2009-131S'DUr Ibcummu`-0rdum¢cr'!03tlanmi navmo mcn @ confa Mc
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES
WITH DENTON, NAVARRO, ROCHA & BERNAL FOR LEGAL SERVICES RELATED TO
MEET AND CONFER BARGAINING ISSUES, PURSUANT TO TEX. LOC. GOV'T CODE
§§142.051 THROUGH 142.119; AUTHORIZING THE EXPENDITURE OF FUNDS IN AN
AMOUNT NOT TO EXCEED $150,000; AND ESTABLISHING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The City Manager is hereby authorized to execute a Contract for
Professional Legal Services with Denton, Navarro, Rocha & Bernal, in substantially the form
attached and incorporated herein by reference.
SECTION 2. The expenditure of funds in an amount not to exceed $150,000 as provided
in the attached Contract for Professional Legal Services is hereby authorized.
SECTION 3. This Ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the ~ZZ- day of , 2009.
MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: .11Qf'1 16
APPRO MAS E GAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: ~
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CONTRACT FOR PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS
COUNTY OF DENTON §
This AGREEMENT, made and entered into this the ~ day of 2009
by and between Denton, Navarro, Rocha & Bernal, 2517 North Main venuntonio,
Texas 78212, 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, City finds it necessary to employ outside legal counsel to perform
professional legal services regarding meet and confer bargaining issues, pursuant to FIB 304 and
HB 2892 of the 79th Texas Legislature (Tex. Loc. Gov't Code §§142.051 through 142.119); and
WHEREAS, Consultant is willing to perform such services in a professional manner as
an independent contractor; and
WHEREAS, City desires to engage Consultant to render the professional services in
connection therewith, and 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
Consultant shall perform the following services in a professional manner working as an
independent contractor not under the direct supervision and control of City:
Services to be provided:
1. Consultant shall evaluate the relevant facts and circumstances and shall advise City, by
written opinion, with respect to its options and the legality of such options, regarding
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. This Agreement specifically contemplates that Consultant will advise City with respect to
preparations necessary and appropriate to the potential for requested meet and confer
bargaining, pursuant to HB 304 and HB 2892 of the 79th Texas Legislature (Tex. Loc.
Gov't Code §§142.051 through 142.119), including responses and strategies necessitated
by the filing of one or more petitions for recognition as sole and exclusive bargaining
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agent. In the event that such recognition is ultimately granted to one or more
representative groups, as a result of consent or election, Consultant will advise and assist
City in coordinating and conducting such bargaining sessions, and provide such other
legal services or advisory services as may be necessary and appropriate to finalize one or
more collective bargaining agreements, if any are ultimately reached.
4. Consultant shall perform all the professional services required in a timely fashion, and
shall complete same in compliance with schedules established by 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 12 months, beginning effective June 1, 2009 and
ending on May 30, 2010. This Agreement may be sooner terminated in accordance with the
provisions hereof. Time is of the essence of this Agreement, and 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 City, through its City Attorney,
or as the progress of this matter may require.
3. COMPENSATION AND METHOD OF PAYMENT
A. 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:
Lowell F. Denton
$285/hour
Albert Pena
$210/hour
Elizabeth Provencio
$185/hour
Paralegals
$75/hour
Time will be billed at one tenth ( 1) hour minimum billing increments.
B. Consultant will try to reduce costs whenever feasible by utilizing qualified principals,
associates, paralegals, and law clerks. Consultant shall bill 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 and City agree to set an initial budget, including all charges for the legal services
hereunder, including reasonable out-of-pocket expenses, not to exceed One Hundred Fifty
Thousand Dollars ($150,000), and Consultant agrees to notify City and seek a modification
of the Agreement should the total fees exceed such amount.
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D. City shall either pay directly or reimburse 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 ($0.10) 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
there will be no charges for outgoing telecopier or incoming telecopies. Whenever feasible,
City encourages cost savings by the use of computer files in Microsoft Word or Adobe
Acrobat formats, attached to e-mail transmissions.
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 15th day of each month.
City shall make payment to 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 Consultant shall work with the coordination and general supervision of
the City Attorney or the Deputy City 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: John
Knight, Deputy City Attorney, 215 East 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. 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 Elizabeth Proventio. 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 City shall retain ownership and a property interest
therein. If this Agreement is terminated at any time for any reason prior to payment to
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
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of City upon request and without restriction on their use or further compensation to
Consultant.
5. ESTABLISHMENT AND MAINTENANCE OF RECORDS
Full and accurate records shall be maintained by 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.
6. AUDITS AND INSPECTION
At any time during normal business hours and upon reasonable notice to Consultant,
there shall be made available to City all of Consultant's records with respect to all matters
covered by this Agreement. Consultant shall permit City to audit, 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 this Agreement.
7. ACCOMPLISHMENT OF PROJECT
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, Consultant shall take
such steps as are appropriate to ensure that the work involved is properly coordinated with
related work being carried on by City.
8. INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP
A. Consultant shall perform all services as an independent contractor not under the direct
supervision and control of City. Nothing herein shall be construed as creating a relationship
of employer and employee between the parties. City and Consultant agree to cooperate in the
defense of any claims, actions, suits, or proceedings 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 Consultant, or from any breach of Consultant's obligations under this
Agreement. In the event any litigation or claim is brought under this Agreement in which
City is joined as a part, Consultant shall provide suitable counsel to defend City and
Consultant against such claim; provided however, that Consultant shall have the right to
proceed with competent counsel of his own choosing. Consultant agrees to defend,
indemnify and hold harmless City and all of its officers, attorneys, agents, servants, and
employees against any and all such claims to the extent of coverage by Consultant's
professional liability policy. Consultant agrees to pay all expenses, including but not limited
to attorney's fees, and satisfy all judgments that may be incurred or rendered against
Consultant's professional liability insurance policy. Nothing herein constitutes a waiver of
any rights or remedies 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 City, resulting
from Consultant's negligent errors or omissions, or breach of contract, and all such rights and
remedies are expressly reserved.
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B. Consultant shall maintain and shall cause to be in force at all times during the term of this
Agreement, a legally binding policy of professional liability insurance, issued by an
insurance carrier approved to do business in the State of Texas by the Texas Department of
Insurance, which carrier must be rated by AM Best, with a rating of "A-" or higher. Such
coverage shall cover any claim hereunder occasioned by Consultant's negligent professional
act and/or error or omission, in an amount not less than $500,000 combined single limit
coverage per occurrence. In the event of change or cancellation of the policy by the insurer,
Consultant hereby covenants to immediately advise City thereof; and in such event,
Consultant shall, prior to the effective date of change or cancellation, serve a substitute
policy furnishing the same coverage to City. Consultant shall provide a copy of such policy
and the declarations page of the existing policy to City through its City Attorney,
simultaneously with the execution of this Agreement.
9. TERMINATION OF AGREEMENT
A. In connection with the work outlined in this Agreement, it is agreed and fully understood by
Consultant that 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 City 30 days written notice that Consultant is no longer in a position to continue
representing City. Consultant shall invoice City for all work satisfactorily completed and
shall be compensated in accordance with the terns of this Agreement. All reports and other
documents, or data, or work related to the project shall become the property of 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 mail, 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 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
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.
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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 City and Consultant.
12. COMPLIANCE WITH LAWS
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.
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 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.
14. DISCRIMINATION PROHIBITED
In performing the services required hereunder, 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. 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 City. Consultant shall inform 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 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
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 City thereto.
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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 City shall not constitute nor be deemed a release of the responsibility and
liability of Consultant for the accuracy and competency of its work; nor shall such approval be
deemed to be an assumption of such responsibility of City for any defect in any report or other
documents prepared by Consultant, its employees, officers, agents and consultants.
19. MODIFICATION OF AGREEMENT
No waiver or modifeation 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.
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 has qcecuted
this Agreement through its duly authorized undersigned partner, dated this the Z _ day of
12009.
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CITY OF DENTON, TEXAS
GE RG C. CAMPBE L
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
APPRO ED AS , LEGAL FORM:
ANITABURGESS, CITY ATTORNEY
BY: 1~ ,1 ut't`cI
DENTON, NAVARRO, ROCHA &
BERNAL
(:Z:
LOWELL F. DEN N, PA TNER
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