Loading...
HomeMy WebLinkAbout1999-175ORDINANCE NO _175- 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 HAYTHE & CURLEY, NEW YORK, NEW YORK, PERTAINING TO FEDERAL TAX ISSUES RELATING 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 Haythe & Curley, a General Partnership ("H&C"), New York, New York, to provide professional legal services to the City as special outside counsel, and shall advise the City concerning federal tax issues, issues pertaining to outstanding tax-exempt debt, and strategic planning issues 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 November 9, 1998, and from time -to -time thereafter, requested that H&C provide it with legal advice and services in the highly specialized areas of federal tax law and issues pertaining to outstanding tax-exempt indebtedness as they relate 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 H&C are 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 H&C attached hereto, should be ratified, and should be made retroactively effective as of November 9, 1998 in order to properly compensate H&C 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 SECTION I That the City Manager is hereby authorized to execute an Agreement for Professional Legal Services with the law firm of Haythe & Curley, a General Partnership, New York, New York, for professional legal services pertaining to federal tax issues relating 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 H&C and the ability of H&C 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 November 9, 1998 SECTION V That this ordinance shall become effective immediately upon its passage and approval �l PASSED AND APPROVED this the day of y//GZG1= , 1999 ATTEST JENNIFER WALTERS, CITY SECRETARY i APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Documents\Ordmances\99\H8ythe& Curley PSA DME divest doc W d fflx o O. AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEM&S COUNTY OF DENTON THIS AGREEMENT, made and entered into this the le day of 1999, by and between HAYTHE & CURLEY, a General Partnership. 237 Part. Av rue, New York, New York 10017, hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas Municipal Corporation, 215 E McY-umey, Denton, Texas 76201, hereinafter referred to as "City" WHEREAS, the City finds it necessary to employ outside legal counsel to perforin professional legal services in a specialized area or law, tax-exempt finance, and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor, and WHEREAS, the City desires to engage the Consultant to render the professional services in connection therewith, and the Consultant is willing to provide such services, and WHEREAS, the Consultant requires that its "Standard Terms of Representation - May 1997" document, a copy of which is attached hereto and incorporated by reference herewith, shall govern this contractual relationship, except as supplemented or amended by this Agreement, and the City is willing to proceed on that basis respecting this engagement, NOW, THEREFORE, in consideration of the promises and mutual obligations contained herein, the parties hereto do hereby AGREE as follows I Sipe of Services The Consultant shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City A Services to be provided 1 The Consultant shall serve as special counsel to the City of Denton, Texas and its Municipal Electric Utility, in which capacity it shall advise the City concerning federal tax issues, issues pertaining to outstanding tax-exempt debt, and strategic planning matters, in each case pertaining to the divestiture of a portion of its Electric Utility System, including its interest in the Texas Municipal Power Agency ( TMPA') This engagement shall not encompass any litigation work or any work in connection with any ruling request that may be submitted to the Internal Revenue Service or in connection with any restructuring of TMPA Consultant shall also consult, as requested, with the City Manager, 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 2 The Consultant shall perform all the professional services required in a timely fashion, and shall complete same in compliance with schedules established and coordinated by the City through its Director of Electric Utilities and City Attorney, through discussions with the Consultant,, as appropriate to carry out the terms and conditions of this Agreement 11 Jam This Agreement shall terminate upon the completion of the services provided for herein, or upon the exhaustion of the funds provided hereunder, or on December 31, 2000, 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, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible during the term of this Agreement, and to meet the schedules established by the City, through its Director for Electric Utilities and City Attorney, or as the progress of this matter may reasonably require A Consultant shall charge the following fees for its professional services hereunder, based on the following fees for its professional services hereunder, based on the following hourly billing rates for the attorneys and support staff involved in this matter Margaret C Henry David L Dubrow Jerry E Muntz Richard J Krainin Sheree D Reinbach Michelle Donnay D Michael BerkoWUL $250 00/hour $315 00/hour $250 00/hour $275 00/hour $150 00/hour $185 001hour $ 95 00/hour B The foregoing rates are in force and effect as of the date of execution of this Agreement Should this contractual relationship be ongoing in December 1999, City and Consultant agree to renegotiate these rates to take into account increases m billing rates by the Consultant for similar services C Consultant will try to reduce costs whenever feasible by utilizing qualified partners, associates, paralegals, and support staff The Consultant shall bill the City through the Contract For Professional Legal Services - Page 2 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 incurred D Consultant and the City agree that all charges for the legal services for this engagement, including reasonable out-of-pocket expenses, will not exceed Seventy Two Thousand Dollars ($ 72,000) No retainer shall be required for this engagement E City shall either pay directly or reimburse the Consultant, as the case may be, for reasonable actual out-of-pocket expenses, including but not limited to, long-distance telephone, telecopier, reproduction, overnight courier, and travel expenses prudently incurred by Consultant All copies will be charged at the rate of twenty cents ($ 20) per copy for copies made within Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates, if bulk copying is necessary The parties agree that the charges for facsimile transmission are at the rate of $1 50 per page Database searches, secretarial overtime when required by the urgency of a client's matter, long distance telephone calls, special deliveries, and other similar items shall be billed at or below Consultant's estimated costs F The parties anticipate invoices or statements for services will be generated on a monthly basis and that said invoices or statements will be sent on or about the 151` day of each month The City shall make payment to the Consultant within thirty (30) days of the satisfactory completion of services and receipt of an itemized invoice or statement All reimbursable expenses, including, but not necessarily limited to travel, lodging, and meals shall be paid at the actual cost, pursuant to the terms, conditions, and limitations hercinabove set forth All invoices and bills shall be approved for payment by the City Attorney and the Director of Electric Utilities G It is understood that the Consultant shall work under the direction of the Director for Electric Utilities or her designee, and the City Attorney H 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 to the City shall be addressed to Herbert L Prouty, City Attorney, 215 E McKinney, Denton, Texas 76201 Notices and payments sent by mail to the Consultant shall be addressed to Margaret C, Henry, Partner, Haythe & Curley, 237 Park Avenue, New York, New York 10017 When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mail, postage prepaid In all other instances, notices, invoices, and/or payments shall be deemed given at the time of actual delivery Changes may be made in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable written notice is given Contract For Professional Legal Services — Page 3 A The Consultant agrees that in the performance of these professional services Consultant shall be responsible for the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals performing the same or similar types of work For the purpose of this Agreement, the key person who will be coordinating and peiforming most of the work hereunder shall be Margaret C Henry, Partner However, nothing herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein B All legal documents as well as dny 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 terminated at anytime 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 orat least three (3) years after receipt of final payment under this Agreement VI Audits and Insnecuon 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 VTI AccomnlishmentofProiect The Consultant shall commence, carry on, and complete any and all projects with all practicable dispatch, in a sound, economical and efficient manner, and, in accordance with the provisions hereof and all applicable laws In accomplishing the projects, the Consultant shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried on by the City VIII Conflicts of Intorest/Confidentrality The City and Consultant agree that for purposes of this engagement, the provisions of Haythe & Curley Standard Terms of Representation (May 1997) "Confidentiality and Client Conflicts" at page 14 and 15 therein, shall govern A The Consultant shall perform all services as an independent contractor not under the direct supervision and control of the City Nothing herein shall be construed as creating a relationship of employer and employee between the parties Contract Pot Professional Legal Services - Page 4 B Consultant agrees to indemnify the City against all losses ansing out of the negligence of Consultant, provided, however, that in the event that this indemnity is called into play, the amount of Consultant's indemnification obligation to the City shall be measured by its comparative fault relative to all individuals or entities (including the City) whose acts or omissions contributed to the City's losses, and provided, further, that Consultant's indenrniftcation obligation to the City shall not exceed the amount of Consultant's applicable professional liability insurance coverage C Consultant shall maintain and shall be caused to be in force at all times during the term of thus Agreement, a legally binding policy of professional liability insurance, listed by A M Best Rated Carriers, with a rating of "A-" or above, issued by an insurance tamer approved to do business in Texas by the Texas Department of Insurance Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act, error or omission, in an amount not less than Two Million Dollars ($2,000,000 00) 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 advise the City thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, deliver a copy of a substitute policy furnishing the same coverage The Consultant shall provide a copy of such policy or the declarations page of the policy, whichever is reasonably satisfactory, to the City through its Director of Electric Utilities, simultaneously with the execution of this Agreement ,iii. i •. - i � : _ _ 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 tertination 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 Contract For Professional Legal Services - Page 5 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 XI Alternate Disnute Resolution The Consultant and the City agree that, if necessary, they will use their best efforts to resolve any disputes regarding the Agreement through the use of mediation or other forms of alternate dispute resolution set forth in Chapter 154 of the Texas Civil Practice and Remedies Code (V A T C S ) XII Entire Agreement This Agreement represents the entire agreement and understanding between the parries, and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written Agreement Any supplement or amendment to this Agreement to be effective shall be in writing and signed by the City and the Consultant XHI Compliance with Laws The Consultant shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended, including, but not limited to the State of New York Disciplinary Rules of Professional Conduct XIV 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 governed by the laws of the State of Texas Venue and jurisdiction of any suit or cause of action ansing under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County, Texas XV Discrimination Prolubited 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 A The Consultant represents that it has or will secure at its own expense all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or have any contractual relations with the City Consultant shall inform the City of any conflict of interest or potential conflict of interest that may arse during the term of this Agreement, in accordance with Consultant's responsibilities under the State of New York Disciplinary Rules of Professional Conduct, and subject to the provisions of paragraph VIII heremabove B All services required hereunder will be performed by the Consultant or under its direct supervision All personnel engaged in work shall be qualified and shall be authorized or permitted under state and local laws to perform such services Contract For Professional Legal Services — Page 6 XVII Assi¢nability The Consultant shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the City thereto XVIII 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" 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 Remonsibilities 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 attorneys and employees XX Modification of Agreement No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding ansing between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid, and, the parties further agree that the provisions of this Article will not be waived as herein set forth XXI Captions The captions of this Agreement are for informational purposes only and shall not in anyway affect the substantive terms or conditions of this Agreement XXII Bindinizffect and Effective Date 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 This Agreement is hereby ratified and retroactively approved by the City and Consultant and shall be effective ds of November 9, 1998 IN WITNESS HEREOF, the City of Denton, Texas, has executed this Agreement in four (4) original counterparts by and through its duly-authonzcd City Manager, and Consultant has execut�d this Agreement by and through its duly-authonzed undersigned Partner, dated this the day of � ,1999 "CITY" CITY OF DENTON, TEXAS A Texas Municipal Corporation Contract For Professional Legal Services - Page 7 ATTEST JENNIFER WALTERS, CITY SECRETARY t �l,I L I �. �: 01 r APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By "CONSULTANT" HAYTHE & CURLEY A General Partnership Margdiet C Henry, Partner ATTEST By S \Our Docunmts\Contreccs\99\Heytlw& Curley PSA DME DhTSr.eoo Contract For Professional Legal Services — Page 9