Loading...
Ordinance No. 9,209ORDINANCE NO. 9209 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A LETTER AGREEMENT RETAINING THE LAW FIRM OF FRITZ, BYRNE & HEAD, L.L.P. TO REPRESENT THE CITY IN THE PROCEEDINGS CONCERNING THE PENDING PERMIT APPLICATIONS OF TSP DEVELOPMENT LIMITED FOR AUTHORIZATION TO CONSTRUCT AND OPERATE A NON - HAZARDOUS SOLID WASTE LANDFILL TO BE LOCATED IN CHAMBERS COUNTY, TEXAS; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN THE AMOUNT OF ONE HUNDRED THOUSAND AND NO /100 DOLLARS ($100,000.00); MAKING OTHER PROVISIONS RELATED THERETO; 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 City Manager to execute a Letter Agreement retaining the law firm of Fritz, Byrne & Head, L.L.P. to represent the City in the proceedings concerning the pending permit applications of TSP Development Limited for authorization to construct and operate a non - hazardous solid waste landfill to be located in Chambers County, Texas. 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 Fritz, Byrne & Head, L.L.P., the amount of ONE HUNDRED THOUSAND AND N01100 DOLLARS ($100,000.00) for legal services and reimbursable expenses in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2, hereof may not be increased by more than twenty-five percent (25 %). Section 4: 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 23rd day of August, 2001. PETE C. ALFARO, Mayor ATTEST: iJ Y W SMI _h; City Clerk APPROVED AS TO FORM: G ACIO RAMIREZ, S ity Attorney c: \klh273 \Counci 1 \0rdinance\Renbarge Ordinance z htellime AGG- 16 -HdlI ]`HO 10.3 08/16/01 THUS 11:32 FAY 5124775267 FRITZ BYRNE & HEAD ® F RITZ, BYRN E & HEAD, L.L.R A r r o r w e y r A t L. a w 98 San Jacinto Blvd. • Suite 2000 • Austin, Texas 7870 1 -4286 512.476.2020 - Fax 512.477.5267 - www.`ohlaw.com PRIVILEGED AND CONFIDENTIAL ♦ ATTORNEY- CLIENT COMMUNICATION August 16, 2001 Mr. Ignacio Ramirez, Sr. City Attorney City of Baytown P.O. Box 424 Baytown, TX 77522-0424 Re: Representation Dear Mr. Ramirez: You have requested that we provide services to the City of Baytown, Texas regarding the matter(s) herein described, and you have informed us either that you have not retained the services of another attorney for such matters) or that your request has been made with the consent of such other attorney. This Letter Agreement is our customary method of confirming the terms upon which our services are provided. City of Baytown, Texas ( "Client ") has retained the law firm of Fritz, Byrne & Head, L.L.P. (the "Firm ") in accordance with the terms and conditions stated herein to provide legal services to Client regarding the following matter(s): Representation before the Texas Natural Resource Conservation Commission ("TNRCC -) in opposition to the pending permit applications) of TSP Development Ltd. for authorization to construct and operate a non - hazardous solid waste landfill (proposed Solid Waste Permit No. 39097, proposed Water Quality Permit No. 03959, and proposed Air Permit No. 34048) to be located in Chambers County, Texas. Scope of representation may include, but is not necessarily limited to, review, investigation and analysis of the TSP Development Ltd. permit applications, retention of experts and consultants, legal research, participation in TNRCC meetings, correspondence, client briefings, preparation of testimony, exhibits and presentation before the TNRCC and /or the State Office of Administrative Hearings and any other tasks related to such representation. This Letter Agreement replaces all prior agreements between the parties. W� 11LSi'fGA910PCA06MFNTdI..pd _.. __. IT A P. 002 002 CORPUS CHRISTI OFFICE • 500 N. Shoreline. Suite 800 • Corpus Christi. Texas 78471 • 361.883.1500 Fax 361.888.9149 Member of Commercial Law AffiliatesiRl A worldwide network of independent business and litigation law firms ? DaI'e; Tile aiG- 16- ?001(THUj :.003 08/16/01 THU 11:32 FAX 5124775267 FRITZ BYR \E VHEAD City of Baytown August 16, 2001 Page 2 The Firm does not require an initial deposit or retainer at this time. However, the Firm reserves the right to require a deposit or retainer in the future, if at any time the Firm, in its sole discretion, decides that the same may be necessary. Prior to this engagement, the Firm has represented Chambers County, Texas and Informed Citizens United in the matters more fully described in the "Retention of Firm" paragraph above. The Firm intends to continue the representation of Chambers County, Texas and Informed Citizens United in this matter and Client acknowledges and consents to such representation. Client further acknowledges that because of this joint representation there exists the potential and possibility that, should a disagreement arise with respect to the course, scope or strategies employed in this representation, Client and Chambers County, Texas and Informed Citizens United could develop a conflict of interest as between and among such parties. Client expressly waives this potential conflict of interest for purposes of this engagement. Client further agrees that should this engagement be discontinued or this Letter Agreement be terminated, Firm shall be permitted to continue the representation of Chambers County, Texas and Informed Citizens United in this matter. Client will compensate the Firm based on: (i) The Firm's standard hourly rates for its attorneys and legal assistants, as shown on Exhibit A hereto, for the specific services required and performed for Client; (ii) Such additional applicable factors, if any, as are provided in the Code of Professional Responsibility, with the consent of Client (e.g., special time limitations imposed by Client or the circumstances of the project, the apparent likelihood that the performance of the project will preclude other employment by the Firm, etc.). The Firm determines and sets it hourly rates annually at the beginning of each calender year and reserves the right to change its rates at such time. The Firm shall record time to the nearest one- tenth hour (0.1 hour) invested in providing services to Client, including travel time. Client will reimburse the Firm for out -of - pocket expenses reasonably incurred in the performance of services for Client at the Firm's actual cost or at the Firm's standard charge for such services (e.g., Ion-, W: �C7JP�' 1TS1D0t :b17ffi94�D1U.6r'r�S�VOAO6MPM-0I .aid iI �8�ei 1! me AH i U UJl � l [) 08/16/01 THU. 11:52 FAX 512477 267 City of Baytown August 16, 2001 Page 3 FRITZ BYRNE 8: HEAD distance telephone, delivery, copying, clerical overtime, travel, and other costs, fees, and expenses) . Based on the scope of services identified on page 1 of this Letter Agreement, the Firm has prepared an estimated budget for this engagement. Please refer to Exhibit B to this Letter Agreement for this estimate. The estimate does not represent either a maximum or a minimum billing for these services and is subject to change based on a variety of factors. As with all litigation matters, the individual case demands and opposing counsel may affect the overall costs of representation (i.e., level and scope of involvement desired by the Client, ability to share costs with other clients /ca- respondents in the administrative hearings, whether or not there are discovery disputes and/or significant motion practice, etc.). The budget assumes that Firm will utilize, as appropriate, the services of Mr. J.D. Head and Mr. Robert Renbarger as the principal attorneys in charge of this matter and will further utilize legal assistants and /or associate lawyers for appropriate tasks. The Firm will endeavor to share costs between and among those jointly - represented clients identified in this Letter Agreement to further attempt to contain litigation expenses. Periodically, but no more than once a month, the Firm will submit to Client an invoice for fees and expenses. Invoice amounts shall be paid within thirty (30) days after receipt of the invoice by the Client; thereafter, any unpaid balance will bear interest at the rate of one percent per month. With each invoice, the Firm customarily provides a delineation of services by specific attorney, by date and time, by project, and /or by type of service; e.g., review of Client documents, factual research, legal research, drafting, negotiation, presentation, etc. This Letter Agreement may be prospectively terminated at any time upon at least 30 days' advance written notice given by either patty. Client also agrees that the Firm shall be under no obligation to undertake or continue services on any matter if (i) the Firm deems such services to be in conflict with the interest of another client or with legal ethics, or (ii) Client fails to make any payment to the Firm when due provided that the Firm has given the Client notice of the default allowing the Client to cure the default within 30 days of Client's receipt of the letter. ® Under certain circumstances, it may be necessary to terminate the attorney - client relationship prior to the completion of the matter for which the Firm has been retained. In that regard, it is agreed that, subject to an agreement regarding the payment of fees and out -of- pocket expenses described above, the Firth will withdraw if discharged by Client. Such discharge shall w: �cr�xrs�x:, s�mm�oi�nr�lts�eYC�a�re�rtal.�r 004 Date, T. I M e GG-16- �001(THGj (0:33 08/16/01 THU 11:33 FAX 5124775267 City of Baytown August 16, 2001 Page 4 FRITZ BYRNE & HEAD be communicated in writing to the Firm. If permission for withdrawal from employment is required by the rules of the court, the Firm shall withdraw upon permission of that court. The Firm may withdraw from representation of Client in this matter at any time and for any reason, in its sole discretion, including any of the following reasons. (a) In the event Client insists on presenting a claim or defense that is not warranted under existing law and cannot be supported by a good -faith argument for an.. extension, modification, or reversal of existing law; (b) In the event Client seeks to pursue an illegal course of conduct; (c) In the event Client insists that the Firm pursue a course of conduct that is illegal or that is prohibited under the disciplinary rules set forth in the State Bar Act of the State of Texas; (d) In the event Client fails to perform any agreement or obligation to the Firm as set forth herein, including the failure to make any payment to the Firm when due; provided that the Firm has given the Client notice of the default allowing the Client to cure the default within 30 days of Client's receipt of the letter; or (e) In the event the Firm determines that it is unable to fully perform its obligations under this agreement or as otherwise required by law or ethical rules or standards. In the event of a withdrawal from employment, the firm shall notify Client by sending written notice of the Firm's intention to withdraw to Client at Client's last known address. Upon termination of the engagement and the satisfaction by Client of all prior financial obligations, the Firm will (i) search its files and forward to Client, or counsel designated by Client, copies of the original documents, if any, previously entrusted to the Firm by Client; (ii) take such steps as it deems appropriate to formally withdraw from such proceedings, if any, in which it may be counsel of record; and (iii) provide, at its standard hourly rate, reasonable transitional assistance to new counsel, if any, designated by Client. This Letter Agreement and all rights and obligations hereunder shall be assignable by the Firm to any entity which succeeds, in whole or in part, to the professional activities now conducted by the Firm upon the prior written consent of Client. w! cZ,lENT31 W61Z60 M1V.L NISI 0004 VT 4I.m,i P. 005 f� ws F Dat�i 1I AHU- to- ?00111K) 08/16/01 THU 11:03 FAX 5124775267 City of Baytown August 16, 2001 Page 5 10 I )1-,ii7?bi FRITZ BYRE \E & HEAD The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar's Office of General Counsel will provide you with information about how to file a complaint. Please call 1 -800- 932 -1900 toll -free for more information. At the conclusion of the Firm's representation, the Firm shall forward all material to the Client concerning the Firm's representation of the Client within one year. The Firm agrees that, during the period of engagement, it shall refrain from representing another client in any administrative or judicial action in which Client's interests may be materially and adversely affected. Client agrees that the Firm shall be otherwise free to represent all interests of other clients. Client agrees to allow the Firm to list Client as a reference and to disclose this representation and related account information in conjunction with the Firm's banking . arrangements. Client and the Firm agree that the place of performance of the obligations stated herein is Hams County, Texas, and that venue for any dispute between the parties concerning this engagement shall lie in Harris County, Texas. As with any legal document or agreement and because the Firm drafted this agreement and cannot render advice to Client regarding this agreement, Client has the right, and is hereby advised, to seek independent legal advice regarding the rights and obligations of the parties under ® this agreement. W; I%EffSIlS1ENGAG94NT -01.rpd ?.006 Q006 hL- Dale %Time BUG- 16- �001(THUj 10.34 �( 4i �?6� ?, 00'i 08/16/01 THli 11:33 FAX 5124775267 FRITZ BYRNE & HEAD Z007 n City of Baytown August 16, 2001 Page 6 Please sign this letter in the space provided below to signify Client's agreement to and acceptance of these terms, and return the original to me in the self- addressed envelope provided for this purpose. A copy of this letter is enclosed for your records. If you have any questions, please let me lalow. w- cueN7s+uaCP20MI\LErn MS�Or,AceMV4T.01.md FRITZ, BYRNE & HEAD, L.L.P. By;_ R lbµ- rk Robert Renbarger Partner CLIENT CITY OF BAYTOWN By: Name: Title: P - hte /flme ali G- lo= ?001(THOj 08/16/01 THti 11:33 FAX 5124775 9-67 FRITZ BYRNE & HEAD • FRITZ, BYRNE & HEAD, L.L.P. STANDARD HOURLY RATES ATTORNEYS BPP BRUCE PERKINS $210.00 CCW CLARK C. WATTS 225.00 CMH C. M. HENKEL III 195.00 CS CHARLOTTE SALTER 175.00 CWV CYNTHIA W. VEIDT 125.00 DHB DANIEL H. BYRNE 275.00 JDH J. D. HEAD 225.00 JKL J. KELLY LATZ 210.00 LC LINDA CAlNGELOSI 190.00 LCF LISA C. FANCHER 225.00 MLL MARC L. LIPPINCOTT 150.00 ROR ROBERT O. RENBARGER 225.00 TDF THOMAS D. FRITZ 225.00 I LAW CLERKS AND COMPUTER SERVICES i LAW CLERK $ 50.00 COMPUTER SERVICES $ 50.00 LEGAL ASSISTANTS AMS ANN M. SHAY S 55.00 BWJ BRENDA W.. JONES $ 80.00 EHK ELIZABETH H. KEMP.ER S 65.00 SB SHARON BLUE $ 55.00 SL SUE LARSON $ 55.00 w: tvxrrms%ENGAGmuxr -M.woa P, 008 fa 00.8 n Ll R Oate;'rIMe IRG-16-?00(�THUj 08/16/01 THU 11:34 FAX 5124775267 1. 2. l93 FRITZ BIRNE &.HEAD EXHIBIT B ..: • 0 V.6 � III (Includes coordination with City representatives, preparation of pleadings and direct witness testimony, coordination with City Attorney and attorneys representing City interests, appearance at August 29's preliminary hearing and August 30'h scheduling conference) (Due to Firm's involvement in case, we can provide periodic reporting to the City Attorney and/or City representatives as an alternative to full participation as a party. This alternative involves coordination with the City Attorney's office and frequent verbal or written reports of significant case developments throughout the contested case proceedings) $50,000 - $100,000 This scenario assumes that the City chooses to participate in the TNRCC hearings at a minimal level. Under this scenario, the City's legal representatives would evaluate the application(s), interview relevant TNRCC stag; brief the City Attorney, attend the preliminary hearing on the application(s), attend alternative dispute resolution (if required), participate in minimal discovery, participate in the. TNRCC hearings through cross - examination of witnesses, prepare closing arguments, and participate in the TNRCC Commissioner's meeting where the matter is considered for final decision. This scenario assumes that the costs associated with any experts hired on the City's behalf will be shared with jointly represented clients and that discovery is uncomplicated. This scenario does not contemplate motions for rehearing or appeals of the TNRCC's permitting decision. Scenario 2 (,Significant Participation) - $100,000 - $375,000 This scenario assumes that all of the above tasks are addressed but with considerably more involvement. Under this scenario the City's legal representatives would fully participate in discovery, depose TNRCC staff witnesses, depose applicant's witnesses, retain and prepare expert witnesses for key technical issues, prepare and develop legal positions for the TNRCC hearings, present the City's case at the hearings (in addition to cross- examination of the TNRCC's and the applicant's witnesses), brief all significant legal and technical issues, engage in motion practice (as appropriate), file motions for rehearing (as appropriate), and prosecute or defend the TNRCC's permitting decision in the courts as required. P. 009 Q) 009 1-1 �� Date /Time �uG-16-�- 001 %THDj 10;3 08/16/01 THL' 11:34 FAX 5124/75267 FRITZ BYRNE & HEAD •• ��� Lander this scenario the City's legal representatives would aggressively pursue opposition to the application(s) on all available fronts. This approach would involve not only the TNRCC as a venue but also the courts, other administrative agencies (state and federal) as well as legislative efforts designed to defeat the project. The City's legal representatives would contest everything in the application(s), engage a variety of experts to develop the City's case, hire lobbyists to assist in legislative activities and file lawsuits (as appropriate) to stop the project. The City would likely adopt ordinances in opposition to the project and attempt enforcement of same in the courts. This scenario would be the most expensive and would present higher risks for claims against the City. participation is contingent an resolution of IDA issues and the Stata Office of Administrative Hearings' Adminimativa Law Judi admitting the City as a party opponent in the pending contested case .proceedings. As reflected in the estimates, the Firm would provide services commensurate with the level of involvement desired by the City. W.,CLIWrs W00% anMI%MI?JtsMOACMAE rat.-qa P. Oil Z 01:0