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HomeMy WebLinkAbout1999-410NOTE First Amendment - Ordinance No 2000-119 Second Amendment - Ordinance No 2000-194 ORDINANCE NO ' — VjjQ AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH WOLFE, CLARK, HENDERSON & TIDWELL TO PROVIDE LEGAL SERVICES WITH REGARD TO LITIGATION STYLED MUNICIPAL ADMINISTRATIVE SERVICES, INC V CITY OF DENTON, CAUSE NO 99- 50263-367, FILED IN THE 367TH DISTRICT COURT OF DENTON COUNTY, TEXAS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1. That the City Manager is hereby authorized to enter into a Contract for Professional Legal Services with Wolfe, Clark, Henderson & Tidwell, substantially in the form of the attached Contract, which is made a part of this ordinance for all purposes, to provide legal services to the City SECTION 2 That the City Manager is hereby authorized to make the expenditures as outlined in the attached Agreement SECTION 3. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the �� day of h1Q11eMber 1999 JAC LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY IN 'VA • • • ' .• .• •' CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON ,74 This AGREEMENT, made and entered into this the day of "t1A7% prime , 1999, by and between Wolfe, Clark, Henderson & Tidwell, 123 North Crockett, Suite 100, Sherman, Texas 75090, 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, the City finds it necessary to employ outside legal counsel to perform professional legal services regarding litigation styled Municipal Administrative Services, Inc v City of Denton, Cause No 99-50263-367, filed in the 3671h District Court of Denton County, and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor, and WHEREAS, the City desires to engage the Consultant to render the professional services in connection therewith, and the 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 The Consultant shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City Services to be provided A The Consultant shall evaluate the relevant facts and circumstances and shall advise the City, by written opinion, with respect to its options and the legality of such options, regarding researching and responding to requests for legal services B 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 C The Consultant shall perform all the professional services required in a timely fashion, and shall complete same in compliance with schedules established by the City through its City Attorney, through discussions with the Consultant, as appropriate to carry out the terms and conditions of this Agreement 2 TERM This Agreement shall be for a term of twenty (20) months, beginning effective October 20, 1999 and ending on April 20, 2001 This Agreement may be sooner terminated in accordance with the provisions hereof Tune is of the essence of this Agreement, and the 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 the City, through its City Attorney, or as the progress of this matter may require 3 COMPENSATION AND METHOD OF PAYMENT A The 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 $125/hour Legal Assistants $50/hour Attorney time will be billed at one -tenth ( 1) hour minimum billing increments B The Consultant will try to reduce costs whenever feasible by utilizing qualified principals, associates, paralegals, and law clerks The Consultant shall bill the 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 the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed fifty thousand dollars ($50,000), and Consultant agrees to notify the City and seek a modification of the agreement should the total fees exceed such amount D The City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long- distance telephone, telecopier, reproduction, overnight courier, on-line research, and travel All copies will be charged at the rate of ten cents ($ 10) per copy for copies and faxes 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 Contract For Professional Legal Services — Page 2 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 20`h day of each month The City shall make payment to the 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 the Consultant shall work with the coordination and general supervision of the City Attorney or the Litigation 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 Herbert L Prouty, City Attorney, 215 E 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 4 PROFESSIONAL COMPETENCY A The 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 Ronald H Clark 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 the City shall retain ownership and a property interest therein If this Agreement is terminated at any time for any reason prior to payment to the 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 the City upon request and without restriction on their use or further compensation to the Consultant 5 ESTABLISHMENT AND MAINTENANCE OF RECORDS Full and accurate records shall be maintained by the 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 Contract For Professional Legal Services — Page 3 6 AUDITS AND INSPECTION At any time dunng normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by this Agreement The Consultant shall permit the City to audit, examine, and make excerpts or transcnpts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement 7 ACCOMPLISHMENT OF PROJECT The 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, the Consultant shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carved on by the City 8 INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP A The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City Nothing herein shall be construed as creating a relationship of employer and employee between the parties The City and Consultant agree to cooperate in the defense of any clauns, action, suit, or proceeding of any kind brought by a third party which may result from or directly or indirectly anse from any negligence and/or errors or omissions on the part of the Consultant or from any breach of the Consultant's obligations under this Agreement Nothing herein constitutes a waiver of any nghts or remedies the 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 the 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 dunng the term of this Agreement, a legally binding policy of professional liability insurance, listed by Best Rated Camers, with a rating of "A-" or above, issued by an insurance carver approved to do business in Texas by the Texas Department of Insurance Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amount not less than One Million Dollars ($1,000,000 00) combined single limit coverage occurrence In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to forewith advise the City thereof, and in such event, the Consultant shall, pnor to the effective date of change or cancellation, serve substitute policies f tnuslung the same coverage The Consultant shall provide a copy of such policy or the declarations page of the policy, whichever is reasonably satisfactory, to the City through its City Attorney simultaneously with the execution of this Agreement Contract For Professional Legal Services — Page 4 9 TERMINATION OF AGREEMENT A In connection with the work outlined in this Agreement, it is agreed and fully understood by the Consultant that the 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 the City 30 days written notice that Consultant is no longer in a position to continue representing the City Consultant shall invoice the 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 the 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 marl, return 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 the 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 The 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 (V A T C S ) 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 the City and the Consultant 12 COMPLIANCE WITH LAWS The 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 Contract For Professional Legal Services — Page 5 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 suitor cause of action ansing 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, the 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 The 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 the City Consultant shall inform the City of any conflict of interest or potential conflict of interest that may anse during the tern 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 the 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 The 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 the 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 the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant for the accuracy and competency of its work, nor shall such approval be deemed to be an assumption of such responsibility of the City for any defect in any Contract For Professional Legal Services — Page 6 report or other documents prepared by the 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 ansing 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 ftither 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 IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed in duplicate originals by its duly authorized City Manager, and Consultant haassexecuted �this g/reemgnt through its duly authorized undersigned partner, dated this the day of y-__, 1999 CITY OF DENTON m ATTEST JENNIFER WALTERS, CITY SECRETARY MANAGER Contract For Professional Legal Services — Page 7 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY WOLFE, CLARK, HENDERSON & TIDWELL BY ff RONALD H CLARK F �aharedWepNAUOur Dooum M\Ljh&9j0R\dun1cipa1 Adminiomw SmWolfo cluk hmdu dac Contract For Professional Legal Services — Page 8 S\0m D..b\0rdinbww\o0\wo1f¢clank hmdb embedment doc ORDINANCE NO A" - 6/ q AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MAN- AGER TO EXECUTE A FIRST AMENDMENT TO THE CONTRACT FOR PROFES- SIONAL LEGAL SERVICES BETWEEN WOLFE, CLARK, HENDERSON & TIDWELL AND THE CITY OF DENTON, AUTHORIZING THE EXPENDITURE OF FUNDS THERE- FOR, AND PROVIDING AN EFFECTIVE DATE THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute a First Amendment to the Contract for Professional Legal Services between Wolfe, Clark, Henderson & Tidwell and the City of Denton in substantially the form of the First Amendment attached hereto and incorpo- rated by reference herem SECTION 2 That the City Manager is hereby authorized to make the expenditures and take the actions set forth in the attached First Amendment SECTION 3 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of , 2000 v8'7it..-J JAGILbALLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY lj,el,rsWrrG- FIRST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON This First Amendment to the Agreement made and entered into the 2"d day of November, 1999, by and between Wolfe, Clark, Henderson & Tidwell, 123 North Crockett, Suite 100, Sherman, Texas 75090, 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" (hereinafter referred to as the "Base Agreement') WITNESSETH WHEREAS, the City finds it necessary to amend the Base Agreement with Consultant to increase the compensation in the Base Agreement, NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the parties do hereby mutually agree to amend the scope of services and the compensation of the Base Agreement as follows 1 That Section 3 "Compensation and Method of Payment' of the Base Agreement is hereby amended by amending Section 3 c so that same shall now read as follows C Consultant estimates and the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed One hundred thousand------ dollars ($--100,000.00 --- ), and Consultant agrees to notify the City and seek a modification of the agreement should the total fees exceed such amount 2 That save and except as amended hereby, the terms and conditions of the Base Agreement entered into by the parties on the 2"d day of November, 1999 shall remain in full force and effect IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed in duplicate originals by its duly authorized City Manager, and Consultant has executed this Agreement through its duly authorized undersigned partner, dated this the 28th day of March 2000 CITY OF DENTON LVA ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, ATTORNEY MANAGER WOLFE, CLARK, HENDERSON & TIDWELL BY Ao�x RONALD H CLARK S \Our Dowmentu\Iangmim\Muni�pd Adminietretrve Svn \wolfe dark Wdmm amendment don S\Our Do..U\Ord.n..004.1&clank b.dm. second..d mdoe ORDINANCE NO 19 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MAN- AGER TO EXECUTE A SECOND AMENDMENT TO THE CONTRACT FOR PROFES- SIONAL LEGAL SERVICES BETWEEN WOLFE, CLARK, HENDERSON & TIDWELL AND THE CITY OF DENTON, AUTHORIZING THE EXPENDITURE OF FUNDS THERE- FOR, AND PROVIDING AN EFFECTIVE DATE THE CITY COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute a Second Amend- ment to the Contract for Professional Legal Services between Wolfe, Clark, Henderson & Tidwell and the City of Denton in substantially the form of the Second Amendment attached hereto and incorporated by reference herein SECTION 2 That the City Manager is hereby authorized to make the expenditures and take the actions set forth in the attached Second Amendment SECTION 3 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the day of e 12000 C� Aci__ EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY SECOND AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § The City of Denton, a Texas municipal corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City", and Wolfe, Clark, Henderson & Tidwell, 123 North Crockett, Suite 100, Sherman, Texas 75090, hereinafter referred to as "Consultant", hereby agree to this Second Amendment to the Agreement made and entered into the 2nd day of November, 1999, and amended on March 28, 2000 (said Agreement and said First Amendment hereinafter referred to as the "Base Agreement") WITNESSETH WHEREAS, the case has now been cried and the verdict of the jury has been received by the court, and motions for judgment are now due to be filed, and WHEREAS, the City had previously set a budget limit for Consultant for legal services in this case of $100,000 00 and whereas the total amount accrued for legal services and expenses by Consultant through the trial of the case, as of May 16, 2000, is $74,819 02, and WHEREAS, the parties believe this amendment would be fair, equitable, and in the best interest of the City, and the parties specifically find and agree that the fees agreed to herein are fair and reasonable as attorney's fees in Denton County, Texas, NOW, THEREFORE, it is agreed as follows 1 Consultant will continue to represent the City in the filing of necessary motions to obtain a judgment and to oppose motions for judgment by plaintiff Consultant is hereby authorized to take an appeal from an adverse judgment to the Court of Appeals, and if necessary to the Texas Supreme Court Similarly, Consultant is authorized to oppose an appeal by plaintiff in the Court of Appeals and in the Supreme Court 2 Paragraph 3A of the Base Agreement is amended as follows For work performed by Consultant in this case on or after May 17, 2000, Consultant will be compensated as follows a If plaintiff, M A S , makes any recovery from the City, then Consultant shall receive no compensation for professional services rendered (The City shall be responsible 1 under paragraph 3D of the Base Agreement only for costs of court (including costs for the clerk's record, the reporter's record, and filing fees), copying costs, postage, and long distance telephone charges b If final judgment is entered that plaintiff, M A S , takes nothing, but no recovery is made by the City, then Consultant shall be paid its regular fees and expenses on the basis of the provisions of the Base Agreement c If final judgment is entered that the City of Denton recover any amount over and above costs of court, whether such additional amount consists of a return of all or part of the contract price paid to M A S or an award of attorney's fees to the City, then Consultant shall be paid for its work on or after May 17, 2000 in accordance with the terms of the Base Agreement, except that the hourly rate for work performed by an attorney shall be $150 00 an hour rather than $125 00 an hour d In the event that the case is remanded for new trial, and such order of remand is not overturned on appeal, then Consultant shall not be paid for legal services rendered on or after May 17, 2000 through the time that said order of remand becomes final Any legal services requested by the City from Consultant after such date will be compensated at the rate set out in the Base Agreement IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed in duplicate originals by its duly authorized City Manager, and Consultant has executed this Agreement t rqugh its du authorized undersigned partner, dated this the day of /% 2000 ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS 0) CITY OF DENTON M ael W/ Jez,/gity Manager WOLFE, CLARK, HENDERSON & TIDWELL, L L P By ;;� Ron Clark