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1999-410NOTE First Amendment - Ordinance No 2000-119 Second Amendment - Ordinance No 2000-194 ORDINANCE NO ¢¢- 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 F CITY OF DENTON, CAUSE NO 99- 50263-367, FILED IN THE 367TM 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 ~ That the City Manager ~s hereby authorized to enter into a Contract for Professional Legal Services with Wolfe, Clark, Henderson & T~dwell, substantially ~n the form of the attached Contract, which m made a part of thru ordinance for all proposes, to provide legal serwces to the City ~ That the City Manager ~s hereby authorized to make the expenditures as outhned in the attached Agreement ~ That this ordinance shall become effective ~mmed~ately upon its passage and approval PASSED AND APPROVED this the r~/q~Tt- day of ~/O//g~f , 1999 JAC~ffLLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON § This AGREEMENT, made and entered into this the ~ day of /~/~l/~f~Jf, 1999, by and between Wolfe, Clark, Henderson & Tldwell, 123 North Crockett, State 100, Sherman, Texas 75090, heremaRer referred to as "Consultant", and the City of Denton, a Texas municipal corporation, 215 East McKanney, Denton, Texas 76201, hereinafter referred to as "City" WHEREAS, the City finds it necessary to employ outside legal counsel to perform professional legal services regarding ht~gataon styled Mumc~pal Administrative Services, Inc v Czty of Denton, Cause No 99-50263-367, filed m the 367th Dlsmct Court of Dentun County, and WHEREAS, the Consultant is wflhng 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 m conneeuon therewith, and the Consultant is willing to prowde such services, NOW, THEREFORE, in consideration of the promises and mutual obhgatlons 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 workang as an independent contractor not under the chrect supervision and control of the City Services to be provided A B C The Consultant shall evaluate the relevant facts and circumstances and shall advise the City, by written opinion, with respect to ~ts options and the legahty of such options, regarding researetung and respondmg to requests for legal services Consultant shall also consult, as requested, with the City Manager, the C~ty Attorney, and any other designated City staff respecting any and all aspects of the services to be performed under tins Agreement The Consultant shall perform all the professional services reqmred ~n a timely fashion, and shall complete same in compliance with schedules established by the City through its City Attorney, through dmcuss~ons w~th the Consultant, as appropriate to carry out the terms and condmons of tins Agreement 2 TERM This Agreement shall be for a term of twenty (20) months, beginning effective October 20, 1999 and endang on April 20, 2001 Tins Agreement may be sooner terminated tn accordance with the provisions hereof Tnne is of the essence of this Agreement, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expedltmusly 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 ofttus matter may reqmre 3 COMPENSATION AND METHOD OF PAYMENT A The Consultant shall charge the following fees for ~ts professional services hereunder, based on the following fees for its professional serwces hereunder, based on the following hourly bflhng rates for the attorneys and support staff revolved m th~s matter Attorneys $125/hour Legal Assistants $50/hour Attorney time wall be balled at one-tenth (1) hour m~mmum bflhng ~ncrements B The Consultant wall try to reduce costs whenever feasible by utthmng qualified pnnc~pals, associates, paralegals, and law clerks The Consultant shall ball the City through the subralss~on of ~temized mvmcas, statements, and other doeumentaUon, together vath supporting data mchcatmg 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 descnptmns and/or details of all services rendered, along with specific descnptton and supporting documentation, ff 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, ~ncludmg reasonable out-of-pocket expenses, shall not exceed fifby thousand dollars ($50,000), and Consultant agrees to notify the C~ty and seek a modification of the agreement should the total fees exceed such amount D The City shall either pay d~rectly 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, telecopmr, reproduction, overnight courier, on-hne research, and travel All cop~es will be charged at the rate often 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 ~fbulk copying ~s necessary Contract For Professional Legal Services - Page 2 E The parties antlmpate xnvolces or statements for services will be generated on a monthly bas~s and that said invoices or statements wall be sent on or about the 20th day of each month The C~ty shall make payment to the Consultant wxtlun 30 days of the satlsfactow completion of services and receipt of an ltemxzed invoice or statement All reimbursable expenses, including, but not necessarily lunlted to travel, lodging, and meals shall be pa~d at the actual cost, pursuant to the terms, conditions, and hmitat~ons heremabove set forth All lnvomes and bills shall be approved for payment by the Cxty Attorney F It ~s understood that the Consultant shall work w~th the coordlnatton and general supervis~on of the C~ty Attorney or the L~tigatlon Attorney G All notices, bdllng statements and ~nvo~ces shall be made ~n writing and may be g~ven by personal delivery or by mml Nottces and ~nvo~ces sent by mml shall be addressed to Herbert L Pmuty, City Attorney, 215 E McI~nney, Denton, Texas 76201 When so addressed, the notice, invoice, and/or payment shall be deemed g~ven upon deposit in the Umted States Marl, postage prepmd In all other instances, notmes, mvomes, and/or payments shall be deemed given at the t~me of actual delivery Changes may be made in the names and addresses of the responmble person or office to whom notmes, mvomes, and/or payments are to be sent, prowded reasonable written notme ~s g~ven 4 PROFESSIONAL COMPETENCY A The Consultant agrees that ~n the performance of these professional servmes, Consultant shall be responsible for the level of competency and shall use the same degree of sktll and care presently mmntmned by other practimng professionals performing the same or similar types of work For the purpose of this Agreement, the key persons who will be perforrmng most of the work hereunder shall be Ronald H Clark However, nottung hereto shall hm~t Consultant from using other qualified and competent members of ~ts firm to perform the services reqmred herein B All legal op~mons and other legal documents prepared or obtmned under the terms of th~s Agreement are instruments of service and the C~ty shall retain ownership and a property ~nterest therein If this Agreement ~s terminated at any time for any reason prior to payment to the Consultant for work under tlus 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 w~thout restriction on their use or further compensation to the Consultant 5 ESTABLISHMENT AND MAINTENANCE OF RECORDS Full and accurate records shall be mmntmned by the Consultant at its place of business w~th respect to all matters covered by th~s Agreement Such records shall be mmntalned for a period of at least three years after receipt of final payment under th~s Agreement Contract For Professtonal Legal Services - Page 3 6 AUDITS AND INSPECTION At any time dunng normal business hours and upon reasonable not,ce to the Consultant, there shall be made available to the C~ty all of the Consultant's records w~th respect to all matters covered by th~s Agreement The Consultant shall permit the C~ty to aucht, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by tins Agreement 7 ACCOMPLISHMBNT OF PROJECT The Consultant shall commence, carry on, and complete any and all projects w~th all practmable d~spatch, m a sound, economical and efficient manner, and, m accordance w~th the prowsmns hereof and all apphcable laws In accomphshmg the projects, the Consultant shall take such steps as are appropriate to ensure that the work involved ~s properly coordinated w~th related work being carried on by the C~ty 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 C~ty Nothing hereto shall be construed as creating a relanonsh~p of employer and employee between the parties The C~ty and Consultant agree to cooperate m the defense of any clauns, action, stat, or proceeding of any kind brought by a tturd party wluch may result from or d~rectly or indirectly arise from any neghgence and/or errors or ounsslons on the part of the Consultant or from any breach of the Consultant's obhgat~ons under th~s Agreement Nottung here~n constitutes a wmver of any rights or remedtes the City may have to pursue under exther law or eqmty, including, w~thout hm~tat~on, a cause of action for spemfic performance or for damages, a loss to the C~ty, resulting from Consultant's neghgent errors or om~ss~ons, or breach of contract, and all such rights and remedies are expressly reserved B Consultant shall mmntmn and shall be caused to be in fome at all t~mes dunng the term of th~s Agreement, a legally binding pohcy of professional habfl~ty insurance, listed by Best Rated Careers, w~th a ranng of "A-" or above, ~ssued by an insurance camer approved to do bnsmess in Texas by the Texas Department of Insurance Such coverage shall cover any claim hereunder occasxoned by the Consultant's neghgant professional act and/or error or omlsmon, m an amount not less than One Mflhon Dollars ($1,000,000 00) combined s~ngle hm~t coverage occurrence In the event of change or eancellatton of the policy by the insurer, the Consultant hereby covenants to forewlth advtse the City thereof, and m such event, the Consultant shall, prior to the effective date of change or cancellatmn, serve substitute pohc~es fumlslung the same coverage The Consultant shall prowde a copy of such pohcy or the declarations page of the pohcy, wbachever is reasonably sansfactory, to the C~ty through ~ts C~ty Attorney s~multaneously w~th the executlon of tins Agreement Contract For Professmnal Legal Servmes - Page 4 9 TERMrNATION OF AGREEMENT A In connection wath the work outlined an this Agreement, at as agreed and fully understood by the ConsuItant that the City may cancel or mdefimtely 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 flus Agreement Consultant may terminate this Agreement by g~wng the Caty 30 days written notice that Consultant xs no longer m a position to continue representing the City Consultant shall mvmee the C~ty for all work sausfaetonly completed and shall be compensated an accordance with the terms of tins Agreement All reports and other documents, or data, or work related to the project shall become the property of the City upon termination of flus Agreement B Tlus Agreement may be terminated ~n whole or an part, m wratmg, by e~ther party ~n the event of substantlal failure by the other party to fulfill its obhgat~ons under this Agreement through no fault of the termlnatang party Prowded, however, that no such termination may be effected, unless the other party as given [1] written not~ee (delivered by certified mall, remm receipt requested) of intent to terminate, and not less than 30 calendar days to cure the fmlure, and [2] an oppormmty for consultaUon with the terminating party prior to termination C Notl~ng contained herein or elsewhere an this Agreement shall reqmre the City to pay for any work which as unsatisfactory or wtuch as not submitted m compliance with the terms of flus Agreement I0 ALTERNATE DISPUTE RESOLUTION The Consultant agrees that, If necessary, it will use its best efforts to resolve any d~sputes regarding the Agreement through the use of mediation or other forms of alternate d~spute resolutmn set forth an Chapter 154 of the Texas Cavil Practice and Remedies Code (V A T C S ) 11 ENTIRE AGREEMENT Tins Agreement represents the entare agreement and understanding between the part, es, and any negotiations, proposals, or oral agreements are intended to be mtegrated herein and to be superseded by flus written Agreement Any supplement or amendment to flus Agreement to be effective shall be an wnUng and signed by the City and the Consultant 12 COMPLIANCE WITH LAWS The Consultant shall comply w~th 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 D~smphnary Rules of Professional Conduct Contract For Professtonal Legal Servmes - Page 5 13 GOVERNING LAW For the purpose of determining place of agreement and law goveming same, tins Agreement is entered into in the City and County of Denton, State of Texas, and shall be govemed by the laws of the State of Texas Venne and junsdlction of any suit or cause of acUon anmng under or m connection with tins Agreement shall be exclusively in a court of competent juns&ctlon sl~ng m Denton County 14 DISCRIMINATION PROHIBITED In performing the services required hereunder, the Consultant shall not discnrmnate agmnst any person on the basis of race, color, religion, sex, national ongln or ancestry, age, or physical handicap 15 PERSONNEL A The Consultant represents that it has or will secure at its own expense all personnel reqmred to perform all the serwces required under flus Agreement Such personnel shall not be employees or have any contractual relations wth the City Consultant shall mform the City of any conflict of interest or potential conflict of interest that may anse dunng the term of this Agreement, in accordance with Consultant's responslbdmes under the Texas Dlsclphnary 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 penmtted 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 tins Agreement (whether by assignment, novation, or otherwise) without the pnor wntten consent oi the City thereto 17 SEVERABILITY All agreements and covenants contmned herein are severable, and m the event any of them, w~th the exception of those contained in sections headed "Scope of Serwces", "Independent Contractor RelaUonsinp,' and "Compensation and Method of Payment" hereof, shall be held to be invalid by any court of competent juns&cUon, tins 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 responsiinhty and habflxty 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 wmver or mochfcation of ttns Agreement or of any covenant, conrhtlon, or hrmtat~on herein contained shall be valid unless m wnting and duly executed by the party to be charged therewith, and no evidence of any waiver or mochfication shall be offered or received in evidence in any proceeding ansing between the pames hereto out of or affecting tlus 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 herem 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 h~dexecuted this p, greem~nt through its duly anthonzed undersigned partner, dated this the ~ ~ day of ,/V0//~./~ ~/'- ,1999 ATTEST JENNIFER WALTERS, CITY SECRETARY CITY OF DENTON ~Lf/~V J~t~IT~ MANAGER Contract For Professional Legal Servtces- Page 7 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY WOLFE, CLARK, HENDERSON & TIDWELL RONALD H CLARK Contract For Professional Legal Services - Page 8 ORD CE No 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 authonzed to execute a First Amendment to the Contract for Professional Legal Services between Wolfe, Clark, Henderson & Tldwell and the City of Denton m substantially the form of the First Amendment attached hereto and incorpo- rated by reference hereto 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 flus ordinance shall become effective ~rmne&ately upon its passage and approval PASSED AND APPROVED this ther'/~~p~dayof ~J~/~.t'~. ,2000 JA~ ATTEST JENNIFER WALTERS, CITY SECRETARY FIRST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § Tbas First Amendment to the Agreement made and entered into the 2nfl day of November, 1999, by and between Wolfe, Clark, Henderson & Tldwell, 123 North Crockett, Suite 100, Sherman, Texas 75090, hereinafter referred to as "Consultant", and the City of Denton, a Texas mumclpal corporataon, 215 East MeKanney, 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 obhgatlons here~n, the pames 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 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, ~ncludlng reasonable out-of-pocket expenses, shall not exceed One hundred thouaand ...... dollars ($-- 100,000.00---), and Consultant agrees to notify the C~ty 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 2na day of November, 1999 shall remmn in full force and effect IN WITNESS HEREOF, the C~ty of Denton, Texas, has caused this Agreement to be executed in duplicate onginals by its duly authorized C~ty Manager, and Consultant has executed this Agreement through its duly authorized undersigned partner, dated this the 28th day of Fiat ch ,2000 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM CITY OF DENTON WOLFE, CLARK, HENDERSON & TIDWELL RONALD H CLARK NO --/9 ¢ 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 C~ty Manager ~s hereby authorized to execute a Second Amend- ment to the Contract for Professional Legal Servmes between Wolfe, Clark, Henderson & T~dwell and the City of Denton ~n substantially the form of the Second Amendment attached hereto and ~ncorporated by reference herein SECTION 2 That the City Manager ~s hereby authorized to make the expenditures and take the actions set forth ~n the attached Second Amendment SECTION 3 That this ordinance shall become effective lmmed~ately upon xts passage and approval PASSED AND APPROVED this the O~"'day of ~ ff~. ,2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPR~ED AS ~ O~Q~F~LFOI~ SECOND AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON The City of Denton, a Texas municipal corporation, 215 East McKlnney, Denton, Texas 76201, hereinafter referred to as "City", and Wolfe, Clark, Henderson & Tldwell, 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 2n~ 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 3ury has been received by the court, now due to be filed, and nrled and the verdict of the and motions for judgment are 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 ]udgment and to oppose motions for judgment by plaintiff Consultant is hereby authorized to take an appeal from an adverse ]udgment 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 ~o 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~r~ugh its du~ ~a~thorlzed undersigned partner, dated this the ~ day of~ , 2000 ATTEST JENNIFER WALTERS, CITY SECRETARY ,~APPROVED AS_~EGAL~O~M CITY OF DENTON 141/c~ael W/ Jez~fl~y Manager WOLFE, CLARK, HENDERSON & TIDWELL, L L P Ron Clark