1997-293FILE REFERENCE FORM 97-293
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ORDINANCE NO. 9 7LSZ
-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A CONTRACT FOR PROFESSIONAL LEGAL SERVICES
BETWEEN THE CITY OF DENTON AND LLOYD, GOSSELINK, FOWLER, BLEVINS &
MATHEWS, P.C.; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; AND
PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION I. That the City Manager is hereby authorized to
execute a Contract for Professional Legal Services between the City
of Denton and Lloyd, Gosselink, Fowler, Blevins & Mathews, P.C., a
Texas Professional Corporation, to provide professional legal
services with respect to representation of the City before the
Public Utility Commission (11PUC11) of the State of Texas relating to
the City's compliance with the PUC's transmission service rules and
to any rulemaking proceeding or project relating to electric
transmission service. A copy of said Contract is attached hereto
as Exhibit "A11 and is incorporated herewith by reference.
SECTION II. That the City Council hereby authorizes the
expenditure of funds as provided in the Contract.
SECTION III. That this ordinance shall become effective
immediately upon its passage
PASSED AND APPROVED this
and approval.
the6� day of 1997.
JACI�7AC M LLER,
MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: (�nvdlltt—z
APPROVED 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 �q day of
Ao-be ,gr- , 1997, by and between LLOYD, GOSSELINK, FOWLER,
BLE INS 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. McKinney, Denton,
Texas 75201, hereinafter referred to as "CITY".
WITNESSETH
WHEREAS, the City needs to employ legal counsel to provide
professional legal services with respect to the City's compliance
with the Public Utility Commission ("PUC") electric transmission
service rules as well as any rulemaking proceeding or any project
relating to electric transmission service; 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:
NOW, THEREFORE, in consideration of the promises and mutual
obligations herein, the parties hereto do hereby mutually AGREE as
follows:
I. Scope of Services: The
following services in a professional
dent contractor not under the direct
City:
A. Services to be provided:
Consultant shall perform the
manner working as an indepen-
supervision and control of the
1. Consultant shall represent the City before the Public
Utility Commission concerning the City's compliance with
the PUC's Transmission Service rules and concerning any
rulemaking proceeding or project relating to transmis-
sion service including without limitation the profes-
sional and legal services with regard to submitting
pleadings and comments and attending all uncontested
hearings and other proceedings in relationship to these
matters and to consult with the City through its Denton
Municipal Utilities staff with regard to all filings,
uncontested hearings, and other issues related to this
project.
Provided, however, if the City participates in a
contested case proceeding at the PUC relating to
transmission service or any other matter, a separate
contract will be required.
2. To consult with the City Manager, Executive Director for
Utilities, the Director of Electric Utilities, the City
Attorney and the other designated 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 for Utilities,
the Director of Electric Utilities, the City Attorney
and their staff to efficiently perform the services
required and to preserve the Attorney/Client privilege,
work product, and all other applicable exceptions to the
discovery of documents 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 for Utilities, as appropriate to carry out
the terms and conditions of this Agreement.
II. Term: This Agreement shall be for a term of twelve (12)
months, beginning effective September 1, 1997 and ending August 31,
1998. 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 Executive Director for Utilities or as the
progress of this matter through mediation, meetings with the PUC
and/or PUC staff, may require.
A. The Consultant shall charge the following fees for its profes-
sional services hereunder, based on the following hourly
billing 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 legal services
hereunder, not including expenses, shall not exceed $50,000.00.
The parties agree that in the event the City participates in a
contested case proceeding at the PUC relating to transmission
service or any other matter, that Consultant requires that a
separate Contract for Professional Legal Services be entered
into, and that the limitation on charges for legal services and
expenses contained in this Agreement, shall not apply.
B. The Consultant shall have the employees and attorneys listed in
Section III -A above, devote the amount of time to this matter
as shown therein, but will try to reduce costs by utilizing
qualified principals, associates, and legal assistants wherever
possible. The Consultant shall bill the City through the
submission of itemized invoices, statements, and other documen-
tation, together with support data indicating the progress of
the work and the services performed on the basis of monthly
statements showing hourly rates indicating who performed the
work, what type of work was done, and descriptions and/or
details of all services rendered, along with specific descrip-
tion and supporting documentation, if available, respecting any
reasonable and necessary out-of-pocket expenses incurred.
C. Additionally, the City shall either pay directly or reimburse
the Consultant, as the case may be, for reasonable and neces-
sary actual out-of-pocket expenses, including but not limited
to, long-distance telephone, telecopier, reproduction, postage,
overnight courier, and travel. All copies will be charged at
the rate of ten cents ($.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 if bulk copying is necessary. The parties agree
that the charges for outgoing telecopier from Consultant shall
be $.25 per page and that there will be no charge by Consul-
tant for incoming telecopier. Consultant agrees that all
charges for reasonable and necessary out-of-pocket expenses
shall not exceed $10,000.00.
D. Upon completion of all services for a particular issue or
transaction, 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. The
parties anticipate invoices or statements for services will be
generated on a monthly basis and that said invoices or state-
ments will be sent on or about the 15th day of each month. 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 hereinabove
set forth. All invoices and bills shall be approved by the
Executive Director for Utilities and the City Attorney.
Page 3
It is understood that the Consultant shall work under the
coordination and general supervision of the Executive Director
for Utilities and the City Attorney.
F. All notices, invoices, and payment shall be made in writing and
may be given by personal delivery or by mail. Notices,
invoices, and payments sent by mail shall be addressed respect-
fully, to: 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
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.
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-
ing 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. 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 of at least three
years after receipt of final payment under this Agreement.
VI. Audits and Inspection: At any time during normal business
hours and upon reasonable notice to the Consultant, there shall be
Page 4
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. Acco glishment of Project: 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
properly coordinated with related work being carried on in the
City.
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, listed by Best
Rated Carriers, with a rating of "A-" or above, issued by an
Page 5
insurance carrier 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 cancellation 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 its Executive
Director for Public Utilities simultaneously with the execution
of this Agreement.
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. 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 termination may be affected, unless the other
party is given [1] written notice (delivered by certified mail,
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 Resolution: The Consultant agrees that,
if necessary, it will use its best efforts to resolve any disputes
Page 6
regarding the Agreement 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.).
I. Entire Agreement: 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. Com l.iance with Laws The Consultant shall comply with
all federal, state, 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 Texas
Disciplinary Rules of Professional Conduct.
XIII. ovrnin Da. 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 arising under or in connection with
this Agreement shall be exclusively in a court of competent
jurisdiction sitting in Denton County.
XIV. Discrimination Prohibited:_ 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 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. 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.
XVI. Assigpabili 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)
Page 7
without the prior written consent of the City thereto.
XVII. 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 Servic-
es", "Independent Contractor Relationship", 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.
XVIII. Res onsibilities 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 employ-
ees, officers, agents and consultants.
XIX. 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 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 will not be waived as herein set forth.
. Cations: The captions of this Agreement are for informa-
tional purposes only and shall not in any way affect the substan-
tive terms or conditions of this Agreement.
I. Binding Effect: This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, 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 City Manager and
Consultant has executed this Agreement thr ugh its duly authorized
undersigned officer, dated this the �day of a ,
1997. 01
BY
TED BENAVIDES, CITY MANAGER
JENNIFER WALTERS, CITY SECRETARY
BY:
t4-mk-�C��
...
LLOYD, GOSSELINK, FOWLER, BLEVINS
& MATHEWS, P.C.
A Texas Professional Corporation
BY
LAMBETH ToWir END
J:\WPDOCS\K\GOSSELK.K
i _ •
CITY OF DENTON, TEXAS DENTON MUNICIPAL ELECTRIC
111-_1____1- . .. . . . ....... . .. . ........... . .
August 26, 1998
Lambeth Townsend, Attorney
Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, P.C.
111 Congress Ave, Suite 1800
Austin, Texas 78701
RE: Modification of Contract for Professional Legal Services (9/23/97)
Dear Mr. Townsend:
The purpose of this letter is to evidence our understanding and agreement that the term of the Contract for
Professional Legal Services ("Contract") entered into by and between the City of Denton, Texas
("Denton") and the firm of Lloyd, Gosselink, Fowler, Blevins, & Mathews, P.C. ("LG"), on September 23,
1997 shall be MODIFIED as set forth hereinbelow. The Contract is being administered under City of
Denton Purchase Order 81273, dated November 6, 1997.
In the Contract, Denton engaged LG to represent Denton before the Public Utility Commission of Texas
("PUC") concerning Denton's compliance with PUC transmission service rules and concerning any rule-
making proceeding or project relating to transmission services. There are a number of PUC projects in the
transmission service area which are pending and unresolved at this time which impact upon Denton.
Denton desires to continue the employment of the Lloyd, Gosselink firm as its attorneys in those projects
and other related projects.
Since the execution of the Contract, the firm of Lloyd, Gosselink, Fowler, Blevins, & Mathews, P.C. has
been restructured and is now known and constituted as Lloyd, Gosselink, Blevins, Rochelle, Baldwin &
Townsend, P.C. (Lloyd Gosselink). Lloyd Gosselink is currently performing legal services for Denton
under the Contract.
The Contract, in paragraph 11 established a term beginning on September 1, 1997 and ending on August 31,
1998. The Contract, in paragraph IIIA established that Denton would pay LG a sum of not to exceed
$50,000 for professional legal services and out-of-pocket expenses. Paragraph XIX of the Contract permits
modification of the Contract by the parties, in writing. As of July 31, 1998, Denton has expended
approximately $26,835 of the $50,000 contract sum, and desires to extend the term of the Contract.
Denton and Lloyd Gosselink AGREE that the term of the Contract is MODIFIED such that the Contract
shall not expire on August 31, 1998, but instead, shall terminate upon the earlier of the completion of the
professional services contemplated by the Contract, or at the time of the exhaustion of the $50,000 in funds
provided for in the Contract.
All other provisions of the Contract shall remain in full force and effect.
The City of Denton, Texas, has caused this modification to be executed in quadruplicate original
counterparts by its duly -authorized City Manapei,, and l..loyd Go."elink has, executed this wodification
through its duly -authorized officer, (hated effective as of the day 06 1998,
"adicated to Quality Service"
Page 2
[SIUMOMMON
BY:
CIT 'A AG]"R
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
T
BY:
F:\SRARED\DEPT\LEGAL\LGLET-FER8-25