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HomeMy WebLinkAbout2005-153ORDINANCE NO. 2005-_[5 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE FIRM OF LLOYD, GOSSELINK, BLEVINS, ROCHELLE & TOWNSEND, P.C. FOR LEGAL SERVICES PERTAINING TO CONTINUATION OF REPRESENTATION OF THE CITY BEFORE THE PUBLIC UTILITY COMMISSION OF TEXAS, IN CONNECTION WITH ITS TRANSMISSION COST OF SERVICE CASE; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to continue to engage the law firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C., of Austin, Texas (the "Firm") to provide further professional legal services to the City of Denton, Texas ("City") pertaining to continued representation of the City and Denton Municipal Electric ("DME") before the Public Utility Commission of Texas ("PUC") regarding its electric transmission cost of service rate case upon which the hearing is currently pending; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -referenced professional legal services, and that limited City staff cannot adequately perform the specialized services and tasks which are primarily centered in Austin, Texas, with its own personnel; and WHEREAS, the City has heretofore engaged the Firm by numerous previous Agreements for Professional Legal Services to perform similar services to those services provided for in the First Amendment to Agreement for Professional Legal Services attached hereto. Further, that the Firm has performed and provided legal services benefiting the City under the most recent Agreement on a continuous and uninterrupted basis, involving immediate deadlines imposed on litigants by the PUC, in order to safeguard and represent the interests of the City and DME before the PUC. Accordingly, it is appropriate that the new First Amendment to Agreement for Professional Legal Services by and between the City and the Firm attached hereto, should be ratified and confirmed, and should be retroactively approved, confirmed, and made effective as of February 21, 2005, in order to properly compensate the Firm for its work that has already been done and which work has directly benefited the City, and which work was done at the specific instance and request of the City in continuing to conduct the hearing before the PUC; 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 on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; and the Council hereby finds and concludes that the Firm is appropriately qualified under the provisions of that law to be retained as outside legal counsel for the City and DME respecting this engagement; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the recitations set forth and contained in the foregoing preamble are expressly incorporated by reference into this Ordinance. SECTION 2: That the City Manager is hereby authorized to execute a First Amendment to Agreement for Professional Legal Services by and between the City and the law firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C., of Austin, Texas, in substantially the form of the First Amendment to Agreement for Professional Legal Services attached hereto and incorporated herewith by reference. SECTION 3: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of the Firm and the continued ability of the Firm to perform the services needed by the City for a fair and reasonable price. SECTION 4: That the expenditure of funds as provided in the attached Agreement for Professional Legal Services is hereby authorized. SECTION 5: That the above and foregoing First Amendment to Agreement for Professional Legal Services is hereby ratified, confirmed, and retroactively approved, and shall be effective from and after February 21, 2005. SECTION 6: That except as otherwise provided in Section 5 above, this Ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the -/ , day of 12005. EUL BROOK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPRO ED AS O LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY / J By: �l S:\Our Documents\Ordinances\05\Llo d Gosselink-PSA-First Amendment-TCOS-PUC 2005-Ord.doc STATE OF TEXAS § COUNTY OF DENTON § FIRST AMENDMENT TO AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS FIRST AMENDMENT TOAGREEMENT (hereafter the "Agreement"), made and entered into this day of , 2005, by and between LLOYD & GOSSELINK BLEVINS ROCHELLE TOWNSEND, P.C., a Texas Professional Corporation, 1 I 1 Congress Avenue, Suite 1800, Austin, Texas, 78701 (hereinafter "Consultant" or "Firm"), with Lambeth Townsend, Shareholder, having full authority to execute this Agreement on behalf of the Finn; and the CITY OF DENTON, a Texas Municipal Corporation, 215 East McKinney Street, Denton, Texas 76201 (hereinafter "City'), with Michael A. Conduff, City Manager, having full authority to execute this Agreement on behalf of the City. WITNESSETH: WHEREAS, the City deems it necessary and in the public interest to continue to employ legal counsel to provide professional legal services with respect to protection of the City's interests in its application to change City's rates for wholesale transmission service ("TCOS Rates") which has been filed with the Public Utility Commission of Texas ("PUC" or "Commission"); and said TCOS case has proceeded to a public hearing by an administrative law judge, and is now a contested matter pending final resolution of the case by the PUC; and WHEREAS, in Paragraph I.A.I. of the Agreement for Professional Legal Services entered into by the City and the Firm, effective October 1, 2004, the following language was expressly contained in said Agreement: "If a contested case hearing is required, a new agreement for professional services will be required as to the compensation in this Agreement does not compensate a contested case hearing and appeals therefrom." The TCOS case is still pending, and it has progressed to a contested hearing with evidence taken before an Administrative Law Judge, who has issued findings of fact and conclusions of law based upon that hearing that to this point, are favorable to the City; however, PUC Staff persists in opposing the position of the City; which will probably result in a hearing before the PUC itself; and WHEREAS, the Consultant is willing to continue to perform such services in a professional manner as an independent contractor; and has competently and efficiently performed similar services for the City in City's 1996 application to establish City's TCOS Rates, which was PUC Docket No. 15767, in City's 2002 application to establish City's TCOS Rates, which was PUC Docket No. 26672. in this TCOS case before the PUC, as well as other matters over the past several years; and the City has selected Consultant on the basis of demonstrated competence and qualifications necessary to perform the needed services: and WHEREAS, the City desires to engage the Consultant to render the professional services in connection therewith, for a fair and reasonable price; consistent with, and for a fee not higher than the recommended practices and fees published by the applicable professional associations; and such fees do not exceed any maximum provided by law; all in accordance with the provisions of Chapter 2254 of the Texas Government Code (the "Professional Services Procurement Act"); and the Consultant is willing to provide such services; NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the City and Consultant do hereby mutually AGREE as follows, to wit: L 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: Consultant shall represent the City in City's application to change rates for wholesale transmission service before the Public Utility Commission, including without limitation, the professional and legal services attendant to preparing and submitting the application, responding to all discovery relating to the application, and attending all prehearing conferences, settlement negotiations in relationship to the application, and other necessary hearings, and to consult with the City through its Denton Municipal Electric staff with regard to all filings, hearings, appeals, and other issues related to the application, and to assist in any subsequent actions in response to the Commission's final order concerning the application. Consultant requires that a new, further professional services agreement be entered into with the City as this TCOS case has proceeded into a contested case hearing before the PUC and possible appeals therefrom. 2. To consult with the City Manager, the Assistant City Manager for Utilities, the Director of Denton Municipal Electric, the City Attorney, the Assistant City Attorney for Utilities, and/or other designated administrative personnel or staff regarding any and all aspects of the professional services to be performed, including legal research, analysis, and advice with respect to the proceeding concerning City's application to change rates for wholesale transmission service. This will include coordinating activities with the Director of Denton Municipal Electric, the City Attorney, and their respective staff to efficiently perform the services required and to preserve the Attorney/Client privilege, work product, and all other applicable exceptions to the discovery or disclosure of documents produced by the City and the Consultant under the Scope of Services hereinabove. B. The Consultant shall perform all the services required by this Agreement in a timely fashion, and shall complete them in compliance with schedules established by the City through its Director of Denton Municipal Electric as appropriate to carry out the terms and conditions of this Agreement. IL Term: This Agreement shall be retroactively effective as of February 21, 2005. The Agreement shall terminate either upon the completion of the professional services provided for herein or upon the exhaustion of all professional fees provided for hereunder, whichever event shall first occur. This Agreement may be sooner terminated in accordance with the provisions hereof. Time is of the essence of this Agreement. 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 of Denton Municipal Electric, or her designee. III. Compensation and Method of Payment A. The Consultant shall charge the following fees for its professional services provided to the City hereunder, based upon the following hourly billing rates for the attorneys and support staff involved in this matter: Staff Hourly Rate Lambeth Townsend, Shareholder $250.00 Thomas L. Broeato, Associate $210.00 Melissa E. Ramirez, Associate $180.00 Paralegal $90.00 Law Clerk $75.00 Consultant agrees that all charges for the further legal services hereunder, including expenses as set forth in Section III C. below, shall not exceed $84,000. The total amount authorized for the original Agreement for Professional Legal Services for this TCOS case plus this First Amendment is $149,000. B. The Consultant shall endeavor to have the attorneys and employees listed in Section III.A. above, reasonably attempt to reduce costs by utilizing other qualified shareholders, associates, and paralegals wherever feasible or possible. The Consultant shall bill the City through the submission of itemized invoices, statements, and other documentation, together with support data indicating the progress of the work and the services performed on the basis of monthly statements, showing hourly rates indicating who performed the work, what type of work was done, and descriptions and/or details of all services rendered, including a daily, and an entry - by -entry reflection of billable time spent on this engagement, along with specific descriptions and supporting documentation, if available, respecting any reasonable and necessary out-of- pocket expenses incurred by Consultant in performing the professional services provided for under this Agreement. Professional fees shall be billed in minimum one -tenth (1/10) hour increments. C. Additionally, the City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, rebuttal expert witness service fees and expenses, long-distance telephone, telecopier, reproduction, postage, overnight courier, and transportation and travel. All copies will be charged at the rate of fifteen cents ($.15) per copy for copies made within Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates or by the City to reduce costs if bulk copying is necessary or appropriate. The parties agree that 3 the charges for outgoing telecopies from Consultant shall be $.25 per page and that there will be no charge for incoming telecopies. D. The parties anticipate that invoices or statements for professional services will be generated on a monthly basis and that said invoices or statements will be sent to the City by Consultant on or about the 15th day of each month. The City shall make payment to the Consultant within thirty (30) days after receipt of an appropriate itemized invoice or statement. To the extent that any fees or expenses are disputed by the City, the City shall notify Consultant within thirty (30) days after its receipt of the invoice or statement, and shall otherwise pay all undisputed amounts set forth in the invoice or statement within thirty (30) days after its receipt of the 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 set forth herein. All invoices or statements shall be a reviewed by the Director of Denton Municipal Electric, or her designee; and shall be reviewed and approved by the Assistant City Attorney/Utilities. E. It is understood and agreed that the Consultant shall work under the coordination and general supervision of the Director of Denton Municipal Electric, or her designee. F. All notices, invoices, statements, and payments shall be made in writing and may be given by personal delivery or by mail. As to notices: to Michael Conduff, City Manager, City of Denton, 215 East McKinney Street, Denton, Texas 76201 or to his designee. As to invoices, statements, or payments: to Michael S. Copeland, Utility Attorney, Utility Administration Department, at the same address, as to the City; and to Lambeth Townsend, Esq., Lloyd/Gosselink, 111 Congress Avenue, Suite 1800, Austin, Texas 78701, as to the Consultant. When so addressed, the notice, invoice, statement and/or payment shall be deemed given upon deposit of same in the U. S. Mail, postage prepaid. In all other instances, notices, invoices, statements, 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 which notices, invoices, statements and/or payments are to be sent, provided reasonable notice is given. IV. Professional CompctencV: A. Consultant agrees that in the performance of these professional 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 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 Lambeth Townsend, Shareholders, and Thomas L. Brocato and Melissa E. Ramirez, Associates. However, nothing herein shall limit Consultant from using other qualified and competent members of the firm to perform the services required herein if such delegation is reasonably appropriate and properly protects the City's interests. B. Any agreements, ordinances, notices, instruments, memoranda, reports, letters, 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 4 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 terns 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 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. Accomplishment of Project: The Consultant shall commence, carry on, and complete this professional engagement 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 project, the Consultant shall take such steps as are appropriate to insure that the work involved is properly coordinated with any related work being carried on by the City. VIII. Indemnity and Independent Contractor Relationship: A. 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 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 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, listed by Best Rated 5 Carriers, with a rating of "A-" or above, issued by an insurance carrier 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, act, or omission, in an amount not less than $1,000,000 combined single limit coverage per occurrence. In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to immediately notify the City in writing thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same or higher amount of coverage. The Consultant shall provide a copy of the declarations page of such policy to the City through its Director of Denton Municipal Electric 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 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 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 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 Practices and Remedies Code (V.A.T.C.S.). Xl. 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, in order to be effective, shall be in writing and signed by the City and the Consultant. 6 XII. Compliance with Laws: The Consultant shall comply with all federal, state, 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. XIII. 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 construed in accordance with, and 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 lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas. 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. XV. Personnel: A. Consultant represents that it has or will secure at its own expense all personnel required to perform the services required under this Agreement. Such personnel shall not be employees nor 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 licensed, authorized, or permitted under state and local laws to perform such services. XVl. 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. XVIL 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. XVllI. 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 shareholders, associates, employees, officers, or agents in connection with this engagement. 7 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. 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. The parties further agree that the provisions of this article will not be waived as herein set forth. XX. 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. 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, successors, and assigns, where permitted by this Agreement. IN WITNESS HEREOF, the City of Denton, Texas has executed this First Amendment to Professional Legal Services Agreement in four (4) original counterparts by and through its duly authorized City Manager; and Consultant has executed this A reement by and through its duly ��r, authorized undersigned Shareholder; dated this � day of�o2& , 2005. "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation tBy Michael A. CW6" ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPRO ; D AS TO LEGAL FORM: EDWIN M. SNYDER, INTERIM CITY ATTORNEY By: LLOYD GOSSELINK BLEVINS ROCHELLE & TOWNSEND, P.C. A Texas Professional Corporation V --- By: Lambeth Towns d, Shareholder ATTEST: Bv: 21--� s S:AOUR DOCUMENI'SVContractsV05\Wovd Gosselink-Piml Amend=l'COS Case-DME-2005.doc