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HomeMy WebLinkAboutCity Council Resolutions (RESOLUTION R-16-4057)-11/01/2016RESOLUTION R-16-4057 A RESOLUTION APPROVING THE APPOINTMENT AND CONTRACT OF A CITY ATTORNEY WHEREAS, the City Charter for the City of Colleyville provides for a City Attorney to be appointed by the City Council; and WHEREAS, the City Council solicited Request for Proposals for legal services for the City of Colleyville; and WHEREAS, the City Council conducted interviews of selected law firms. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS: Sec. 1. THAT the following attorney and associates of the law firm are designated to serve as the City Attorney for the City of Colleyville: Nichols, Jackson, Dillard, Hager & Smith, L.L.P. Sec. 2. THAT the city manager is hereby authorized to execute the professional services agreement, attached as ��Exhibit A". AND IT IS SO RESOLVED. APPROVED BY A VOTE OF � AYES, b NAYS, AND o ABSTENTIONS ON THIS THE 15T DAY OF NOVEMBER 2016. Mayor Richard Newton _�e Place 1, Tammy Nakamura �,� Place 2, Bobby Lindamood �.— Place 4, Jody Short �j_.� AT'TEST: Am�helley,�f2MC City Secretary Mayor Pro Tem Chris Putnam Q�-�, � Place 5, Nancy Coplen AbStnk Place 6, Mike Taylor � CITY OF COLLEYVILLE C ���4---�. Richard Newton Mayor STATE OF TEXAS § PROFESSIONAL SERVICES AGREEMENT § FOR CITY ATTORNEY LEGAL SERVICES COUNTY OF TARRANT & This Professional Services Agreement �or City Attorney Legal Services ("Agreement") is made by and between the City of Colleyville, Texas ("City") and Nichols, Jackson, Dillard, Hager & Smith, L.L.P. ("Nichols Jackson"), (each a"Party" and collectively the "Parties"), acting by and through their authorized representatives. RECITALS: WIIEREAS, the City issued a Request for Proposals for general legal services on July 1, 2016 ("RFP"); and WHEREAS, Nichols Jackson submitted a proposal in response to City's RFP on August 11, 2016; and WHEREAS, City the directed Nichols Jackson to submit this Professional Services Agreement to serve as general legal counsel for City October 18, 2016; and WH�REAS, Nichols Jackson desires to provide professional general legal and City Attorney services to City in accordance with the terms of this Agreement. NOW, THEREFORE, in consideration ofthe mutual covenants and terms and conditions herein contained, and of the execution hereof, the Parties agree and bind themselves to the obligations and performance of the tasks as follows: Article I Purpose The purpose of this Agreement is for City to obtain professional outside legal counsel to advise and assist City in the course and scope of its performance of duties, or provision of Services, as described in Article III of this Agreement. Article II Term This Agreement sha11 commence on the last day of execution hereof (the "Effective Date"). This Agreement shall continue without term unless and until terminated as provided pursuant to Article VI of this Agreement. Article III Scope of Services 3.1 Nichols Jackson shall serve as the City Attomey and legal advisor for the City and sha11 provide all required legal services in accordance with Section 8.04 of the City Charter, as the same may be amended ("Services"). The Services provided by Nichols Jackson shall include: Pag¢ 1 PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON� (a) Being the legal advisor of, and attorney and counsel for, the City and all officers and departments thereof, and attend all meetings as deemed necessary by the City CounciL (b) Reviewing and/or drafting, and approving as to form, all documents, contracts, agreements, deeds, easements, resolutions, ordinances, and legal instruments in which the City may have an interest as may be required by the CiTy Manager or Council. (c) Performing such other duties that are prescribed in the City's Charter, or by ordinance or resolution of the City Council. (d) Representing the City in any and all litigation and legal proceedings provided, however, that the Council may retain special counsel at any time it deems appropriate and necessary. Municipal Court prosecutor services are not included in the scope of Services but may be provided for herein at the City's request upon written amendment of this Agreement. (e) Coordinating with other special counsel, as needed, to assure proper management of legal issues, and proper coordinaUon and transition of legal issues among special counsel. ( fl Providing a variety of opinions and representation to the City Council, City Manager and City staff. (g) Assisting City officials and employees to maintain awareness of ethical standards and appearance of fairness standards, and to avoid potential conflicts of interest, prohibited transacfions and the appeazance of prohibited transactions. (h) Assisting City officials and employees to understand the legal roles and duties of their respective offices and interrelationships with others. (i) Attending regular and special-called meetings of the City Council, and board and commission meetings as requested. (j) Knowledge of and training for the City Council and City staff relative to the Texas Public Information Act and Texas Open Meeting Act. (k) Become familiar with the City's Code of Ordinances, applicable State and Federal laws, Local Government Code, applicable statutes and policies (e.g., as the City's Personnel Policies and Procedures Manual, code enforcement process). (1) Assisting with resolution of contract disputes. (m) Staying abreast and informing the City of new or proposed State and Federal legislation affecting the City. Page 2 PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON) (n) Researching alternative approaches to resolving legal problems (i.e. Alternative Dispute Resolution). (o) Reviewing and making recommendations on a variety of projects and proposals which have legal ramifications. (p) Maintaining an appropriate relationship with professional organizations in the field of municipal legal services. (q) Assisting the City Secretazy in staying current on State and Federal Election Laws and administration of elections for the City. (r) Knowledge of and training for the City Planning and Zoning Commission and Zoning Board of Adjustment relative to land use laws and abilities of City to implement and administer such laws in conformance with State requirements and the City's desire to improve such land use planning. (s) Knowledge of laws and experience with managing extraterritorial jurisdiction (`BTJ") and annexations. (t) Knowledge of laws and methods to facilitate effective code enforcement, including demolition procedures and property maintenance code provision. (u) Knowledge of laws and experience in regazd to economic development projects and laws. 3.2 Professional Comnetencv. Nichols Jackson agrees that in the performance of these Services, Nichols Jackson shall be responsible for the level of competency, and shall use the same degree of skill and the care presently maintained by other practicing professionals performing the same or similar types of work. 3.3 Renorts. Nichols Jackson acknowledges that documents generated in the course of representation of a governmental body may be subject to the Texas Public Information Act. Nichols Jackson will exercise professional judgment and care not to generate documents which are subject to public information requests that are intended to be confidential or confidential attorney-client communications. This is particularly important in the presentation of invoices where incidental notation may tend to reveal litigation strategies or confidential information. This subsection shall not be interpreted to limit Nichols Jackson's duty to provide full disclosure to City as necessary in Nichols Jackson's judgment to represent City with due professional care as required by applicable law or disciplinary rules. Article IV Schedule of Work Nichols Jackson will begin providing Services set forth herein immediately upon the City's request. The Parties may develop one ar more schedules for work to be performed by Nichols Jackson on an as needed basis. Time is of the essence under this Agreement. Accordingly, Nichols PagO 3 � PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON) Jackson shall make all reasonable efforts to complete the Services set forth herein as expeditiously as possible during the term of the Agreement. Article V Compensation 5.1 Compensation far Time. Except as otherwise provided in Section 5.2, City sha11 compensate Nichols Jackson for all services performed pursuant to this Agreement at an hourly rate of one hundred and eighty-five dollars ($185.00) per hour, applicable to all Nichols Jackson attorneys. The foregoing hourly rate shall be billed in quarter hour (0.25) increments. City will not be billed more than one hour of travel time for an attorney's round trip to and from the City. 5.2 Flat Rate for Certain Meetines. City shall compensate Nichols Jackson for each regular monthly City Council, Planning and Zoning Commission and Zoning Board of Adjustment meeting attended by Nichols Jackson as follows: Meeting Tvpe City Council P&Z Commission Zoning Board of Adjustment Flat Rate/Meetin¢ $850.00 $500.00 $500.00 # of Meetines/Month 2 The Parties understand and agree that the foregoing flat rates apply only to the stated number of regulaz meetings as that term is defined in the City Charter. The Parties agree there may be one or more additional special meetings held each month at the City's sole discretion during the Term of this Agreement. City will be billed on an hourly basis for all special meetings attended in the manner provided in Section 5.1. 53 Reimbursement of Exroenses. City will reimburse Nichols Jackson for reasonable expenses incurred in the performance of this Agreement in accordance with the following schedule: Ex e�nse Type In-house printing and copying Facsimiles Mileage Court and filing fees Litigation related expenses Travelrelated expenses Reimbursement Rate $0.25 per page $0.25 per page Current IRS rate Actual cost Actual cost Actual cost All other expenses incurred by Nichols Jackson in the performance of this Agreement will be invoiced at actual cost. No mark-up will be allowed on reimbursable contracts, expenses or subcontract expenses. Nichols Jackson will provide copies of original receipts as evidence of actual expenditures upon request. Travel related expenses, including airfare, car rental and lodging will be subject to prior approval by the City and will be reimbursed in the amount of the actual expense unless otherwise agreed by the Parties. Peg¢ 4 I PROFESSIONAL SERVICES AGREEMENT FOR CTTY ATTORNGY SERVICES (NICHOLS JACKSON� 5.4 Invoice for Services. Invoices for Services performed and expenses incurred under this Agreement will be submitted to the City on a monthly basis in the form of a single statement of Services. The City may request that individual departments and/or legal matters be invoiced separately at any time during the Term of this Agreement. Invoices will be submitted to City on a monthly basis, generally within ten (10) business days following the last day of each month. All invoices far legal Services provided will contain: (1) a detailed description of the Services performed, (2) an accounting of the time charged for each service, (3) an accounting of a11 reimbursable expenses, and (4) a total amount owed. 5.5 Prompt Pavment. Upon Nichols Jackson's submission of an acceptable invoice required to be submitted under this article, City shall issue payment in accordance with Chapter 2251 of the Texas Government Code. It is the policy of City to make payment on a properly prepared and submitted invoice within thirty (30) days of the latter of any final acceptance of performance or the receipt of a properly submitted invoice. Article VI Termination 61 Termination far Convenience. Either Party may ternunate this Agreement, in whole or in part, at any time by providing thirty (30) days written notice to the other Party when it is in the Pariy's best interest. Nichols Jackson shall be compensated for all Services performed and expenses incurred in the manner provided in Article V up to the time of termination. Nichols Jackson shall promptly submit its final invoice to City following the time of termination. If Nichols Jackson has any properiy or documents in its possession belonging to City, Nichols Jackson will account for and dispose of the same in the manner requested by the City. All legal opinions and other legal documents prepared or obtained under the terms of this Agreement are instruments of service and City sha11 retain ownership and a property interest therein. Upon termination, originals and/or copies of all client documents prepared or obtained under the terms of this Agreement shall be delivered to and become the property of City and without restricfion on their use or further compensation to Nichols Jackson. 6.2 Ternrination for Default Breach or Cause]. If Nichols Jackson fails to perform in the manner called for in this Agreement, or if Nichols Jackson fails to comply with any other provisions of this Agreement, City may terminate this Agreement for default. Termination shall be given by serving a notice of termination on Nichols Jackson setting forth the manner in which Nichols Jackson is in default and stating the date of termination. Upon notice of default, Nichols Jackson shall be compensated only for Services perforxned in accordance with this Agreement through the daYe of termination. 63 Waiver of Remedies for Anv Breach. In the event that City elects to waive its remedies for any breach or default by Nichols Jackson of any covenant, term or condition of this Agreement, such waiver by City shall not limit City's remedies for any succeeding breach or default of this Agreement. Page 5 I PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNCY SERVICES (NICHOLS JACKSON) Article VII Miscellaneous 7.1 Independent Contractor. It is understood and agreed by and between the Parties that in satisfying the conditions of this Agreement, Nichols Jackson is acting independently, and that City assumes no responsibility or liabilities to any third pariy in connection with these actions. All Services to be performed by Nichols Jackson pursuant to this Agreement shall be in the capacity of an independent contractor, and not as an agent or employee of City. Nichols Jackson sha11 supervise the performance of its Services and shall be entitled to control the manner and means by which its Services are to be performed, subject to the terms of this Agreement. As such, City shall not: (1) train Nichols Jackson or its employees; (2) require Nichols Jackson to complete regular oral or written reports; (3) require Nichols Jackson to devote its full-time services to City; or (4) dictate Nichols Jackson's sequence and/or location of work which Nichols Jackson performs. 7.2 Nichols Jackson Personnel. Nichols Jackson will be solely and entirely responsible for its acts and the acts of its agents, employees, subcontractors, and representatives in the performance of this Agreement. (a) Nichols Jackson agrees and aclaiowledges that during the existence of this Agreement, Nichols Jackson shall be entirely responsible for the liability and payment far Nichols Jackson or Nichols Jackson's employees or assistants, of all taxes of whatever kind, arising out of the performances in this Agreement. Other than the payments described in this Agreement, Nichols Jackson agrees and acknowledges that Nichols Jackson or Nichols Jackson's employees ar assistants shall not be entitled to any state benefit on account of the Services provided hereunder. CITY SHAi,L NOT BE LIABLE TO THE OUTSIDE COiJNSEL, ITS EMPLOYEES, AGENTS, OR OTHERS FOR THE PAYiV1ENT OF TAXES OR THE PROVISION OF UNEMPLOYMENT INSUItANCE AND/OR WORKERS' COMPENSATION, OR ANY BENEFIT DUE TO A STATE EMPLOYEE. If City shall nonetheless become liable for the payment of tases, unemployment insurance premiuxns, or workers' compensation benefits owed by Nichols Jackson or any of its members, shareholders, or employees as a result of performance by Nichois Jackson of its obligations under this Agreement, Nichols Jackson shall promptly pay or reimburse City for such liability. (b) Nichols Jackson agrees that any person employed or engaged by Nichols Jackson and who assists in perfornung the Services agreed to herein shall not be considered employees or agents of City. Nichols Jackson shall be responsible for any payments and other claims due such persons for work performed under this Agreement. Further, Nichols Jackson agrees to comply with all state and federal laws applicable to any such persons, including laws regazding wages, t�es, insurance, and workers' compensation. City shall not be liable to Nichols Jackson, its employees, agents, or others for the provision ofunemployment insurance and/or workers' compensation. P8g¢ 6 � PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON� 7.3 Assignment of Aereement. Nichols Jackson may not assign this Agreement, or assign or delegate any right or duty under this Agreement, without prior written approval from City. 7.4 Records Retention. Full and accurate records shall be maintained by Nichols Jackson at its place of business with respect to all matters covered by this Agreement. Unless otherwise directed by City, Nichols Jackson shall retain a11 records relating to the provision of Services herein for a period of four (4) years following the termination of this Agreement. Upon the request of City, Nichols Jackson shall allow representatives or designees of City to review, examine and make excerpts or transcripts from such records, and/or audit said records at all reasonable times. Upon the request of City, after the expiration of the records retention period, Nichols Jackson shall return all files and records to City. Nichols Jackson may destroy all records in whatever media that are not returned at the expiration of the record retention period. 7.5 Survival. The obligations of Nichols Jackson under Section 7.2 shall survive this Agreement. 7.6 CopvrighUIntellectual Propertv. Nichols Jackson shalltake reasonable measures to protect City from material risks of City's liability known to Nichols Jackson for copyright or patent infringement or disclosure of trade secrets resulting from the use of any equipment, materials, information, or ideas furnished by Nichols Jackson pursuant to this Agreement, other than equipment, materials, information, or ideas specified by City or its employees ar other agents. Nichols Jackson and City agree to fixrnish timely written notice to each other of any claim of copyright, patent, trade secret, or other intellectual property infringement arising out of Services under this Agreement. 7.7 Media Releases or Pronouncements. Nichols Jackson understands that City does not endorse any vendor, commodity, or service. Nichols Jackson, its employees, representatives, other agents or subcontractors may not issue any media release, advertisement, publication, or public pronouncement which pertains to this Agreement ar the Services or project to which this Agreement relates ar which mentions City without the prior written approval of City. 7.8 Written Notice Deliverv. Any notice required or permitted to be given under this Agreement by one Party to the other Party shall be in writing and shall be given and deemed to have been given immediately if delivered in person to the recipient's address set forth in this section, or on the date shown on the certificate of receipt if placed in the United States mail, postage prepaid, by registered or certified mail with return receipt requested, addressed to the receiving Party at the address hereinafter specified: (a) The address for the Nichols Jackson for all purposes under this Agreement and for all notices hereunder shall be: Whitt L. Wyatt Nichols, Jackson, Dillard, Hager & Smith, L.L.P. 500 N. Akard, Suite 1800 Dallas, Texas 75201 Peg¢ 7 � PROFESSIONAL SERVICES AGREEMENT FOR CTl'Y ATTORNCY SERVICES (NICHOLS JACKSON� (b) The address for City for all purposes under this Agreement and for all notices hereunder shall be: Jennifer Fadden, City Manager City of Colleyville 100 Main Street Colleyville, Texas 76034 7.9 Conflict of Interest. Nichols Jackson covenants that both itself, its principals and its subcontractors presently have no interest and sha11 not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of Services required to be performed under this Agreement. Prior to entering into this Agreement, Nichols Jackson is required to inform City of any real or apparent organizational conflict of interest. Such arganizational conflict of interest exists when the nature of the wark to be performed under a contract may, without some restriction on future activities, results in an unfair competitive advantage to Nichols Jackson, or may impact Nichols Jackson's objectivity in perforxning the contract work. If any such conflict of interest shall arise during the Agreement Term, Nichols Jackson sha11 immediately and fully disclose the nature and extent of the conflict to City and resolve the conflict to City's satisfaction. 7.10 Taxes. This Agreement shall not be construed so as to supersede the laws of the United States or the State of Texas which accord City, and a11 departments, agencies, and instrumentalities of the State of Texas exemptions from the payment(s) of all taxes of whatever kind. More specifically, City shall not directly or indirectly be liable for taxes of any kind. To the extent allowed by law, City will provide, upon the request of Nichols Jackson, all applicable taY exemption certificates. 7.11 Signatories. Having agreed to the terms herein, the undersigned signatories hereby represent and warrant that they have authority to enter into this Agreement. 712 Applicable Law and Venue. The laws of the State of Texas shall govern this Agreement; and venue for any action concerning this Agreement shall be in the State District Court of Tarrant County, Texas. The Parties agree to submit to the personal and subject matter jurisdicrion of said court. 7.13 Amendments. This Agreement may be amended only upon written Agreement signed by the Parties. 7.14 Severability/Interpretation. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability sha11 not affect any other provisions, and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it. 7.15 Comnliance with Laws. Nichols Jackson sha11 fully comply with a11 Federal, State, and Local laws, rules, regulations, and ordinances applicable to the services covered hereunder as they may now read or may hereafter be amended, including, the Texas Disciplinazy Rules of Professional Conduct. Page 8 PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON) EXECUTED this �t � day of �0\(CYY1� , 2016. CITY OF COLLEYVILLE, TEXAS C011eyvill@ City COUnCiI NOV 0 �. 2016 By: ' Approved e er Fad len, City Manager + F— I_ EXECUTED this b 5 day of ��p�/'Pi{� I��� , 2016. NICHOLS, JACKSON, DILLARD, �1 � Page 9 PROFESSIONAL SERVICES AGREEMENT FOR CITY ATTORNEY SERVICES (NICHOLS JACKSON)