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2008-051ORDINANCE NO. ~G ~t~g-D~~ CONSIDER AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND AMENDED CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH WOLFE, TTDWELL & MCCOY FOR PROFESSIONAL LEGAL SERVICES RELATING TO LITIGATION STYLED TOWER V. CITY OF DENTON, CNIL ACTION NO. 4:OSCV302 PENDING 1N THE U.S. DISTRICT COURT, EASTERN DISTRICT, SHERMAN DIVISION; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTNE DATE. WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to engage Wolfe, Tidwell & McCoy to provide professional legal services relating to litigation styled Tower v. City of Denton, Civil Action No. 4:05cv302 pending in the U.S. District Court, Eastern District, Sherman Division; and WHEREAS, City staff has reported to the City Council that there is a substantial need for the hereinabove described professional services, and that limited City staff cannot adequately perform the legal services with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a city may not select a provider of professional services on the basis of competitive bids, but must select the provider of professional services on the basis of demonstrated competence, larowledge, and qualifications, and for a fair and reasonable price; and the City Council hereby finds and concludes that the law firm of Wolfe, Tidwell & McCoy is appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City; and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in the Second Amendment to Contract for Professional Legal Services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: The recitations in the preamble are true and correct and are incorporated herewith as part of this ordinance. SECTION 2: The City Manager is hereby authorized to execute a Second Amended Contract for Professional Legal Services with Wolfe, Tidwell & McCoy for professional legal services relating to litigation styled Tower v. City of Denton, Civil Action No. 4:OScv302, pending in the U.S. District Court, Eastern District, Sherman Division in substantially the form attached hereto and incorporated herein by reference. SECTION 3: The award of this agreement is on the basis of the demonstrated competence and qualifications of Wolfe, Tidwell & McCoy and the ability of Wolfe, Tidwell & McCoy to perform the professional legal services needed by the City for a fair and reasonable price. SECTION 4: The expenditure of funds as provided in the attached Second Amended Contract for Professional Legal Services is hereby authorized, and the previous expenditures regarding this litigation are ratified and approved. SECTION 5: This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of _ ~~~_, 2008. ' ~nA } PERR R. McNEILL, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ~ APPROVED AS TO LEGAL FORM: ::~~,,,. do<umem.~o.am ~-:~os~~~oy:«o~a <m<~am<~<<,.a~~~~«.ao< 2 SECOND AMENDED !' CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § j; COUNTY OF DENTON § i This Second Amended Contract, made and entered into the ~~ day of '~~ip1~~ 2008 ("Agreement") by and between Wolfe, Tidwell & McCoy, LLP, 2591 Dallas-~~~~kway, s Suite 205, Frisco, Texas 75034, 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, due to unanticipated delays in securing court mlings in several key pretrial matters, the previous estimate of litigation expense will soon be exceeded, and it is therefore , necessary to amend the Contract for Professional Legal Services regarding pending litigation styled Cary Tower v. City of Denton, in the United States District Court for the Eastern District ; of Texas, Sherman Division, Civil Action No. 4:OScv302 to revise the prior cost estimate; 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. i 3. 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 Consultant, as appropriate to carry out the terms and conditions of this Agreement. ! j 4. Consultant shall, as directed by the City through its City Attorney, appear on behalf of City and represent the City as trial counsel in the aforementioned civil action. 2. TERM This Agreement shall be for a term of 48 months, beginning effective August 1, 2005 and . ending on August 31, 2009. 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: Clark McCoy/Partners $150/hour Associate Attorneys $110/hour Paralegals $60/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. i ~ . C. Consultant estimates and City agrees that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed one hundred fifty thousand dollars ($150,000), and Consultant agrees to notify City and seek a modification of the Contract should the total fees exceed such amount. D. City shall either pay directly or reimburse Consultant, as the case maybe, 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 Second Amended Contract For Professional Legal Services -Page 2 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 necessazy. The parties agree that there will be no charges for outgoing telecopies 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 ls` 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. Tt 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: Jerry E. Drake, Jr., 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 maybe 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 Clark McCoy. 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 of City upon request and without restriction on their use or further compensation to Consultant. Second Amended Contract For Professional Legal Services -Page 3 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 The City shall have the right to audit and make copies of the books, records and computations pertaining to this agreement. The Contractor shall retain such books, records; documents and other evidence pertaining to this agreement during the contract period and five years thereafter, except if an audit is in progress or audit Findings are yet unresolved, in which case records shall be kept until all audit tasks are completed and resolved. These books, records, documents and other evidence shall be available, within 10 business days of written request. Further, the Contractor shall also require all Subcontractors, material suppliers, and other payees to retain all books, records, documents and other evidence pertaining to this agreement, and to allow the City similar access to those documents. All books and records will be made available within a 50 mile radius of the City of Denton. The cost of the audit will be borne by the City unless the audit reveals an overpayment of 1 % or greater. If an overpayment of 1 % or greater occurs, the reasonable cost of the audit, including any travel costs, must be borne by the Company which must be payable within five business days of receipt of an invoice. Failure to comply with the provisions of this section shall be a material breach of this contract and shall constitute, in the Ciry's sole discretion, grounds for termination thereof: Each of the terms "books", "records", "documents" and "other evidence", as used above, shall be construed to include drafts and electronic files, even if such drafts or electronic files are subsequently used to generate or prepare a final printed document. 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 carved 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 Second Amended Contract For Professional Legal Services -Page 4 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 its 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. 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, issued by an insurance carrier approved to do business in the State of Texas by the State Insurance Commission, which carrier must be rated.by Best Rated Carriers, 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 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 60 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 terms 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 Second Amended Contract For Professional Legal Services -Page 5 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. 11. ENTIRE AGREEMENT This Second Amendment to the Contract for Professional Services 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 Second Amended Contract For Professional Legal Services-Page 6 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. 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 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 modifcation 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. Second Amended Contract For Professional Legal Services -Page 7 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 Second Amended Contract for Legal Services to be executed by its duly authorized City Manager, and Consultant h,as/ /e~~ecuted this A reeme rt through its duly authorized undersigned partner, dated this the day of C , 2008. CITY OF DENTON BY: - C_._~ GEORGE C. CAMPBEL , CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY. WOLFE, TIDWELL & MCCOY BY. CLA Second Amended Contract For Professional Legal Services -Page 8 BY: ,-_. APPR VEDA O LEGAL FORM: