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6293 - Atmos Franchise Ageement Legal Services, Awarded ContractCONTRACT FOR PROFESSIONAL LEGAL SERVICES FILE #6293 STATE OF TEXAS § COUNTY OF DENTON § This AGREEMENT, made and entered into this the date ____________________, by and between Herrera and Boyle, PLLC, 816 Congress Avenue, Suite 1250, Austin, Texas 78701, hereinafter referred to as “Consultant”, and the City of Denton, a Texas 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 the Atmos Franchise Renewal project; 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. DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D 1/10/2017 Contract For Professional Legal Services – Page 2 2. TERM This Agreement shall be for a term of 12 months, beginning effective ______________, 2017 and ending on _____________, 2018. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence, 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 hourly billing rates for the attorneys and support staff involved in this matter: Alfred Herrera $375/hour Brennan Foley $295/hour Paralegal $125/hour Legal Clerk $ 75/hour Attorney 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, associates, 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 $14,500.00 and Consultant agrees to notify City and seek a modification of the Agreement should the total fees exceed such amount. 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 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. DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D January 9 January 10 Contract For Professional Legal Services – Page 3 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 da ys of the satisfactory completion of services and receipt of an itemized invoice or statement. All reimbursable expenses, including, but not necessarily limited to travel and lodging shall be paid at the actual cost, pursuant to the terms, conditions, and limitations hereinabove set forth. Consultant’s firm will not charge City for meals. 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: Tony Puente, Assistant Director of Finance, 215 East McKinney, Denton, Texas 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. H. Consultant is generally authorized to engage the services of qualified local counsel, service vendors, consulting experts, and testifying experts, as reasonably necessary to accomplish the services herein, reduce costs, or increase efficiency. Consultant shall obtain City’s prior written approval before engaging local counsel, licensed investigators, consulting experts, or testifying experts. Consultant may select and engage service providers such as court reporters, videographers, document reproduction services, and the like at Consultant’s professional discretion without specific approval. All such services shall be paid by Consultant, and invoiced back to City as a line item in Consultant’s next monthly invoice, to be reimbursed by City at actual cost. Unless otherwise stated, such expenses shall be a component of the budget set forth in paragraph 3.C. of this Agreement. 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 Jim Boyle. 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 DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D Contract For Professional Legal Services – Page 4 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. 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 Agreement 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 Agreement 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 DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D Contract For Professional Legal Services – Page 5 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 party, Consultant shall provide suitable counsel to defend City and Consultant against such claim; provided however, that City shall have the right to proceed with competent counsel of its own choosing. Consultant agrees to defend, indemnify and hold harmless City and all of its officers, attorneys, agents, servants, and employees against any and all such claims to the extent not otherwise covered by Consultant's professional liability policy. Consultant agrees to pay all expenses, including but not limited to attorney fees, and satisfy all judgments that arise under such third party claims, but are not otherwise satisfied by Consultant's professional liability insurance policy. Nothing herein constitutes a waiver of any rights or remedies City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to City resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. B. Consultant shall maintain and shall be caused to be in force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carrier approved to do business in the State of Texas by the State Insurance Commission, which carrier must be rated by Best Rated Carriers, with a rating of "A -" or higher. Such coverage shall cover any claim hereunder occasioned by Consultant's negligent professional act and/or error or omission, in an amount not less than $500,000 combined single limit coverage occurrence. In the event of change or cancellation of the policy by the insurer, Consultant hereby covenants to immediately advise City thereof; and in such event, Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same coverage to City. Consultant shall provide a copy of such policy and the declarations page of the existing policy to City throu gh its City Attorney, simultaneously with the execution of this Agreement. 9. TERMINATION OF AGREEMENT A. In connection with the work outlined in this Agreement, it is agreed and fully understood by Consultant that City may cancel or indefinitely suspend further work hereunder or terminate this Agreement at any time upon written notice to Consultant, Consultant shall cease all work and labor being performed under this Agreement. Consultant may terminate this Agreement by giving City 30 days written notice that Consultant is no longer in a position to continue representing City. Consultant shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement. All reports and other documents, or data, or work related to the project shall become the property of City upon termination of this Agreement. B. This Agreement may be terminated in whole or in part, in writing, by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. Provided, however, that no such termination may be effected, unless the other party is given [1] written notice (delivered by certified mail, return DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D Contract For Professional Legal Services – Page 6 receipt requested) of intent to terminate, and not less than 30 calendar days to cure the failure; and [2] an opportunity for consultation with the terminating party prior to termination. C. Nothing contained herein or elsewhere in this Agreement shall require City to pay for any work which is unsatisfactory or which is not submitted in compliance with the terms of this Agreement. 10. ALTERNATE DISPUTE RESOLUTION Consultant agrees that, if necessary, it will use its best efforts to resolve any disputes regarding the Agreement through the use of mediation or other forms of alternate dispute resolution set forth in Chapter 154 of the Texas Civil Practice and Remedies Code. 11. ENTIRE AGREEMENT This Agreement represents the entire agreement and understanding between the parties, and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written Agreement. Any supplement or amendment to this Agreement to be effective shall be in writing and signed by City and Consultant. 12. COMPLIANCE WITH LAWS Consultant shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended, including but not limited to the Texas Disciplinary Rules of Professional Conduct. 13. GOVERNING LAW For the purpose of determining place of agreement and law governing same, this Agreement is entered into in the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas. Venue and jurisdiction of any suit or cause of action arising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County. 14. DISCRIMINATION PROHIBITED In performing the services required hereunder, Consultant shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 15. PERSONNEL A. Consultant represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement. Such personnel shall not be employees or have any contractual relations with City. Consultant shall inform City of any DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D Contract For Professional Legal Services – Page 7 conflict of interest or potential conflict of interest that may arise during the term of this Agreement, in accordance with Consultant’s responsibilities under the Texas Disciplinary Rules of Professional Conduct. 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 modification 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. DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D Contract For Professional Legal Services – Page 8 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. IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed by its duly authorized City Manager, and Consultant has executed this Agreement through its duly authorized undersigned partner, dated this, the ______ day of _______________, 2017. CITY OF DENTON BY: ________________________________ PURCHASING AGENT HERRERA & BOYLE, PLLC BY: _____________________________ ALFRED R. HERRERA, PARTNER DocuSign Envelope ID: 356078BC-B0FC-4C63-A4F5-F6A610EB339D January 10th Certificate Of Completion Envelope Id: 356078BCB0FC4C63A4F5F6A610EB339D Status: Completed Subject: Please DocuSign: Engagement-Denton-Atmos Franchise-6293-Prof Legal Svcs-Atmos Franchise Source Envelope: Document Pages: 8 Signatures: 2 Envelope Originator: Supplemental Document Pages: 0 Initials: 0 Cindy Alonzo Certificate Pages: 5 AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) Payments: 0 Cynthia.Alonzo@cityofdenton.com IP Address: 129.120.6.150 Record Tracking Status: Original 1/4/2017 12:15:44 PM Holder: Cindy Alonzo Cynthia.Alonzo@cityofdenton.com Location: DocuSign Signer Events Signature Timestamp Alfred Herrera aherrera@herreraboylelaw.com Security Level: Email, Account Authentication (Optional) Using IP Address: 70.195.212.229 Sent: 1/4/2017 12:29:31 PM Viewed: 1/18/2017 6:51:21 AM Signed: 1/18/2017 6:51:45 AM Electronic Record and Signature Disclosure: Accepted: 1/18/2017 6:51:21 AM ID: 66e05ebf-6a57-4fc6-be1b-df4c91cdfd74 Cindy Alonzo cynthia.alonzo@cityofdenton.com Buyer City of Denton Security Level: Email, Account Authentication (Optional) Using IP Address: 129.120.6.150 Sent: 1/4/2017 12:29:31 PM Viewed: 1/10/2017 9:02:26 AM Signed: 1/10/2017 9:03:36 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Tony Puente Antonio.Puente@cityofdenton.com Security Level: Email, Account Authentication (Optional) Sent: 1/4/2017 12:29:31 PM Viewed: 1/4/2017 12:30:23 PM Electronic Record and Signature Disclosure: Not Offered via DocuSign ID: Notary Events Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 1/4/2017 12:29:31 PM Certified Delivered Security Checked 1/18/2017 6:51:22 AM Signing Complete Security Checked 1/18/2017 6:51:45 AM Completed Security Checked 1/18/2017 6:51:45 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure ELECTRONIC RECORD AND SIGNATURE DISCLOSURE From time to time, City of Denton (we, us or Company) may be required by law to provide to you certain written notices or disclosures. 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