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HomeMy WebLinkAbout2000-286ORDINANCE NO 03N-aPJ AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF ERICH BIRCH, P C , FOR LEGAL SERVICES PERTAINING TO REPRESENTATION OF THE CITY BEFORE THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, IN THE AREAS OF PUBLIC UTILITY REGULATORY LAW AND ADMINISTRATIVE LAW, RESPECTING THE ACTIVITIES OF DENTON MUNICIPAL ELECTRIC, 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 engage the Law Offices of Erich Birch, P C , of Austin, Texas, (the "Firm") to provide professional legal services to the City pertaining to Mr Birch's continued representation of the City and Denton Municipal Electric ("DME") before the Texas Natural Resource Conservation Commission ("TNRCC") in the areas of public utility regulatory law and administrative law, respecting the activities of DME, the representation shall specifically pertain to the City's compliance with the TNRCC electric utility State Implementation Plan ("SIP") rules, as well as any rule -making proceeding or any project relating to electric utility air emissions, as well as to the implementation of the SIP, 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 for the most part centered in Austin, Texas, with its own personnel, and WHEREAS, Mr Birch has previously performed services for the City on the above -referenced matters in his capacity as an attorney associated with the law firm of Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, P C , of Austin, Texas Mr Birch leaves that firm effective August 18, 2000 and thereafter continues his practice of law as the Law Offices of Erich Birch, P C , and WHEREAS, Mr Birch is currently providing services to the City, and will continue doing so regarding the above -referred to activities currently pending before the TNRCC, and accordingly, this Agreement should be ratified and confirmed, and should be retroactively approved and made effective as of August 18, 2000 to properly compensate the Firm for legal services performed during the weeks before Council action is taken on the Agreement, which services have directly benefited the City, 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 an Agreement for Professional Legal Services by and between the City and the Law Offices of Erich Birch, P C , of Austin, Texas, in substantially the form of the 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 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 Agreement for Professional Legal Services is hereby ratified, confirmed, and retroactively approved, and shall be effective from and after August 18, 2000 SECTION 6 that except as otherwise provided in Section 5 above, this Ordinance shall become effective immediately upon its passa and approval PASSED AND APPROVED this the day ofafem6er 2000 --lt.C.IiN.Q� �f'/ "rr riles EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY By � APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By W Qj S \Our DoaumentAOrdmances\0 Ench Birch PSA Legal Svcs TNRCC SIP Final Ord doc AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON THIS AGREEMENT, made and entered into this day of 2000, by and between the Law Office of Erich Birch, P C , a Texas Professional Corporation (hereinafter referred to as "Consultant"), with Erich Birch, Shareholder, having full authority to execute this Agreement on behalf of the firm, 7000 North MoPac Expressway, 2"" Floor, Austin, Texas 78731, and the CITY OF DENTON, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas 75201 (hereinafter referred to as the "City"), with Michael W Jez, City Manager, having full authority to execute this Agreement on behalf of the City WHEREAS, the City deems it necessary and in the public interest to continue to engage legal counsel to provide professional legal services with respect to the City's compliance with the TNRCC electric utility State Implementation Plan ("SIP") rules as well as any rulemaking proceeding or any project relating to electric utility air emissions as well as respecting the implementation of the SIP, or otherwise affecting the City, and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor, and has competently and efficiently performed similar services for the City 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 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 Page 1 A Services to be provided To represent the City by supporting the TNRCC in its defense of the Dallas -Fort Worth electric utility State Implementation Plan ("SIP") in the TXU v TNRCC non - attainment lawsuit Representation will consist of intervening in the lawsuit to the extent necessary to preserve the current status of the electric generating facility rules as applied to the City of Denton and advising the City on the progress of the lawsuit The support expected under this proposal will involve minimal and limited activity in the lawsuit If more aggressive efforts or additional involvement are required, the parties expect to provide for an amendment to tlus agreement to provide for additional professional legal services B The Consultant shall perform all the services required by this Agreement in a timely faslvon, and shall complete them in compliance with schedules established by the City through its Director of Electric Utilities as appropriate to carry out the terms and conditions of this Agreement II Term. This Agreement shall be effective as of June 1, 2000, and shall terminate either upon the completion of the professional services provided for herein, or on December 31 2000, or upon the exhaustion of all professional fees provided for hereunder, whichever event shall first occur Tlus Agreement may be sooner terminated in accordance with the provisions hereof Time is of the essence of tlus Agreement Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible during the term of tlus Agreement, and to meet the schedules established by the City, through its Director of Electric Utilities, or her designee I1I. Compensation and Methnd 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 Erich Birch, Shareholder $ 180 00 Consultant agrees that all charges for the legal services hereunder, including expenses as set forth in Section III C below, shall not exceed $25,000 00 B The Consultant shall endeavor to have the attorneys and employees listed in Section III A above, reasonably attempt to reduce costs by utilizing other qualified shareholders, associates, and paralegals wherever feasible or possible The Consultant shall bill the City through the submission of itemized invoices, statements, and other documentation, together with support data indicating the progress of the work and the services performed on the basis of monthly statements, showing hourly rates indicating who performed the work, what type of work was done, and descriptions and/or details of all services rendered, including a daily, and an entry -by -entry reflection of billable Page 2 time spent on this engagement, along with specific description and supporting documentation, if available, respecting any reasonable and necessary out-of-pocket expenses incurred by Consultant in performing the professional services provided for under this Agreement Professional fees shall be billed in mimmum one -tenth (1/10) hour increments C Additionally, the City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopier, reproduction, postage, overnight couner, and transportation and travel All copies will be charged at the rate of fifteen cents ($ 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 the charges for outgoing telecopies from Consultant shall be $ 25 per page and that there will be no charge by Consultant 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, 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 Electric Utilities, 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 W Jez, City Manager, City of Denton, Texas, 215 East McKinney, Denton, Texas 76201 or to his designee, as to invoices and statements, to Michael S Copeland, Assistant City Attorney, Utility Administration Department, at the same address, as to the City, and to Erich Birch, Esq , at 7000 North MoPac Expressway, 2nd Floor, Austin, Texas 78731, as to the Consultant When so addressed, the notice, invoice, statement and/or payment shall be deemed given upon the deposit of same in the United States Mail, postage prepaid In all other instances, notices, invoices, statements, and/or payments shall be deemed given at the tune 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 Page 3 IV. Prnfeminnnl C omi etenU- 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 Erich Birch, Shareholder 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 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 Impeetion. 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 tlus Agreement VII Acemmplishment of Prniecte 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 projects, they 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 C'nntractor 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 anse from any Page 4 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 Carriers, with a rating of "A-" or above, issued by an insurance carver 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 famishing 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 Electric of Utilities simultaneously with the execution of this Agreement IX. Termination of Agreemento 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 Page 5 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 nigpnte Regolution. 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 ) 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, in order to be effective, shall be in writing and signed by the City and the Consultant XII. Compliance with Taws: 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 he exclusively in a court of competent jurisdiction sitting in Denton County, Texas XIV, Digerimmation Prnhibitede 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 Pergnnneh 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 anse during the term of this Agreement, in accordance with Consultant's responsibilities under the Texas Disciplinary Rules of Professional Conduct Page 6 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 XVI Asaig_nah,1, y. 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 XVII. Severahility. 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 XVIII. Responsibilwas for Claims and Linhdity. 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 XIX Modifleation 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 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 The parties further agree that the provisions of this article will not be waived as herem set forth XX, Captions. The captions of tlus Agreement are for informational purposes only and shall not in any way affect the substantive terns or conditions of this Agreement XXI, Binding Rffeet, This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, admuustrators, legal representatives, successors, and assigns, where permitted by this Agreement IN WITNESS HEREOF, the City of Denton, Texas has executed this Agreement in four (4) original counterparts by and through its duly authorized City Manager, and Consultant has executed this Agreement by and through its duly authorized undersigned Shareholder, dated this the 51 day of 2000 Page 7 ATTEST JENNIFER WALTERS, CITY SECRETARY By 16L� APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By ATTEST IC 1 1060\12\agt000809emb1 CITY OF DENTON, TEXAS A Texas Municipal Corporation By�� . Michael Jez, anager LAW OFFICE OF ERICH BIRCH, P C , A Texas Professional Corporation By Erich Birch, Shareholder Page 8