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HomeMy WebLinkAbout1997-326ORDINANCE NO AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF BERNSEN, JAMAIL & GOODSON, L L P , AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS 5E, TIC ON I. That the City Manager is hereby authorized to execute a Contract for Professional Legal Services with the law firm of Bernsen, Jamail & Goodson, L L P regarding various legal issues and matters related to the Denton Municipal Electric Utility, a copy of which contract is attached hereto and incorporated herein LFF.CTION II. That the expenditure of funds as provided in the attached contract is hereby authorized al CTION III. That this ordinance shall become effective immediately upon its passage and approval , i PASSED AND APPROVED this the y'/— day of 1997 2 c4L JACK MILLER, MAYOR ATTEST JENNIF13R WALTERS, CITY SECRETARY m AS TO LEGAL FORM PROUTY, CITY ATT BY IV\J.r� `;2 P 1Aam".ptW0L\Doce\0RD%aM=Je dordw. doc CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § This AGREEMENT, made and entered into this the day of /VDT 1997, by and between Bernsen, Jamail & Goodson, L L P , a Texas limited liability partnership, with Daniel R Richards having full authority to execute this Agreement on behalf of Bernsen, Jamail & Goodson, L L P , hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas municipal corporation, 215 E McKinney, Denton, Texas 75201, hereinafter referred to as "City" WITNESSETH WHEREAS, the City needs to employ legal counsel to provide professional legal services to evaluate options with respect to its electric generation facilities and contractual agreements as well as any related proceedings and negotiations, 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 I. 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 A Services to be provided 1 Consultant shall evaluate and advise the City with respect to its obligations to the Texas Municipal Power Agency, its members, and its bond holders, evaluate and advise the City with respect to its ability to modify or restructure its obligations to the Texas Municipal Power Agency, its members, and its bond holders, evaluate and advise the City with respect to its options as related to the City's continued ownership of certain electric generation and transmission facilities, assist the City in any related negotiations, and consult with the City Manager, Executive Director for Utilities, the Director of Electric Utilities, the City Attorney and the other designated administrative personnel regarding any and all aspects of the special services to be performed, including legal research and advice with respect to such matters 1 The Consultant shall perform all the services required in a timely fashion, and shall complete same in compliance with schedules established by the City through its Director for 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 be for a term of twelve (12) months, beginning effective November 1997 and ending November �, 1998 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 require III. Compensation and Method of Payment A The 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 Daniel R Richards $150 00/hour other attorneys with firm $125 00/hour paralegal support $50 00/hour law clerk support $50 00/hour Attorney time will be billed at 25 hour minimum billing increments B The Consultant will try to reduce costs by utilizing qualified principals, associates, paralegals, and law clerks wherever feasible The Consultant shall bill the City through the submission of itemized invoices, statements, and other documentation, together with support 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 and the City agree that all charges for the legal services hereunder, including reasonable out-of-pocket expenses, shall not exceed Eighty-two Thousand Five Hundred Dollars ($82,500 00) D The City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopier, reproduction, postage, overnight courier, and travel All copies will be charged at the rate of ten cents ($ 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 the charges for outgoing telecopier from Consultant shall be twenty-five cents ($ 25) per page and that there will be no charge by Consultant for incoming telecopier 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 15t' 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 heremabove set forth All invoices and bills shall be approved by the Director of Electric Utilities and the City Attorney F It is understood that the Consultant shall work with the coordination and general supervision of the Director for Electric Utilities and the City Attorney G All notices 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 respectfully 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 notice is given IV. 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 person who will be performing most of the work hereunder shall be Daniel R Richards However, 3 nothing herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein B Pleadings, motions, orders, notices, instruments, discovery documents, reports, 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 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 V11. 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 VIII. Indemnity and Independent Contractor Relat►onshim 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, action, suit, 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 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 4 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 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, 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 and/or 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 forewith advise the City thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve substitute policies furnishing 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 Executive Director for Public Utilities simultaneously with the execution of this Agreement IX. 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 positron 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 E 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 [1] 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 X 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 ) XI. 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 XII 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 X11I. Governma 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 XIV. 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 C XV. 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 XVI. Consent to Represent the City of Garland. Texas. The City understands that Consultant may enter into an agreement for professional legal services with the City of Garland, Texas, and that the scope of Consultant's work to be performed for the City of Garland, Texas, will be similar to, or possibly the same as Consultant's work to be performed for the City of Denton under this Agreement Because of the close ties and relations between the City of Denton and the City of Garland, and their involvement in similar legislative issues, the City consents to the Consultant's engagement as a consultant to the City of Garland, and directs Consultant, where possible, to coordinate work performed on behalf of both cities so that the maximum advantage to the cities may be attained XVIL Ass►gnab► &' 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 Severabil►ty: 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 XIX 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 XX. Modification of Agreement: No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in 7 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 XXI. 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 XXII. Bindine 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 by its duly authorized City Manager and Consultant4as executed t is Agreement through its duly authorized undersigned officer, dated this the 2 day of A1,011,61V 64r, 1997 ATTEST; JE IFER WALTERS, ITYA'SECRETARY By AP OVED AS TO LEGAL FORM HERBERT L PROUTnY, CITY ATTORNEY By M � �A ,Y F CITY OF DENTON Ted Benavides, City Manager