwise protected by law, that materially and adversely impairs the Attorney's ability to perform the required duties of the Attorney; (g) Conscious misrepresentation of material facts to the City Councilor other City officials in the conduct of the City's business; and (h) Violation of any of the Ethical Rules. Notwithstanding anything to the contrary above, "cause" or "good cause" shall not be deemed to exist with respect to paragraphs 4.3(a) and (c), unless (and only if the same is curable) and until such failure has not been reasonably cured or remediated within fifteen (15) days after written notice thereof to Attorney; provided that such notice and cure provisions shall not apply when the Attorney has failed or refused to comply with express prior instructions of the City and/or where such matter is not reasonably curable; and further provided that Attorney shall be entitled to only one such notice with respect to the same failure. 4.4 Resignation. In the event Attorney voluntarily resigns his position with the City before the expiration of the term set forth in this Contract, the Attorney shall give the City fifteen days advance notice, unless the parties agree otherwise. 4.5 Disability. In the event: (i) the Attorney suffers an accident, illness, disease, mental or physical impairment or condition, or other disability that, in the reasonable determination of the City Council, materially impairs the Attorney's ability to perform the duties of the Attorney under this Contract (a "Disability"), and (ii) the City reasonably determines that the Disability is likely to continue for a period of more than thirty (30) days, the City, in its sole discretion, shall have the right to and may engage another attorney to perform the duties of Attorney during the pendency of such Disability. Unless and until this Contract is terminated in accordance with its express terms, the City shall continue to pay the retainer and provide other benefits to Attorney in accordance with the provisions of this Contract. In the event, the City reasonably determines, after consulting with the primary care giver of Attorney, that such Disability is likely to continue for a period of three (3) months or longer, the City shall have the right to terminate this Contract upon the delivery of written notice thereof to Attorney, except to the extent otherwise prohibited by law, whereupon this Contract shall terminate and all duties and obligations of the parties, one to the other, hereunder shall automatically terminate. 4.6 Limitations on Representation of Third Parties. A. Future Litigation Against City. In addition to any requirements of the Ethical Rules regarding Attorney's future representation of current and future clients, for a two (2) year period commencing on the termination of this Contract (whether by expiration of its term or earlier according to the provisions of this Contract), Attorney agrees not to and shall not represent, or assist any other lawyer in the representation PROFESSIONAL SERVICES CONTRACT C:IWPDOCSILlSA'SIFINISHED CONTRACT DOC PAGE 7 OF 9 of, any person or entity in any Litigation matter in which the City or any interest of the City is or is likely to be or become adverse. B. Litigation Against Adjoining Municipalities. In addition to any requirements of the Ethical Rules regarding Attorney's future representation of current and future clients, during the term of this Contract, Attorney agrees not to and shall not represent, or assist any other lawyer in the representation of, any outside client in any Litigation matter in which an adjoining municipality or any interest of an adjoining municipality is or is likely to be or become adverse. C. Adjoining Municipality. For the purposes of this Section 4.6 only, "adjoining municipality" shall mean and refer to any municipal corporation which has any portion of its boundary or limits adjoining or contiguous to any portion of the boundary or limits of the City. Article V. Miscellaneous 5.1 Controlling Law. This Contract shall be governed by the laws of the State of Texas and shall be performable in Tarrant County, Texas, unless otherwise provided by law. 5.2 Complete Agreement. This Contract embodies the entire agreement between the parties hereto and cannot be varied except by written agreement of the undersigned parties, except as expressly provided herein. 5.3 Conflicts. In the event of any conflict between the terms, conditions and provisions of this Contract and the provisions of the City's policies. or any permissive state or federal law, then, unless otherwise prohibited by law, the terms of this Contract shall take precedence over the contrary provisions of the City's policies or any such permissive law during the term of the Contract. 5.4 Savings Clause. In the event anyone or more of the provisions contained in this Contract shall, for any reason, be held to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other provision thereof, and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. All existing agreements and contracts, both verbal and written, between the parties hereto regarding the engagement of the Attorney have been superseded by this Contract, and this Contract constitutes the entire agreement between the parties unless amended pursuant to the terms of this Contract. 5.5 Prior Contract Superseded. This Contract becomes effective on January 10, 2000. At that time, the Agreement and all rights, duties, benefits and obligations thereunder or appurtenant thereto shall automatically be terminated and canceled without any further action by, consent of or notice to either party to this Contract and shall supersede and replace the Agreement. 5.6 Legal Effect. This Contract shall be binding upon and inure to the benefit of the legal representatives, heirs, successors and assigns of the respective parties hereto. PROFESSIONAL SERVICES CONTRACT C:\WPDOCS\LlSA'S\FINISHED CONTRACT DOC PAGE 8 OF 9 5.7 Notices. All notices permitted or required pursuant to the terms of this Contract shall be in writing and shall be deemed given three (3) days after the same is sent by certified mail to the addresses indicated herein of the parties hereto or to such other address or addresses as shall be designated in writing by the other party, or on receipt if hand delivered to the other party. EXECUTED this 8,}-. day of AJ.? (jY111j1{/L. ,1999. CITY: CITY OF NORTH RICHLAND HILLS By G1lA~' fy~~~,~ Name: Charles Scoma J Mayor Address: 7301 N. E. Loop 820 North Richland Hills, Texas 76180 ATTORNEY: --- REX Mc Address: 5613 Glenview Dr. Haltom City, Texas 76118 ATTEST: BY?' Name: <.ìfril' /:.. Title: City Secretary PROFESSIONAL SERVICES CONTRACT C:\WPDOCS\LlSA'S\FINISHED CONTRACTDOC PAGE 9 OF 9