HomeMy WebLinkAboutO-2000-2450
ORDINANCE NO. 2000-~~SD
AN ORDINANCE AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE
AND THE LAW FIRM OF JOHN M. O'QUINN AND ASSOCIATES, L.L.P.; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE
DATE HEREOF.
WHEREAS, the City of La Porte has heretofore been an unnamed
class member in the class action suit styled cities of Wharton,
Pasadena and Galveston vs. Houston Lighting & Power Company; and
WHEREAS, in the cities of Wharton, Pasadena and Galveston vs.
Houston Lighting & Power Company case it was determined by a jury
that Houston Lighting & Power Company had perpetrated fraud and
breached its franchise contract with the cities of Wharton,
Galveston and Pasadena; and
WHEREAS, the jury awarded over $34 million to these Texas
cities for such conduct and breach; and
WHEREAS, that class action has now been decertified without
resolution of the cities' claims; and
WHEREAS, the City Council, acting as good steward, desires to
protect the claims and interests possessed by the City; now
therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1.
That the City Council of the City of La Porte
hereby authorizes Benjamin L. Hall, III and the law firm of John M.
Q'Quinn and Associates, L.L.P. to prosecute any and all claims on
behalf of the City of La porte pursuant to the terms of the
agreement attached hereto as Exhibit "A".
The City Manager is
hereby authorized to execute such document and all related
documents on behalf of the City of La Porte. The City Secretary is
hereby authorized to attest to all such signatures and to affix the
seal of the city to all such documents.
Section 2. The City Council officially finds, determines,
recites, and declares that a sufficient written notice of the date,
hour, place and subject of this meeting of the City Council was
~ODO J.~ 50
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, Chapter 551, Texas Government
Code; and that this meeting has been open to the public as required
by law at all times during which this resolution 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.
section 3. This Ordinance shall be effective from and after
its passage and approval.
PASSED AND APPROVED this 13th day of November, 2000.
By:
~TE
N rman L. Mai~-
Mayor
ATTEST:
l{[f)i1;()&- /}. lu<<!
Mart a A. Gillett
City Secretary
AP~D:
V6/&'lri~
Knox W. Askins
City Attorney
2
ASKINS & ARMSTRONG. P. C.
ATTORNEYS AT LAW
702 W. FAIRMONT PARKWAY
P.O. BOX 121B
LA PORTE, TEXAS 77572-1218
KNOX W. ASKINS
..JOHN D. ARMSTRONG
TELEPHONE 281 471-1886
TELECOPIER 281 471-2047
CHARLES R. HUBER. ..JR.
BOARD CERTIFIED, CIVIL TRIAL LAW
TEXAS BOARD OF LEGAL SPECIALIZATION
CLARK T. ASKINS
January 15, 2001
Ms. Martha A. Gillett
City Secretary
city of La Porte
City Hall
La Porte, Texas
Re: HL&P Class Action Litigation
Dear Martha:
I enclose original signed copy of agreement between City of La
Porte and the law firm of John M. O'Quinn and Associates, L.L.P.
Please attach
this original copy to ~ance No. 2000-2450.
I ur~ve~ truly,
ox w~skins
City Attorney
City of La Porte
KWA:sw
Enclosure
EXHIBIT "A"
LETTER AGREEMENT RETAINING BENJAMIN L. HALL, III AND THE FIRM OF
JOHN M. O'QUINN & ASSOCIATES, L.L.P. TO REPRESENT CLIENT INTERESTS,
GRANT POWER OF ATTORNEY AND CONTINGENT FEE CONTRACT
SCOPE
The City of La Porte ("City") hereby n:tains and cmploys Bcnjamin L. Hall, III and Jolm M. O'Quinn & Associates,
L.L.P., ("Attorneys") to sue for and recover all fecs, damages, claims, and compensation to which the City may be entitled as
well as to compromise and settle all claims that the City may have against Houston Lighting & Power Company, Reliant
Energy, Inc., and all their subsidiaries, alTiliates, predeccssors, succcssors, and assigns, ("thc Companies"), that had or have
facilities, equipment, pipelines, uses, transmissions, franchises, or otht:r prt:sences upon, on, under, above, across, through, or
in the public rights of way or property of the City or which use such facilities within the City and for which a fee is due or
owing in law, contract or equity to the City. It is expressly agreed and understood that the Attorneys' representation is limited
to representation of the City relating to electrical power debts or obligations and not to any other matter, person, entity, or
enterprise not specifically named herein as a client. Further, the Attorncys' rcpresentation of the City is limited to the specific
matters described herein and the City does not expect nor will the Attorneys pursue any other matters not specilically covered
by this Agreement.
FEES
In consideration of the Attorneys' work on behalf of City, the City hereby assigns, grants, and conveys to the
Attorneys the following present undivided interest in all claims or causes of action that are covered by this Agreement as a
reasonable contingent fee for the Attorneys' services and said contingent fee will be figured on the total gross recovery of
settlement. The Attorneys will possess an interest of the greater of the total attorney's fees awarded by the Court and/or jury
or forty percent (40%) of any gross settlement or recovel)' amount. It is t:xpressly agreed between the parties that no money
shall be paid to the Attorneys until and unless a recovery of funds is made on behalf of City, and that all attorneys' fees will
come solely out of such recovery and no other City funds.
All monies and everything of value (expressed in present cash dollars) recovered, received, or obtained by the City
from any entity, person, individual, corporation, partnership, etc., or their successors, heirs or assignees covered by this
Agreement shall be calculated to detennine total recovery or settlemt:nt value. In the event that the Attorneys and the City
cannot agree on the value, expressed in present cash dollars, of any item or thing included in a total recovery or settlement, the
parties agree to obtain the services of a mutually agreed upon accounting linn to make an apprai,;:al of present cash value of
such item or thing which appraised value shall be assigned to such item or thing lor plll1Xlses of determining cash value of the
total recovery or settlement, or else this will be resolved by arbitration as mutually agreed upon by the parties.
In consideration of the Attorneys' services, the City hereby conveys and assigns to the Attorneys and agrees to pay
to the Attorneys an undivided interest in and to all of the City's claims and causes of action covered by this Agreement to the
extent of the percentages set forth above. If then: is any type of scttlcment reached by the Attorneys whereby the City is to
receive or be paid future payments, thcn the st:ttlement will be reduct:d to pn;scnt value and the st:ttlement will be arranged
whereby there will be sutlicient cash at the time of the settlement to P~IY the attorneys' fees which will be ligured on the present
value of the settlement in~luding.the present vulue of future payments. All Sluns due und to become due are payable at the
office of Jolm M. O'Quinn & Associates, L.L.P., in Harris County, Texas.
SETTLEMENT
TIle Attorneys shall be authorized to compromise and scttle all claims covered by this Agreement. The Attorneys
shall be solely responsible for negotiating the tenns of any settlements. Howcver, no settlement of any nature will be made
without City's approval and City agrees to make no settlcment or oller of settlement without the approval of the Attorneys.
The parties agree to approve reasonable settlements.
POWER OF ATTORNEY
The Attorneys are hereby granted power of allomey so that they may have full authority to prepare, sign, and tile
all legal instnunents, pleadings, drul1s, authorizations, and papers that shall be reasonably necessary to conclude this
representation, including settlement undlor reducing to possession any and all monies or other things of value due to the City.
The Attorneys are also authorized and empowered to act as the City's negotiators in any and all settlement negotiations
concerning the subject matter of this Agrcement.
NO GUARANTEES
It is understood and agreed that the Attorneys cannot warrant or guarantee outcome of any particular claim and the
Attorneys have not represented to the City that City will recover all or any funds. City realizes that Attorneys will be
investigating the law and facts applicable to its claims on a continuing basis and should the Attorncys learn something that
in the opinion ofthe Attorneys makes it impractical for attorneys to proceed with the handling of the City's claim, the Attorneys
may withdraw from further representation of City by sending written notice to City's last known address. Such notice shall
not be given in such a manner or at such a time as to prejudice the rights of the City.
EXPENSES
City additionally agrees that the Attorneys are to be repaid and reimbursed out of any recovery for all court costs and
expenses that the Attorneys have paid or incurred relating to City's claims. 'Ille City further agrees that attorneys may borrow
funds to pay expenses and that any reasonable interest due and owing on such amounts advanced by the Attorneys on behalf
of City's claim will be reimbursed out ofCity's recoverics. Thc attorncys' Ices will be ligurcd on a total recovery or settlement.
If the Attorneys do not obtain a settlement or recowry f()f the City, then the City will not pay any fees or expenses.
COOPERATION
The City agrees to cooperate with the Attorncys at all times and comply with all reasonable requests of the Attorneys
to facilitate this Agreement. The City further agrees to provide the Attorneys with all requested documentation, information,
records, and witnesses that will be needed to reasonably rcpresent the interests of the City.
ASSOCIATED COUNSEL
The Attorneys may, at their own expense, use or associate othcr attorneys in the representation of matters covered by
this Agreement. The City further understands that a number of attorneys may rcpresent the legal interests of the City on the
matters covered by this Agreement and that no conunitment is madc that any particular lawyer associated with the Attorneys
shall be personally undertaking representation of the City's claims. Attorneys may tcrnlinate this Agreement if in their
reasonable professional judgment such is ddellllined an acceptable course of action.
CONSTRUCTION
This Agreement shall be controlled and eonstmed by Texas law.
ARBITRATION
Any disagreements, disputes, controversies, or claims arising out of or relating to this Agreement shall be resolved
by binding arbitration pursuan,ttQ the Federal Arbitration Ad in accordance with the Commercial Arbitration Rules then in
effect with the American Arbitration Association.
This Agreement is binding upon and inures to the benclit of the parties herdo and their respective heirs, executors,
administrators, legal representatives, successors, and assigns.
SEVERABILITY
This Agreement shall be construed severally and ifany portion shall bc found to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality, or unentorceability shall not allcet any other provisions of this Agreement that are
not invalid, illegal, or unenforceable and the Agreement shall be construed ns though the invalid, illegal, or unenforceable
provision had never been contained herein.
COMPLETE ACREEMENT
This letter Agreement constitutes the salt: and only Agreement of the parties hereto and supersedes any other writings
or understandings or written or oral Agreement between the parties respective to the subject matter herein.
Signed and approved this
)3 ~y of !vb y:
,2000.
Benjamin L. Hall, III
The City of La Porte
By:GJ~ ,. \~~
Autht?rized City Otricer Title
Date: /1- /1-00
~ly J1J ~
I f/
AHEST:
Other authorized signatun:s of City oll"icials
~ tJjr/l~(]( JiuuI
Title: (I j r 'f S [- C jl. t. /7<< Y
/
Countersigned by:
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EXHIBIT "A"
LETTER AGREEMENT RETAINING BENJAMIN L. HALL, 111 AND THE FIRM OF
JOHN M. O'QUlNN & ASSOCIATES, L.L.P. TO REPRESENT CLIENT INTERESTS,
GRANT POWER OF ATTORNEY AND CONTINGENT FEE CONTRACT
SCOPE
The City of La Porte ("City") hereby retains and employs Benjamin L Hal!, m and Jolm M. O'Quinn & Associates,
L.L.P., ("Attorneys") to sue I(lr and recover ullIL'Cs, damages, claims, and compensation to which the City may be entitled as
well as to compmmise and scUll' all cluims that the City may have ag.ainst Houston Lighting & Power Company, Reliant
Energy, Inc., and all their subsidiaries, amliatcs, predecessors, Sllccessors, and assigns, ("the Companies"), that had or have
facilities, equipmcnt, pipelincs, uses, transmissions, lhmchises, or othl.'T presences upon, on, under, above, across, through, or
in the public rights of way or propl-"Tly of the City or which use sueh lilcilities within the City and lor which a lee is due or
owing in law, contract or equity to the City. It is expressly agreed and understood that the Attorneys' representation is limited
to representation of the City relating to electrical power debts or obligutions and not to any otlle;' maUer, person, entity, or
enterprise not specilically named herein as a client. Further, the Attomeys' representation of the City is limited to the spt":I,;ific
matters descrihed herein and the City docs not expect nor will the Allomeys pursue ,lilY other mallers not specilically covered
by this Agreement.
FEES
In consideration of the Attomeys' work on behalf of City, the City hl..'Tchy assigns, grants, and conveys to the
Attorneys the following pn..'Scnt undivided inll.'Test in all d~lims or causes of action that are covered by this Agreement as a
reasonable contingent tee for the Attorneys' services and said eonting.cnt fee will be ligured on the total gross recovery of
settlement. TIle Attorneys will possess an interest ofthc grcater ofthc total attomey's fees awardl.>d by the Court and/or jury
or forty percent (40%) of any gross selllement or rCCtlVcl)' amount. It is expressly agn-,cd bt.>twl..>en the parties that no money
shall be paid to the Attorneys until and unless II recovcl)' of funds is madc on behalf of City, and that all attorneys' fees will
come solely out of such recovery and no other City funds.
All monies and everything of value (expressed in prt'sent cash dollars) n..'Covercd, received, or obtained by the City
from any cntity, person, individual, corporation, p1ll1nership. etc., or their successors, heirs or assignees covered by this
Agreement shall be calculated to dell.:nnine total recovery or ~ctllelllent valuc. In the cvent that the Attorneys and the City
cannot agree on the value, exprcssed in present cash dollars, of any item or thing included in a total recovery or settlement, the
parties agree to obtllin the services of a mutually agrecd upon accounting linn to make an apprai"al of prt.."SCIlt cash value of
such item or thing which appraised value shall be ussignl..'(lto such item or lhing Il)r purposes of detennining cash value of the
total recovery or settlement, or else this will he resolved by arhitmtion us mutually agrCl.>d upon by the parties.
In consideration ofthe Attorneys' services, the City hereby conveys and assigns to the Attorneys and agrees to pay
to the Attomcys an undivitk.>d interest in and to all ofthe City's claims and causes ofaetion covered by this Agreement to the
ex1ent of the pt..'Tcentages set l(lrth above. If there is uny Iype ,)1' seltlcment reached by tJ1C Attorneys whereby the City is to
receive or be paid fuluTC payments, then the settlement will he reduced to prescnt value and tJle settlement will be arranged
whereby there will be sufticient cash at the time ofthc seUk'mcnllo pay the attorneys' tees which will be figured on the present
value of the settlement including the present value of future payments. All sums due and to become due are payable at the
oiliee of 101m M. O'Quinn & Assoeiutes, L.L.P., in II<lITis Cmmty, Texas.
SETTLEMENT
The Attorneys shall he authorized to compn)mise and settle all claims covered hy this Agreement. The AUorneys
shall be solely responsible tor negotiating the ternlS of uny selllemcnts. However, no scHlelnl.'!lt of any nature will be made
without City's approval and City agrees to make no settlement or oller of scttlement without the approval of the Attomcys.
The parties agn..'C to approve reasonable settlements.
POWER OF ATTORNEY
TIle Attorneys arc hereby granted power of aHorney so that they may have full authority to prepare, sign, and file
all legal i.l1stnllnents, pleadings, drans, authorization,,>, and papl:fS that shall be reasonably necessary to conclude this
representation, including settlement and/of reducing 10 pOSSCS:iiOll un)' ~lnd all monies or other things of value due to the City.
The Attorneys are also authorized and cmpowercd to act as the City's negotiators in any and all settlement negotiations
concerning the subject matter of this Agn,'ClllcnL
NO GUARANTEES
It is understood and agreed thaI the Attorncys cannnt wamlllt or guarantee outcome of.lIlY particular claim and the
Attorneys have not represcnted to the City thnt City will n..'Cover ull or any lunds. City realizes that Attorneys will be
investigating the raw and fucts applicable 10 ils claims on a continuing basis and should the Attorneys learn something that
in the opinion ofthe Attorneys mokt.'s it impmcticnl for attorneys 10 proceed with the handling onhc City's elaim, the Attorneys
may withdraw from lurthcr representation orCity by scnding writtcn notice to City's last known address. Such notice shall
not be given in such a manner or at such a timc as to prcjudi<.:c thc rights of the City.
EXPENSES
City additionally agrees that the Altol11cys arc to be repaid and reimbursed out of any recovery tor all court costs and
expenses that the Attorneys have paid or incurred relating to City's claims. 'Ihe City lurthcr agrees that attorneys may borrow
funds to pay expenses and that (my reasonable interest due and owing. on such U1110unts advanced by the Attorneys on behalf
of City's claim will be rcimbllTSl.-d out of City , s recoveries. 'Jh~ aUorncys' li..-cs will be fig.ured on a total recovClJ' or seulemt.'lJ1.
If the Attorneys do not obtain a settlement or recovcr) I()[ Ilw Cily, then the City will not pay (Ill)' fees or expenses.
COOPERATION
The City ugn.'CS to coopcmte with the Attomeys at all times and comply with all reasonable requests of the Attorneys
to facilitate this Agrt..'Cmcnt. 'IllC City lhrther agn.'Cs to prnvidc the Altome)'s with all rcquestt.'d documentation, information,
records, and witnesses that will be Ilcl.>ded to rcnsonably represent the inlerests of Ihe Cily.
ASSOCIATED COUNSEL
TIle Attorneys may, at their own eXf1L'11Se, use or associate othl.'f uUol1leys in the n.'prescntation ofmattcrn covered by
this Agreement. The City lurthcr undcrstunds that unumber ofatlomeys may rcprcscntthe legal interests of the City on the
matters covered by this Agreement and that no eonunilment is mnde thai un)' particular lawyer associated with the Attorneys
shall be personally undt..'t1aking representation of the City's claims. Atlomeys may tenninate this Agreement if in their
reasonable professional judgment such is dctennined an acceptable cOllrse of<lction.
CONSTRUCTION
This Agreement shall be controlled .md CC)JlstTlled by Texas law.
ARBITRATION
Any disagreements, dispules, controversies, or cluims urising. out of or rcl<lting to this Agrl.'cment shall be resolved
by binding arbitmtion pursuant to the Fcdcml Arbitration A.:I in <lccorJance with the Commercial Arbitration Rules then in
effect with the Aml.>fican Arbitration Ass()ci~lljoll.
111is Agreemcnt is binding upon and inures to the bcnclit of/he parties hereto and their respective heirs, executors,
administratl1rs, legal representatives, SllCCI..'ssors, and assigns.
SEVERABILlTY
This Agreement shall be construed scvl.'lully and if any portion shall be It1lllld to be invalid, illegal, or wlenlbrcenble
in any respect, such invalidity, illegality, or unenfi.)l'cC'<lbility shallllot an...'Ct any other provisions of this Agn.'Cment that are
not invalid, illegal, or unenforceable and the Agreement shall be eonstnled as though the inV'<llid, illegal, or unenforceable
provision had never been contained herein.
COMPLETE AGREEMENT
111is letter Agret..>mcnt constitutes the sole und only Agreement urthe parties hereto and sUpL'Tsedes any other writings
or Wldersmndings or written or om} Agreement between the parties rcspl..'Ctivc 10 Ihe subject malter herein.
Signed und approved this
day or
,:WOO.
Juhn M. O'Quinn & Associates, L.t.P.
Benjamin L Hall, 1I1
The City of l.a FOlic
13Y()?tJ}.v.X- T. \<\..J;?,Iv~
Authorized City Olliei:f Title
Date:
AlTEST:
Other autholizl..-d signatures orCity ol1icials
Title:
Countersigned by:
Tille:
APPROVED AS TO FORM:
City Auol1wy
g:\benhall\wharton\ltrauth