Loading...
HomeMy WebLinkAbout1999-131FILE REFERENCE FORM 99-131 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials First Amendment to Contract - Ordinance No. 2001-086 02/20/2001 ) K Second Amendment to Contract - Ordinance No. 2002-221 07/16/2002 )R Third Amendment to Contract - Ordinance No. 2003-004 01/07/2003 )R Fourth Amendment to Contract - Ordinance No. 2003-153 05/27/2003 ) K Y NOTE First Amendment to Contract - Ordinance No 2001-086. ORDINANCE NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, LLP, WASHINGTON, D C PERTAINING TO THE SALE, ASSIGNMENT, OR OTHER DIVESTITURE OF ALL OR A PORTION OF THE ELECTRIC UTILITY ASSETS OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and in the public interest to engage the law firm of Dickstein, Shapiro, Morin & Oshmsky, LLP (the "Dickstein firm'), Washington, D C , to provide professional legal services to the City pertaining to the sale, assignment, or other divestiture of all or a portion of the electric utility assets of the City of Denton, Texas, and WHEREAS, the City, in order to ascertain its legal rights and alternatives, considering the approach of several critical deadlines in the divestiture process, on March 12, 1999, requested that the Dickstein firm provide it with legal advice and services in the highly specialized areas of public utility regulatory law, several key areas of utility transactional law as it relates to Denton's possible divestiture of all or a portion of its electric utility assets, and other matters of significant importance concerning the proper posturing of Denton Municipal Electric's activities considering the current market and the effect of impending electric deregulation legislation The Dickstein firm is presently assisting and supporting City staff, and have already provided the City with much needed advice and legal support Accordingly, it is appropriate that the Agreement for Professional Legal Services with the Dickstein firm attached hereto, should be ratified, and should be made retroactively effective as of March 12, 1999 in order to properly compensate the Dickstein firm for its work and expenses incurred at the specific instance and request of the City, which work has directly benefited the City, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the foregoing professional services, as set forth in the Agreement for Professional Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SSECTION I That the City Manager is hereby authorized to execute an Agreement for Professional Legal Services with the law firm of Dickstein, Shapiro, Morin & Oshinsky, LLP, Washington, D C for professional legal services pertaining to the sale, assignment, or other divestiture of all or a portion of the electric utility assets of the City of Denton, Texas, in substantially the form of the Agreement for Professional Legal Services attached hereto and incorporated herewith by reference SECTION II That the award of this Agreement is on the basis of the demonstrated competence and qualifications of the Dickstein firm and the ability of the Dickstein firm to perform the professional legal services needed by the City for a fair and reasonable price SECTION III That the expenditure of funds as provided for in the attached Agreement for Professional Legal Services is hereby authorized SECTION IV That the Agreement for Professional Legal Services is hereby ratified and retroactively approved, and shall be effective from and after March 12, 1999 SECTION V That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the CP-�- day of _/tc� 11999 JAC LLER MAYOR ATTEST- JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY (22;�'U By 'WZ�j S \Our Documents\Ordlnmms\99\DtckstemShapim Alt Ord re PSA DME divest doc STATE OF TEXAS § COUNTY OF DENTON § CONTRACT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered into this the 6th day of April, 1999, by and between Dickstein Shapiro Morin & Oshinsky L L P , a Limited Liability Partnership, 2101 L Street NW, Washington, D C 20037, hereinafter referred to as "Legal Advisor", and the City of Denton, Texas, a Texas Municipal Corporation, 215 E McKinney, Denton, Texas 76201, hereinafter referred to as "City" WHEREAS, the City finds it necessary and appropriate to employ outside legal counsel to perform professional legal services in several highly specialized areas of law pertaining to the proposed divestiture of its electric system assets, including without limitation public power acquisitions and divestitures, public utility regulatory law at the state and federal levels, significant real estate transactional and merger and acquisition expertise, and public finance expertise in dealing with complex joint power agency and local bond law issues, and WHEREAS, the Legal Advisor is willing to perform such services in accordance with this Agreement, in a professional manner as an independent contractor, and Legal Advisor, in connection with this engagement has secured the professional services of the law fine of Strasburger & Price, L L P , of Dallas, Texas, hereinafter referred to as "Subcontractor" in order to provide Legal Advisor and the City with legal assistance and support regarding selected state and local matters selected by Legal Advisor and the City, incident to the proposed divestiture, and WHEREAS, the Legal Advisor is willing to perform such services in a professional manner as an independent contractor, and WHEREAS, the City desires to engage the Legal Advisor to render the professional services in connection therewith, and the Legal Advisor is willing to provide such services, and WHEREAS, the City acknowledges that the attorney -client relationship arising with Legal Advisor under this Agreement is limited to representation of the City of Denton, Texas, and no other person or entity, and NOW, THEREFORE, in consideration of the promises and the mutual obligations covenants contained herein, the parties hereto do hereby AGREE as follows 985108 v2 L444021 DOC I Scope of Services The Legal Advisor shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City A Services to be provided 1 The Legal Advisor shall serve as lead outside legal counsel to the City to provide legal services to assist the City in the lawful divestiture of its electric system assets The Legal Advisor shall, to the extent reasonably possible, and in consultation with the City Attorney and the other entities listed in Section A 2 below, coordinate the efforts of the other outside legal counsel retained by the City on the electric system divestiture project in order to plan and task the necessary services in an efficient, cost-effective manner, without unreasonable duplication of services, benefiting the City Significant duties of Legal Advisor in this engagement include, without limitation analyzing and preparing numerous complex transaction documents, advising the City with respect to divestiture and divestiture -related issues, counseling the City with respect to offering and auction plans, advising the City relating to bid procedures, providing legal services necessary for the City to obtain any required local, state, or federal regulatory approvals regarding any divestiture transaction or transactions, evaluating the legal effects and relative strengths or weaknesses respecting bids received by the City during the divestiture process, coordinating and conducting the closing of any divestiture transaction or transaction, providing legal services related to the divestiture process which relate to pertinent public finance issues, and shall provide advice and counsel to the City in connection with other legal issues pertaining to the City's compliance with all applicable laws and regulations governing the divestiture process It is expressly agreed and understood that in the event that litigation should anse in connection with, or related to the electric system divestiture process, or otherwise, that such services are not included within the scope of services of this Agreement In the event that any such litigation should occur, it will be necessary for the City and Legal Advisor to negotiate a separate Agreement with terms appropriate considering the relevant circumstances 2 The Legal Advisor shall work with designated City of Denton officials and employees, with the Reed Consulting Group and R I Covington Consulting, the City's lead outside consultants on the electric system divestiture project, and shall, upon reasonable request, brief the Mayor, other City Council members, and the Public Utilities Board, as requested Legal Advisor shall also provide legal advice to the City of Denton, Texas and its Municipal Electric Utility, in its negotiations with other member of the Texas Municipal Power Agency ("TMPA"), concerning the divestiture of the City's interests in TMPA 3 Legal Advisor shall also consult, as requested, with the City Manager, the Assistant City Manager of Utilities, the Director of Electric Utilities, the City Attorney, any other designated City staff and designated outside legal counsel of the City, respecting any and all aspects of the services to be performed under this Agreement Legal Advisor shall be available to confer by conference call or otherwise with the Director of Electric Utilities, Reed Consulting Group, and the City's Utility Attorney on a twice -monthly basis in order to discuss the current status of Legal Advisor's work and to discuss appropriate coordination of future activities of the City staff, Reed Consulting Group, other members of the electric system divestiture team, and the Legal Advisor Contract For Professional Legal Services — Page 2 985108 v2, L444021 DOC 4 Legal Advisor shall make all reasonable efforts to perform all the professional services provided for by this Agreement in a timely fashion, and shall complete same in compliance with reasonable schedules established and coordinated by the City through its Director of Electric Utilities and City Attorney, through discussions with the Legal Advisor, as appropriate to carry out the terms and conditions of this Agreement The Legal Advisor's performance of its obligations hereunder, however, shall be subject to the City, the Director of Electric Utilities, the City attorney and any other outside Legal Advisor of the City cooperating with the Legal Advisor and providing it with adequate and timely support and information II Term Legal Advisor and the City agree that the term of this Agreement shall begin effective as of March 12, 1999, as the parties hereto have agreed that this Agreement shall be retroactively approved, and that the acts taken by the Legal Advisor and the Subcontractor prior to the City's governing body approving this Agreement are hereby ratified and confirmed for all purposes This Agreement shall terminate upon the earlier of the completion of the Legal Advisor's professional services contemplated hereby or the exhaustion of the funds provided hereby This Agreement may be terminated sooner in accordance with the provisions hereof Time is of the essence of this Agreement In the event that this engagement becomes inactive for a period of one year, or if the Legal Advisor has no occasion to perform any legal services in connection with this matter for a period of one year, this engagement shall be deemed terminated unless Legal Advisor and City otherwise agree in writing, to the contrary III Compensation and Method of Payment A Legal Advisor shall charge the following fees for its and the Subcontractor's professional services hereunder, based on the following fees for their professional services hereunder, based on the following hourly billing rates for the attorneys and support staff involved in this matter 1 Legal Advisor shall charge the City the regularly established billing rates set forth in Exhibit "A" attached hereto and incorporated herewith by reference as adjusted pursuant to Section III A 3 below 2 Subcontractor shall charge the City the regularly established billing rates set forth in Exhibit "B" attached hereto and incorporated herewith by reference, as adjusted pursuant to Section III A 3 below, which fees shall be billed through and collected by Legal Advisor 3 Legal Advisor and Subcontractor each adjust their respective hourly billing rates periodically, normally on a once per year basis Legal Advisor shall provide the City with reasonable prior written notice of any such changes Any change to such fees shall be for no more than a reasonable amount, and shall be in accordance with the same amount, or a lower amount than the amount of hourly fees changed for the two firms' other clients 4 City has requested, and Legal Advisor has agreed, that Legal Advisor's usual requirement of a cash retainer shall be waived respecting this engagement 5 Legal Advisor and Subcontractor agree that the City is entitled to a five (5%) percent discount on all fees for professional services rendered by the two firms Contract For Professional Legal Services — Page 3 985108 Q L444021 DOC 6 Legal Advisor and Subcontractor shall bill attorney time at minimum one - tenth ( 1) hour increments B Legal Advisor will try to reduce costs whenever feasible by utilizing qualified partners, associates, paralegals, and support staff The Legal Advisor shall bill the City through the submission of itemized invoices, statements, and other documentation, together with supporting data indicating the progress of the work and the services performed on the basis of monthly statements showing hourly rates indicating who performed the work, what type of work was done, and descriptions and/or details of all services rendered, along with specific description and supporting documentation, if available, respecting any reasonable and necessary out-of-pocket expenses or disbursements incurred Legal Advisor shall also include with its itemized invoices and other supporting documentation to the City, such itemized invoices and other supporting documentation arising out of Subcontractor's rendition of legal services regarding this matter At all times during the course of this engagement, the City shall pay any amounts invoiced from Subcontractor through Legal Advisor, to Legal Advisor, for the benefit of Subcontractor City intends to pay all undisputed items set forth on any itemized invoice or statement issued hereunder within thirty (30) days receipt of same from the Legal Advisor In the event that the City disputes or protests any item of an itemized invoice or statement issued by Legal Advisor or Subcontractor under this Agreement, it will promptly notify Legal Advisor in writing, within thirty (30) days after its receipt of the itemized invoice or statement, specifically describing the item(s) protested or disputed, and its reason(s) for protesting or disputing the item(s) Pending resolution of such dispute, the City may withhold payment respecting the disputed item(s) only, and shall otherwise timely pay the remaining undisputed amounts billed to it C Subject to Section D, Legal Advisor and the City agree that charges for the legal services contemplated under this Agreement, including all professional services rendered by Legal Advisor and Subcontractor combined, and including direct out-of-pocket expenses, shall not exceed Four Hundred and Fifty Thousand Dollars ($ 450,000 00) D The parties acknowledge that the amount set forth in Section C constitutes Legal Advisor's good faith estimate of the fees and expenses which it believes would be involved with respect to providing the legal services contemplated under the scope of services set forth in Section I A based on the information provided to it by the City and after considering the circumstances currently known with respect to the divestiture of the City's electric utility assets and that the cost of legal services may be higher or lower than the estimate The City and Legal Advisor further recognize and agree that the transaction(s) contemplated by this Agreement involve numerous complex issues that may result in significant changes to the scope of the quantity of legal services originally contemplated and depending on the duration of, and the ultimate complexities evolving from, the divestiture transaction(s), the legal fees and expenses for the services rendered by the Legal Advisor and the Subcontractor may vary from this estimate E Legal Advisor anticipates that it will make various disbursements and incur various internal costs in connection with this engagement In accordance with its usual practice, City and Legal Advisor agree that disbursements to third parties for local transportation and travel, postage, messengers, commercial printing services, bulk photocopying charges, and other such miscellaneous items, shall be billed to the City at actual cost Air travel by Legal Contract For Professional Legal Services — Page 4 985108 v2, L44402 1 DOC Advisor shall be reimbursed to the extent of the applicable coach airfare In the event that a third party bills for expenses incurred on the City's behalf in excess of $ 2,500 00, Legal Advisor reserves the right to request that the City be the client of the particular vendor and pay such vendor directly F Legal Advisor shall bill internal support services to City either on a direct -cost basis (which includes a reasonable allocation of overhead directly associated with the provision of service) or in accordance with the Legal Advisor's standard rates Delivery services, express mail and related couriers, and long-distance telephone expenses are charged at or below the direct cost of the particular service The following support services are charged by the Legal Advisor on a flat -rate basis Outgoing telecopier services are charged at $ 150 per page, which also includes all costs for long-distance transmission There is no charge for incoming telecopies to the Legal Advisor Photocopies shall be charged to City at the rate of ten cents per page, if the copies are made at the Legal Advisor's facilities Computerized legal research is charged at a 20% discount from the computer companies' standard published rate schedules G The parties anticipate invoices or statements for services will be generated on a once -monthly basis by Legal Advisor, and by Subcontractor, once it has begun providing services and incurring expenses on the Project at the direction of Legal Advisor Legal Advisor shall send invoices or statements to City on or about the 15`h day of each month The City shall make payment to the Legal Advisor within thirty (30) days of the receipt of an itemized invoice or statement, except as provided in subparagraph III B heremabove All invoices and bills shall be approved for payment by the City Attorney and the Director of Electric Utilities H It is understood that the Legal Advisor shall work under the direction and oversight of the Director for Electric Utilities or her designee, and the City Attorney I All notices, billing statements and invoices shall be made in writing and may be given by personal delivery or by mail Notices and invoices sent by mail shall be addressed to Herbert L Prouty, City Attorney, 215 E McKinney, Denton, Texas 76201, as to the City Notices sent by mail shall be addressed to Kenneth M Simon, Attorney, Dickstein Shapiro Morin & Oshmsky LLP, 2101 L Street NW, Washington, D C 20037, as to the Legal Advisor When so addressed, the notice, invoice, and/or payment shall be deemed given as of three (3) days after its deposit in the United States Mail, postage prepaid In all other instances, notices, invoices, and/or payments shall be deemed given at the time of actual delivery Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable written notice is given IV Professional Competency A Legal Advisor agrees that in the performance of its professional services, Legal Advisor shall be responsible for the level of competency and shall use the same degree of skill and care presently maintained by other practicing legal professionals performing the same or similar types of work For purposes of this Agreement, the key person who will serve as the City's point of contact, who is also responsible for coordinating Legal Advisor's and Subcontractor's work on the divestiture transaction shall be Kenneth M Simon, a Partner of Legal Advisor However, nothing herein shall restrict Legal Advisor from using other qualified and competent members of its firm, or of the Subcontractor's firm, to perform the services Contract For Professional Legal Services — Page 5 985108 v2 L444021 DOC provided for herein, provided that such delegation of work avoids unnecessary duplication of service or expense, and reasonably serves the City's best interests B All legal documents as well as any legal opinions prepared or obtained under the terms of this Agreement are instruments of service and the City shall retain ownership and a property interest therein If this Agreement is termmated at any time for any reason prior to payment to the Legal Advisor 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 Legal Advisor V Establishment and Maintenance of Records Full and accurate records shall be maintained by the Legal Advisor 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 Legal Advisor, there shall be made available to the City all of the Legal Advisor's records with respect to all matters covered by this Agreement The Legal Advisor shall permit the City to audit, examine, and to make excerpts, copies, 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 Legal Advisor shall commence, carry on, and complete any and all projects within the scope of this Agreement with all practicable dispatch, in a sound, economical and efficient manner, and, in accordance with the provisions hereof and all applicable laws In accomplishing such projects, the Legal Advisor shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carved on by the City Legal Advisor shall also take all reasonable steps to protect the confidentiality of the City's documents, materials, and information that is of a sensitive, competitive, proprietary, or confidential nature, consistent with applicable law concerning professional ethics and responsibility, realizing the value of such information to the City VIII Conflicts of Interest/Consent of Denton The City acknowledges and agrees that Legal Advisor shall remain free to represent existing or new clients in other matters that are not substantially related to the representation specified in this Agreement, and which would not involve any use by Legal Advisor (unless the City consents) of any confidential information the Legal Advisor has obtained from the City in this representation, even though the interests of any other clients in such matters may be adverse to the City's interests The Legal Advisor has requested, and the City agrees not to object to the Legal Advisor continuing or undertaking such representation of other clients in matters where their interests are adverse to the City, but the matters are not substantially related to the subject of the present engagement, and do not involve any use by the Legal Advisor (unless the City consents) of any confidential information that Legal Advisor has obtained from the City during this engagement Contract For Professional Legal Services — Page 6 985108 Q L444021 DOC (0 00 14 00, Ul CD oX* 0 (-) M 0 0 0 0' w zo (D + @ 0 c C') cn :1 0 5 N. Z CD C. 0 c 0 �z 1 0 — 0 (0 0 0 co Ln , W ri (A D LVI 3 I> m CD I w -4 O to 4 C: C: -4 '0 O co -0 IIJ Ln Of CA to Of J co CO C.A C: 'a O hi K) 0 0 N 00 -n O 0 o I m' -{ to co - rn (A A o 1 m CAO m O w fi 7O fi M F :3m ' o y Z O ° ^ 0 3 3 Q. 2 a m m + O w A T J n J C Ci D a J o m O N. S p Z 0. m v m I O w to F 10i; d C 3 N 3 o 42 m r ^MM! �W N CO 00 o I'•� '' t0 O, J Of j W N ! O Ip OD V Of ft� A W N O CD t0 N V 0) n I C -1 �mz w m� O ZO^ FN3 N=O I CD • m .�o •om Ij Na N/ N O' 3 3 n(D m Cm m o o m " o m r 3 + v c' n v v v v v v no I M D v m o o o N C o Z< O v w N o � I5 y CD N NOn 0Nm° ZO ! ZN {oy CD Tc K N O 3 m m v m N J ocn o ' v ml< j0v a m r — 0 v � o c cn c � mvn m" C) O m � — 3 m �� p 3 v tD (D O_ N CL O 0 CD D N A N A A N C)A ! N pp N ! N N W W O N W N O ``1 W n � it A N N (` N W cn 3 N ( _ o W W Ot O O I m w O W J � O N V ! `p 00. C N � ! ! W V y to _ O 00 A I ! m CO C J c J (n C co K O y � J N N (O W O N N O) ,p W u O ! V V ! � N N O ! ! W _ J O A ! W N N ! W N W N A ! N � W f7� N N W O O ' N V O N � IX, Indemnity and Independent Contractor Relationship A The Legal Advisor shall perform all services as an independent contractor not under the direct supervision and control of the City Nothing herein shall be construed as creating a relationship of employer and employee between the parties B The City and Legal Advisor 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 arse from any negligence and/or errors or omissions on the part of the Legal Advisor or from any breach of the Legal Advisor's obligations under this Agreement In the event of any litigation or claim alleging breach of the Legal Advisor's obligations ansmg under this Agreement in which Legal Advisor is joined as a party, Legal Advisor shall provide suitable counsel to defend the City and Legal Advisor against such claim, provided the Legal Advisor shall have the right to proceed with the competent counsel of its own choosing The Legal Advisor agrees to defend, indemnify and hold harmless the City and all of its officers, officials, agents, servants, and employees against any and all such claims to the extent of coverage by Legal Advisor's professional liability policy The Legal Advisor agrees to pay all expenses, including but not limited to reasonable attorney' fees, and to satisfy all judgments which may be recovered by the Legal Advisor's professional liability insurance policy Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue either at law or in equity, including, without lirmtation, a cause of action for damages or loss to the City, resulting from Legal Advisor's negligent errors or omissions, or breach of contract, and all such rights and remedies are hereby expressly reserved C Legal Advisor shall maintain and shall be caused to be in force at all times during the tern 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 Legal Advisor's negligent professional act, error or omission, in an amount not less than Three Million Dollars ($3,000,000 00) combined single limit coverage per occurrence In the event of change or cancellation of the policy by the insurer, the Legal Advisor hereby covenants to immediately advise the City thereof, and in such event, the Legal Advisor shall, prior to the effective date of change or cancellation, deliver a copy of a substitute policy furnishing the same coverage The Legal Advisor shall provide a copy of such policy as well as the declarations page of the policy, to the City through its Director of Electric Utilities, simultaneously with its execution of tlus Agreement X Termination of Agreement A In connection with the work outlined in this Agreement, it is agreed and fully understood by the Legal Advisor that the City may cancel or indefinitely suspend further work hereunder or terminate this Agreement, with or without cause, at any time upon twenty (20) days written notice to Legal Advisor, and Legal Advisor shall immediately cease all work being performed under this Agreement Legal Advisor may terminate this Agreement, with or without cause, by giving the City twenty (20) days written notice that Legal Advisor is no longer in a position to continue representing the City Legal Advisor shall invoice the City for all work Contract For Professional Legal Services — Page 7 985108 v2, L444021 DOC 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 alternatively 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, which has been protested by the City in accordance with the provisions of Article III B heremabove, or which is not submitted in compliance with the terns of this Agreement XI Alternate Dispute Resolution The Legal Advisor and the City agree that, if necessary, they will use their best efforts to resolve any disputes that might anse between them regarding the Agreement through the use of mediation or other forms of alternate dispute resolution as are set forth in Chapter 154 of the Texas Civil Practice and Remedies Code (VATCS) XII Entire Agreement This Agreement represents the entire agreement and understanding between the parties, and any negotiations, proposals, representations, 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 duly-authonzed officers and officials of Legal Advisor and the City XIII Compliance with Laws The Legal Advisor shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended XIV Governing Law For the purpose of deterinmmg 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 XV Discrimination Prohibited In performing the services required hereunder, the Legal Advisor shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap Contract For Professional Legal Services — Page 8 985108 v2 L444021 DOC XVI Personnel A The Legal Advisor represents that it has or will secure at its own expense all personnel it requires to perform all the services it is required to perform under this Agreement Such personnel shall not be employees or have any contractual relations with the City Legal Advisor shall inform the City of any conflict of interest or potential conflict of interest that may arse during the term of this Agreement, in accordance with Legal Advisor's responsibilities under the Washington, D C Disciplinary Rules of Professional Conduct, as the same may now read or be hereafter amended Subcontractor's responsibilities hereunder are provided for in the Texas Disciplinary Rules of Professional Conduct, as the same may now read or be hereafter amended B All services required hereunder will be performed by the Legal Advisor or under its direct supervision All personnel engaged in work shall be qualified and shall be authorized, permitted, or licensed under applicable state and local laws to perform such services XVII Assi nag bilrtv The Legal Advisor 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 Severabrlity All agreements and covenants contained herein are severable, and in the event any of them, with the exception of those contained in sections headed "Scope of Services", and "Compensation and Method of Payment" hereof, shall be held to be invalid by any court of competent jurisdiction, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained herein XIX Reponsibilities for Claims and Liability Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Legal Advisor 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 Legal Advisor, its attorneys and employees XX Modification of Agreement No waiver or modifcation of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith 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 shall not be waived as herein set forth XXI CUtions 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 BindingEffect ffect This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors, and assigns where permitted by this Agreement Contract For Professional Legal Services — Page 9 985108 v2, L44402 1 DOC 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 Legal Advisor has executed this Agreement by and through its duly-authonzed undersigned Partner, dated this the 6th day of April, 1999 CITY OF DENTON, TEXAS A Texas Municipal Corporation a ATTEST JENNIFER WALTERS, CITY SECRETARY By AP OVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP, A Limited Liability Partnership By Kenneth M SimoVPartner ATTEST By Contract For Professional Legal Services — Page 10 985108 v2, L44402 1 DOC DSM&O REGULAR HOURLY BILLING RATES The hourly rates of the lawyers DSM&O who would be engaged m this representation range from $140 to $365, and mclude, if required, those hated below Ken Sunon $365 Bill Km a $350 Myron Mmtz $350 Matt Malone $345 Rebecca Wn t $345 Angelo Arcade ane $330 George Bo $325 Emanuel Faust $325 Lee Alexander $325 Larry Eisenstat $315 Allan Goldstem $310 Pat Lynch $295 Mark Perhs $275 ohn Agar $275 Laura Szabo $220 hfichcRe Snuth $220 Jon Odell $205 David Rteveschl $160 Adam Vann $140 6672DPA KQGMIIDOC Di r K Sr en Sn. r i Ka Ma 1iv t 0S xi vs Kv ur S&P BILLING RATES The hourly rates of the lawyers S&P who would be engaged in this representation range from $125 to $325, and include, if required, those listed below Bill Mcdumt►s $325 Frank St Claire $300 Stu Holhmon $250 Angelo Parker $250 Dave LaBrec $225 Ruben Barrera $200 Karen Wn t $175 Patrick Waiter $150 Patrick Crame $125 Stephanie Cooper $125 967200vi MOtlM11DQC DI(R1TE1V $RIYIRU MORI\ C 01.111RY III ORDINANCE NO 4al- AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDED CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, L L P FOR SERVICES PERTAINING TO THE DENTON MUNICIPAL ELECTRIC DIVESTITURE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and appropriate and in the public interest to continue to engage the law firm of Dickstein, Shapiro, Morin & Oshinsky, L L P (DSMO), of Washington, D C , to provide professional legal services pertaining to the Denton Municipal Electric divestiture, and WHEREAS, the City has previously retained the professional legal services of DSMO on this matter on April 6, 1999, and has operated under a Contract For Professional Legal Services, in the amount of $450,000 thereafter, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the heremabove described professional services by Denton Municipal Electric, and that limited City staff cannot adequately perform the highly specialized legal services and tasks, with its own personnel, 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 of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price, and the City Council hereby finds and concludes that DSMO is appropriately qualified under the provisions of the law, to be continued as outside legal counsel for the City, specifically Denton Municipal Electric, respecting this engagement, and WHEREAS, the City Council has provided in the City budget for the appropriation of funds to be used for the procurement of the foregoing professional legal services, as set forth in this First Amendment to Contract for Professional Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute a First Amendment to Contract for Professional Legal Services with the law firm of Dickstein, Shapiro, Morin & Oshmsky, L L P , of Washington, D C for professional legal services relating to the Denton Municipal Electric divestiture, in substantially the form of the First Amendment to Contract for Professional Legal Services attached hereto and incorporated herewith by reference SECTION 2 That the award of this First Amendment to Contract is on the basis of the demonstrated competence and qualifications of DSMO, and the ability of DSMO, to perform the professional legal services needed by the City for a fair and reasonable price SECTION 3 That the expenditure of funds as provided for in the attached First Amendment to Contract for Professional Legal Services is hereby authorized SECTION 4 That as to the payment of fees and expenses, the First Amendment to Contract for Professional Legal Services is hereby ratified and retroactively approved, and shall be effective from and after January 1, 2001 SECTION 5 That except as provided in Section 4 heremabove, this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the ei0`G{Z day of 2001 ATTEST JENNIFER WALTERS, CITY SECRETARY By (IVilkyl oil APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Wt �,Alr t ki &jote� �WL EULINE BROCK, MAYOR S \Our Documents\0rdmances\01\DSMO First Amend Contract ord doe 2 THE STATE OF TEXAS ) COUNTY OF DENTON ) FIRST AMENDMENT TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES THIS FIRST AMENDMENT to that certain Contract for Professional Legal Services, executed April 6, 1999, dated effective March 12, 1999, heretofore entered into by and between the City of Denton, Texas, a Texas Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas 76201 (hereafter referred to as "CITY"), and the law firm of Dickstein, Shapiro, Morin & Oshinsky, a Limited Liability Partnership, with its offices at 2101 L Street NW, Washington, D C 20037 (hereafter referred to as "LEGAL ADVISOR"), acting herein by and through their respective duly authorized signatories, and NOW THEREFORE, the City of Denton, Texas and the firm of Dickstein, Shapiro, Morin & Oshinsky (hereafter collectively referred to as the "PARTIES"), in consideration of their mutual promises and covenants, as well as for other good and valuable considerations, do hereby AGREE to the following amendments to the tenns and conditions of the Contract For Professional Legal Services (hereafter the "Contract'), effective March 12, 1999, to wit I That the provisions of Section III C of the Contract For Professional Legal Services shall instead read an additional THREE HUNDRED THOUSAND DOLLARS ($300,000) effective January 1, 2001, as follows C Subject to Section D, Legal Advisor and the City agree that charges for the legal services contemplated under this Agreement, including all professional services rendered by Legal Advisor and Subcontractor combined, and including direct out-of-pocket expenses, shall not exceed SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000) II The PARTIES agree, that except as specifically provided for by this First Amendment to Contract For Professional Legal Services, that all of the terms, covenants, conditions, agreements, rights, responsibilities, and obligations of the parties set forth in the Contract, shall remain in full force and effect IN WITNESS WHEREOF, the City of Denton, Texas and the firm of Dickstein, Shapiro, Morin & Oshmsky, L L P have executed this First Amendment To Contract For 1 Professional Legal Services, in (4) original counterparts, by and through their respective duly representatives and officers on this the p� day of 2001 "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation By0FjQm.jW Ow ichael Je , y Manager ATTEST JENNIFER WALTERS, CITY SECRETARY B. �n.�/•_ inn /f,� APPROVED AS TO LEGAL FORM HERBERI L PROUTY, CITY ATTORNEY By "CONSULTANT" DICKSTEIN, SHAPIRO, MORIN & OSHINSKY A Limited Liability Partnership By ATTEST By (�Cl' affliCa• L. C \WINDOW SUENIRDSMO First Amended Agant Divestiture DME doc 2