Legal Services-6023-Award/Ordinance/Pricing25 JUL 2016 Pm2:3
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
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This AGREEMENT, made and entered into this the 7 day of. 2016 by and
between Messer, Rockefeller, & Fort, PLLC, 6351 Preston Road, Suite 350, Frisco, Texas
75034, hereinafter referred to as "Consultant", and the City of Denton, a Texas home -rule
municipal corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as
"City".
WITNESSETH
WHEREAS, City finds it necessary to employ outside legal counsel to perform
professional legal services regarding representation of City in Eminent Domain Proceedings
involved in acquisitions of US Highway 377 Widening Utility Relocations for the City, to be
pursued in the various Courts of Denton County, Texas; and
WHEREAS, Consultant is willing to perform such services in a professional manner as
an independent contractor; and
WHEREAS, City desires to engage Consultant to render the professional services in
connection therewith, and Consultant is willing to provide such services;
NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the
parties hereto do hereby mutually AGREE as follows:
1. SCOPE OF SERVICES
Consultant shall perform the following services in a professional manner working as an
independent contractor not under the direct supervision and control of City:
Services to be provided:
1. Consultant shall evaluate the relevant facts and circumstances and shall advise City, by
written opinion, with respect to its options and the legality of such options, regarding
researching and responding to requests for legal services.
2. Consultant shall also consult, as requested, with the City Manager, the City Attorney, and
any other designated City staff respecting any and all aspects of the services to be
performed under this Agreement.
3. Consultant shall perform all the professional services required in a timely fashion, and
shall complete same in compliance with schedules established by City through its City
Attorney, through discussions with Consultant, as appropriate to carry out the terms and
conditions of this Agreement.
4. Consultant shall, as directed by the City through its City Attorney, appear on behalf of
City and represent the City as hearing counsel in the aforementioned prospective civil
actions.
2. TERM
This Agreement shall be for a term of one (1) year from the Effective Date, being the date
this Agreement is executed by the City of Denton. This Agreement may be sooner terminated in
accordance with the provisions hereof. Time is of the essence of this Agreement, and Consultant
shall make all reasonable efforts to complete the services set forth herein as expeditiously as
possible during the term of this Agreement, and to meet the schedules established by City,
through its City Attorney, or as the progress of this matter may require.
3. COMPENSATION AND METHOD OF PAYMENT
A. Consultant shall charge the following fees for its professional services hereunder, based on
the following fees for its professional services hereunder, based on the following hourly
billing rates for the attorneys and support staff involved in this matter:
Attorneys $175/hour
Paralegals $75/hour
Time will be billed at one tenth (.1) hour minimum billing increments.
B. Consultant will try to reduce costs whenever feasible by utilizing qualified principals,
paralegals, and law clerks. Consultant shall bill City through the submission of itemized
invoices, statements, and other documentation, together with supporting data indicating the
progress of the work and the services performed on the basis of monthly statements showing
hourly rates indicating who performed the work, what type of work was done, and
descriptions and/or details of all services rendered, along with specific description and
supporting documentation, if available, respecting any reasonable and necessary out-of-
pocket expenses incurred.
C. Consultant estimates and City agrees that all charges for the legal services hereunder,
including reasonable out-of-pocket expenses, shall not exceed fifty thousand dollars
($50,000), and Consultant agrees to provide advance notification to City and seek a
modification of the Agreement should the total fees required to prosecute the matters at hand
require exceeding such amount. It is understood and agreed that the course of litigation is
difficult to predict and that modification(s) to exceed the total fee amount stipulated herein
may be required.
D. City shall either pay directly or reimburse Consultant, as the case may be, for reasonable and
necessary actual out-of-pocket expenses, including but not limited to, long-distance
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telephone, telecopier, reproduction, overnight courier, on-line research, and travel. All
copies will be charged at the rate of ten cents ($0.10) per copy for copies made within
Consultant's offices, with as much photocopying as possible being done by outside vendors
at bulk rates or by the city to reduce costs if bulk copying is necessary. The parties agree that
there will be no charges for outgoing telecopies or incoming telecopies. Whenever feasible,
City encourages cost savings by the use of computer files in Microsoft Word or Adobe
Acrobat formats, attached to e-mail transmissions.
E. The parties anticipate invoices or statements for services will be generated on a monthly
basis and that said invoices or statements will be sent on or about the 1St day of each month.
City shall make payment to Consultant within 30 days of the satisfactory completion of
services and receipt of an itemized invoice or statement. All reimbursable expenses,
including, but not necessarily limited to travel, lodging, and meals shall be paid at the actual
cost, pursuant to the terms, conditions, and limitations hereinabove set forth. All invoices
and bills shall be approved for payment by the City Attorney.
F. It is understood that Consultant shall work with the coordination and general supervision of
the City Attorney or the Deputy City Attorney.
G. All notices, billing statements and invoices shall be made in writing and may be given by
personal delivery or by mail. Notices and invoices sent by mail shall be addressed to: Larry
Collister, Deputy City Attorney, Legal Department, City of Denton, 215 McKinney St.
Denton, TX 76201. When so addressed, the notice, invoice, and/or payment shall be deemed
given upon deposit in the United States Mail, postage prepaid. In all other instances, notices,
invoices, and/or payments shall be deemed given at the time of actual delivery. Changes
may be made in the names and addresses of the responsible person or office to whom notices,
invoices, and/or payments are to be sent, provided reasonable written notice is given.
4. PROFESSIONAL COMPETENCY
A. Consultant agrees that in the performance of these professional services, Consultant shall be
responsible for the level of competency and shall use the same degree of skill and care
presently maintained by other practicing professionals performing the same or similar types
of work. For the purpose of this Agreement, the key persons who will be performing most of
the work hereunder shall be Andy Messer and Regina Edwards. However, nothing herein
shall limit Consultant from using other qualified and competent members of its firm to
perform the services required herein.
B. All legal opinions and other legal documents prepared or obtained under the terms of this
Agreement are instruments of service and City shall retain ownership and a property interest
therein. If this Agreement is terminated at any time for any reason prior to payment to
Consultant for work under this Agreement, all such documents prepared or obtained under
the terms of the Agreement shall upon termination be delivered to and become the property
of City upon request and without restriction on their use or further compensation to
Consultant.
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5. ESTABLISHMENT AND MAINTENANCE OF RECORDS
Full and accurate records shall be maintained by Consultant at its place of business with respect
to all matters covered by this Agreement. Such records shall be maintained for a period of at
least three years after receipt of final payment under this Agreement.
6. AUDITS AND INSPECTION
City shall have the right to audit and make copies of the books, records and computations
pertaining to this agreement. Consultant shall retain such books, records, documents and other
evidence pertaining to this agreement during the contract period and five years thereafter, except
if an audit is in progress or audit findings are yet unresolved, in which case records shall be kept
until all audit tasks are completed and resolved. These books, records, documents and other
evidence shall be available, within 10 business days of written request. Further, Consultant shall
also require all subconsultants, material suppliers, and other payees to retain all books, records,
documents and other evidence pertaining to this agreement, and to allow City similar access to
those documents. All books and records will be made available within a 50 mile radius of the
City of Denton. The cost of the audit will be borne by City unless the audit reveals an
overpayment of 1% or greater. If an overpayment of 1% or greater occurs, the reasonable cost of
the audit, including any travel costs, must be borne by Consultant which must be payable within
five business days of receipt of an invoice.
Failure to comply with the provisions of this section shall be a material breach of this
Contract and shall constitute, in City's sole discretion, grounds for termination thereof. Each of
the terms "books", "records", "documents" and "other evidence", as used above, shall be
construed to include drafts and electronic files, even if such drafts or electronic files are
subsequently used to generate or prepare a final printed document.
7. ACCOMPLISHMENT OF PROJECT
Consultant shall commence, carry on, and complete any and all projects with all
practicable dispatch, in a sound, economical and efficient manner, and, in accordance with the
provisions hereof and all applicable laws. In accomplishing the projects, Consultant shall take
such steps as are appropriate to ensure that the work involved is properly coordinated with
related work being carried on by City.
8. INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP
A. Consultant shall perform all services as an independent contractor not under the direct
supervision and control of City. Nothing herein shall be construed as creating a relationship
of employer and employee between the parties. City and Consultant agree to cooperate in the
defense of any claims, actions, suits, or proceedings of any kind brought by a third party
which may result from or directly or indirectly arise from any negligence and/or errors or
omissions on the part of Consultant, or from any breach of Consultant's obligations under this
Agreement. In the event any litigation or claim is brought under this Agreement in which
City is joined as a part, Consultant shall provide suitable counsel to defend City and
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B. All services required hereunder will be performed by Consultant or under its direct
supervision. All personnel engaged in work shall be qualified and shall be authorized or
permitted under state and local laws to perform such services.
16. ASSIGNABILITY
Consultant shall not assign any interest in this Agreement and shall not transfer any
interest in this Agreement (whether by assignment, novation, or otherwise) without the prior
written consent of City thereto.
17. SEVERABILITY
All agreements and covenants contained herein are severable, and in the event any of
them, with the exception of those contained in sections headed "Scope of Services",
"Independent Contractor Relationship," and "Compensation and Method of Payment" hereof,
shall be held to be invalid by any court of competent jurisdiction, this Agreement shall be
interpreted as though such invalid agreements or covenants were not contained herein.
18. RESPONSIBILITIES FOR CLAIMS AND LIABILITY
Approval by City shall not constitute nor be deemed a release of the responsibility and
liability of Consultant for the accuracy and competency of its work; nor shall such approval be
deemed to be an assumption of such responsibility of City for any defect in any report or other
documents prepared by Consultant, its employees, officers, agents and consultants.
19. MODIFICATION OF AGREEMENT
No waiver or modifcation of this Agreement or of any covenant, condition, or limitation
herein contained shall be valid unless in writing and duly executed by the party to be charged
therewith, and no evidence of any waiver or modification shall be offered or received in evidence
in any proceeding arising between the parties hereto out of or affecting this Agreement, or the
rights or obligations of the parties hereunder, unless such waiver or modification is in writing,
duly executed as aforesaid; and, the parties further agree that the provisions of this section will
not be waived as herein set forth.
20. CAPTIONS
The captions of this Agreement are for informational purposes only and shall not in any
way affect the substantive terms or conditions of this Agreement.
21. BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective heirs, executors, administrators, legal representatives, successors, and assigns
where permitted by this Agreement.
Contract For Professional Legal Services — Page 7
IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be
executed in dupticate originals by its duly authorized City Manager, and Consultant has executed
this ee ent through its duly authorized undersigned partner, dated this, the w IS day of
2016.
CITY OF DENTON
BY: * -
CITY MANAGER
DATE: "1 l —7 11 \,o
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY:
MESSER, ROCKEFELLER & FORT
BY: l'1 �rs/eN
ANDY MESSER
DATE: 6-2s-16
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