2004-037AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS
AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES
AGREEMENT WITH WOLFE, TIDWELL & MCCOY, LLP, FOR PROFESSIONAL LEGAL
SERVICES RELATING TO LITIGATION STYLED UGWUH lq. CITY OF DENTON, CAUSE
NO. 2002-41462-362 CURRENTLY PENDING IN THE 362m) DISTRICT COURT OF
DENTON COUNTY; 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 Wolfe, Tidwell & McCoy, LLP ("Wolfe"), of Sherman, Texas, to
provide professional legal services relating to litigation styled Ugwuh v. City of Denton, Cause
No. 2002-41462-362, currently pending in the 362na District Court of Denton County; and
WHEREAS, the City has previously retained and engaged the professional legal services
of Wolfe on numerous occasions, and Wolfe has operated under numerous other professional
services agreements with the City regarding legal representation, which have demonstrated
Wolfe's considerable expertise of relevant issues concerning the City; and
WHEREAS, City staffhas 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 specialized 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, knowledge, and qualifications,
and for a fair and reasonable price; and the City Council hereby finds and concludes that Wolfe
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 1: That the recitations in the preamble are tree and correct and are
incorporated herewith as part of this ordinance.
SECTION 2: That the City Manager is hereby authorized to execute a Professional
Services Agreement with Wolfe, Tidwell & McCoy, LLP, for professional legal services relating
to litigation styled Ugwuh v. City of Denton, Cause No. 2002-41462-362 currently pending in the
362na District Court of Denton County, in substantially the form of the Professional Services
Agreement attached hereto and incorporated herein by reference.
SECTION 3: That the award of this Agreement is on the basis of the demonstrated
competence and qualifications of Wolfe, Tidwell & McCoy, LLP and the ability of Wolfe,
Tidwell & McCoy, LLP to perform the professional legal services needed by the City for a fair
and reasonable price.
SECTION 4: That the expenditure of funds as provided in the attached Professional
Services Agreement is hereby authorized.
SECTION 5: That this ordinance shall become effective immediately upon its passage
and approval.
PASSED AND APPROVED thisthe /7¢-- dayof xoT~~/~]~' ,2004.
EULINE BROCK, MAYOR
ATTEST:
JEN'b 'IFER WALTERS, CITY. SECRETARY
API~ OVED AS TO. LEGPrL-FORM-'.~.
HERBER~T.E-.<PROUTY, CITY ATTORzhNEY
2
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
This AGREEMENT, made and entered into this the ~C'day of _~o.~,J_c,.c -~/ ,
2004, by and between Wolfe, Tidwell & McCoy, L.L.P., 123 North Crockett Street, Suite/100,
Sherman, Texas 75090, 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, the City finds it necessary to employ outside legal counsel to perform
professional legal services regarding litigation styled Ugwuh v. City of Denton, Cause No. 2002-
41462-362, filed in the 362"d District Court of Denton County, Texas; and
WHEREAS, the Consultant is willing to perform such services in a professional manner
as an independent contractor; and
WHEREAS, the City desires to engage the Consultant to render the professional services
in connection therewith, and the 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
The Consultant shall perform thc following services in a professional manner working as
an independent contractor not under the direct supervision and control of the City:
Services to be provided:
1. The Consultant shall evaluate the relevant facts and circumstances and shall advise the
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. The Consultant shall perform all the professional services required in a timely fashion,
and shall complete same in compliance with schedules established by the 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 20 months, beginning effective February 1, 2004
and ending on October 30, 2005. This Agreement may be sooner terminated in accordance with
the provisions hereof. Time is of the essence of this Agreement, and the Consultant shall make
all reasonable efforts to complete the services set forth herein as expeditiously as possible during
the term of this Agreement, and to meet the schedules established by the City, through its City
Attorney, or as the progress of this matter may require.
3. COMPENSATION AND METHOD OF PAYMENT
A. The 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:
Attorneys $135/hour
Paralegals $ 60/hour
Attorney time will be billed at one tenth (.I) hour minimum billing increments.
B. The Consultant will try to reduce costs whenever feasible by utilizing qualified principals,
associates, paralegals, and law clerks. The Consultant shall bill the 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 the City agree that all charges for the legal services hereunder,
including reasonable out-of-pocket expenses, shall not exceed thirty-five thousand dollars
($35,000), and Consultant agrees to notify the City and seek a modification of the agreement
should the total fees exceed such amount.
D. The City shall either pay directly or reimburse the Consultant, as the case may be, for
reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-
distance telephone, telecopier, reproduction, overnight courier, on-line research, and travel.
All copies will be charged at the rate often 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 telecopies or incom'mg 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.
Contract For Professional Legal Services - Page 2
E. Thc 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. The City shall make payment to the 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 the Consultant shall work with the coordination and general supervision
of the City Attorney or the Senior Assistant City Attorney/Litigation Chief.
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., Senior Assistant City Attorney/Litigation Chief, 215 E. McKirmey, 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. The 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, nolhing herein shall limit Consultant
from using other qualified and competent members of its firm to perform the services
reqnired herein.
B. All legal opinions and other legal documents prepared or obtained under the terms of this
Agreement are instruments of service and the City shall retain ownership and a property
interest therein. If this Agreement is terminated at any time for any reason prior to payment
to the Consultant for work under this Agreement, all such documents prepared or obtained
under the terms of the Agreement shall upon termination be delivered to and become the
property of the City upon request and without restriction on their use or further compensation
to the Consultant.
5. ESTABLISHMENT AND MAINTENANCE OF RECORDS
Full and accurate records shall be maintained by the Consultant at its place of business
with respect to all matters covered by this Agreement. Such records shall be rna'retained for a
period of at least three years after receipt of final payment under this Agreement.
Contract For Professional Legal Services - Page 3
6. AUDITS AND INSPECTION
At any time during normal business hours and upon reasonable notice to the Consultant,
there shall be made available to the City all of the Consultant's records with respect to all matters
covered by this Agreement. The Consultant shall permit the 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
The 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, the Consultant shall
take such steps as are appropriate to ensure that the work involved is properly coordinated with
related work being carried on by the City.
8. INDEMNITY AND INDEPENDENT CONTRACTOR RELATIONSHIP
A. The Consultant shall perform all services as an independent contractor not under the direct
supervision and control of the City. Nothing herein shall be construed as creating a
relationship of employer and employee between the parties. The City and Consultant agree
to cooperate in the defense of any cla'uns, actions, suits, or proceeding of any kind brought by
a third party which may result from or directly or indirectly arise fi.om any negligence and/or
errors or omissions on the part of the Consultant, or from any breach of the 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 the Consultant shall
have the fight to proceed with competent counsel of his own choosing. The Consultant
agrees to defend, indemnify and hold harmless the 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. The 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 the Consultant's professional liability insurance policy. Nothing herein
constitutes a waiver of any rights or remedies the City may have to pursue under either law
or equity, includ'mg, without limitation, a cause of action for specific performance or for
damages, a loss to the 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 fome 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 carder must be rated by Best Rated Carders, with a rating of "A-" or
higher. Such coverage shall cover any claim hereunder occasioned by the 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, the Consultant hereby covenants to immediately advise the City
Contract For Professional Legal Services - Page 4
thereof; and in such event, the Consultant shall, prior to the effective date of change or
cancellation, serve a substitute policy furnishing the same coverage to the City. The
Consultant shall provide a copy of such policy and the declarations page of the existing
policy to the 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
the Consultant that the City may cancel or indefinitely suspend further work hereunder or
terminate this Agreement at any time upon written notice to Consultant, Consultant shall
cease all work and labor being performed under this Agreement. Consultant may terminate
this Agreement by giving the City 30 days written notice that Consultant is no longer in a
position to continue representing the City. Consultant shall invoice the City for all work
satisfactorily completed and shall be compensated in accordance with the terms of this
Agreement. All reports and other documents, or data, or work related to the project shall
become the property of the City upon termination of this Agreement.
B. This Agreement may be terminated in whole or in part, in writing, by either party in the event
of substantial failure by the other party to fulfill its obligations under this Agreement through
no fault of the terminating party. Provided, however, that no such termination may be
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 the 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
The Consultant agrees that, if necessary, it will use its best efforts to resolve any disputes
regarding the Agreement through the use of mediation or other forms of alternate dispute
resolution set forth in Chapter 154 of the Texas Civil Practice and Remedies Code (V.A.T.C.S.).
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 the City and the Consultant.
Contract For Professional Legal Services - Page 5
12. COMPLIANCE WITH LAWS
The Consultant shall comply with all federal, state, and local laws, roles, 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, the 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. The Consultant represents that it has or will secure at its own expense all personnel required
to perform all the services required under this Agreement. Such personnel shall not be
employees or have any contractual relations with the City. Consultant shall inform the 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 the Consultant or under its direct
supervision. All personnel engaged in work shall be qualified and shall be authorized or
permitted under state and local laws to perform such services.
16. ASSIGNABILITY
The Consultant shall not assign any interest in this Agreement and shall not transfer any
interest in this Agreement (whether by assignment, novation, or otherwise) without the prior
~xitten consent of the City thereto.
17. SEVERABILITY
All agreements and covenants contained herein are severable, and in the event any of
them, with the exception of those contimed 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.
Contract For Professional Legal Services - Page 6
18. RESPONSIBILITIES FOR CLAIMS AND LIABILITY
Approval by the City shall not constitute nor be deemed a release of the responsibility
and liability of the Consultant for the accuracy and competency of its work; nor shall such
approval be deemed to be an assumption of such responsibility of the City for any defect in any
report or other documents prepared by the 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 A, gr,eement through its duly authorized undersigned parmer, dated this the /~.~c~. day of
~ ~_~/Z/~(2AA~_/- , 2004.
CITY OF DENTON
CITY MANAGER
Contract For Professional Legal Services - Page 7
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: ~ .~ ~ ~ .
APP~V~; AlTO LEGAL FORM:
WOLFE, CLARK & MCCOY, LLP
Contract For Professional Legal Services - Page 8