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HomeMy WebLinkAbout1997-329ORDINANCE NO q t7' 34-q AN ORDINANCE OF THE CITY OF DENTON RETAINING THE LAW FIRM OF GARDERE & WYNNE TO REPRESENT THE CITY OF DENTON IN LITIGATION PENDING AGAINST THE CITY STYLED HAANSEN INFORMATION TECHNOLOGIES, INC V AZTECA SYSTEM INC, ET AL, CASE NUMBER 4 97CV308 FILED IN THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF TEXAS, ALLEGING COPYRIGHT INFRINGEMENT, TORTIOUS INTERFERENCE, AND OTHER INTELLECTUAL PROPERTY MATTERS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Council of the City of Denton approves the retainer of the law firm of Gardere & Wynne to represent the City in pending litigation styled Hansen Information Technologies Inc v Azteca Systems Inc et al SECTION II. That the attached contract for engagement and the expenditure of funds therefor are hereby approved, and that the Mayor, or in lus absence, the Mayor Pro-Tem, is authorized to execute this contract on behalf of the City S, ACTION III That this ordinance shall become effective immediately upon its passage and approval �/ PASSED AND APPROVED this the'T— day of 1997 JACK MILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON This AGREEMENT, made and entered into this 23rd day of October, 1997, by and between Gardere & Wynne, L L P , a Texas linuted liability partnership, with Peter Vogel having full authority to execute this Agreement on behalf of Gardere & Wynne, hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas Municipal Corporation, 215 E McKinney, Denton, Texas 76901, hereinafter referred to as "City" WHEREAS, the City needs to employ legal counsel to provide professional legal services with respect to the City's defending the City in the case of Hansen Information Technologies v Axteca Systems, Haslem, and the City of Denton, U S District Court, Eastern District of Texas, Sherman Division, Civil Action No 4 97cv308, 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 I ape 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 A The investigation of facts and preparation of such pleadings as are necessary for the proper prosecution of this lawsuit, B Discovery, including depositions, document review and production, and all other related pretrial matters, C Representation at all necessary hearings, and if necessary, the full trial of this matter on the merits, and, D Such other services incident to the defense and prosecution of this matter as are determined to be necessary CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 1 II Term, This Agreement shall begin effective October 22, 1997 This Agreement may be sooner terminated in accordance with the provisions hereof Time 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 Court I rnr r rr,rr u' iTrTGi'..in r A The Consultant shall charge the following fees for its individuals listed below, based on the following hourly billing rates for the attorneys and staff involved in this matter ,Ssaff Hourly Rate Peter Vogel, attorney $300 Dawn Estes, attorney $210 David Timmins, attorney $185 Jay Utley, attorney $100 Marge Terry, paralegal $100 From time to time Consultant may engage other appropriate individuals to work on this engagement, and Consultant may increase its rates with 30 days notice B The Consultant will try to reduce costs by utilizing qualified partners, associates, and legal assistants wherever possible The Consultant shall bill the City through the submission of itemized invoices, statements, and other documentation, together with support data indicating the progress of the work and the services performed on the basis of monthly statements showing hourly rates indicating who performed the work, what type of work was done, and descriptions and/or details of all services rendered, along with specific description and supporting documentation, if available, respecting any reasonable and necessary out-of-pocket expenses incurred C Additionally, the City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopier, reproduction, postage, overnight courier, and travel All copies will be charged at the rate of ten cents ($ 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 the charges for outgoing telecopies form Consultant shall be $ 25 per page and that there will be no charge by Consultant for incoming telecopies CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 2 D Upon completion of all services for a particular time frame, the City shall make payment to the Consultant within thirty (30) days of the satisfactory completion of services and receipt of an itemized invoice or statement 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 15th day of each month All reimbursable expenses, including but not necessarily hunted to travel, lodging, and meals shall be paid at the actual cost, pursuant to the terms conditions, and limitations heremabove set forth All invoices and bills shall be approved by the City Attorney E It is understood that the Consultant shall work under the coordination and general supervision of the City Attorney F All notices, invoices, and payment shall be made in writing and may be given by personal delivery or by mail Notices, invoices, and payments 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 notice is given G Payment for services, expenses disbursements, and other charges will be made by the City in accordance with the terms set forth in the attached memorandum entitled "Payment for Legal Services" [attached hereto as Exhibit A and incorporated herein for all purposes ] IV Professional Competency, A The Consultant agrees that in the performance of these professional services, Consultant shall be responsible to 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 person who will be performing most of the work hereunder shall be Peter Vogel However, nothing herein shall limit Consultant from using other qualified and competent members of their firm to perform the services required herein B Pleadings, motions, orders, notices, instruments, discovery documents, reports, 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 CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 3 restriction on their use or further compensation to the Consultant V 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 VI. Audits and Inspection. At any time during 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, examme, and make excepts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement VII 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 matter, and, in accordance with the provisions hereof and all applicable laws In accomplishing the projects, the Consultants shall take such steps as are appropriate to insure that the work involved is properly coordinated with related work being carried on in the City VIII 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 claims, action, suit, or proceeding 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 the Consultant or from any breach of the Consultant's obligations under this Agreement In the event of any litigation or claim under this Agreement in which Consultant is joined as a party, Consultant shall provide suitable counsel to defend City and Consultant against such claim, provided the Consultant shall have the right to proceed with the competent counsel of its own choosing The Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional liability policy The Consultant agrees to pay all expenses, including but not limited to attorney's fees, and satisfy all judgments which may be incurred or rendered against the Consultant's professional liability insurance policy Nothing herein constitutes a waiver of any rights or remedies the Cit 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 during the term of this Agreement, a legally binding policy of professional liability insurance, CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 4 listed by Best Rated Carriers, with a rating of "A-" or above, issued by an insurance carrier approved to do business in Texas by the State Insurance Comrmssion 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 $1,000,000 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, prior to the effective date of change or cancellation, serve substitute policies furnishing 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 A In connection with the work outlined n 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 fifteen (15) 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 affected, unless the other party is given [1] written notice (delivered by certified mail, return receipt request) of intent to terminate, and not less than thirty (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 X 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 15,1 of the Texas Civil Practices and Remedies Code (V A T C S ) XI Entire gr m n . 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 CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 5 or amendment to this Agreement to be effective shall be in writing and signed by the City and the Consultant XII Comolrance with Laws. The Consultant shall comply with all federal, state, 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 XIII 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 XIV Discrimination Prolubited. In performing the services required hereunder, the Consultant shall not discrumnate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap XV Personnel. A The Agreement to 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 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 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 XVI Assign nnabili . 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 XVH Severabih . 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 XVIII 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 CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 6 such responsibility of the City for any defect in any report or other documents prepared by the consultant, its employees, officers, agents and consultants XIX 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 XX 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 XXI 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 by Its duly authorized Mayor and Consultant h s execute this greement through Its duly authorized undersigned officer, dated this the day of 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY B w y AP OVED AS TO LEGAL FORM HERBERT L PRO_ UT_Y, CITY ATTORNEY B'_�_ ATTEST n/A; '/w A CITY OF DENTON By JACK MILLER, MAYOR 1 GW04 0315146 CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 8 EXHIBIT A PAYMENT FOR LEGAL SERVICES This statement sets forth the standard terms of payment for our services as your lawyers Unless modified in writing by mutual agreement, these terms will be an integral part of our agreemenbwith you Therefore, we ask that you review this statement carefully and contact us promptly if you have any questions How Fees Are Set The amount to be charged for the legal services we provide to you will ordinarily be calculated on an hourly basis at our standard hourly rates These hourly rates presently vary from $75-365, depending on the attorney or paralegal who is providing the services, and are adjusted periodically Attached here is a schedule of the fees for the specific attorneys expected to work on these matters at the time of entering into this agreement In determining a reasonable fee or our services we may consider other factors as set forth in Section 1 04(b) of the Texas Disciplinary Rules of Professional Conduct, which governs all Texas lawyers A copy of Section 1 04(b) will be furnished upon request We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter Whenever possible we will furnish such an estimate based upon our professional judgment, but always with a clear understanding that it is not a maximum or fixed fee quotation The ultimate cost is frequently more or less than the amount estimated For certain veil -defined services, for example, business incorporation, we will quote a fixed fee It is our policy not to accept representation on a fixed -fee basis except in such defined -services areas or pursuant to a special arrangement tailored to the needs of a particular client In all such situations, the fixed -fee arrangement will be expressed in a letter, setting forth both the amount of the fee and the scope of the services to be provided Expense Disbursements and Other Charges We typically incur and pay on behalf of our clients a variety of out-of-pocket costs rinsing in connection with legal services Third -party charges incurred in your behalf in significant amounts will be included in your bill We will bill you monthly for our other expense disbursements incurred on your behalf (filing fees, travel expenses, delivery costs, etc), together with our customary charges for copying, printing, long distance telephone, telecopy and telex services, and other items These will be billed to you on the same basis as charged to our other clients A complete explanation of the basis of such charges may be inspected in our office at any time upon request We reserve the right to change the method of billing such expense disbursements and other charges to you from time to time, provided that we charge you on the same basis that we charge our other clients Regular invoices will be furnished to you for our attorneys' fees, expenses disbursements and other charges, and you will be expected to replenish the retainer deposit to its original level as such invoices are received At the conclusion of our legal representation, or at such time as the deposit become unnecessary or is appropriately reduced, the remaining balance or an appropriate part of it will be returned to you If the retainer deposit proves insufficient to cover current expenses and fees, it may have to beuncreased Retainer and Trust Deposits New clients of the fine are commonly asked to deposit a retainer with the firm The retainer deposit is charged for out attorneys fees as out legal services are provided In addition the retainer deposit is charged for expense disbursements in your behalf and our other charges We reserve the right to change the method of billing such expense disbursements and other charges to you from time to time, provided that we chargel you on the same basis that we charge our other clients Regular invoices will be furnished to you for our attorneys' fees, expenses disbursements and other charges, and you will be expected to replenish the retainer deposit to its ongmal level as such invoices are received At the conclusion of our legal representation, or at such time as the deposit become unnecessary or is appropriately reduced, the remaining balance or an appropriate part of it will be returned to you If the retainer deposit proves insufficient to cover current expenses and fees, it may have to be increased 13111ina Arrangements and Terms of Payment We will bill you on a regular basis, normally each month, for both fees, expense disbursements and other charges You agree to make payment within 30 days of the date we mail our invoice