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HomeMy WebLinkAbout1998-158S \Our Documents0dmances\98\0'Melveny Ordinance doe ORDINANCE NO qt— �a AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF O'MELVENY & MYERS, L L P , AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I. That the City Manager is hereby authorized to execute a Contract for Professional Legal Services with the law firm of O'Melveny & Myers, L L P , New York, New York, regarding various legal issues concerning tax-exempt finance in connection with the Denton Municipal Electric Utility in the areas of electric deregulation and restructuring, a copy of which contract is attached hereto and incorporated herein SECTION II. That the expenditure of funds as provided in the attached contract is hereby authorized SECTION III. That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this tht� day of k(4_, 1998 MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPR9`VED"_A1 TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY A CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT, made and entered into this the o��--day of3Avjy; 1998, by and between O'Melveny & Myers, L L P , a Limited Liability Partnership, 153 East 53`d Street, Citicorp Center, New York, New York 10022-4611, hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas Municipal Corporation, 215 E McKinney, Denton, Texas 76201, hereinafter referred to as "City" !_ IAM WHEREAS, the City finds it necessary to employ outside legal counsel to perform professional legal services in a specialized area of law, tax-exempt finance, 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 contained herein, the parties hereto do hereby AGREE as follows I Sgnne 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 A Services to be provided 1 The Consultant shall serve as special tax counsel to the City of Denton, Texas and its Municipal Electric Utility, and shall furnish advice and counsel to the City in connection with legal issues pertaining to the City's compliance with the new Treasury Department "Output Facilities Regulations" and other related tax regulations, advice as to the current tax rules which affect the City's ability to issue tax-exempt bond indebtedness to fund electric transmission and/or distribution facilities, advice to the City respecting whether or not certain contracts or arrangements considered by the City, do or do not constitute a "private use" 2 Consultant shall also serve as legal counsel to the City of Denton, Texas and its Municipal Electric Utility, and shall negotiate with representatives of other Cities, Texas Municipal Power Agency ("TMPA") and the firm of Fulbnght & Jaworski regarding use of tax- exempt financing and restructuring of Denton's relationship with TMPA, shall work with designated City of Denton officials and employees and the Reed Consulting Group to continue to develop alternatives for restructuring of its TMPA relationship, shall brief the Mayor, other City Council members, and the Public Utilities Board, as requested 3 Consultant shall also consult, as requested, with the City Manager, the Director of Electric Utilities, the City Attorney, any other designated City staff and designated outside legal counsel of the City, respecting any and all aspects of the services to be performed under this Agreement 4 The Consultant shall perform all the professional services required in a timely fashion, and shall complete same in compliance with schedules established and coordinated by the City through its Director of Electric Utilities and City Attorney, through discussions with the Consultant, as appropriate to carry out the terms and conditions of this Agreement II Term This Agreement shall terminate upon the earlier of the completion of the professional services contemplated hereby or the exhaustion of the funds provided hereby 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 Director for Electric Utilities and City Attorney, or as the progress of this matter may reasonably require 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 Partners and Special Counsel Margaret C Henry $320 00/hour Robert E Ferdon $400 00/hour James P Marlin $360 00/hour Richard M Jones $360 00/hour Dean Weiner $395 00/hour Travis Gibbs $325 00/hour Associate John Cardenas $115 00/hour Paraleeal Patrick Alvarez $ 90 00/hour au-pport Staff $35 00 to $55 00 per hour Attorney time will be billed at one -tenth ( 1) hour minimum billing increments B Notwithstanding the foregoing provisions of Article III A heremabove, at such times as the Consultant shall adjust its hourly billing rates for attorneys and support staff for the firm as a whole, the foregoing hourly rates may be increased to reflect prevailing "low Contract for Professional Legal Services — Page 2 guideline" rates, with the exception of Messrs Ferdon, Marlin, and Jones, whose billing rates shall reflect a discount below their low guideline billing rates comparable to that afforded above C The Consultant will try to reduce costs whenever feasible by utilizing qualified partners, associates, paralegals, and support staff 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 D Consultant and the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed Seventy Five Thousand Dollars and No/100 ($75,000 00) E The City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopier, reproduction, overnight courier, and travel expenses prudently incurred by Consultant All copies will be charged at the rate of fifteen cents ($ 15) per copy for copies made within Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates, if bulk copying is necessary The parties agree that the charges for facsimile transmission are at the rate of $1 25 per page Database searches, secretarial overtime when required by the urgency of a client's matter, long distance telephone calls, special deliveries, and other similar items are billed at or below Consultant's estimated costs F 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 15s' day of each month The City shall make payment to the Consultant within thirty (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 and the Director of Electric Utilities G It is understood that the Consultant shall work under the direction of the Director for Electric Utilities or her designee, and the City Attorney H 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 Herbert L Prouty, 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 responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable written notice is given Contract For Professional Legal Services — Page 3 - 01• .il.- - 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 person who will be coordinating and performing most of the work hereunder shall be Margaret C Henry, Attorney 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 documents as well as any legal opinions 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 V 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 (3) years after receipt of final payment under this Agreement VI 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 VII Accomnhshment of Protect 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 VIII Conflicts of Interest/Consent of Denton The City agrees that Consultant may continuei to represent, or may in the future represent, existing or new clients in any matter that is not substantially related to Consultant's work for the City on the engagement described above, and that Consultant may obtain confidential information of interest to the City that would not be disclosed to the City By executing this Agreement and consenting to the arrangements described in it, the City waives any conflict of interest that might anse in such a situation and agrees not to seek to disqualify Consultant in those engagements or assert a conflict The City's above consent to conflicting representation, however, does not apply to any other matter where, as a result of Consultant's representation of the City, Consultant has obtained proprietary or other confidential information of a non-public nature, that, if known to the other client, could be used in the other matter by the other client to the City's detriment or disadvantage Contract For Professional Legal Services — Page 4 IX Indemmly and Independent Contractor Relationshrn 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 B The City and Consultant agree to cooperate in the defense of any claims, action, suit, or proceeding of any kind brought by a third party which may result from or directly or indirectly anse 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 of any litigation or claim under this Agreement in which Consultant is joined as a party, Consultant shall provide suitable counsel to defend the City and Consultant against such claim, provided the Consultant shall have the right to proceed with the competent counsel of its own choosing The Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, 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 attorneys' fees, and satisfy all judgments which 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 damage or 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 C. 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, listed by Best Rated Carriers, with a rating of "A-" or above, issued by an insurance carrier approved to do business in Texas by the Texas Department of Insurance Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act , error or omission, in an amount not less than Two Million Dollars ($2,000,000 00) 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 thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, deliver a copy of a substitute policy furmshmg the same coverage The Consultant shall provide a copy of such policy or the declarations page of the policy, whichever is reasonably satisfactory, to the City through its Director of Electric Utilities, simultaneously with the execution of this Agreement X 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 fifteen (15) 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 Contract For Professional Legal Services — Page 5 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 affected, unless the other party is given [I] written notice (delivered by certified mail, return receipt requested) of intent to terminate, and not less than thirty (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 XI Alternate Dispute Resolution The Consultant and the City agree that, if necessary, they will use their 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 ) XII Fntire 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 XIII Comphance 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 XIV Govemmg 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 ansing under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County XV 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 XVI 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 anse during the term of this Agreement, in accordance with Consultant's Contract For Professional Legal Services — Page 6 responsibilities under the State of New York and State of California Disciplinary Rules of Professional Conduct, and subject to the provisions of paragraph VIII , hereinabove 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 XVII 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 XVIII . everabilgy 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", 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 XIX Reaponsibili ies 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 attorneys and employees XX 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 ansmg 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 XXI C"ons 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 XXII Blndmg Effect This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective 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 original counterparts by its duly-authonzed City Manager, and Consultant has a ecuted this Agreement through its duly-authonzed undersigned Partner, dated this the nO day of3W, 1998 SUA2- Contract For Professional Legal Services — Page 7 CITY OF DENTON A Texas Municipal Corporation BY ww TED AENAVIDES, City Manager ATTEST JENNIFER WALTERS, CITY SECRETARY BY ®� APPRO D AS O LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY 1W A O'MELVENY & MYERS, L L P A Limited Liability Partnership BY ROBER E FERDON, Partner ATTEST F \shared\dept4LGL\0ur Documents\Contracts\98W 24UMelveny & Myers Contract doc Contract For Professional Legal Services — Page 8