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1997-329 ORDINANCE NO q q" ~,~a~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 HANSEN INFORMATION TECHNOLOGIES. INC V AZTECA SYSTEMS. 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 SI~CTION I That the Council of the City of Denton approves the retmner of the law firm of Gardere & Wynne to represent the City m pending lmgatmn styled Hansen Informatton Technologies. Inc v. Azteca Systems. I_nc. et al ~.E_Q.T!.Q!2I._~ That the attached contract for engagement and the expenditure of funds therefor are hereby approved, and that the Mayor, or m Ins absence, the Mayor Pro-Tern, is authonzed to execute fins contract on behalf of the City ~ That thas ordinance shall become effective lmmechately upon its passage and approval PASSED AND APPROVEDthlsthe4~'~ dayof //~//9[/.l~f~]/'' ,1997 JACK MILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY HElmEa*t ROUrY, CITY AVrCR Y CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § Thru AGREEMENT, made and entered into this ~srd day of October, 1997, by and between Gardere & Wynne, L L P, a Texas hnuted 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, ~15 E McKmney, Denton, Texas 76~01, heremafter 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 A~teca Systems, Haslem, and the Czty of Denton, U S District Court, Eastern District of Texas, Sherman Division, Civil Action No { 97cv$08, 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 serv,ces in connection therewith, and the Consultant is willing to provide such services NOW, THEREFORE, in consideration of the promises and mutual obligations here~n, the parties hereto do hereby mutually AGREE as follows I ,~qdlll~.~llL~?,13~ The Consultant shall perform the following services in a professional manner workang as an independent contractor not under the direct superwslon and control of the City A The mvesttgatton 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 CONTRIACT FOR PROFESSIONAL LEGAL SERVICES page 1 II Term. This Agreement shall began effective October ~9, 1997 This Agreement may be sooner ternnnated 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 III ~ompensat~on and Method of Payment. A The Consultant shall charge the following fees for its individuals listed below, based on the following hourly billing rates for the attorneys and staffmvolved in this matter Staff Hourly Rate Peter Vogel, attorney $500 Dawn Estes, attorney $~ 10 David Tlmmlns, 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 utdizlng qualified partners, associates, and legal assistants wherever possible The Consultant shall bill the City through the submission Ofltenuzed 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, ~f 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, telecopler, 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 possxble 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 telecoples form Consultant shall be $ 95 per page and that there will be no charge by Consultant for incoming telecoples CONTRACT FOR PROFESSIONAL LEGAL SERVICES page ~ D Upon completion of all services for a particular time frame, the City shall make payment to the Consultant within thirty (~0) 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 hnuted to travel, lodgang, and meals shall be paid at the actual cost, pursuant to the terms conditions, and limitations herelnabove 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 mall shall be addressed, to Herbert L Prouty, City Attorney, ~15 E McKmney, Denton, Texas 76~01 When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mall, postage prepaid In all other instances, notices, invoices, and/or payments shall be deemed g~ven 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 serwces, 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 Serwces" ['attached hereto as Exhibit A and incorporated herein for all purposes 2 IV Professional Competency. A The Consultant agrees that ~n 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 perfornung 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, notlung 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 ofservme and the City shall retain ownership and a property interest therein If this Agreement ~s 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 C~ty upon request and without CONTRACT FOR PROFESSIONAL LEGAL SERVICES page restriction on their use or further compensation to the Consultant V Estabhahment and Malntenanee of Records. Full and accurate records shall be maintained by the Consultant at ets place of business with respect to all matters covered by this Agreemeat Such records shall be maintained for a period of at least three years after receapt of final payment under this Agreement VI. Audits and Inspectmn. 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 wath respect to all matters covered by this Agreement The Consultant shall permit the City to audit, exanmne, and make excepts or transcripts from such records, and to make audits of contracts, anvolces, materials, and other data relating to all matters covered by thas Agreement VII Accomphshment of Pro_iect. The Consultant shall commence, carry on, and complete any and all projects with all practicable dispatch, in a sound, economacal and efficient matter, and, lnaccordancewlththeprovlslonshereofandallapphcablelaws In accomphshtng 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 Indammty 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 relaUonslnp of employer and employee between the parties The City and Consultant agree to cooperate an the defense of any claims, action, stat, or proceeding of any land brought by a third party which may result from or directly or mdwectly arise from any neghgence and/or errors or omissions on the part of the Consultant or from any breach of the Consultant's obhgat~ons under this Agreement In the event of any htlgat~on or claim under th~s Agreement ~n which Consultant ~s joined as a party, Consultant shall provide statable counsel to defend Caty and Consultant against such claim, prowded 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 Caty and all of its officers, agents, servants, and employees agaanst any and all such claims to the extent of coverage by Consultant's professional habahty policy The Consultant agrees to pay all expenses, including but not limited to attorney's fees, and satisfy all judgments whach may be incurred or rendered against the Consultant's professional habflity insurance pohcy Nothing hereto constitutes a waiver of any rights or remedies the Clt may have to pursue under either law or equity, mcludang, w~thout hmltatlon, a cause of action for specific performance or for damages, a loss to the City, resulting from Consultant's neghgent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved B Consultant shall mamtaan and shall be caused to be m force at all t~mes during the term of tins Agreement, a legally bln&ng pohcy 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 Commission Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, m an amount not less than $1,000,0oo combined single hrmt coverage occurrence In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to forewlth advise the City thereof, and m 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 IX Termination of Affreement. 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 EI~ written notice (delivered by certified mad, return receipt request) of intent to terminate, and not less than thirty ($0) calendar days to cure the failure, and, [*e~ an opportunity for consultation with the terminating party prior to termination C Notbang eontamed herein or elsewhere in this Agreement shall require the City to pay for any work which is unsatisfactory or which is not submitted in eomphance with the terms of this Agreement Alternate Daspute 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 Practices and Remedies Code (V A T C S ) XI ~ Thas 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 Comphanee w~th 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 Fa. ll.Y.e, rIIlllg_I~ For the purpose of determimng 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 junsdlctaon of any suit or cause of action arising under or m connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County XIV Dlscr, mmatlon Prolnb~ted. In performing the services required hereunder, the Consultant shall not dlscnnunate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap XV ~ 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 reform the City of any conflmt 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 ~ 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 XVII ~ 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 junsdmtlon, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained herein XVIII Responsibilities for Clayton 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 l1 such responsablhty of the Caty for any defect in any report or other documents prepared by the consultant, ~ts employees, officers, agents and consultants XIX Mod~fieatmn of Affreement. No wmver or modaficat~on ofthas Agreement or of any covenant, condatmn, or hmatatmn herean contmned shall be valad unless m writing and duly executed by the party to be charged therewath, and no evidence of any wmver or modaficataon shall be offered or recetved an evidence ~n any proceedang arising between the partaes hereto out of or affecting flus Agreement, or the rights or obligations of the partaes hereunder, unless such waiver or modification ~s in wrltang, duly executed as aforesmd, and, the parties further agree that the provlsaons of this sectaon wall not be waived as herean set forth XX ~ The captions ofthas Agreement are for mformataonal purposes only and shall not in any way affect the substantive terms or condataons of thas Agreement XXI ~ Th~s Agreement shall be banding upon and inure to the benefit of the parties hereto and their respectave heirs, executors, adm~mstrators, legal representatives, successors, and assigns where pernutted by thas Agreement CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 7 IN WITNESS HEREOF, the C~ty of Denton, Texas has caused th~s Agreement to be executed by ~ts duly authorized Ymyor and Consultant.,hp..s execut~ec~ th? ]~greement through ~ts duly authomzed undersigned officer, dated thru the ~ day of/[~d~ 1997 CITY OF DENTON JACK MILLER, MAYOR ATTEST APPROVED AS TO LEGAL FORM HERBERT L PR~OUT~Y, CITY ATTORNEY G P PEtERed ATTEST By/7~,~2'~ ~ owo~o~,~ CONTRACT FOR PROFESSIONAL LEGAL SERVICES page 8 EXHIBIT A PAYMENT FOR LEGAL 8ERVICEN TI'~Is statement set~ forth the statldard terms of payment for our servmes as your lawyers Unless modified m writing by mutual agreement, these terms vail be an mtegral part of our agreement,with you Therefore, we ask that you re,new thru statement carefully and contact us promptly tf you have any questions How Fees Are Set The amount to be charged for the legal serwces we prowde to you vail ordmamly be calculated on an hourly basis at our standard hourly rates These hourly rates presently vary from $75-355, depending on the attorn0y or paralegal who is prowdmg the services, and are adjusted penodmally Attached here ts a schedule of the fees for the specific attorneys expected to work on these matters at the t~me of entering rote thru agreeroent In determining a reasonable fee or our services we may constder other factors as set forth tn Section 1 04~bI of the Texas Dmc~plmary Rules of Profesmonal Conduct, whtch governs all Texas lawyers A copy of Section 1 041bi vall be furnished upon request We are often requested to estimate the amount of fees and costs hkely to be ~ncurred tn connectton vath a parttcular matter Whenever poselble we w~ll furmsh such an estimate based upon our professtonal judgment, but always vath a clear understanding that ~t m not a mammum or fixed fee quotation The ultnnate cost m frequently more or less than the amount estimated For certam vell-de£med sennces, for example, business incorporation, we vall quote a fhxed fee It is our pohcy not to accept representation on a fixed-fee basts except tn such defined-services areas or pursuant to a special arrangement tailored to the needs of a parOcular chent In all such sttuat~ons, the fixed-fee arrangement will be expressed m a letter, setting forth both the amount of the fee and the scope of the serwces to be provided Expense Disbursements and Other Charles We typmally mcur and pay on behalf of our chents a variety of out-of-pocket costs anstng tn connect, ton vath legal servtces Thtrd-par~ charges recurred tn your behalf m stgnfficant amounts vail be mcluded m your bin We will bt~. you monthly for our other expense dtsbursements recurred on your behalf (filing fees, travel expenses, dehvery costs, etc ), together vath our customary charges for copying, printing, long dmtance telephone, telecopy and telex sennces, and other ~tems These wll be btlled to you on the same basra as charged to our other chents A complete explanation of the basts of such charges may be respected m our offiCe at any t~rne upon request We reserve the right to change the method of billing such expense dtsbursements and other charges to you from tune to tune, pro~nded that we charge you on the same basts that we charge our other chents Regular mvomes wdl be furmshed to you for our attorneys' fees, expenses dmbursements and other charges, and you wdl be expected to replemsh the retmner depostt to ~ts original level as s~.lch Invoices are recetved At the conclusion of our legal representation, or at such Ume as the deposit become unnecessary or m approprmtely reduced, the rematmng balance or an appropriate part of ~t vail be returned to you If the retainer depostt proves msuffictent to cover current expenses and fees, ~t may have to be, increased Retainer and Trust Denosits New chents of the firm are commonly asked to depomt a retainer vath the firm The retainer depomt m charged for out attorneys fees as out legal serwces are prowded In addttaon the retainer depostt m charged for expense disbursements m your behalf and our other charges We reserve the right to change the method of bdlmg such expense dmbursements and other charges to you from t~me to thee, prowded that we charge[you on the same basts that we charge our other chents Regular invoices wrll be furmshed to you for our attorneys' fees, expenses dmbursements and other charges, and you wdl be expected to replemsh the retainer depostt to tts ongmal level as such mvmces are recetved At the conclusmn of our legal representation, or at such tume as the deposit become unnecessary or m appropriately reduced, the remmnmg balance or an appropriate part of it vail be returned to you If the retaxner depomt proves msuffictent to cover current expenses and fees, ~t may have to be increased Bimn~ Arranfements and Terms of Payment We vail bill you on a regular basts, normally each month, for both fees, expense dtsbursements and other charges You agree to make payment vathm 30 days of the date we mini our mvo~ce