2006-282
FILE REFERENCE FORM 2006-282
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Other
FILE(S) Date Initials
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First Amendment to Contract [original is attached] 04/15/08
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Second Amendment to Contract [original is attached] 08/21/08
ORDINANCE NO. 200{;-2.&2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE A PROFESSIONAL
SERVICES AGREEMENT WITH THE MESSER LAW FIRM FOR PROFESSIONAL LEGAL
SERVICES RELATING TO LITIGATION STYLED KISKO V. CITY OF DENTON, CAUSE
NO. 2006-50265-367 CURRENTLY PENDING IN THE 367TH DISTRICT COURT OF
DENTON COUNTY, 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 Messer Law Firm ("Messer"), of Frisco, Texas, to provide professional legal
services relating to litigation styled Kisko v. City of Denton, Cause No. 2006-50265-367
currently pending in the 367th District Court of Denton County, Texas; and
WHEREAS, the City has previously retained and engaged the professional legal services
of Messer, and Messer has operated under other professional services agreements with the City
regarding legal representation, which have demonstrated Messer's considerable expertise of
relevant issues concerning the City; 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 thc basis of competitive bids, but must select the provider of
professional services on the basis of demonstrated competence, knowledge, and qualifications,
and for a fair and reasonable price; and the City Council hereby finds and concludes that Messer
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 Professional Services Agreement; 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 a Professional
Services Agreement with The Messer Law Firm for professional legal services relating to
litigation styled Kisko v. City of Denton, Cause No. 50265-367 currently pending in the 367th
District Court of Denton County, Texas; in substantially the form of the Professional Services
Agreement 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 The Messer Law Firm and the ability of The Messer Law Firm
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 Professional Services
Agreement is hereby authorized.
SECTION 5: This ordinance shall become effective immediately upon its passage and
approval.
PASSED AND APPROVED this the 2h -f/! day of ( 5f;..o /-em her, 2006.
6:~~~R
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPRO D AS T EGAL FORM:
EDWIN M. SNYDER,8ITY-AT-T0
S:\OUT Documents\Ordinances\06"\messer-kisko ordinance doc
2
~
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS 9
COUNTY OF DENTON S
This AGREEMENT, made and entered into this the ~ay of ~.jffi ,2006
by and between The Messer Law Firm, 6947 Main Street, 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, City finds it necessary to employ outside legal counsel to perform
professional legal services regarding litigation styled Kisko v. City of Denton, in the 3671h
District Court, Denton County, Texas, Cause No. 2006-50265-367; 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 III
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:
I. 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. 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.
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 <If 36 months, beginning effective September 12,
2006 and ending on September 12, 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. COMPENSATlON 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:
Principal Attorney
Associate Attorneys
Paralegals
$ 140/hour
$125/hour
$65/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 estimates and City agrees that all charges for the legal services hereunder,
including reasonable out-of-pocket expen~es, shall not exceed thirty five thousand dollars
($35,000), and Consultant agrees to notify City and seek a modification of the Agreement
should the total fees exceed such amount. It is understood and agreed that the course of
litigation is difficult to predict and that modification to exceed the total fee amount may be
required.
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 photoc?pying as possible being done by outside vendors
Contract For Professional Legal Services - Page 2
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 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 1 sl 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: 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 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 p,rofessionals 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 Andy Messer'. 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.
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
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 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 insuran~e 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.
Contract For Professional Legal Services - Page 4
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 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 poliey 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 thc project shall become the property of City upon
termination ofthis 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.
Contract For Professional Legal Services - Page 5
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
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 Consultal)t'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.
Contract For Professional Legal Services - Page 6
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 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 modi fication 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 fOl: 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 hasr}ffCe)luted
t~~ through its duly authorized undersigned partner, dated this the /1 r'1iay of
0-1 ) , 2006.
Contract For Professional Legal Services - Page 7
Nov .10 06 OS:37a
The Messer Law Firm
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPR D AS 0 LEGAbFORM:
.- ,
EDWIN M..SNYDER, CITY ATTORNEY
/..----- -- - /
~- /
BY:._-
~
s:\Our DoClllllllnll\CQlllrlcl5\OI5\mc::u~ conlfact.doc
Contract For Professional Legal Services - Page 8
46S-633-1177
CITY OF DENTON
~~
BY:
GEORGE C. CAMPBELL,
CITY MANAGER
THE MESSER LAW FIRM
BY: ~y JIt'"".s.J'dI'-
ANDY MESSER
p.2
/ 6:but pQS610~--ILID fIIII tOmdmCOI.dOC
STATE OF TEXAS
COUNTY OF DENTON §
FIItST AMENDMENT TO
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS FIRST AMENDMENT TO THAT CONTRACT made and entered into the 17~'
day of November, 2006, (`Base Contract") by and between Messer, Campbell & Brady, 6351
Preston Road, Suite 350, Frisco, Texas 75034, hereinafter referred to as "Consultant", and the
City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas
76201, hereinafter referred to as "City."
WITNESSETH
SECTION 1. Pazagraphs A and C of Section 3 "Compensation and Method of Payment"
of the Base Contract are hereby amended to read as follows:
Compensation and Method of Payment:
A. Consultant shall charge 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:
Partners
Associates
Pazalegals
$150lhour
$135/hour
$75/hour
Attorney time will be billed at one tenth (.1) hour minimum billing increments.
C. Consultant estimates and City agrees that all chazges for the legal services
hereunder, including reasonable out-of-pocket expenses, shall not exceed fifty
thousand dollazs ($50,000), and Consultant agrees to notify City and seek a
modification of the Contract should the total fees exceed such amount. It is
understood and agreed that the course of litigation is difficult to predict and that
modification to exceed the total fee amount may be required.
SECTION 2. Save and except as amended hereby, all the remaining sections,
paragraphs, sentences, clauses, and phrases of the Base Contract shall remain in full force and
effect.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this First Amendment
to be executed by its duly au orized City Manager; and Consultant has executed on this the
/5-~h. day of ~~jJ~ ~ , 2008.
CITY OF DENTUN, TEXAS
BY ~-~--~
GEOItC3E . C~'BELL
CITYMANAGSR .
JFR WALTERS, CITY SBCRBTARY .
• By; ~ ,
.....
LTANT':
R; CAMPBBLT, & BRADY
_~y ~~~. .
AI~IDRBW 1V, PARTNBR ~ .
Page 2
~ S:~JIR dOWmrn6\W~-tlf~ QmOfI tO~IDmI.AOC
STATE OF TEXAS §
COUNTY OF DENTON §
SECOND AMENDMENT TO
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS SECOND AMENDMENT TO THAT CONTRACT made and entered into the 17th
day of November, 2006, (`Base Contract") by and between Messer, Campbell & Brady, 6351
Preston Road, Suite 350, Frisco, Texas 75034, hereinafter referred to as "Consultant", and the
City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas
76201, hereinafter referred to as "City."
WTTNESSETH
SECTION 1. Paragraph C of Section 3 "Compensation and Method of Payment" of the
Base Contract are hereby amended to read as follows:
3. Compensation and Method of Payment:
C. Consultant estimates and City agrees that all charges for the legal services
hereunder, including reasonable out-of-pocket expenses, shall not exceed seventy
thousand dollars ($70,000), and Consultant agrees to notify City and seek a
modification of the Contract should the total fees exceed such amount. It is
understood and agreed that the course of litigation is difficult to predict and that
modification to exceed the total fee amount may be required.
SECTION 2. Save and except as amended hereby, all the remaining sections,
paragraphs, sentences, clauses, and phrases of the Base Contract shall remain in full force and
effect.
IN WITNESS WI~REOF, the City of Denton, Texas has caused this First Amendment
to be xecuted by its ly authoriz City Manager; and Consultant has executed on this the
~~ day of , 2008.
CITY OF DENTON, TEXAS
By:
GBO GE C. CAMPB L
CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
CONSULTANT:
- MESSER, CAMPBELL & BRADY -
W. ANDREW.MESSER, PARTNER , - -
Page 2