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
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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
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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
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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~ ~
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