1999-243AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT
FOR PROFESSIONAL LEGAL SERVICES WITH WOOD, THACKER & WEATHERLY,
P C TO PROVIDE LEGAL SERVICES WITH REGARD TO LITIGATION STYLED
FURSTENBERG CONSTRUCTION COMPANY V CITY OF DENTON, ET AL, CAUSE NO
98-20716-158, FILED IN THE 158TH DISTRICT COURT OF DENTON COUNTY, TEXAS,
AUTHORIZING THE EXPENDITURE OF FLrNDS THEREFOR, AND PROVIDING AN
EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION I. That the C~ty Manager ~s hereby authorized to enter into a Contract for
Professional Legal Services with Wood, Thacker & Weatherly, P C, substantmlly m the form of
the attached Contract, which is made a part of th~s ordmance for all purposes, to provide legal
services to the City
~ That the C~ty Manager ~s hereby authorized to make the expenditures as
outlined m the attached Agreement
SECTION III That this ordinance shall become effective lmmechately upon its passage
and approval
PASSED AND APPROVED tlusthe ~L~ dayof (/~/,//2.~- ,1999
ATTESTi
JENNIFER WALTERS, CITY SECRETARY
HERBERT ~ e?~LxrY, CITY ATTORNEY
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
Tins AGREEMENT, made and entered into tlns the ~ day of ~ ,
1999, by and between Wood, Thacker & Weathcrly, P C, 513 West Oak, Dento~, Tcxa{~ 76201,
hereinafter referred to as "Consultant", and the City of Denton, a Texas mumclpal corporation,
215 East M¢I~nney, Denton, Texas 76201, heremafter referred to as "City"
~T~SSETH
WHEREAS, the City finds it necessary to employ outside legal counsel to perform
professional legal services regarding lmgatlon styled Furstenberg Constructton Company v C~ty
of Denton, et al, Cause No 98-20716-158, filed in the 158th 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
I SCOPE OF SERVICES
The Consultant shall perform the followmg services in a professional manner workang as
an independent contractor not under the direct supervision and control of the City
A Services to be provided
1 The Consultant shall evaluate the relevant facts and circumstances and shall advise the
City, by written oplmon, with respect to its options and the legality of such options,
regardmg 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 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
Cl[y Attorney, through discussions with the Consultant, as appropriate to carry out the
terms and conditions of this Agreement
II TERM
This Agreement shall be for a term of twenty (20) months, beginning effective July 1,
1999 and ending on February 28, 2002 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 dunng 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 reqmre
III COMPENSATION AND METHOD OF PAYMENT
B 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 $120/hour
Legal Assistants $50/hour
Attorney time will be billed at one tenth (1) hour minimum billing increments
C The Consultant will try to reduce costs whenever feasible by utilizing qualified pnnmpals,
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 lnchcatmg 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 recurred
D Consultant estimates and the C~ty agree that all charges for the legal services hereunder,
mchichng reasonable out-of-pocket expenses, shall not exceed thirty-five thousand dollars
($35,000), and Consultant agrees to notify the City and seek a modification of the agreement
should the total fees exceed such amount
E The City shall either pay directly or reimburse the Consultant, as the case may be, for
reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-
distance telephone, telecopler, reproduction, overnight courier, on-hne research, and travel
All copies will be charged at the rate of twenty-five cents ($ 25) per copy for copies made
w~thm 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 telecoples
Contract For Professional Legal Serwces - Page 2
F The parties anticipate tnvmces or statements for serwces wall be generated on a monthly
basis and that smd mvomes or statements will be sent on or about the 20th day of each month
The C~ty shall make payment to the Consultant w~th~n thirty (30) days of the satisfactory
completion of services and receipt of an ~temlzed invoice or statement All reimbursable
expenses, including, but not necessarily hm~ted to travel, lodging, and meals shall be paid at
the actual cost, pursuant to the terms, conditions, and hm~tattons herelnabove set forth All
lnvomes and bills shall be approved for payment by the C~ty Attorney
G It is understood that the Consultant shall work w~th the coor&nat~on and general supervmon
of the City Attorney or the Litigation Attorney
H All notmes, bfllmg statements and mvomes shall be made ~n writing and may be g~ven by
personal delivery or by mml Notices and lnvmces sent by mml shall be addressed to
Herbert L Prouty, City Attorney, 215 E McK~nney, Denton, Texas 76201 When so
addressed, the notice, mvmce, and/or payment shall be deemed given upon deposa ~n the
United States Mall, postage prepmd In all other instances, notices, lnvomes, and/or
payments shall be deemed given at the time of actual dehvery Changes may be made m the
names and addresses of the responsible person or office to whom notmes, lnvomes, and/or
payments are to be sent, provided reasonable written notme is g~ven
IV PROFESSIONAL COMPETENCY
A The Consultant agrees that m 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 practm~ng 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 R Wdham Wood However, nothing hereto shall hmlt
Consultant from using other qualified and competent members of ~ts firm to perform the
services reqmred herein
B All legal oplmons and other legal documents prepared or obtmned under the terms of tlns
Agreement are instruments of servme and the C~ty shall retmn ownership and a property
interest therein If this Agreement is terminated at any t~me for any reason prior to payment
to the Consultant for work under this Agreement, all such documents prepared or obtmned
under the terms of the Agreement shall upon termination be dehvered to and become the
property of the City upon request and without restriction on their use or further compensation
to the Consultant
V ESTABLISHMENT AND MAINTENANCE OF RECORDS
Full and accurate records shall be malntmned by the Consultant at its place of business
w~th respect to all matters covered by this Agreement Such records shall be mmntmned for a
period of at least three (3) years after receipt of final payment under th~s Agreement
Contract For Professional Legal Servmes - Page 3
VI AUDITS AND INSPECTION
At any tame dunng normal bus~ness hours and upon reasonable notice to the Consultant,
there shall be made avmlable to the City all of the Consultant's records with respect to all matters
covered by this Agreement The Consultant shall permit the C~ty to andlt, examine, and make
excerpts or transcnpts from such records, and to make audits of contracts, invoices, matenals,
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 d~spateh, ~n a sound, economical and efficmnt manner, and, m accordance with the
provisions hereof and all apphcable laws In accomphshlng the projects, the Consultant shall
take such steps as are appropriate to ensure that the work revolved ~s properly coordinated with
related work being earned on by the City
VIII INDEMNITY AND iNDEPENDENT CONTRACTOR RELATIONSHIP
The Consultant shall perform all servmes as an ~ndependent contractor not under the
threct supervision and control of the C~ty Nothing herein shall be construed as creating a
relationship of employer and employee between the parties The C~ty and Consultant agree to
cooperate m the defense of any clmms, action, stat, or proceeding of any k~nd brought by a third
party which may result from or directly or Indirectly arise from any neghgence and/or errors or
omissions on the part of the Consultant or from any breach of the Consultant's obhgataons under
this Agreement Nothing herein constitutes a wmver of any rights or remedies the C~ty 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, rasultmg from Consultant's neghgent errors or
ommsaons, or breach of contract, and all such rights and remedies are expressly reserved
IX TERMINATION OF AGREEMENT
A In connection w~th the work outlined an th~s Agreement, at as agreed and fully understood by
the Consultant that the City may cancel or ~ndefimtely suspend further work hereunder or
terminate this Agreement at any t~me upon written notice to Consultant, Consultant shall
cease all work and labor being performed under th~s Agreement Consultant may terminate
this Agreement by gawng the C~ty thirty (30) days written not,ce that Consultant as no longer
in a position to continue representing the City Consultant shall Invoice the City for all work
satisfactorily completed and shall be compensated an accordance w~th the terms of this
Agreement All reports and other documents, or data, or work related to the project shall
become the property of the C~ty upon term~natlon of thru Agreement
B Tfus Agreement may be terminated an whole or ~n part, ~n writing, by either party m the event
of substantml fmlure by the other party to fulfill ~ts obhgat~ons under this Agreement through
no fault of the terminating party Provided, however, that no such termmat~on may be
effected, unless the other party ~s g~ven [1] written notice (dehvered by cemfied marl, return
receipt requested) of intent to terminate, and not less than thirty (30) calendar days to cure
Contract For Professmnal Legal Services - Page 4
the failure, and [2] an opportunity for consultation w~th 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 ~s unsatisfactory or which ~s not submitted in compliance w~th the terms of this
Agreement
X ALTERNATE DISPUTE RESOLUTION
The Consultant agrees that, ffnecessary, ~t 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 m Chapter 154 of the Texas Civil Practme and Remedies Code (V A T C S )
XI ENTIRE AGREEMENT
Th~s Agreement represents the entire agreement and understanding between the parties,
and any negotmtlons, proposals, or oral agreements are intended to be integrated hereto and to be
superseded by flus written Agreement Any supplement or amendment to this Agreement to be
effective shall be m writing and signed by the City and the Consultant
XII COMPLIANCE WITH LAWS
The Consultant shall comply w~th all federal, state, and local laws, rules, regulations, and
ordinances apphcable to the work covered hereunder as they may now mad or hereafter be
amended, including but not hm~ted to the Texas D~smphnary Rules of Professional Conduct
XIII GOVERNING LAW
For the purpose of determining place of agreement and law govermng same, this
Agreement ~s entered into m the C~ty and County of Denton, State of Texas, and shall be
governed by the laws of the State of Texas Venue and junsdmtlon of any suit or cause of action
arising under or m connection w~th ttus Agreement shall be exclusively m a court of competent
junsdmtlon s~ttmg m Denton County
XIV DISCRIMINATION PROHIBITED
In performing the services required hereunder, the Consultant shall not discriminate
agmnst any person on the basis of race, color, rehglon, sex, natmnal origin or ancestry, age, or
physical handicap
XV PERSONNEL
A The Consultant represents that ~t has or will secure at its own expense all personnel required
to perform all the services reqmred under this Agreement Such personnel shall not be
employees or have any contractual relations w~th the City Consultant shall inform the City
of any conflict of interest or potentml conflict of interest that may arise dunng the term of
Contxact For Professional Legal Servtces- Page 5
this Agreement, in accordance with Consultant's responsiblhtles under the Texas
Disciplinary Rules of Professional Conduct
B All services required hereunder will be performed by the Consultant or under ~ts d~rect
superv~smn All personnel engaged in work shall be qualified and shall be authorized or
permitted under state and local laws to perform such servmes
XVI ASSIGNABILITY
The Consultant shall not assign any ~nterest ~n th~s Agreement and shall not transfer any
interest m this Agreement (whether by assignment, novation, or otherwise) without the prior
written consent of the City thereto
XVII SEVERABILITY
All agreements and covenants contained here~n are severable, and In the event any of
them, with the exception of those contmned in sections headed "Scope of Services",
"Independent Contractor Relationship," and "Compensation and Method of Payment" hereof,
shall be held to be ~nval~d by any court of competent jurisdiction, this Agreement shall be
Interpreted as though such ~nvahd agreements or covenants were not contmned here~n
XVIII RESPONSIBILITIES FOR CLAIMS AND LIABILITY
Approval by the C~ty shall not constitute nor be deemed a release of the responsibility
and hablhty of the Consultant for the accuracy and competency of ~ts work, nor shall such
approval be deemed to be an assumption of such responsibility of the C~ty for any defect In any
report or other documents prepared by the Consultant, its employees, officers, agents and
consultants
XIX MODIFICATION OF AGREEMENT
No wmver or mod~fcat~on of this Agreement or of any covenant, condition, or hm~tat~on
herein contmned shall be valid unless in writing and duly executed by the party to be charged
therewith, and no ewdenee of any waiver or modfficatIon shall be offered or received ~n ewdence
~n any proceeding arising between the part, es hereto out of or affecting flus Agreement, or the
rights or obhgat~ons of the part,es hereunder, unless such waiver or modfficat~on is m writing,
duly executed as aforesmd, and, the parties further agree that the prowslons of flus section will
not be waived as herem set forth
XX CAPTIONS
The captions of thru Agreement are for informational purposes only and shall not ~n any
way affect the substantive terms or conditions of th~s Agreement
Contract For Professmnal Legal Servmes - Page 6
XXI BINDING EFFECT
Ttus Agreement shall be bmd, ng upon and ~nure to the benefit of the part,es hereto and
their respeetxve heirs, executors, adm~mstrators, legal representatives, successors, and assigns
where pemutted by th~s Agreement
IN WITNESS HEREOF, the C~ty of Denton, Texas, has caused th~s Agreement to be
executed ~n dupl, cate originals by ~ts duly authorized C~ty Manager, and Consultant has, ~xecuted
th~s Ag~:eemant through ~ts duly anthonzed undersigned panner, dated th~s the ~,~ ~ day of
('- J~/Z~TJ~ , 1999
CITY OF DENTON
tv~O~IAEL~ -~ ~I~Y MANAGER
ATTEST'
JENNIFER WALTERS, CITY SECRETARY
BY Y&t dt_.~
HERBERT L yR~O~_Y.C~_~ATTORNEY
WOOD, THACKER & WEATHERLY, PC
Contract For Professional Legal Services - Page 7