1996-184J \~PDOCS\ORD\GOSSELK ORD
OR. INANCE NO.
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING CITY MANAGER
TO EXECUTE THE CONTRACT FOR PROFESSIONAL LEGAL SERVICES BETWEEN THE
CITY OF DENTON AND LLOYD, GOSSELINK, FOWLER, BLEVINS & MATHEWS,
P.C , A TEXAS CORPORATION; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; AND PROVIDING AN EFFECTIVE DATE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS'
SECTION I. That the Clty Manager is hereby authorized to
execute a Contract for Professional Services between the City of
Denton and Lloyd, Gossellnk, Fowler, Blevlns & Mathews, P C. to
provide professional legal services with respect to Public
Utilities Commission Project Number 14045, Transmission Access and
Pricing Rules.
SECTION II. That the City Council hereby authorizes the
expenditure of funds as provided in the agreement.
SECTION III. That this ordinance shall become effective
immediately upon its passage and approval.
PASSED AND APPROVED this the~4~'"day of~, 1996.
JACK/~ILLER, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY.
APP ED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
EMPLOYMENT CONTRACT FOR
PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON
This AGREEMENT, made and entered into this day of July,
1996, by and between LLOYD, GOSSELINK, FOWLER, BLEVINS and MATHEWS,
P.C., a Texas Professional Corporation, with Lambeth Townsend
having full authority to execute this Agreement on behalf of
LLOYD/GOSSELINK, 111 Congress Avenue, Suite 1800, Austin, Texas
78701, hereinafter referred to as "Consultant"; and the CITY OF
DENTON, a Texas Municipal Corporation, 215 E. McKlnney, Denton,
Texas 75201, hereinafter referred to as "CITY".
W~TNESSETH
WHEREAS, the city needs to employ legal counsel to provide
professional legal services with respect to the Public Utilities
Commission Project Number 14045, Transmission Access and Pricing
Rules, and related filing requirements and hearings; 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 services in connection therewith, and the Consultant is willing
to provide such services:
NOW, THEREFORE, in consideration of the promises and mutual
obligations herein, the parties hereto do mutually agree as
follows:
I. SOODS of Servioesl The Consultant shall perform the
following services in a professional manner working as an indepen-
dent contractor not under the direct supervision and control of the
City:
A. Services to be provided:
1. Consultant will provide those services as necessary to
meet all requirements of the Public Utility Commission's
Project Number 14045, Transmission Access and Pricing
Rules and related filing and hearing requirements
including without limitation the professional legal
services with rpgard to submitting the transmission cost
of service (TCOST) to the PUC as required by substandard
rules 23.67 and 23.70 and to attend all hearings and
other proceedings before the PUC in relationshlp to
these matters and to consult with the City through its
Denton Municipal Utilities staff with regard to all
filings, hearings, and other Issues related to this
project.
2. To consult with the City Manager, Executive Director of
Public Utilities, City Attorney and Administrative
Personnel regarding any and all aspects of the special
services to be performed, including legal research and
advice with respect to such matters. This will include
coordinating with the Executive Director of Public
Utilities, the City Attorney and their staff to effi-
ciently perfor~ the services required and to preserve
the Attorney/Client privilege, work product, and all
other applicable exceptions to the discovery of docu-
ments produced under the Scope of Services.
B. The Consultant shall perform all the services required in
a timely fashion, and shall complete same in compliance
with schedules established by the City through its Execu-
tive Director of Utilities, as appropriate to carry out the
terms and conditions of this Agreement.
II. Terms The services of Consultant shall commence upon the
execution of this Agreement, and shall continue until all services
hereunder have been performed. 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 and to meet the schedules established by
the City, through its Executive Director of Utilities or as the
progress of this matter through mediation, meetings with the PUC
and/or PUC staff, may require.
iii. Oomueno&~ion end Me%hod of P&~ments
A. The Consultant shall charge the following fees for its profes-
sional services hereunder, based on the following hourly rates
for the attorneys and support staff involved in this matter.
Hourly Estimated
Staff Rate Hours
Lambeth Townsend 180.00
Law Clerk 75.00
Paralegal 75.00
Consultant agrees that all charges for the services hereunder,
including expenses, will not exceed $25,000.00
Page 2
B. The Consultant shall have the employees and attorneys listed in
Section III-A above, devote the amount of time to this matter
as shown therein, but will try to reduce costs by utilizing
qualified principals, associates, and legal assistants wherever
possible. The Consultant shall bill the City through the
submission of invoices, statements, and other documentation,
together with support data indicating the progress of the work
and the services performed on the basis of monthly statements
showing hourly rates indicating who performed the work, what
type of work was done, and details of all services rendered,
along with any reasonable and necessary out-of-pocket expenses
incurred.
C. Additionally, the City shall either pay directly or relmburse
the Consultant, as the case may be, for reasonable and neces-
sary out-of-pocket expenses, including but not limited to,
telephone, telecopler, reproduction, postage, overnight
courier, and travel in accordance with Exhibit A which is
attached to and made a part of this contract for all purposes.
Ail copies will be charged at fifteen cents ($.15) per copy for
copies made within Consultant's offices, and as much photocopy-
ing as possible will be done by outside vendors at bulk rates
or by the city to reduce costs if bulk copying is necessary.
D. Upon completion of all services for a particular ~ssue or
transaction, the City shall make payment to the Consultant
within thirty (30) days of the satisfactory completion of
services and receipt of an invoice or statement. The parties
anticipate invoices or statements for services will be generat-
ed on a monthly basis and that said invoices or statements will
be sent on or about the 15th day of each month. All reimburs-
able expenses, including but not necessarily limited to travel,
lodging, and meals shall be paid at the actual cost, pursuant
to the terms and conditions hereinabove set forth Ail
invoices and bills shall be approved by the Executive Director
of Utilities and the city Attorney.
E It is understood that the Consultant shall work under the
coordination and general supervision of the Executive Director
of Utilities and the city Attorney.
F. Ail notices, lnvolces, and payment shall be made in writing and
may be given by personal delivery or by mail. Notices,
lnvoices, and payments sent by mall shall be addressed respect-
fully, Herbert L. Prouty, City Attorney, 215 E. McKinney,
Denton, Texas 76201, or to Lambeth Townsend, Lloyd/Gosselink,
111 Congress Avenue, suite 1800, Austin, Texas 78701. 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
Page 3
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 notice is given.
IV. Professional ComDeteno¥~
A. The Consultant agrees that in the performance of these profes-
sional services, Consultant shall be responsible to the level
of competency and shall use the same degree of skill and care
presently maintained by other practicing professionals perform-
lng the same or similar types of work. For the purpose of this
Agreement, the key person who will be performing most of the
work hereunder shall be Lambeth Townsend. However, nothing
herein shall limit Consultant from using other qualified and
competent members of their firm to perform the services
required herein.
B. Pleadings, motions, orders, notices, instruments, discovery
documents, reports, and other legal documents prepared or
obtained under the terms of this Agreement are instruments of
service and the City shall retain ownership and a property
interest therein. If this Agreement is terminated at any time
for any reason prior to payment to the Consultant for work
under this Agreement, all such documents prepared or obtained
under the terms of the Agreement shall upon termination be
delivered to and become the property of the City upon request
and without restriction on their use or further compensation to
the Consultant.
V. ~S~nhlishment and M&intenanoe of Reoords~ Full and
accurate records shall be maintained by the Consultant at its place
of business with respect to all matters covered by this Agreement.
Such records shall be maintained for a period of at least three
years after receipt of final payment under this Agreement.
VI. audits and InsDeotion~ At any time during normal business
hours and upon reasonable notice to the Consultant, there shall be
made available to the city all of the Consultant's records with
respect to all matters covered by this Agreement. The Consultant
shall permit the City to audit, examine, and make excepts or
transcripts from such records, and to make audits of contracts,
invoices, materials, and other data relating to all matters covered
by this Agreement.
VII. ~omDlishmont of Pro~eot~ The Consultant shall
commence, carry on, and complete any and all projects with all
practicable dispatch; in a sound, economical and efficient matter;
and, in accordance with the provisions hereof and all applicable
laws. In accomplishing the projects, the Consultants shall take
such steps as are appropriate to insure that the work involved is
Page 4
progerly coordinated with related work being carried on in the
City.
VIII. Indemnity and Independent Contraotor Rsl&tionshiD~
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 rela-
tionship of employer and employee between the parties, the
city and Consultant agree to cooperate in the defense of any
claims, action, suit, or proceeding of any kind brought by a
third party which may result from or directly or indirectly
arise 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 litiga-
tion or claim under this Agreement in which Consultant is
joined as a party, Consultant shall provide suitable counsel to
defend City and Consultant against such claim, provided the
Consultant shall have the right to proceed with the competent
counsel of its own choosing. The Consultant agrees to defend,
indemnify and hold harmless the City and all of its officers,
agents, servants, and employees against any and all such claims
to the extent of coverage by Consultant's professional liabili-
ty policy. The Consultant agrees to pay all expenses, includ-
ing but not limited to attorney's 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 specific performance
or for damages, a loss to the City, resulting from Consultant's
negligent errors or omissions, or breach of contract, and all
such rights and remedies are expressly reserved.
B. Consultant shall maintain and shall be caused to be in force at
all times during the term of this Agreement, a legally binding
policy of professional liability insurance, issued by Best
Rated Carriers, with a rating of A or A+, approved to do
business in Texas by the State Insurance Commission. Such
coverage shall cover any claim hereunder occasioned by the
Consultant's negligent professional act and/or error or
omission, in an amount not less than $1,000,000 combined single
limit coverage occurrence. In the event of change or cancella-
tion of the policy by the insurer, the Consultant hereby
covenants to forewith advise the City thereof; and in such
event, the Consultant shall, prior to the effective date of
change or cancellation, serve substitute policies 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 1ts Executive
Page 5
Director of Public Utilities simultaneously with the execution
of this Agreement.
IX. Termination of &areement~
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 repre-
senting the City. Consultant shall invoice the City for all
work satisfactorily completed and shall be compensated in
accordance with the terms of this Agreement. Ail 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 xts 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 mall,
return receipt request) of intent to terminate, and not less
than thirty (30) calendar days to cure the failure; and, [2] an
opportunity for consultation with the terminating party prior
to termination.
C. Nothing contained herein or elsewhere in this Agreement shall
require the City to pay for any work which is unsatisfactory or
which is not submitted in compliance with the terms of this
Agreement.
X. Alternate DisPute Resolutionl The Consultant agrees that,
if necessary, it will use its best efforts to resolve this matter
through the use of mediation or other forms of alternate dispute
resolution set forth in Chapter 154 of the Texas Civil Practices
and Remedies Code (V.A.T.C.S.).
XI. Entire Aareement~ This agreement represents the entire
agreement and understanding between the parties and any negotia-
tions, 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.
XII. Commlianae with Laws~ The Consultant shall comply with
all federal, state, local laws, rules, regulations, and ordinances
Page 6
applicable to the work covered hereunder as they may now read or
hereinafter be amended, including but not limited to the Texas
Disciplinary Rule of Professional Conduct.
XIII. Qovsrnina Law; For the purpose of determining place of
agreement and law governing same, this Agreement is entered into
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.
XIV. Disorimin&tion Prohi~ited~ 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.
aW. Personnol~
A. The Agreement to 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 contrac-
tual relations with the City. Consultant shall inform the
city of any conflict of interest or potential conflict of
interest that may arise during the term of this Agreement,
in accordance with Consultant's responsibilities under the
Texas Disciplinary Rules of Professional Conduct
B. Ail services required hereunder will be performed by the
Consultant or under Its supervision. Ail personnel engaged
in work shall be qualified and shall be authorized or
permitted under state and local laws to perform such
services.
XVI. AsBian&bilitv; The Consultant shall not assign any
interest in this Agreement and shall not transfer any interest in
this Agreement (whether by assignment, novation, or otherwise)
without the prior written consent of the City thereto.
XVII. 8everabil~tv; Ail 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 Servic-
es'', "Independent Contractor Relationship", and "Compensation and
Method of Payment" hereof, shall be held to be invalid by any
competent court, this Agreement shall be interpreted as though such
Invalid agreements or covenants were not contained therein.
XVIII. ResPonsibilities 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
Page 7
competency of lts 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 employ-
ees, officers, agents and consultants
XIX. ~odificatien of ~arssmsnt~ 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 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; and, the parties further agree that the
provisions of this section w~ll not be waived as here~n set forth.
XX. C&ptions~ The captions of this Agreement are for informa-
tional purposes only and shall not in any way affect the substan-
tlve terms or conditions of this Agreement.
XXI. Bil~di Effects This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, executors, ad~lnlstrators, legal representatives, succes-
sors, 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 authorized C~ty Manager and
Consultant has executed this Agreement through,kts duly ~uthorlzed
undersigned officer, dated the~ day of ~ , 1996
CITY OF DENTON
TED BENAVIDES, CITY MANAGER
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
Page 8
APPROVED AS TO LEGAL FORM.
HERBERT L. PROUTY, CITY ATTORNEY
/
LLOYD, GOSSELINK, FOWLER, BLEVINS
& MATHEWS
J \~dPDOCS\K\GOSSELK K
Page 9
%15
LLO0 0 0
THIS IS A CLAIMS-MADE POLICY--PLEASE
READ
CAREFULLY
NOTICE THE LIMITS OF LIABILITY AVAILABLE TO PAY JUDGEMENTS OR SETTLEMENTS SHALL BE REDUCED
BY AMOUNTS INCURRED FOR LEGAL DEFENSE FURTHER NOTE THAT AMOUNTS INCURRED FOR LEGAL DE-
FENSE SHALL BE APPLIED AGAINST THE DEDUCTIBLE AMOUNT ' ~ ~ ~JJ0
(The company ~ssumg th~s pohcy ~s indicated by an "X" to the left of the company's name )
[] NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH. PA
(A stock ~nsurance company, here~n called the Company)
[] AMERICAN HOME ASSURANCE COMPANY
(A stock ~nsurance company, here~n called the Company)
LAWYER'S PROFESSIONAL LIABILITY POLICY
POLICY NUMBER LPL 7054019
RENEWAL DECLARATIONS
Th~s Renewal Declarabons continues the pohcy ~n force for the new pohcy period Attach ~t to your exp~nng pohcy
Item I Named Insured Lloyd, Gossellnk, Fowler. Blev3_ns & Mathews. P.C.
Address Ill Congress Avenue~ Suite 1800
Austin. Texas 78701
Item 2 New Policy Per~od From May 1. 1996 To May 1 ~ 1997
(12 01 A M standard t~me at the address stated ~n Item 1)
Item 3 L~m~ts of hab~hty 0nclus~ve of $ 2. 000. 000 all claims arising out of the same,
"claims expenses" as defined related or continuing professional
in this pohcy) services
$ 2,000 · 000 aggregate
Item 4 Deductible Amount 0nclus~ve of $ 50.000
"claims expenses" as dehned
in th~s policy)
Item 5 Premium Schedule (Rate # )
CLASSIFICATION CODE NO NUMBER RATE PREMIUM
Lawyers 8133
Paralegals, Law 81114
Clerks, Investigators
and Abstractors
Excess L;m;ts
TotaIPrem~um $ 56,756
Item6 Forms and Endorsements made a part of th~s pol~cy 41650, 51761, End. 1, 49354, 53365,
41442, End 5, 44574
ProTexn, Inc.
By. __ / _,/ /,
'f~/~- /~uthorlzed Representative
4/29/96 / Pres[dent
4164g (1/85)
ORIGINAL
LLOYD, GOSSE;LINK, [~OWLEI~, E~LEVIN$ ~ MATHEiWS, P C
ATTORNEYS AT LAW
May 23, 1996
Mr R E Nelson
Executive Director
Denton Utilities
215 E McKlnney
Denton, Texas 76201
Re Employment Contract (106004 Bailing File)
Dear Mr Nelson
This wall confirm our agreement that the firm of Lloyd, Gosselank, Fowler, Blevans &
Mathews, P C wall represent the City of Denton with respect to the Public Utility Commission's
Project No 14045, Transmission Access and Pricing Rules, and related fihng requirements and
hearings At the present tame we wall work under your direction
Following our evaluation of the facts and estimated costs associated with this or other
matters upon which we represent you, we may request security against future balhngs Failure
to deliver the requested security within fifteen (15) days after receipt of a written request may
result in termination of this firm's representation
At the present tame our firm has a fee structure ranging up to $195 00 per chargeable hour
for attorneys' services, depending on the individual involved and has or her level of experience
and expertise Additionally, we utilize briefing clerks, paralegals and other support personnel to
perform those tasks not requirmg the tame of an attorney Briefing clerk and paralegal time as
balled at an amount not to exceed $75 00 per hour We wall submit all out-of-pocket expenses
incurred for reimbursement, with a fifteen percent (15%) overhead charge added Charges for
other services, such as photocopies, fax transmissions and messenger services will be balled
according to the attached schedule Usually we ask the client to pay directly all filing fees,
charges for consultants, etc due to the size of such fees and to avmd the chent incurring our
overhead charge We endeavor to have a statement of services rendered and expenses incurred
by the 15th of each month Full payment ~s due on receipt of the statement Interest will be
charged at the rate of 10% per annum on any balance not paid 60 days after the statement date
I wall be the account representative and the attorney an charge of our representation My
time wall be billed at the rate of $180 00 per hour From tame to t~me other attorneys with the
firm may be assigned to some aspect of our representation, as approprmte It is the policy of our
firm to review our fee structure annually We will notify you in writing prior to ~mplementatlon
of any change an our fee structure
Mr R E Nelson
May 23, 1996
Page 2
Th~s agreement shall become effecttve upon our receipt of a countermgned original of th~s
letter The agreement may be terminated by you at any ttme by written nottce to us, prowded,
when apphcable, that permlsmon for w~thdrawal from employment ~s granted by the court This
agreement may be terminated by thru firm on fifteen (15) days wmten nottce that we are no
longer ~n a posxt~on to continue representing you m a particular matter for whatever reason,
~nclud~ng nonpayment of fees and expenses within 30 days of receipt of an ~nvmce
If th~s agreement ~s acceptable to you, please mgn the duplicate original prowded here~n,
and return it to us for our records We look forward to working w~th you
S~ncerely,
LT/jmc
1060\004-004 LTR
Enclosures
APPROVED ~
CITY OF DENTON l~
(Chent Signature)
Cztv Manager
(T~tle)
Ted Benav~_des
(Pnnted Name)
Mr R E Nelson
May 23, 1996
Page 3
SCHEDULE OF CHARGES
As of January 1, 1994
Photocopies $ 20\page
Telefax (sending only) $ 1 00\page