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Ordinance No. 7,199950112 -2 ORDINANCE NO. 7199 • AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO EXECUTE AND THE CITY CLERK TO ATTEST TO AN AGREEMENT WITH JOHN M. O'QUINN, P.C., FOR THE COLLECTION OF AMOUNTS OWED TO THE CITY PURSUANT TO FRANCHISE AGREEMENTS; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN A CONTINGENCY FEE BASED UPON THE AMOUNT OF RECOVERY; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the Mayor and City Clerk of the City of Baytown to execute and attest to an agreement with John M. O'Quinn, P.C., for the collection of amounts owed to the City pursuant to franchise agreements. A copy of said agreement is attached hereto, marked Exhibit "A, " and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to John M. O'Quinn, P.C., a contingency fee based upon the amount of recovery, pursuant to the Agreement. Section 3: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 12th day of January, 1995. PETE C. AlgFARO, Mayor ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: 4n V, Q /�.?a - � ;MqfACIO RAMIREZ, S , City Attorney • legal/ council ljanuaryl1- 12- 95audiAGREEo'quinn • January 10, 1995 Mayor Pete C. Alfaro City of Baytown P.O. Box 424 Baytown, TX 77522 Re: Anticipated Claims and Litigation Relating to Collection of Amounts Owed Under Franchise Arrangements and for Franchisable Events Gentlemen and Ladies: This Letter Agreement ( "this Agreement ") will evidence the terms of the engagement of John M. O'Quinn, P.C. ( "the Firm ") by the City of Baytown for the purpose of the Firm representing the City, and all attendant boards, agencies, commissions and related bodies ( "the City"), during the term of this Agreement. The Firm's representation of the City will be regarding all claims which the City may have to collect amounts owed to the City pursuant to any franchise arrangement between the City and any other person or entity, and to collect any amounts owed the City for events or occurrences for which a franchise or fee should have been obtained and for which the City is entitled to monies, but as to which no franchise has been sought by the person or entity owing or potentially owing the monies to the City ( "Franchisable Event "). The Firm proposes to do all things necessary to represent the City in the above- referenced matters in exchange for the contingency fees set forth in Article 1I, below. I. DEFINITIONS As used in this Agreement, the following words and phrases are defined to mean: City: means and refers to the City of Baytown, Texas, and all attendant boards, agencies, commissions and related bodies. City Attorney: means the City Attorney of the City of Baytown, Texas, and /or his or her designee. Facility: means, and refers to any and all uses and /or Facilities, including but not limited to pipes, pipelines, conduits, structures of any type, electrical lines, telecommunications apparatus, uses, rights, cables, tunnels, passages and /or EXHIBIT A • n U • vaults owned, maintained and/or operated in, along, over, upon, under or through a City Right -of -Way and/or real estate owned, operated or controlled by the City. • Firm: means and refers to John M. O'Quinn, P.C., d/b /a O'Quinn, Kerensky, McAninch & Laminack and said attorneys associated by Firm to represent the City's interest under this Agreement. Litigation: means and refers to any legal action commenced in a Court or administrative body of appropriate jurisdiction as may be recQmmended by the Firm and specifically authorized by the appropriate City official charged with administering this contract for pursuit of any person or entity believed to owe monies to the City pursuant to a franchise arrangement or Franchisable Event in connection with the ownership, operation, use and /or maintenance of a Facility in a City Right -of -Way or on real estate owned by or subject to the City such that franchise monies may be due and owing to the City. Net Recovery: means the Recovery or value of Recovery, whichever is greatest, (including but not limited to the principal amount of the City's claim, together with interest and attorney's fees), actually paid by any franchisee or other person or entity found to have engaged in a Franchisable Event within the City, on a case -by -case basis, after deducting all reasonable and previously approved costs and expenses incurred. Recovery: means those sums of money or value actually recovered and received or promised to be received by the City as a result of any claim, action or litigation covered by this Agreement, including recovery of attorney's fees, interest and penalties. It is expressly agreed and understood that to the extent the City settles with or releases a person or entity from any pre - existing liability due to a Franchisable Event in consideration either partial or total, of renewing, terminating, assigning, transferring or granting a permit, franchise or other agreement, then the present value of the fees paid to the City as consideration for such permit, franchise, termination, assignment, transfer or other agreement shall be considered a portion of the Recovery under this Agreement, in addition to any amounts paid or obligated to be paid to the City. It is further agreed that should a person or entity be allowed to pay its pre - existing liability in the form of increased fees for future permits, franchises or other agreements, the identifiable increased portion of such fees shall be considered a portion of the Recovery under this Agreement if such increase is a direct result of the actions taken by the Firm. The parties agree to work in good faith to determine Recovery. 0 r� 0 Right-of-Way: means, refers to and includes any and all public rights, properties, streets, roads, highways, and alleys over which the City has ownership, control or jurisdiction. IL FIRM'S FEE The Firm shall receive, as its sole fee compensation for services to be rendered under this Agreement, a percentage of any Net Recovery, as follows: As to any Recovery under this Agreement from any person or entity without the institution of litigation, the Firm shall receive, as its sole fee compensation, a sum equal to thirty -three (33 %) of the Net Recovery. 2. If it is necessary to institute Litigation, after having first obtained approval from the City official administering this contract, the Firm shall receive, as it sole fee compensation, as to each settlement or recovery pursuant to this Agreement, a sum equal to forty percent (40 %) of the Net Recovery. 3. The Firm will be paid separately, with regard to each Recovery, the fee compensation and the reimbursement of expenses and costs. It is further expressly agreed that the Firm's fee is contingent upon actual receipt of Recoveries and that the City shall never be required to pay any fee to the Firm nor to reimburse the Firm for any cost or expense except in strict accordance with the terms of this Agreement. Nothing contained herein shall be construed so as to obligate the City to pay Firm any monies received if such monies are not collected as a direct result of the Firm's work, unless the Firm's work on similar projects causes a climate favorable to promoting payments to the City for Franchisable Events. The parties agree to work in good faith to determine the Firm's work. The City agrees to reasonably settle all matters covered by this Agreement. III. TERM AND EXCLUSIVITY OF AGREEMENT This Agreement shall be for an initial term of three (3) years, with two options for a term of one year each for extension of this Agreement, such option being exercisable only with the written approval of the City official charged with administering this contract. During the term of this Agreement, including any extensions, the City understands that the firm may invest considerable time to pursue the City's rights covered by this Agreement and, thus, the City agrees that the Firm shall have the exclusive right to represent the City in the matters, and that the City will not hire any other attorney, law firm or other person or entity to pursue such • matters on behalf of the City during the term hereof; provided, however, that as to any claim as to 3 • which the Firm withdraws its representation pursuant to Section V below, the City shall have the right to hire counsel to pursue such claims. IV. COST AND EXPENSES The City agrees to allocate and pay up to a maximum of $40,000 for the purpose of covering litigation costs, such as deposition costs, copy costs, travel and expert witness fees, for the initial claim pursued pursuant to the terms of this Agreement. Individual expenses in'an amount greater than $10,000 will be paid by the City only if prior written approval is et !'aired for such cost or fee. The Firm will bear all other costs and expense involved in pursuing the initial claim, subject to reimbursement of such expenses from and in the event of a Recovery on such claim. City Attorney must grant prior approval of all reimbursable expenses pursuant to this section in order for the City to be obligated for the same. All costs and expenses incurred in the pursuit of the matters covered by this Agreement which have been paid by the City shall be reimbursed to the City from any Recovery received, on a case -by -case basis. All reimbursable costs and expenses that have received the prior approval of the City Attorney and have been incurred in the pursuit of the matters covered by this Agreement which have been paid by the Firm shall be reimbursed to the Firm from any Recovery received on a case -by -case basis. As to cases other than the initial claim pursued under this Agreement, Firm shall have the right to retain trust from Recoveries sufficient amounts, as mutually agreed between the Firm and appropriate City official, but not less than $40,000 per case, to cover approved expenses associated with other City claims pending at that time. Similar retention amounts from future Recoveries may be made and held in trust, in an amount agreed upon between the Firm and the administering City official, but not less than $40,000 per case, and for the purpose of covering approved expenses on additional claims that are being pursued and for which no monies are held in trust to cover expenses. The City agrees that approval of expenses will not be unreasonably withheld. V. TERMINATION This Agreement may be terminated for an uncured default at any time by giving written notice to the Firm of the event of default and affording the Firm thirty (30) days in which to cure any such default. If the default involves less than all the matters covered by this Agreement, then the termination shall be as to the matters as to which there is a default rather than to the entire Agreement. Subject to the provisions of Article V of this Agreement, if this Agreement is terminated by the City for an uncured default, the Firm shall forfeit any fee interest that it may have in the terminated claim, but not in other claims or litigation matters covered by this Agreement. 4 • The Firm may terminate this Agreement, or may terminate its representation of the City in a particular claim or case by giving the City thirty (30) days written notice of its intent to cease its representation of the City and specifying the claim or claims as to which the Firm will no longer represent the City. As to any claim or claims on which the Firm terminates its representation of the City, the Firm forfeits all interest in such claims and shall not be entitled to any fee from any recovery the City may ultimately receive on such claims. The Firm shall never terminate this Agreement or its representation of the City on any matter covered by this Agreement at a time or in a manner that would prejudice the City's legal rights. VI. CONFLICTS The Firm will not, during the course of this Agreement, represent against the City or its interests (1) any person or entity it is then suing or pursuing on behalf of the City; or (2) represent anyone adverse to the City in any matter connected or related to the matters covered by this Agreement. The City agrees that the Firm is not precluded by this Agreement from representing the legal interests of other Firm clients in other matters against the City, as long as such other matters are not connected or related to the matters covered by this Agreement. If it appears to the City that the Firm or any subcontracting law firm is in breach of the provisions of this Article, the City shall provide written notice to the Firm of the apparent breach. The Firm shall have thirty (30) days from the date of receipt of such notice to cure the breach. VII. INDEPENDENT CONTRACTOR The relationship of the Firm to the City shall be that of an independent contractor. VIII. SCOPE OF SERVICES . The Firm is being employed as litigation specialists to pursue all of the City's claims for monies, fees, compensation and /or damages due the City relating to the prior and/or present ownership, operation, maintenance and /or use of a Facility of Facilities in a City Right -of -Way .and /or on City property (hereinafter referred to as "Facility Use "), or other use of City property, rights or easements for which the City is entitled to compensation as a Franchisable Event or fee arrangement. IX. DUTIES OF THE CITY The City's duties under this Agreement arc: • 1. To pay the Firm the percentage fee, if any, earned by the Firm on any matter covered by this Agreement; 5 2. To reimburse the Firm for any cost or expense incurred in accordance with the terms of this Agreement; 3. To cooperate with the Firm and to comply with all reasonable requests of the Firm for information or documents needed to pursue the matters covered by this Agreement; 4. To audit financial records that are needed to facilitate this Agreement; 5. Pass appropriate laws, rules or regulations as determind by the City to facilitate appropriate collections under this Agreement; 6. To make an office or room available when Firm representatives are present to investigate City records; and 7. To cooperate with Firms investigation of City records and to make all relevant documents available to the Firm. The City Attorney shall have the right, but not the duty, to participate as co- counsel in any claim or Litigation covered by this Agreement. X. MISCELLANEOUS PROVISIONS This Agreement shall not bestow any rights upon any third party, but rather, shall bind and benefit the Firm and the City only. This Agreement contains all the agreements of the parties relating to the subject matter hereof and is the full and final expression of the agreement between the parties. Firm agrees to and shall indemnify, hold harmless, and defend the City, its officers agents and employees, from and against any and all claims, losses, damages, causes of action, suits and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees, for any and all damages arising out of or in connection with the services performed by the Firm pursuant to .this Agreement, where such damages are caused in whole or in part by the negligence of the firm. It is the expressed intention of the parties hereto, both the Firm and the City, that the indemnity provided for in this paragraph is indemnity by the Firm to indemnify and protect the City from the consequences of the Finn's own negligence, whether that negligence is the sole or a concurring cause of the resulting damage(s). All notices required to be given hereunder shall be given in writing either by telecopier, overnight, or facsimile transmission, certified or registered mail at the respective addresses of the parties set forth herein or at such other address as may be designated in writing by either party. 6 0 A • Notice given by mail shall be deemed given three (3) days after the date of mailing thereof to the following addresses: FIRM John M. O'Quinn, P.C., d/b /a O'Quinn, Kerensky & McAninch Attn: Benjamin L. Hall, III 440 Louisiana, Suite 2300 Houston, Texas 77002 -'5- - -- CITY City of Baytown Attn: City Attorney P.O. Box 424 Baytown, TX 77522 Firm shall not sell, assign, or transfer any of its rights or obligations under this Agreement in whole or in part without prior written consent of the administering City official, nor shall Firm assign any monies due or to become due to it hereunder without the previous consent of the administering City official. Failure of either party hereto to insist on the strict performance of any of the agreements herein or to exercise any rights or remedies accruing thereunder upon default or failure of performance shall not be considered a waiver of the right to insist on and to enforce by an appropriate remedy, strict compliance with any other obligation hereunder to exercise any right or remedy occurring as a result of any future default or failure of performance. This Agreement shall in all respects be interpreted and construed in accordance with and governed by the laws of the State of Texas and the City, regardless of the place of its execution or performance. The place of making and the place of performance for all purposes shall be Baytown, Harris County, Texas. It is expressly agreed that the laws of the City should not be construed to abridge the Firm's rights under this Agreement. All parties agree that should any provision of this Agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. Very truly' yours, John M. O'Qu' , P.C. / John M. O'Quinn or Benjamin L. Hall, 111 7 9 • • THE CITY OF BAYTOWN, TEXAS Pete C. Alfaro, Mayor Date ATTEST: Eileen P. Hall, City Clerk APPROVED AS TO FORM: Ignacio Ramirez, Sr., City Attorney b:klh5 /oquinn •