2006-063ORDINANCE NO. 2006- 0~O3
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE
INTERIM CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL
LEGAL SERVICES WITH THE FIRM OF LLOYD, GOSSELINK, BLEVINS,
ROCHELLE & TOWNSEND, P.C. FOR LEGAL SERVICES PERTAINING TO
REPRESENTATION OF THE CITY BEFORE THE PUBLIC UTILITY COMMISSION
OF TEXAS, IN CONNECTION WITH THE CITY'S COMPLIANCE WITH ELECTRIC
TRANSMISSION SERVICE RULES, AND RELATED RULEMAKING,
PROCEEDINGS, OR ANY PROJECT RELATING THERETO; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE
APPROVAL OF THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems that it is in the public interest to engage the
law firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C., of Austin, Texas (the
"Firm") to provide professional legal services to the City of Denton, Texas ("City")
pertaining to representation of the City and Denton Municipal Electric ("DME") before the
Public Utility Commission of Texas ("PUC") in connection with the electric transmission
service rules, as well as any rulemaking, any proceeding, or any project relating to electric
transmission service or to matters affecting municipally-owned utilities; and
WHEREAS, the City staff has reported to the City Council that there is a
substantial need to for the City to utilize the above-referenced professional legal services,
and that limited City staff cannot adequately perform the specialized services and tasks
which are primarily centered in Austin, Texas, with its own personnel; and
WHEREAS, the City has heretofore engaged the Firm by numerous previous
Agreements for Professional Legal Services to perform similar services to those services
provided for in the Agreement for Professional Legal Services attached hereto. The Firm
has performed and provided legal services benefiting the City under on a continuous and
uninterrupted basis, involving immediate deadlines imposed on litigants by the PUC, in
order to safeguard and represent the interests of the City and DME and its ratepayers
before the PUC. Accordingly, it is appropriate that the new Agreement for Professional
Legal Services by and between the City and the Firm attached hereto, should be ratified
and confirmed, and should be retroactively approved, confirmed, and made effective as of
December 1, 2005, in order to properly compensate the Firm for its work that has already
been done and which work has directly benefited the City, and which work was done at the
specific instance and request of the City in continuing to conduct matters before the PUC;
and
WHEREAS, Chapter 2254 of the Texas Government Code, known as the
"Professional Services Procurement Act", generally provides that a City may not select a
provider of professional services on the basis of competitive bids, but must select the
provider on the basis of demonstrated competence, knowledge, and qualifications, and for
a fair and reasonable price; and the Council hereby finds and concludes that the Firm is
appropriately qualified under the provisions of that law to be retained as outside legal
counsel for the City and DME respecting this engagement; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: The recitations set forth and contained in the foregoing preamble are
expressly incorporated by reference into this Ordinance.
SECTION 2: The Interim City Manager is hereby authorized to execute an
Agreement for Professional Legal Services by and between the City and the law firm of
Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C., of Austin, Texas, in an amount not
to exceed $50,000, in substantially the form of the Agreement for Professional Legal
Services attached hereto and incorporated herewith by reference.
SECTION 3: The award of this Agreement by the City is on the basis of the
demonstrated competence, knowledge, and qualifications of the Firm and the continued
ability of the Firm to perform the services needed by the City for a fair and reasonable
price.
SECTION 4: The expenditure of funds as provided in the attached Agreement for
Professional Legal Services is hereby authorized.
SECTION 5: The above and foregoing Agreement for Professional Legal Services
is hereby ratified, confirmed, and retroactively approved, and shall be effective from and
after December 1, 2005.
SECTION 6: Except as otherwise provided in Section 5 above, this Ordinance
shall become effective immediately upon its passage and approval.
PASSED AND APPROVED this the~_~~day of , 2006.
~ ~~
EULINE BROOK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
r
By:
S:\Our Documents\Ordinnnces\06\Lloyd Gosselink-PSA-Compliance-PUC Svc Rules-2006.doc
STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this o~~5tday of ~ ,
2006, by and between LLOYD GOSSELINK BLEVINS ROCHELLE & TOWNSEND .C., a
Texas Professional Corporation (hereinafter "Consultant"), with Lambeth Townsend,
Shareholder, having full authority to execute this Agreement on behalf of the firm, 816 Congress
Avenue, Suite 1900, Austin, Texas, 78701; and the CITY OF DENTON, a Texas Municipal
Corporation, 215 East McKinney, Denton, Texas, 75201 (hereinafter "City"), with Howard
Martin, Interim City Manager, having full authority to execute this Agreement on behalf of the
City.
WITNESSETH:
WHEREAS, the City deems it necessary and in the public interest to continue to engage
legal counsel to provide professional legal services with respect to the City's compliance with
Public Utility Commission of Texas ("PUC") electric transmission service rules as well as any
rulemaking, proceeding, or any project relating to electric transmission service or to matters
affecting municipally owned utilities, such as the City; and
WHEREAS, the Consultant is willing to perform such services in a professional manner as
an independent contractor; and has competently and efficiently performed similar services for the
City innumerous other matters before the PUC over the past several years; and the City has selected
Consultant on the basis of demonstrated competence and qualifications necessary to perform the
needed services; and
WHEREAS, the City desires to engage the Consultant to render the professional services in
connection therewith, for a fair and reasonable price; consistent with, and for a fee not higher than
the recommended practices and fees published by the applicable professional associations; and such
fees do not exceed any maximum provided by law; all in accordance with the provisions of Chapter
2254 of the Texas Government Code (the "Professional Services Procurement Act"); and the
Consultant is willing to provide such services;
NOW, THEREFORE, in consideration of the promises and mutual obligations herein, the
City and Consultant do hereby mutually AGREE as follows, to wit:
I. Scope of 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:
106024\060112 Denton Agreement Page I
A. Services to be provided:
Consultant shall represent the City regarding its compliance with PUC
electric transmission service rules, and rulemakings, proceedings, or any
projects relating to electric transmission service or to matters affecting
municipally owned utilities, including without limitation, the professional
and legal services attendant to preparing and submitting comments,
responding to requests for information, and attending all hearings and
other proceedings in relationship to such compliance or to matters
affecting municipally owned utilities, and to consult with the City through
its Denton Municipal Electric staff with regard to all filings, hearings,
appeals, and other issues related to such compliance or to matters affecting
municipally owned utilities, and to assist in any subsequent actions in
response to any Commission final order concerning such compliance or
matters affecting municipally owned utilities.
2. To consult with the Interim City Manager, the Assistant City Manager for
Utilities, the Director of Denton Municipal Electric, the Utility Attorney,
and/or other designated administrative personnel or staff regarding any
and all aspects of the professional services to be performed, including
legal research, analysis, and advice with respect to protecting the City's
position regarding its compliance with PUC electric transmission service
rules, and rulemakings, proceedings, or any projects relating to electric
transmission service or to matters affecting municipally owned utilities,
currently being conducted by the PUC, or which the PUC undertakes in
the future. This will include coordinating activities with the Director of
Denton Municipal Electric, the City Attorney, and their respective staff to
efficiently perform the services required and to preserve the
Attorney/Client privilege, work product, and all other applicable
exceptions to the discovery or disclosure of documents produced by the
City and the Consultant under the Scope of Services hereinabove.
B. The Consultant shall perform all the services required by this Agreement in a timely
fashion, and shall complete them in compliance with schedules established by the
City through its Director of Denton Municipal Electric as appropriate to carry out
the terms and conditions of this Agreement.
IL Term: This Agreement shall be retroactively effective as of December 1, 2005. The
Agreement shall terminate either upon the completion of the professional services provided for
herein or upon the exhaustion of all professional fees provided for hereunder, whichever event shall
first occur. This Agreement may be sooner terminated in accordance with the provisions hereof.
Time is of the essence of this Agreement. 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 Director of Denton Municipal Electric, or
her designee.
106021\060105 Denton Agreement Page 2
III. Compensation and Method of Payment:
A. The Consultant shall charge the following fees for its professional services provided
to the City hereunder, based upon the following hourly billing rates for the attorneys
and support staff involved in this matter:
Staff Hourly Rate
Lambeth Townsend, Shareholder $ 250.00
Georgia Crump, Shareholder $ 240.00
Melissa E. Ramirez, Associate $ 190.00
Paralegal $ 95.00
Law Clerk $ 75.00
Consultant agrees that all charges for the legal services hereunder, including
expenses as set forth in Section III. C. below, shall not exceed $50,000.00.
B. The Consultant shall endeavor to have the attorneys and employees listed in Section
IILA. above, reasonably attempt to reduce costs by utilizing other qualified
shareholders, associates, and paralegals wherever feasible or possible. The
Consultant shall bill the City through the submission of itemized invoices,
statements, and other documentation, together with support data indicating the
progress of the work and the services performed on the basis of monthly statements,
showing hourly rates indicating who performed the work, what type of work was
done, and descriptions and/or details of all services rendered, including a daily, and
an entry-by-entry reflection of billable time spent on this engagement, along with
specific descriptions and supporting documentation, if available, respecting any
reasonable and necessary out-of-pocket expenses incurred by Consultant in
performing the professional services provided for under this Agreement.
Professional fees shall be billed in minimum one-tenth (1/10) hour increments.
C. Additionally, the City shall either pay directly or reimburse the Consultant, as the
case may be, for reasonable and necessary actual out-of-pocket expenses, including
but not limited to, long-distance telephone, telecopier, reproduction, postage,
overnight courier, and transportation and travel. All copies will be charged at the
rate of fifreen cents ($.15) 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 or appropriate. The
parties agree that the charges for outgoing telecopier from Consultant shall be $.25
per page and that there will be no charge for incoming telecopies.
D. The parties anticipate that invoices or statements for professional services will be
generated on a monthly basis and that said invoices or statements will be sent to the
City by Consultant on or about the 15th day of each month. The City shall make
payment to the Consultant within thirty (30) days afrer receipt of an appropriate
itemized invoice or statement. To the extent that any fees or expenses are disputed
106024\060112 Denton Agreement Page3
by the City, the City shall notify Consultant within thirty (30) days after its receipt of
the invoice or statement, and shall otherwise pay all undisputed amounts set forth in
the invoice or statement within thirty (30) days after its receipt of the 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 limitations set forth herein. All invoices or statements shall be a
reviewed by the Director of Denton Municipal Electrio, or her designee; and shall be
reviewed and approved by the Utility Attorney.
E. It is understood and agreed that the Consultant shall work under the coordination
and general supervision of the Director of Denton Municipal Electric, or her
designee.
F. All notices, invoices, statements, and payments shall be made in writing and may be
given by personal delivery or by mail. As to notices: to Howard Martin, Interim
City Manager, City of Denton, 215 East McKinney, Denton, Texas 76201 or to his
designee. As to invoices, statements, or payments: to Michael S. Copeland, Utility
Attomey, Utility Administration Department, at the same address, as to the City; and
to Lambeth Townsend, Lloyd/Gosselink, 816 Congress Avenue, Suite 1900, Austin,
Texas 78701, as to the Consultant. When so addressed, the notice, invoice,
statement and/or payment shall be deemed given upon deposit of same in the U. S.
Mail, postage prepaid. In all other instances, notices, invoices, statements, 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 which
notices, invoices, statements and/or payments are to be sent, provided reasonable
notice is given.
IV. Professional Competencv:
A. Consultant agrees that in the performance of these professional 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 performing the same
or similar types of work. For the purpose of this Agreement, the key persons who
will be performing most of the work hereunder shall be Lambeth Townsend and
Georgia Crump, Shareholders, and Melissa E. Ramirez, Associate. However,
nothing herein shall limit Consultant from using other qualified and competent
members of the fine to perform the services required herein if such delegation is
reasonably appropriate and properly protects the City's interests.
B. Any agreements, ordinances, notices, instruments, memoranda, reports, letters,
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
106024\060112 Denton Agreement Page4
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 afrer 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 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 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. Accomplishment of Project: The Consultant shall commence, carry on, and
complete this professional engagement 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 project, the Consultant shall take such steps as are appropriate to insure that the
work involved is properly coordinated with any related work being carried on by the City.
VIII. Indemnity and Independent Contractor Relationship:
A. 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 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 litigation 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 liability policy. The Consultant agrees to pay all expenses,
including but not limited to attorney's fees, and satisfy all judgments that 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 lass 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,
106024\060112 Denton Agreement Page 5
listed by Best Rated Carriers, with a rating of "A--" or above, issued by an insurance
carrier approved to do business in Texas by [he State Insurance Commission. Such
coverage shall cover any claim hereunder occasioned by the Consultant's negligent
professional act and/or error, act, or omission, in an amount not less than $1,000,000
combined single limit coverage per occurrence. In the event of change or
cancellation of the policy by the insurer, the Consultant hereby covenants to
immediately notify the City in writing thereof; and in such event, the Consultant
shall, prior to the effective date of change or cancellation, serve a substitute policy
famishing the same or higher amount of coverage. The Consultant shall provide a
copy of the declarations page of such policy to the City through its Director of
Denton Municipal Electric simultaneously with the execution of this Agreement.
IX. Termination of 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
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.
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 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.).
XI. Enfire Agreement: This Agreement represents the entire agreement and
understanding between the parties and any negotiations, proposals, or oral agreements are intended
to be integrated herein and to be superseded by this written Agreement. Any supplement or
106024\060112 Denton Agreement Page 6
amendment to this Agreement, in order to be effective, shall be in writing and signed by the City
and the Consultant.
XII. Comnliance 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 hereafrer be amended, including but not limited to the Texas Disciplinary Rules of
Professional Conduct.
XIII. Governine Law: 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 construed in accordance with, and 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 lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas.
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.
XV. Personnel:
A. Consultant represents that it has or will secure at its own expense all personnel
required to perform the services required under this Agreement. Such personnel
shall not be employees nor have any contractual 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
licensed, authorized, or permitted under state and local laws to perform such
services.
XVI. Assignability: 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. 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
Services", "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. 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 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
106024\060112 Denton Agreement Page 7
Consultant, its shareholders, associates, employees, officers, or agents in connection with this
engagement.
XIX. ModiTcation 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. 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. The parties further agree that the provisions
of this article will not be waived as herein set forth.
XX. Cannons: The captions of this Agreement are for informational purposes only and
shall not in any way affect the substantive terms or conditions of this Agreement.
XXI. 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,
successors, and assigns, where permitted by this Agreement.
IN WITNESS HEREOF, the City of Denton, Texas has executed this Agreement in four
(4) original counterparts by and through its duly authorized Interim City Manager; and Consultant
has execu~d this Agreement by and through its duly authorized undersigned Shareholder; dated this
the o2/ ~ day of _yz~4~~ 2006.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
By: U~VI~ ~~ Z
Howard Martin, Intent City Manager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
BY: VYWX--~
106024\060112 Denton Agreement Page 8
LLOYD GOSSELINK BLEVINS
ROCHELLE & TOWNSEND, P.C.
A Texas Professional Corporation
By:
Lambeth Townse d, Shareholder
ATTEST:
BY~ q~'wc.ut~ ~~ ~ rr....
106024\060112 Denton Agreement Page9