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2016-152ORDINANCE NO. 2O 1(-1 SZ AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A SECOND 5UPPLEMENT TO A PROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN THE CITY OF DENTON, TEXAS AND THE LAW FIRM OF COLE SCHOTZ, P.C., DALLAS, TEXAS FOR LEGAL SERVICES RELATING TO TRANSACTIONAL AND REGULATORY WORK PERTAINING TO THE TEXAS MiJNICIPAL POWER AGENCY; PROVIDING FOR ADDITIONAL EXPENDITURE AUTHORITY OF NOT- TO-EXCEED $150,000; PROVIDING AN EFFECTIVE DATE. (FILE 5380 1N THE AI7DITIONAL AMOUNT NOT-TO-EXCEED $150,000, AGGREGATING A TOTAL NOT-TO- EXCEED $399,500). WHEREAS, on October 12, 2013, the City Manager awarded a Professional Services Agreement (hereafter the "Agreement") to Cole Schotz, P.C. in the amount of $75,000 for legal services regarding operatianal, transitianal, transactional, and related legal work relating to the Texas Municipal Power Authority; and WHEREAS, on November 18, 2014, City Council approved a First Supplement to the Professional Services Agreement with Cole Schotz, P.C., (hereafter the "First Supplement") in the further amount of $125,000 aggregating a not-to-exceed amount of $200,000 for additional services relating to the Texas Municipal Power Authority; and WHEREAS, on March 3, 2016, the Purchasing Manager approved a Change Order to the Professional Services Agreement with Cole Schotz, P.C., in the further amount of $49,500 aggregating a not-to-exceed amount of $249,500 for additional services relating to the Texas Municipal Power Authority; and WHER.EA5, there appears ta the Council that further professional services must be completed; and the City Manager having recommended to the Council that the "Second Supplement to Professional Services Agreement with Cole Schotz, P.C. (hereafter the "Second Supplement") be authorized to amend such Agreements, with respect to the scope of work and an increase in the payment amount by $150,000; and said fees under the proposed Second Supplement are fair and reasonable, and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the provider's profession; and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The City Manager is hereby authorized to enter into the "Second Supplement to Professional Services Agreement" with Cole Schotz, P.C. (the "Second Supplement99), in substantially the form that is attached hereto as Exhibit "A" and incorporated herewith by reference, which increases the amount of the engagement by and between the City of Denton, Texas and Cole Schotz, P.C., which Agreement is on file in the office of the Purchasing Agent, in the additional amount of $150,000, which amount is hereby approved; and the expenditure of funds therefor is hereby authorized in accordance with said Second Supplement. The total purchase order amount therefore increases to the amount of not-to-exceed $399,500. SECTION 2. The City Council of the City of Denton, Texas hereby expressly delegates the authority to expend funds and to take any actions that may be required or permitted to be performed by the City of Denton, Texas under File No. 5380, to the City Manager of the City of Denton, Texas, or his designee. SECTION 3. The recitations and statements contained in the preamble hereto are incorporated herewith as a part of this Ordinance for all purposes. SECTION 4. This ordinance shall become effective, and is hereby approved on this date. [��.��u��°%�� li�C� �i�l�'��"k��:) t�ris �I��l�a� ��,�� .._.._ �� 1"... �,� �� : �r_.. .m�� 2016. ,��"� � �� , � �,� � ��c.� � �� ., � ��.� ��. � � �� " i�' I �`� � Ca!�.,�,YOR ATTEST: JENNIFER WALTERS, CITY SECRETARY : ��'�'l��VED AS TO LEGAL FORM: ANITA BURGESS, CITY ATTORNEY � ..�. �� :�� .... �� %��4 By � � � � � �.�..� �.„ �� ...... � � �� '� �� u � � �� James W. Walker Member Reply to Texas Office Wrlter's Dlrect Llne� 469-557-9391 Wrher4 Dlrect Faw 4A9-533-0361 Wrlter's E-MaIL �walker�wlescf�oFican May 19, 2016 Anita Burgess, Esq. City Attomey City of Denton Municipal Building 21 S East McKinney Denton, TX 76201 2515 McKinney Avenue, SuiTe 1350 Dallas, TX 75201 469-557-9390 469-533-1587 fax New lersey New York Delaware Maryland Pkorida Re: Extension of that certain Engagement Contract regarding the representation of the City of Denton in connection with azialysis, dxafting and research in support of n.egotiations regarding that certain Asset Purchase Agreement for the sale of the Gibbons Creek Power Plant and all related Generation Assets, and all other Mining Assets and Transmission Assets now ovvr�ed by the Texas Municipal Power Agency ("TMPA") and all tasks relevant to the Decommissioning and Dissolution of TMPA and its various assets (hereinafter referred to globally as the "TMPA Negotiations"). Dear Anita: I ��t �� t��ar�� a�. �"c��° ��-u��ing ��r�a�• 1�:.��.1 ��cls to Cole ��at�, P.C. ��<Cole �chca'i�" or the "Fim�ttt�'"�, "�J� �t°� ��r� t��t ��r� aze ��.��° ��r�� with who��a ��:�u and the City �i� ➢��ori ("Denton") could work, and we appreciate your giving us the opportunity to sexve Denton. Since the Firm's founding in 1928, we have prided ourselves on providing superior legal representation, sound advice and unparalleled service to our clients. We have been diligently working on this matter for the City of Denton and the scale of the �am�j�ct an� ��.�th �a� �� l��a� �uork r�c��ired to protect Denton's legal interests require an additianal ��sion a�" �ur �r��„��x�x�� in �rcl.�� to facilitate coxnpletion of the work. We are therefore submitting this extension of our legal services agreement to you in your capacity as City Attorney �r�r ��a. "1'1�� °r��r�r�c�� x��a��a.�� c�r�z: pr��d ��,�ement ��c�a��ent �r��ari�i�zing yca��.�T �n.��ttaE r�f` �k�� 1'��ca°a tt� �•�z��•��4: ��t��w's 1��,1 iz�k�� in the "�"�.�'t� Ne�c��ti��. Our r��M��c��i�� ` ��c�� a��l��+�rz ��r �a� '�"ivik'C� ��a�ii.c�:�a� �ri11 ��, la�r�� t� �.rc��rid�� g�l. ��r�i�� ca��l��+ w,�+i��i� �:�x� �ra�t°rat c�f �ka�s� a�a,��a��t:a�� a� a�' �a�a.� ��r��r��a�z� �r%1I. not extend to include any other type of leg°�� r�� s�ni � w�'i��z� ��a.��a��.�a�.� t� '�1�is engagement agreement. This representation will continue and the extension will become effective upon your execution of this engagenaent agreement in the space provided below. www.coleschotz.com Cole Schotc P.C. Anita Burgess, Esq. May 19, 2016 Page 2 �.� �I ��r�r�.�^�� '�+� ��av�� You agree that we will represent Denton in the TMPA Negotiations. The scope of our ��r�tat �.�n r��l� 1�� t�r��c� �aur��.�a� �� a sup�l��t,�l written ��i��il agreement. T��tc��., �a� �a��t t:l�,�c��,1� �t� ��pi�� d ��.t�� offici��, �� to fully �ca��t� ��th us and to ��.��c�� a� r�� ;al� ia�,l��•��t�c��a xµ�1�� t�a� t��Cs and issues involved in the TMPA Negotiations. We agree to provide conscientious, competent and diligent services and at all times will seek to achieve a favorable transactional outcome on a cost-effective basis. You should be awaxe that because of the uncertainty of sizeable commercial transactions of this nature (i.e., selling a power generating facility, mining land andlor transmission assets), the interpretation of and changes in the law, and rnany unknown factors, attorneys cannot and do not warrant, predict or guarantee results or the final outcome of any matter. Our Firm's representation of Denton was first approved by Denton's City Manager on October 3, 2013 for a sum not-to-exceed $75,000. This engagement was extended by Denton's City Council on November 18, 2014 for a sum not-to-exceed $125,000. Due to the continuing nature of the TMPA Negotiations, this engagement was again extended by Denton's City Council on March 8, 2016 for a not-to-exceed sum of $49,500. We have now agreed that there is a need to continue this e:n��gement in ��r to crr��;�1�te the ��aa��air�in� �r�r�: r��:z�t �ca k'1�� "�`l'vi�"� ��;�ea�i�a�ic��,s,. incl�a�a�a�; our continu�� analysi� ��t Dentot�"� ��I i��1:��•��t� i� �•c�l��i��a t�ti i�� t�tra� as �, ��a� �;i�,y° ��` ":lm"M�"�.� �� a��c��a�„ a°�v��w, �a��l:x�� .�� r7��ta��:�� c��` �a�a� �� a� �.�� u�°�� ,r��r��°�at�, ��ci �i� �tt��.�cl��t �a��r�i��^ �r�c� d�c:t�a��i��i�r�ir�� r��rn�ar�t�� r��ii�� t� t��a� ��i�tt��;C �� caf` ��v "��'��'�. ��s��ts �r�d tl�� e��°z�� c�r ixr��;��,�t ��a��a� �il� ��v� upon ��t��'� i��t��ts, the �`�r�� ti��x� of an ��r�r��t.�� ,r��i�n� b��n t�� "�"��?�w and �.��;��ar� �� 1�� other �I�r��r ��t�� r� support ��` �� z��a��t �r� ��:� ��.a�.�°�� '��+a��a� ��.�� "��tr�� betw��n tla� ��.��.e �a�r-t��„ ��a� ��1 �°�.1��3 �.�s�� d ��rv►�1��i�, i� �� c��a�� t�t:aa-��d �� ic;l�tiear�l$15�),�� "h��i�e �r� �x�a��t 1�I��fi tiai:� a��a�t r��l ��a�� lc��l ��uµ�ri��s a�c��r� �� a�i+�t� �ka� �'b��-c��uxi��. t��:�, �r� �w��i�� l��t ��µtain ��.�°i�� .�ci�t;� �a��3 ��r�.�� I`�� a�•� ��rt�� r�i�-�� °° t�� Firn�., Denton and the TMPA that may require a��t�r tl°��. ��r�� a�i �� ""�� we cannot accurately predict on a current basis. ��. �� d �a� �� Our abjective to chaxge a fair fee for the services rendered is achieved primarily through the rn�%��t��a�i:��, ��` ��r�� °��rci� c�f l�� r� ��i �� h ��r�°�� 1 �atr,�°�� a ��.i�t:i�ul�`. ��t��x �r�� th�� a��lir�� "�r t�� tt��.�� r�� r��°��re��`��a��.l"� ti�� ;�aar��raa^� w��i th� �� c�� l�c��a�•1� ��at�� t��l.i�h��. "�'�� tia�� al &��r ��in �z°�a�"�.��:z��ls 1z�^��r�� i� ��i�� r��c�;��r� t� �e�r��c��;� �}�� ul�r�t��tav� �r��l�+�� r��r.�i�°e�l �a� �:�� s�l� �i�' ��ir� ':C��A �s�c�k��, �.�� .�ra�� v��r�� vix��ra��1:�i l�.i��i�ity �:�v��-�� °c�� zat�a�'� ��ti�� .t�� :�,�I+� ��" ��r�:�it� �a�r°�� ;�" r��'� �.��u ��rl �1l x•�� t�� 1, �� i�R�d �,t �t�z�� "ir�°a ��, ��c� ti�� c�l��aza� discounted rates shall otherwise apply: Jannes W. Walker $410.00 per hour Emily Lamond $390.00 per hour 80004/0001-13167274v1 Cole Schotz P.C. Anita Burgess, Esq. May 19, 2016 Page 3 Our rates are periodically reviewed and adjusted based upon the increasing experience of the attorneys and various economic factors. Any rate changes will be reflected in our monthly invoices. We will not raise any rates being charged absent your prior written approval of same. The referenced hourly rates apply to all services rendered including telephone calls, drafting and review of correspondence and documents, travel time, legal research, negotiations, internal and exterrxal meetings and conferences and any other service relating to this matter. James W. Walker, as the undersigned counsel, will principally handle and direct a11 aspects of Denton's legal representation required by this engagement. Emily Lamond, as an environmentallawyer, Catherine Bostock, as an environmental coverage specialist, Alan Rubin, as a corporate and tax lawyer, and Chris Caslin, as a real estate lawyer, will all be involved in reviewing, analyzing, drafting and providing assistance to the lead negotiator and Denton personnel in relation to the sale of the TMPA Gibbons Creek generation plant, and ultunately the sale and disposition of the remaining Mining and Transmission assets, in order to protect Denton's legal interests in each such transaction. The Firm agrees to utilize the services of associates and para-professionals for all supporting research and related tasks on an as-needed basis and in an effort to ensure that the most effective professional is efficiently performing each necessary task at the lowest available billing rate. We welcome you to view our website (www.coleschotz.com) if you would like additional information about the attorneys who will be working on this matter. In addition to legal fees, Denton agrees to promptly pay for expenses such as filing fees, messenger services, telephone calls, photocopying, Lexis and Westlaw research, travel, postage, facsimile transznissions, scanning, coding, overtime clerical assistance, subpoenas, search fees, transcripts, experts' fees and reports, title, suzvey, fees and expenses related to harvesting, hosting and processing any and all electronically stored information, and any other necessary expenses in legal matters. �� w�� We will send Denton our invoices on a tnonthly basis for services and expenses and we will issue a final invoice upon termination of our representation in this matter. Denton agrees to tender payment upon receipt of each invoice. Please direct any questions you might have about the nature or scope of legal services provided Denton to the undersigned counsel. �"��°�n�a�ra��a��a�� „� ��t��r� ��,� �i� ��a�� ':I�a��.�� 4�� %i�� Our representation will terminate upon completion of the TMPA Negotiations. Wa resexve the right to withdraw from this matter, however, if Denton fails to honor this agreement, including failwre to honor fee arrangements, or for any just reason as permitted or requixed under the Texas Rules of Professional Con.duct or by the Rules of Court. We will also withdxaw at Denton's request. If we withdraw, Denton agrees to promptly pay us for all services rendered and all fees and expenses incurred prior to the date of withdrawal. At the conclusion of our representation, we will return to Denton any original documents that it has furnished to us. If Denton would like to have any other documents or pleadings from the file we maintain on this matter, please advise us accordingly and we will provide your office all requested copies of our file documents and 80004/OOOI-13167274v1 Cole Schotz P.C. Anita Burgess, Esq. May 19, 2016 Page 4 materials. Pursuant to the Firm's document retention policy, Denton's file will be retained for seven (7) years after which time the file may be destroyed without further notice to Denton or your o�ce. Conflicts of Interest Before accepting this engagement, we have undertaken reasonable and customary ef%rts to determine whether there are any potential conflicts of interest that would bar our Firm from representing Denton. Based upon this inquiry and the information available to us, we are not aware of any potential conflict of interest or basis for disqualification �rom fihis engagement. We reviewed this issue in accordance with the rules of pro%ssional responsibility applicable and currently in force in Texas. The execution and return of the enclosed copy of this letter by you represents an express agreement to the applicability of these rules. Texas Law on Rete��itaa� �� +��M�e � Pursuant to Texas state law, Denton has the right to complain to the Chief Disciplinary Counsel of the State Bar of Texas about professional misconduct by any attorney, including any professional misconduct by the Firm's attorneys. Complaints must be made in Writing. Complaint forms are available from the State Bar of Texas Commission for Lawyer Discipline. The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with an attorney includes professional misconduct, the State Bar's Office of Chief Disciplinary Cou.nsel will provide You information about how to file a complaint. The toll-free number for the State Bar of Texas is 1-800-932-1900. This agreement, as well as our entire attorney-clien.t relationship, shall be guided exclusively by Texas law. Should any dispute arise regarding same which cannot be resolved amicably, the courts of the State of Texas, in and for Dallas County, shall be the exclusive jurisdiction and venue for any such dispute. Conclusion This written agreement constitutes the entire agreement relating to Denton's engagement of this Firm in connection. with the TMPA Negotiations. This written engagement agreement is not subject to any oral a,greements or understandings, and can be modified only by further written agreement signed by legal representatives of both Denton and the Firm. Unless expressly stated in this engagement agreement, no obligation or undertaking shall be implied on the part of the Firm. Please carefully review this engagement agreement. If the terms of our engagement in the TMPA Negotiations are acceptable, please sign and return the enclosed copy of this letter, so that we may continue oux work. This engagement ag�reement may be executed in counterparts which taken together, shall constitute one and the same letter. A facsimile signature will be as valid as an original signature for all purposes relevant to this engagennent agreement. The signature of the undersigned counsel on this letter signifies the Firm's agreem.ent to these terms of our engagement in the TMPA Negotiations. 80004/0001-13167274v1 Cole Schotz P.C. Anita Bur�ess, Esq. May 19, 2016 Page 5 We look forward to continuing our work with you and the City of Denton. If at any time you have questions about the services we are performing, please do not hesitate to contact the undersigned counsel. Sincerely yours, JWW:ah Agreed on behalf of the City of Denton � � � �� o� �� ,,�� . ��— .,o.�� Anita u�r�� . City Attorney �� City of Denton �i � ' ' Signed this �� .a��` of � ��` ��,,� 2016 � 80004/0001-13167274v1