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2006-104FILE REFERENCE FORM 2006-104 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILES Date Initials First Amendment to Agreement [original is attached] 04/12/07 J R ORDINANCE NO. ;2. oOb-/ () if AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A CONTRACT WITH TAYLOR, OLSON, ADKINS, SRALLA & ELAM, LLP FOR PROFESSIONAL LEGAL SERVICES RELATED TO INITIATING LITIGATION AGAINST ONE OR MORE CONTRACTORS INVOLVED IN THE STREET OR UTILITY CONSTRUCTION OF THE WIND RIVER ESTATES DEVELOPMENT IN DENTON, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems it necessary, appropriate, and in the public interest to engage the law firm of Taylor, Olson, Adkins, Sralla & Elam, LLP to provide professional legal services related to initiating litigation against one or more contractors involved in the street or utility construction of the Wind River Estates development in Denton, Texas; and WHEREAS, the firm of Taylor, Olson, Adkins, Sralla & Elam, LLP has demonstrated considerable expertise of relevant issues concerning municipal litigation; and WHEREAS, City Council finds that there is a substantial need for the hereinabove described professional services, and that limited City staff cannot adequately perform the specialized legal services with its own personnel; 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 Contract for Professional Legal Services; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION I. The recitations in the preamble are true and correct, and are incorporated herewith as part of this ordinance. SECTION 2. The Interim City Manager is hereby authorized to execute an Contract with Taylor, Olson, Adkins, Sralla & Elam, LLP for professional legal services related to initiating litigation against one or more contractors involved in the street or utility construction of the Wind River Estates development in Denton, Texas, in substantially the form of the Contract for Professional Legal Services attached hereto and incorporated herein by reference. SECTION 3. The expenditure offunds, is hereby authorized, as provided in the attached Contract for Professional Legal Services. The Interim City Manager, or his designee, is authorized to exercise all rights and duties of the City of Denton under the Contract. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the / ~t11..day of ()p1j h ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPR VED A 0 LEGAL FORM: EDW~NY-DER~C~TTORNEY -;?' -' By: ----=::: ---- ~-' /' .--- c.....---- S:\Our Documems\Ordinancesl06\taylor olson ordinance,doc ,2006. ~A~ EULINE BROCK, MAYOR 2 CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS ~ COUNTY OF DENTON ~ This AGREEMENT, made and entered into this the JMWay of a~ ' 2006, by and between Taylor, Olson, Adkins, Sralla & Elam, LLP, 6000 Weste Place, SUite 200, Fort Worth, Texas 76107, hereinaftcr 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 to initiate litigation against one or more contractors involved in the street or utility construction of the Wind River Estates and Ryan Ranch developments in Denton, Texas, relating to road base failures in those developments; 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 111 connection therewith, and Consultant is wi lling 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 perfornl the following services in a professional manner working as an independent contractor not under the direct supervision and control of City: Scrvices 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, including researching and responding to requests for legal services. 2. Consultant shall also consult, as requested, with thc City Manager, the City Attorney, and any other designated City staff, respecting any and all aspects of the services to be performed under this Agreemcnt. 3. Consultant shall pcrform 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. 2. TERM This Agreement shall be for a term of 36 months, beginning April 15,2006 and ending on April 15, 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 profcssional services hereunder, based on the following fees for its professional scrvices hereunder, based on the following hourly billing rates for the attorneys and support staff involvcd in this matter: E. Allen Taylor, Jr. Dan Barrett pa "'l /e:;q I $170/hour $170/hour $ C) 0, .:..< /hour Attorney 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 othcr 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. Consultant estimates and City agrees that all charges for the legal services contemplated herein, including reasonable out-of-pocket expenses, and it is anticipated that City's further pursuit of litigation in this matter will be based upon Consultant's review and recommendations, either under an amendment to this Agreement, or by separate contract for professional legal services. Consultant's billed services shall not exceed $200,000 and Consultant agrees to notify City and seek a modification of the Agreement should the total fees exceed such amount. C. 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 Contract For Professional Legal Services - Page 2 at bulk rates or by the city to reduce costs ifbulk copying is necessary. 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. D. 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 ~ day of each month. City shall make payment to Consultant within 30 days of the satisfactory completion of services and receipt of an itcmized 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 set forth herein. All invoices and bills are subject to approval by the City Attorney. E. It is understood that Consultant shall work with the coordination and gencral supervision of the City Attorney or the Deputy City Attorney. F. 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 E. 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 responsiblc 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 agrces that in the performancc of these professional services, Consultant shall be responsible for the Icvel 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 E. Allen Taylor, Jr. However, nothing herein shall limit Consultant from using othcr 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. 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 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, carryon, 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 defcnse 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 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 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 Contract For Professional Legal Services - Page 4 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 bythe 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. TERMINA nON 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 terms of this Agreement. All reports and other documents, or data, or work related to the project shall becomc 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 [I] written notice (delivered by certified mail, return receipt requested) of intent to terminatc, 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. , II. 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 Contract For Professional Legal Services - Page 5 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 LA W 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. PE,RSONNEL 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. 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", Contract For Professional Legal Services - Page 6 "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 modifcation 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 executed this ~reel)lent through its duly authorized u,ndersigned partner, dated this the / rllf}r day of f)/I,{L ,2006. CITY OF DENTON BY: HOWARD MARTIN, INTERIM CITY MANA Contract For Professional Legal Services - Page 7 ATTEST: JENNIFER WALTERS, CITY SECRETARY APPRO AS LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY c:~ BY." _ /" 5:IOur DocuJJ>elllsICOnlf3Cls\06\laylor olson litigation conlrncl.doc Contract For Professional Legal Services - Page 8 TAYLOR,OLSON,ADKlNS,SRALLA & ELAM, LLP BY: FIILST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON This First Amendment to that Agreement, made and entered into on the 18's day of April, 2006, 6y and between Taylor, Olson, Adkins, Sralla & Elam, LLP, 6000 Western Place, Suite 200, Fort Worth, Texas 76107, hereinafter referred to as "Consultant", and the City of Denton, a Texas municipal corporation, 2l5 East McKinney, Denton,'1'exas 7620L, hereinafter referred to as "City". WITNESSETH WHEREAS, City fmds it necessary to employ outside legal counsel to perform professional legal services to initiate litigation against one or more contractors involved in the street or utility construction of the Wind River Estates and Ryan Ranch developments in Denton, Texas, relating to road base failures hr those developments; 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 muh~al obligations herein, the parties hereto do hereby mutually AGREE as follows: I. SCOPE OF SERVICES Consultant shall perform the following services in a professional manner working as au 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 [o its options and the legality of such options, including 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. 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 Attomey, through discussions with Consultant, as appropriate to carry out the terms and conditions ofthis Agreement. 4. Upon consultation and approval by City, Consultant may engage the services of tesfifying or consulting expert witnesses, and bill City for charges associated with their services. 2. TERM This Agreement shall be for a term of 36 months, beginning April 15, 2006 and ending on April 15, 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 nn 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: E. Allen Taylor, Jr. $170/hour Dan Barrett $] 70/hour Associate Attorneys $155/hour Paralegals $90/hour Attomey time will be bit led at one tenth (.1) hour minimum billing increments R. 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 alt services rendered, along with specific description and supporting documentation, if available, respecting any reasonable and necessary out-of- pocket expenses incurred. Consultant estimates and City agrees that a0 charges for the legal services contemplated herein, including reasonable out-of-pocket expenses, and it is anficipated that City's further pursuit of litigation in this matter will be based upon Consultant's review and recommendations, either under an amendment to this Agreement, or by separate contract for professional legal services. Consultant's billed services shall not exceed $200,000 and Consultant agrees to notify City and seek a modification of the Agreement should the total fees exceed such amount. Conuact For Pmfessional Legs] Services -Page 2 C. 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 telecopier. Whenever feasible, City encourages cost savings by the use of computer files in Microsoft Word or Adobe Acrobat formats, attached to a-mail transmissions. D. 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 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 Ihnitations set forth herein. All invoices and bills are subject to approval by the City Attorney. E. It is understood that Consultant shall work with the wordination and general supervision of the City Attorney or the Deputy City Attomcy. F. All notices, billing statements and invoices shall he 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 Attomey, 215 E. 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. 1n 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 dre purpose of this Agreement, the key persons who will be performing most of the work hereunder shall be Dan Bazrett. 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 Convact Por Professional Legal Services -Page 3 of City upon request and without restriction on their use or further compensation to Consultant 5. ESTABLISHMENT AND MAINTENANCE OF RECORDS Futl and accurate records shall be maintained by Consultant at its place of business with respect to al] matters covered by this Agreement. Such records shall be maintained for a period of at least three yeazs 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 u'anscripts 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 shalt commence, carry on, and complete any and all projects with all practicable dispatch, in a sound, economical and eflicient 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. , S. 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 A~eement. ]n the event any litigation or claim is brought under this Agreement th 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 hazmless 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 fees, and satisfy al] 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 lass to City, resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved. , Contract For Professional Legal Services-Page 4 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 bythe insurer, Consultant hereby covenants to immediately advise City thereof; and in such event, Consultant shall, prior to the effective daft of change or cancellation, serve a substitute policy famishing the same coverage to City. Consultant shall provide a copy of such policy and the declarations page of [he existing policy to City through its City Attorney, simultaneously with the execution of this Agreement. 9. TERMINA"PION 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 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 maybe terminated in whole' or in part, in writing, by either party in the event of subs[anfial 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 temunate, and no[ less than 30 calendaz days to cure the failure; and [2] an opportunity for consultation with the terminating party prior to termination. C. Nothing wntained 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'Cexas Civil Practice and Remedies Code. Contract Por Professional Legal Services-Page 5 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. GOVETtNING 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 azising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County. 14. DISCRIMINATION PROHIBTTED 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 [hat it has or will secure at its awn 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. ASSTGNABILITY i 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. ~ Contract For Professional Legal Services - Pagc b 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 ar 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 modifcation 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 ficreto 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 1'he 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. Contract For Professional Legal Services- Page 7 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~~cuted thi Agreement-though its duly authorized undersigned partner, dated this the ~_ day of ~~~ , 2007. , CITY OP DENTON BY: ~~ ~` GEORGE C. CAMPBELL, CITY Mt1NAGER S:MAa0omemVLNn.mbNyb,oh® lil~ea'v. ®sde..,ax Controct For Professional Legal Services-Page 8 ATTEST: JENNIFER WALTTRS, CITY SECRETARY