Loading...
1997-326AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF BERNSEN, JAMAIL & GOODSON, L L P, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS ~ That the City Manager is hereby authorized to execute a Contract for Professional Legal Services with the law firm of Bemsen, Jamml & Goodson, L L P regarding various legal issues and matters related to the Denton Mtm~elpal Electric Utility, a copy of which contract is attached hereto and incorporated herein ~ That the expenditure of funds as provided in the attached contract is hereby authorized S__E_C..T. LQ~L~L That this ordinance shall become effective immediately upon its passage and approval he/[~--'~ of~1997 PASSED AND APPROVED th~s t '7- day JACK MILLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APP~VED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § This AGREEMENT, made and entered into this the ~'~ day of ~ 1997, by and between Bernsen, Jamafl & Goodson, L L P, a Texas limited liability partnership, with Daniel R Rachards having full authority to execute flus Agreement on behalf of Bernsen, Jamall & Goodson, L L P, hereinafter referred to as "Consultant", and the CITY OF DENTON, a Texas municipal corporation, 215 E McKmney, Denton, Texas 75201, hereinafter referred to as "City" WITNESSETH WHEREAS, the City needs to employ legal counsel to provide professional legal services to evaluate options with respect to its electric generation facilities and contractual agreements as well as any related proceedings and negotiations, and WHEREAS, the Consultant as vailing 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 wflhng to provide such services, NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the parties hereto do hereby mutually AGREE as follows I. Sco eof 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 Consultant shall evaluate and advise the City with respect to its obligations to the Texas Municipal Power Agency, its members, and its bond holders, evaluate and advise the City with respect to its ability to modify or restructure its obligations to the Texas Municipal Power Agency, its members, and its bond holders, evaluate and advise the C~ty with respect to its options as related to the City's continued ownership of certain eleeme generation and transmission facilities, assist the City in any related negotiations, and consult with the City Manager, Executive Director for Utilities, the Director of Electric Utilities, the City Attorney and the other designated adnnmstrative personnel regarding any and all aspects of the special services to be performed, including legal research and advice w~th respect to such matters 2 The Consultant shall perform all the serwces required in a timely fasluon, and shall complete same in comphance with schedules estabhshed by the C~ty through its D~rector for Electric Utdltaes and City Attorney through d~scusslons path the Consultant, as appropriate to carry out the terms and condltaons of this Agreement II Term: Th~s Agreement shall be for a term .of twelve (12) months, beginning effeclave November ~, 1997 and ending November ~ , 1998 This Agreement may be sooner terminated ~n accordance with the provisions hereof T~me is of the essence of thxs Agreement, and the Consultant shall make all reasonable efforts to complete the servtces set forth herein as expeditiously as possxble during the term of th~s Agreement, and to meet the schedules estabhshed by the City, through ~ts Dxrector for Electric Utditlas and City Attorney, or as the progress oftlus matter may mqmre IlL Comoensat~on and Method of Payment A The Consultant shall charge the follopang fees for ~ts professional services hereunder, based on the following hourly bdhng rates for the attorneys and support staff revolved m flus matter Daniel R Rachards $150 00/hour other attorneys with firm $125 00/hour paralegal support $50 00/hour law clerk support $50 00/hour Attorney time pall be balled at 25 hour mm~mum billing ~ncrements B The Consultant pall try to reduce costs by utdlzmg qualified pnnc~pals, assocmtes, paralegals, and law clerks wherever feasible The Consultant shall ball the City through the submission of ttem~zed lnvmces, statemems, and other documentation, together with support data mdmat~ng the progress of the work and the serwces performed on the bas~s of monthly statements showing hourly rates ~ndlcat~ng who performed the work, what type of work was done, and descriptions and/or detmls of all servmes rendered, along path specific description and suppomng documentation, if avmlable, respecting any reasonable and necessary out-of-pocket expenses recurred C Consultant and the City agree that all charges for the legal services hereunder, xncludmg reasonable out-of-pocket expenses, shall not exceed Eighty-two Thousand Fxve Hundred Dollars ($82,500 00) D 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 hm~ted to, long-distance telephone, telecop~er, reproduction, postage, overmght courier, and travel All copies will be charged at the rate of ten cents ($10) per copy for copies made within Consultant's offices, with as much photocopying as possible being done by outside vendors at bulk rates or by the City to reduce costs ff bulk copying xs necessary The parties agree that the charges for outgoing telecoples from Consultant shall be twenty-five cents ($ 25) per page and that there will be no charge by Consultant for incoming telecoples E 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 15~ 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 hmxtat~ons haremabove set forth All invoices and bills shall be approved by the Director of Electric Utilities and the C~ty Attorney F It IS understood that the Consultant shall work with the coordination and general supervision of the Director for Electric Utihtles and the City Attorney G All notices and invoices shall be made in writing and may be given by personal delivery or by marl Nouces and invoices sent by mall shall be addressed respectfully to Herbert L Prouty, City Attorney, 215 E McK~nney, Denton, Texas 76201 When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the Umted 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 m the names and addresses of the responsible person or office to whom not~ees, invoices, and/or payments are to be sent, provided reasonable not, ce is given IV. Professaonal Comoetenev' 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 tlus Agreement, the key person who will be performing most of the work hereunder shall be Daniel R Richards However, notl'ung herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein B Pleadings, motions, orders, notices, instruments, discovery documents, reports, and other legal documents prepared or obtmned under the terms of tins Agreement are instruments of service and the City shall retmn 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 obtmned 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 mmntmned by the Consultant at its place of business with respect to all matters covered by this Agreement Such records shall be mmntained for a period of at least three (3) years after receipt of final payment under this Agreement VI. Audits and Ins ection: At any time during normal business hours and upon reasonable notice to the Consultant, there shall be made avmlable to the City all of the Consultant, s records with respect to all matters covered bY this Agreement The Consultant shall permit the City to audit, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement Vii. Aeeomnhshment of Pro~eet: The Consultant shall commence, carry on, and complete any and all projects v~th all practicable dispatch, in a sound, economical and efficient manner, and, in accordance vath the provisions hereof and all applicable laws In accomph~hmg the projects, the Consultant shall take such steps as are appropriate to ensure that the work lnvolved is properly coordinated with related work being carried on by the City VIII. Indemnity and Indenendent Contractor Relationship: 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 The City and Consultant agree to cooperate in the defense of any ulmms, aetxon, suit, or proceeding of any kind brought by a third party which may result from or directly or indirectly ar~se from any negligence and/or errors or omissions on the part of the Consultant or from any breach of the Consultant's obligations under this Agreement In the event of any litigation or eham under this Agreement in which Consultant is joined as a party, Consultant shall prowde statable counsel to defend the City and Consultant agmnst such claim, provided the Consultant shall have the right to proceed wath the competent counsel of its own choosing The 4 Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, agents, servants, and employees agmnst any and all such clmms to the extent of coverage by Consultant's professional liability pohey The Consultant agrees to pay all expenses, including but not limited to attorneys' fees, and satisfy all judgments which may be incurred or rendered against the Consultant's professional liability insurance policy Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under either law or equity, including, without limitation, a cause of action for specffie 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 mamtmn and shall be caused to be in force at all times during the term of tlus 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 clmm hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amount not less than Two Million Dollars ($2,000,000 00) combined single limit coverage occurrence In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to forew~th advise the City thereof, and in such event, the Consultant shall, prior to the effecuve date of change or cancellation, serve substitute poheies ftlmlshlng the same coverage The Consultant shall provide a copy of such policy or the declarations page of the pohey, whichever is reasonably satisfactory, to the City through its Exeeuuve Director for Public Utilities simultaneously with the execution of this Agreement IX. Term,nation of A~reement: 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 lndefimtely 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 5 B This Agreement may be terminated in whole or in part, ~n writing, by either party ~n the event of substantial failure by the other party to fulfill ~ts obligations under this Agreement through no fault of the terminating party Prowded, however, that no such termination may be affected, unless the other party is g~ven [1] written notme (dehvered by certffied mml, remm receipt requested) of intent to terminate, and not less than thirty (30) calendar days to cure the fmlure, and [2] an oppormmty for consultation w~th the terminating party prior to term~nation C Nottung contained herein or elsewhere in this Agreement shall require the C~ty to pay for any work which is unsatisfactory or which is not submitted in compliance vath the terms of th~s Agreement X Alternate Dlsnute Resolution: The Consultant agrees that, ~f necessary, ~t 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 ~n Chapter 154 of the Texas Civil Practice and Remedies Code (V A T C S ) XI. Entire A reement: Th~s Agreement represents the entire agreement and understanchng between the parties, and any negotiations, proposals, or oral agreements are ~ntended to be integrated herein and to be superseded by this written Agreement Any supplement or amendment to this Agreement to be effective shall be ~n writing and signed by the City and the Consultant XII Comnhanee with Laws: The Consultant shall comply w~th 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 hmited to the Texas Disciplinary Rules of Professional Conduct XIII. ~ For the purpose of determunng place of agreement and law governing same, thxs Agreement is entered ~nto in thc C~ty and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas Venue and junsd~ctmn of any stat or cause of action arising under or in connectmn wxth th~s Agreement shall be exclusively m a court of competent jurisdiction sitting in Denton County XIV. Dlser~mmation Prohibited In pcrformmg the services required hereunder, the Consultant shall not d~scnm~nate agmnst any person on the basis of race, color, rehglon, sex, national origin or ancestry, age, or physical handicap XV. Personnel. A The Consultant represents that it has or will secure at its own expense all personnel reqmred to perform all the services required under this Agreement Such personnel shall not be employees or have any contractual relations w~th the City Consultant shall ~nform the C~ty of any conflmt of interest or potential conflict of interest that may arise during the term of this Agreement, m accordance with Consultant's respons~bd~tlas under the Texas Disciplinary Rules of Professional Conduct B All services required hereunder will be performed by the Consultant or under ~ts direct supervision All personnel engaged ~n work shall be qualified and shall be authorized or permitted under state and local laws to perform such services XVI. Consent to Reoresant the City of Garland~ Texas., The City understands that Consultant may enter ~nto an agreement for professional legal serv~cas with the City of Garland, Texas, and that the scope of Consultant's work to be performed for the City of Garland, Texas, will be similar to, or possibly the same as Consultant's work to be performed for the City of Denton under th~s Agreement Because of the close ties and relatmns between the C~ty of Denton and the C~ty of Garland, and their ~nvolvement m similar legislative issues, the City consents to the Consultant's engagement as a consultant to the City of Garland, and directs Consultant, where possible, to coordinate work performed on behalf of both cities so that the maximum advantage to the cities may be attained XVII. ~ The Consultant shall not assign any interest m this Agreement and shall not transfer any interest m this Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the City thereto XVHI Severabdlty: All agreements and covenants contained herein are severable, and ~n the event any of them, wth the exception of those contained m sections headed "Scope of Services," "Independent Contractor Relationship," and "Compensation and Method of Payment" hereof, shall bc held to be invalid by any court of competent jurisdiction, this Agreement shall be interpreted as though such mvahd agreements or covenants were not contmned hereto XIX Responsibthtles for Claims and Llabihtw Approval by the C~ty 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 respons~bthty of the C~ty for any defect ~n any report or other documents prepared by the Consultant, ~ts employees, officers, agents, and consultants XX. Modffication of A~reement: No wmver or modfficat~on of this Agreement or of any covenant, cond~tion, or limitation hereto contained shall be valid unless in 7 writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the partms hereto out of or affecting tins Agreement, or the rights or obhgauons of the partms hereunder, unless such waiver or modxficatlon as m writing, duly executed as aforesmd, and, the parties further agree that the provisions ofttus section wall not be waived as herein set forth XXI. Cautions: The captions oftlus Agreement are for ~nformaUonal purposes only and shall not in any way affect the substantive terms or condauons of this Agreement XXII. ~ Th~s Agreement shall be binding upon and ~nure to the benefit of the pames hereto and their respective he~rs, executors, adm~mstrators, legal representatives, successors, and assigns where permitted by this Agreement IN WITNESS HEREOF, the City of Denton, Texas, has caused this Agreement to be executed by its duly anthonzed City Manager and Consultant has executed t~ns Agreement through its duly authorized undersigned officer, dated this the ~('~/ day of 1997 CITY OF DENTON Ted Benavldes, City Manager ATTEST: HERBERT L PROUTY, CITY ATTORNEY BY ~°~)~x' j~~lI ATTES~ ~ 8