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HomeMy WebLinkAbout1996-184J \WPDOCS\ORD\GOSSELK ORD ORDINANCE NO. 96- &Y AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING CITY MANAGER TO EXECUTE THE CONTRACT FOR PROFESSIONAL LEGAL SERVICES BETWEEN THE CITY OF DENTON AND LLOYD, GOSSELINK, FOWLER, BLEVINS & MATHEWS, P.0 , A TEXAS CORPORATION; 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 Services between the City of Denton and Lloyd, Gosselink, Fowler, Blevins & Mathews, P C. to provide professional legal services with respect to Public Utilities Commission Project Number 14045, Transmission Access and Pricing Rules. SECTION II. That the City Council hereby authorizes the expenditure of funds as provided in the agreement. SECTION III. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this thean�-day of , 1996. JACK iI4ILLER, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY BY. APP 7VEDAS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY EMPLOYMENT CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § This AGREEMENT, made and entered into this day of July, 1996, by and between LLOYD, GOSSELINK, FOWLER, BLEVINS and MATHEWS, P.C., a Texas Professional Corporation, with Lambeth Townsend having full authority to execute this Agreement on behalf of LLOYD/GOSSELINK, Ill Congress Avenue, Suite 1800, Austin, Texas 78701, 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". WHEREAS, the City needs to employ legal counsel to provide professional legal services with respect to the Public Utilities Commission Project Number 14045, Transmission Access and Pricing Rules, and related filing requirements and hearings; 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 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 mutually agree as follows: I. Saone of Services: The following services in a professional dent contractor not under the direct City: A. Services to be provided: Consultant shall perform the manner working as an indepen- supervision and control of the 1. Consultant will provide those services as necessary to meet all requirements of the Public Utility Commission's Project Number 14045, Transmission Access and Pricing Rules and related filing and hearing requirements including without limitation the professional legal services with regard to submitting the transmission cost of service (TCOST) to the PUC as required by substandard rules 23.67 and 23.70 and to attend all hearings and other proceedings before the PUC in relationship to these matters and to consult with the City through its Denton Municipal Utilities staff with regard to all filings, hearings, and other issues related to this project. 2. To consult with the City Manager, Executive Director of Public Utilities, City Attorney and Administrative Personnel regarding any and all aspects of the special services to be performed, including legal research and advice with respect to such matters. This will include coordinating with the Executive Director of Public Utilities, the City Attorney and their staff to effi- ciently perform the services required and to preserve the Attorney/Client privilege, work product, and all other applicable exceptions to the discovery of docu- ments produced under the Scope of Services. B. 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 Execu- tive Director of Utilities, as appropriate to carry out the terms and conditions of this Agreement. II. Term: The services of Consultant shall commence upon the execution of this Agreement, and shall continue until all services hereunder have been performed. 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 and to meet the schedules established by the City, through its Executive Director of Utilities or as the progress of this matter through mediation, meetings with the PUC and/or PUC staff, may require. Ill. COIDmensation and Method of Payments A. The Consultant shall charge the following fees for its profes- sional services hereunder, based on the following hourly rates for the attorneys and support staff involved in this matter. ------------------------------------------------------------------- Hourly Estimated Staff Rate Hours Lambeth Townsend 180.00 Law Clerk 75.00 Paralegal 75.00 Consultant agrees that all charges for the services hereunder, including expenses, will not exceed $25,000.00 Page 2 B. The Consultant shall have the employees and attorneys listed in Section III -A above, devote the amount of time to this matter as shown therein, but will try to reduce costs by utilizing qualified principals, associates, and legal assistants wherever possible. The Consultant shall bill the City through the submission of invoices, statements, and other documentation, together with support data indicating the progress of the work and the services performed on the basis of monthly statements showing hourly rates indicating who performed the work, what type of work was done, and details of all services rendered, along with any reasonable and necessary out-of-pocket expenses incurred. C. Additionally, the City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and neces- sary out-of-pocket expenses, including but not limited to, telephone, telecopier, reproduction, postage, overnight courier, and travel in accordance with Exhibit A which is attached to and made a part of this contract for all purposes. All copies will be charged at fifteen cents ($.15) per copy for copies made within Consultant's offices, and as much photocopy- ing as possible will be done by outside vendors at bulk rates or by the City to reduce costs if bulk copying is necessary. D. Upon completion of all services for a particular issue or transaction, the City shall make payment to the Consultant within thirty (30) days of the satisfactory completion of services and receipt of an invoice or statement. The parties anticipate invoices or statements for services will be generat- ed on a monthly basis and that said invoices or statements will be sent on or about the 15th day of each month. All reimburs- able expenses, including but not necessarily limited to travel, lodging, and meals shall be paid at the actual cost, pursuant to the terms and conditions hereinabove set forth All invoices and bills shall be approved by the Executive Director of Utilities and the City Attorney. E It is understood that the Consultant shall work under the coordination and general supervision of the Executive Director of Utilities and the City Attorney. F. All notices, invoices, and payment shall be made in writing and may be given by personal delivery or by mail. Notices, invoices, and payments sent by mail shall be addressed respect- fully, Herbert L. Prouty, City Attorney, 215 E. McKinney, Denton, Texas 76201, or to Lambeth Townsend, Lloyd/Gosselink, 111 Congress Avenue, Suite 1800, Austin, Texas 78701. 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 Page 3 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 profes- sional services, Consultant shall be responsible to the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals perform- ing 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 Lambeth Townsend. However, nothing herein shall limit Consultant from using other qualified and competent members of their 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 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 excepts 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. AcogUlishment of Project: The Consultant shall commence, carry on, and complete any and all projects with all practicable dispatch; in a sound, economical and efficient matter; and, in accordance with the provisions hereof and all applicable laws. In accomplishing the projects, the Consultants shall take such steps as are appropriate to insure that the work involved is Page 4 properly coordinated with related work being carried on in the City. VI11. Indemnity and Independent Contractor Relationships 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 rela- tionship 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 litiga- tion or claim under this Agreement in which Consultant is joined as a party, Consultant shall provide suitable counsel to defend 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 liabili- ty policy. The Consultant agrees to pay all expenses, includ- ing but not limited to attorney's 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, issued by Best Rated Carriers, with a rating of A or A+, approved to do business in Texas by the State Insurance Commission. 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 $1,000,000 combined single limit coverage occurrence. In the event of change or cancella- tion 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 Page 5 Director of 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 position to continue repre- senting 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 affected, unless the other party is given [1] written notice (delivered by certified mail, return receipt request) 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 Resolutions The Consultant agrees that, if necessary, it will use its best efforts to resolve this matter through the use of mediation or other forms of alternate dispute resolution set forth in Chapter 154 of the Texas Civil Practices and Remedies Code (V.A.T.C.S.). xI. Entire Agreement: This agreement represents the entire agreement and understanding between the parties and any negotia- tions, 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. Cn2lianae with Laws: The Consultant shall comply with all federal, state, local laws, rules, regulations, and ordinances Page 6 applicable to the work covered hereunder as they may now read or hereinafter be amended, including but not limited to the Texas Disciplinary Rule of Professional Conduct. SIII. aovernina Laws For the purpose of determining place of agreement and law governing same, this Agreement is entered into 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. SIV. 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. SV. Personnels A. The Agreement to 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 contrac- tual 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 supervision. All personnel engaged in work shall be qualified and shall be authorized or permitted under state and local laws to perform such services. BVI. 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. SVII. Seyerabilitys 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 Servic- es", "Independent Contractor Relationship", and "Compensation and Method of Payment" hereof, shall be held to be invalid by any competent court, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained therein. XVIII. 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 Page 7 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 employ- ees, officers, agents and consultants XIX. Modification of Agreement: No waiver or modification 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. XX. Captions: The captions of this Agreement are for informa- tional purposes only and shall not in any way affect the substan- tive terms or conditions of this Agreement. XXI. 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, succes- sors, 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 Consultant has executed this Agreepent through is duly uthorized undersigned officer, dated theday of , 1996 CITY OF DENTON BY. c.Q TED B NAVIDES, CITY MANAGER ATTEST: JENNIFER WALTERS, CITY SECRETARY Page 8 APPROVED AS TO LEGAL FORM. HERBERT L. PROUTY, CITY ATTORNEY BY, J \NPDOCS\K\GOSSELK K LLOYD, GOSSELINK, FOWLER, BLEVINS & MATHEWS Page 9 r'THIS IS A CLAIMS -MADE POLICY —PLEASE READ CAREFULLY #15 LL0000 NOTICE THE LIMITS OF LIABILITY AVAILABLE TO PAY JUDGEMENTS OR SETTLEMENTS SHALL BE REDUCED BY AMOUNTS INCURRED FOR LEGAL DEFENSE FURTHER NOTE THAT AMOUNTS INCURRED FOR LEGAL DE- FENSE SHALL BE APPLIED AGAINST THE DEDUCTIBLE AMOUNT I I , 1, IAA (The company issuing this policy is indicated by an "X" to the left of the company's name ) ❑R NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA (A stock insurance company, herein called the Company) ❑ AMERICAN HOME ASSURANCE COMPANY (A stock Insurance company, herein called the Company) LAWYER'S PROFESSIONAL LIABILITY POLICY POLICY NUMBER LPL 7054019 RENEWAL DECLARATIONS This Renewal Declarations continues the policy in force for the new policy period Attach it to your expiring policy Item 1 Named Insured Lloyd Gosselink, Fowler, Blevins & Mathews P.C. Address 111 Congress Avenue, Suite 1800 Austin, Texas 78701 Item 2 New Policy Period From May 1, 1996 To May 1 1997 (12 01 A M standard time at the address stated in Item 1) Item 3 Limits of liability (inclusive of "claims expenses" as defined in this policy) Item 4 Deductible Amount (inclusive of "claims expenses" as defined in this policy) Item 5 Premium Schedule (Rate # $ 2,000,000 all claims arising out of the same, related or continuing professional services $ 2 000 000 aggregate �rErZ�Ir� CLASSIFICATION CODENO NUMBER RATE PREMIUM Lawyers 8133 Paralegals, Law Clerks, Investigators and Abstractors 81114 Excess Limits Total Premium $ 56,756 Item 6 Forms and Endorsements made a part of this policy ProTexn, Inc. Countersigned by Authorized Representative 4/29/96 President 41649 (1185) 41650, 51761, End. 1, 49354, 53365, 41442, End 5, 44574 ORIGINAL LLOYD, GOSSELINK, FOWLER, BLEVINS & MATHEWS, P C ATTORN EYs AT LAW III CONGRESS AVENUE I I I SOLEDAD STREET' SUITE I600 SUITE 300 AUSTIN TEXAS 78701 SAN ANTONIO TEXAS 78205 TELEPHONE(S12) 322 $SOO TELEPHONE(210) 212 SSSS TELECOPIER (S12) 472-0332 May 23 1996 TELECOPIER (210) 212 $089 y .BY APPOINTMENT ONLY Mr RE Nelson Executive Director Denton Utilities 215 E McKinney Denton, Texas 76201 Re Employment Contract (106004 Billing File) Dear Mr Nelson This will confirm our agreement that the firm of Lloyd, Gosselink, Fowler, Blevms & Mathews, P C will represent the City of Denton with respect to the Public Utility Commission's Project No 14045, Transmission Access and Pricing Rules, and related filing requirements and hearings At the present time we will work under your direction Following our evaluation of the facts and estimated costs associated with this or other matters upon which we represent you, we may request security against future billings Failure to deliver the requested security within fifteen (15) days after receipt of a written request may result in termination of this firm's representation At the present time our firm has a fee structure ranging up to $195 00 per chargeable hour for attorneys' services, depending on the individual involved and his or her level of experience and expertise Additionally, we utilize briefing clerks, paralegals and other support personnel to perform those tasks not requiring the time of an attorney Briefing clerk and paralegal time is billed at an amount not to exceed $75 00 per hour We will submit all out-of-pocket expenses incurred for reimbursement, with a fifteen percent (15%) overhead charge added Charges for other services, such as photocopies, fax transmissions and messenger services will be billed according to the attached schedule Usually we ask the client to pay directly all filing fees, charges for consultants, etc due to the size of such fees and to avoid the client incurring our overhead charge We endeavor to have a statement of services rendered and expenses incurred by the 15th of each month Full payment is due on receipt of the statement Interest will be charged at the rate of 10% per annum on any balance not paid 60 days after the statement date I will be the account representative and the attorney in charge of our representation My time will be billed at the rate of $180 00 per hour From time to time other attorneys with the firm may be assigned to some aspect of our representation, as appropriate It is the policy of our firm to review our fee structure annually We will notify you in writing prior to implementation of any change in our fee structure Mr RE Nelson May 23, 1996 Page 2 This agreement shall become effective upon our receipt of a countersigned original of this letter The agreement may be terminated by you at any time by written notice to us, provided, when applicable, that permission for withdrawal from employment is granted by the court This agreement may be terminated by this firm on fifteen (15) days written notice that we are no longer in a position to continue representing you in a particular matter for whatever reason, including nonpayment of fees and expenses within 30 days of receipt of an invoice If this agreement is acceptable to you, please sign the duplicate original provided herein, and return it to us for our records We look forward to working with you Sincerely, IgAe Lambeth Townsend LT/jmc 1060\004-004 LTR Enclosures APPROVED CITY OF DENTON (Client Signature) City Manager (Title) Tad Benavides (Printed Name) Mr R E Nelson May 23, 1996 Page 3 SCHEDULE OF CHARGES As of January 1, 1994 Photocopies $ 20\page Telefax (sending only) $ 1 00\page