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2003-023ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES BETWEEN THE CITY OF DENTON AND ORGAIN, BELL & TUCKER, LLP FOR LEGAL SERVICES IN LITIGATION STYLED ROBINSON g. CITY OF DENTON, ETAL., CURRENTLY PENDING IN THE 58T' DISTRICT COURT OF JEFFERSON COLrNTY, TEXAS; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING FOR AN EFFECTIVE DATE. THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute a Contract for Professional Legal Services between the City of Denton and Orgain, Bell & Tucker, LLP for legal services in litigation styled Robinson v. City of Denton, et al., currently pending in the 58th District Court of Jefferson County, Texas, a copy of which is attached hereto and incorporated by reference herein. SECTION 2. That the expenditure of funds as authorized in the attached contract is hereby authorized. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the d / ~ ~~ day of ,2003. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON § This AGREEMENT, made and entered into this the /3~-day of ~n~,~,7 , 2003, by and between Orgain, Bell & Tucker, L.L.P., 470 Orleans Street, Beaumon~ Texas 77704, 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". WlTNESSETH WHEREAS, the City finds it necessary to employ outside legal counsel to perform professional legal services regarding litigation styled Robinson v. City of Denton, et al., Cause No. A167804, filed in the 58th District Court of Jefferson 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 the 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: 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. 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. 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 Attomey, 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 January 1, 2003 and ending on September 30, 2004. 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: Michael Truncale Martha Campbell and Scott Doyen Donna Polidoro $175/hour $140/hour $135/hour Attorney time will be billed at one tenth (.1) 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 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 telecopies or incoming telecopies. Whenever feasible, City encourages cost savings by the use of computer files in Microsof~ Word or Adobe Acrobat formats, attached to e-mail transmissions. Contract For Professional Legal Services - Page 2 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/0 q~' 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. 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. 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 Michael Tnmcale. 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 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 maintained 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 claims, actions, suits, or proceeding 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 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 right 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, attomeys, 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, including, 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 force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carder approved to do business in the State of Texas by the State Insurance Commission, which carder must be rated by Best Rated Carriers, 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 Contxact 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 Assistant City Manager for Utilities, 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 term'mate this Agreement at any time upon written notice to Consultant, Consultant shall cease all work and labor being performed under this Agreement. Consultant may term'mate 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, 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. DISCRIlVlINATION 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 end 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 written 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 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. 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 fights 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 9~x~ ecuted this ,~g~ement_through its duly authorized undersigned partner, dated this the c~q/-6'~ day of ( A'/./_,t/dd.Z_~,&/~, , 2003. CITY OF DENTON Contract For Professional Legal Services - Page 7 ATTEST: JENNIFER WALTERS, CITY SECRETARY \ ORGAIN, BELL & TUCKER, LLP Contract For Professional Legal Services - Page 8