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HomeMy WebLinkAboutO-1982-1329 . . . ORDINANCE NO. 1329 AN ORDINANCE EMPLOYING THE LAW FIRM OF SEARS AND BURNS TO REPRESENT THE CITY OF LA PORTE AS SPECIAL COUNSEL IN MATTERS RELATING TO THE SANITARY SEWER REHABILITATION CONTRACT, AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNSEL OF THE CITY OF LA PORTE: Section 1. The City Council of the Ci ty of La 'Porte hereby authorizes the employment of the law firm of Sears and Burns, Houston, Texas, to represent the City of La Porte as Special Counsel in all matters and disputes arising out of the Sanitary . Sewer Rehabilitation Contract. Section 2. The employment of Sears and Burns shall be according to the terms, conditions, and provisions of a letter from Will Sears, General Partner of Sears and Burns, dated June 1, 1982, which letter is attached to this Ordinance as Exhibit "A", incorporated by reference herein, and made a part hereof for all purposes. Section 3. The City Council of the City of La Porte hereby appropriates the sum of Thirteen Thousand Dollars ($13,000.00) from the General Fund Contengency Fund for the initial retainer fee and expense deposi t, as provided for in said agreement. ~ Section 4. The City Council officially finds, deter- ~ mines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Article 6252-l7, Texas Revised Civil Statutes Annotated, and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The ~ ~ City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. . . . Ordinance No. 1329 , page 2. PASSED AND APPROVED this the 16th day of June, 1982. CITY OF LA PORTE By . ATTEST: '. t4dluJkI "C S cretary . .... ~ ~..... APPROVED: ~ Ci~nf! - . , . . " . . , e \ . ..... WILL SEARS ROBERT L. BURN. CHARLES DIPPEL DAVID M. CLEASON MARTY D. PRICE J. MARK BRBtlDINC SEARS AND' BURNS ATTORNEYS'AT LAW SUITE 1111 TEN TEN LAMAR BUILDING HOUSTON, TEXAS 77002 TELEPHONE (713) 654-4454 .. June 1, 1982 Honorable Mayor and City Council of the City of La Porte c/o Mr. Knox W. Askins, City Attorney P. O. Box 1218 La Porte, Texas 77571 Re: City of La Porte; Sanitary' Sewer Rehabilitation Contract -- Pending Disputes With Tinker Industries, Inc. . Dear Knox: In response to your letter of May 7, 1982, received May 11, 1982, and our subsequent conversation respecting same, we submit the following proposal. 1. Scope of the Representation. We understand the facts to be that: (a) The Texas Department of Water Resourc~s acting for the United States Environmental Protection Agency, insisted that the captioned contract be let to the low bidder, Tinker Industries, Inc. (Tinker McKnight, President), although this corporation did not have bonding capacity. Jesse Loveless Construction Company intervened and sold bonding capacity to Tinker. The contract was actually issued to a joint venture composed of Tinker and JLC. . (b) Work actually began in January, 1981, and, without recounting all details, was considered by City's Engineers to be performed in substandard and unworkmanlike manner. After various attempts to inspect and bring the work up to par, the City was met by the contractor quitting the job about the 19th of August, 1981. All necessary notices to resume work, both to the contractor and to the engineer, have been issued without response, except offers to "negotiate". At your request, we met with you on September 18, 1981, to review the general situation. At that time, you advised this firm that EPA was insisting on a settlem ent, if possible, and it was necessary to try to comply with their wishes. About April 5, 1982, Mr. Robert L. Lipstet of Dunn, Stern, Lipstet, Singer and Hirsch, a Houston law firm, delivered a proposed Settlement Agreement in regard to the entire dispute. At your request, this firm reviewed this proposal and on April 13, 1982, gave certain verbal advice concerning it. Your letter of May 7, 1982, requests a formal contract proposal to defend the City in the pending district court action on a collateral matter arising out of this contract involving the factoring or attempted assignment of the March, 1981, accounts. The scope of the representation also includes defense of any anticipated future action by JLC and, finally, to represent the City on its action against the bonding company for any loss over the amount of the bond, which the City incurs in fulfilling the contract. You have advised that the City is now taking steps to re-bid the remaining work. In defining further the scope of this representation, we are enclosing a separate communication between attorneys for the same client which we request that you take up in executive session with the City Council. u~XIIIBlr /III . . . .f . . Honorable Mayor and City Council of the City of La Porte Page Two June 1, 1982 , e 2. Compensation for Services Rendered. This firm charges fees for legal services in accordance with the applicable factors set out and DR2-106, Rules of Disciplinary Conduct of the legal profession, a copy of which is attached. Factors (1), (4), and (7) will have chief weight in this case. Factor (2) is remote and Factor (3) is, generally, not ascertainable or inapplicable because few law firms engage in the practice of charging fixed amounts f or particular services. Factor (5) does not appear to have any weight at this time. We have represented the City on one prior occasion several years ago, but the City is not a constant client within the scope of Factor (6). This is not a contingent fee proposal and therefore Factor (8) is inapplicable. . . . Factor (1) involves the concept of chargeable time which has been defined by the State Bar of Texas as the amount of time which :would be spent in the performance of the legal service by a lawyer who possesses neither more nor less than reasonable competence. The time actually spent by the lawyer may be more or less than or the same as chargeable time, since the concept takes into account the degree of experience and special expertise which one lawyer may possess over another lawyer of average competence in a particular specialized field. The concept also involves billing the client proportionately less than the actual time involved if the firm does not specialize in a certain field. It is obvious that Factor (7) will be considered closely in connection with Factor (1). Charges at actual time rates for purposes of interim billing ranging from $180.00 per hour for partners ($200.00 after January 30, 1982), down to $65.00 per hour for newly licensed associates will be used. These rates will be adjusted depending on inflation, but the City will be given notice of any increase in the hourly rates if, as and when implemented. In the following paragraph, a fee retainer is discussed. When it is exhausted, billings will be issued for time expended at actual time rates only and chargeable time, if any, will be taken into account in any final billing. All fees and reimburseable cost and expenses payable to the firm are payable at the firm's offices in Houston, Harris County, Texas. 3. Retainer For, Services. A retainer of $12,500.00 cash payable to "Sears and Burns" for services already performed and to be performed under this Agreement should be paid to us if and when this proposal is accepted. This retainer will remain the property of the firm irrespective of the outcome of the representation. . 4. Costs and Expenses - Reimburs,ement. From time to time, the firm will incur court costs and legal expenses on the client's behalf associated with the case. The City agrees to pay the firm at its offices in Houston, Harris County, Texas, all such costs and legal expenses made on the City's behalf. To defray initial expenses, the sum of $500 payable to "Sears and Burns Trust Account" should be forwarded with the separate retainer. This Trust Account will be maintained in a separate bank account from the firm's account and used solely to defray the described costs and expenses. Whenever the balance of the cost deposit drops below $100, we will request the City to replenish the Trust Account by an additional amount to build it up again. An accounting of this Trust Account will be furnished from time to time, and will be furnished upon the City's request at any time. 5. Miscellaneous Matters. In many instances, we are able to furnish a "guesstimate" of the range in which a final fee may fall with the caution that the range is simply a guess and not a fixed estimate. Because of the numerous parties or potential parties to this dispute, it is not even feasible to furnish a guesstimate. It is obvious that a maximum or absolutely fixed fee cannot be set in advance of the representation unless the firm takes into account every possible difficulty -- possible, not just probable -- in quoting a figure. No lawyer can prophesy the course of any litigation and, particular, complex litigation. . . . . . -1 . . , Honorable Mayor and City Council of the City of La Porte Page Three June 1, 1982 However, a final fee will never be determined except upon consideration of all factors in their interlocking relationship. The same Disciplinary Rule requires that, after review of the facts, the final fee will be such that a lawyer of ordinary prudence will not be left with a definite and firm conviction that the fee is unreasonable. . This firm, as well as any other law firm, cannot and does not guarantee results. We only warrant and represent that we will apply our experience, learning and ability to the legal task at hand in accordance with the st.andard of competence of lawyers in the community. You are employing the firm of Sears and Burns, a general partnership of lawyers. Since no one member of the firm is committed to the handling of the representation, but the firm with all. of its members and associates is committed, we reserve the right to commit to the task at hand those members or associates we deem necessary for the accomplishment of the representation. SEARS AND BURNS By LifzM ~I::J Will Sears, General Partner AGREED AND ACCEPTED by Authority of the City Council of the City of La Porte, acting under the provisions of Section 3.05 of the Charter of such City, this day of , 1982: - Knox W. Askins, City Attorney, City of La Porte -I . , . ..... ... ,I , " . IlH 2-10G. Fees for I~g-nl Services. (A) ^ lawyer ~h;tll 1I0t cnter into an il~reemenl for, charge, or col- lect an illegnl or c1enrly excessive fee. (13) ^ fre is clearly excessive when, nflrl' n rcvjC'\\, of the facts, it bwyer of orclinnl'Y prudence would he Idt with a definite and firm conviction thnt the fee is in excess of it I'casonable fee. FnC'tors to be considered as guides in determining the reason- ahleness of a fee include the following: (1) The lime and labor requirrd, the novelt.y nnel elifficully of t hf' CJur.slinm; im'oh"C'd, and the skill requisite to perform the legal selvice prollcrly. . , "..., (2) The likelihood, if :tppnrp.1\1 to thC' ('!it'nt, th:ll the nccept- ;tncr. of the particular employment will preclude other elll- plO)1l1ent by the lawye.l'. (3) The fee customarily charged in the locality fOI' similar legal services. (4) The amount involved a nd the resulls obt.. ined. (5) The time limilations imposed by the client or by the dr- cumst;tnces. (6) The n:tture and length of the professional relationship with the clicnt. (7) The experience, reputation, and abiliLy of the lawyer 01" lawyers performing thc services. (8) Whelher the fee is fixed 01' contingent. , (e) ^ lawyer shall not cnler into an al"';tnf~eJ11I';11. for, cl1;tr~e, 01' rollert n conlingent fee for represenling a defendant in a crimi- nal case. . . () SEARS AND BURNS ATTORNEYS AT LAW SUITi! RH, 2 HOUSTON CENTER tIOUSTON, TEXAS 77001