2005-153
ORDINANCE NO. 2005- IS3
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A FIRST AMENDMENT TO AGREEMENT FOR
PROFESSIONAL LEGAL SERVICES WITH THE FIRM OF LLOYD, GOSSELINK,
BLEVINS, ROCHELLE & TOWNSEND, P.C. FOR LEGAL SERVICES PERTAINING
TO CONTINUATION OF REPRESENT A TION OF THE CITY BEFORE THE PUBLIC
UTILITY COMMISSION OF TEXAS, IN CONNECTION WITH ITS TRANSMISSION
COST OF SERVICE CASE; AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR; PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems that it is in the public interest to continue to
engage the law firm of Lloyd, Gosselink, Blevins, Rochelle & Townsend, P.C., of Austin,
Texas (the "Firm") to provide further professional legal services to the City of Denton,
Texas ("City") pertaining to continued representation of the City and Denton Municipal
Electric ("DME") before the Public Utility Commission of Texas ("PUC") regarding its
electric transmission cost of service rate case upon which the hearing is currently pending;
and
WHEREAS, the City staff has reported to the City Council that there is a
substantial need for 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 hàs heretofore engaged the Firm by numerous previous
Agreements for Professional Legal Services to perform similar services to those services
provided for in the First Amendment to Agreement for Professional Legal Services
attached hereto. Further, that the Firm has performed and provided legal services
benefiting the City under the most recent Agreement 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 before the PUe. Accordingly, it
is appropriate that the new First Amendment to 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 February 21,
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 the hearing 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 I: That the recitations set forth and contained in the foregoing
preamble are expressly incorporated by reference into this Ordinance.
SECTION 2: That the City Manager is hereby authorized to execute a First
Amendment to 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
substantially the form of the First Amendment to Agreement for Professional Legal
Services attached hereto and incorporated herewith by reference.
SECTION 3: That 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: That the expenditure of funds as provided in the attached Agreement
for Professional Legal Services is hereby authorized.
SECTION 5: That the above and foregoing First Amendment to Agreement for
Professional Legal Services is hereby ratified, confirmed, and retroactively approved, and
shall be effective from and after February 21, 2005.
SECTION 6: That except as otherwise provided in Section 5 above, this
Ordinance shall become effective immediately upon its passage and approval.
PASSED AND APPROVED this the 1111.. day of
gUJ1.L
I-~ ~~~~11
,2005.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPRO ED AS 0 LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By:
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S:\Oue Documcnts\0,d;nanccsIO5\Llo d Gossclink-PSA-Ficst Amendmcnt-TCOS-PUC 2o0S-0ed.doc
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STATE OF TEXAS
§
§
§
COUNTY OF DENTON
FIRST AMENDMENT TO
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS FIRST Al\:IENDMENT T~MENT (hereafter the "Agreement"), made and
entered into this .!1idL day of , 2005, by and between LLOYD
GOSSELINK BLEVINS ROCHELLE & rOWNSEND, P.c., a Texas ProfessIonal Corporatlon,
III Congress Avenue, Suite 1800, Austin, Texas, 78701 (hereinafter "Consultant" or "Firm"), with
Lambeth Townsend, Shareholder, having full authority to execute this Agreement on behalf of the
Finn; and the CITY OF DENTON, a Texas Municipal Corporation, 215 East McKinney Street,
Denton, Texas 76201 (hereinafter "City"), with Michael A. Conduft: City Manager, having full
authority to exccute this Agreement on behalf of the City.
WITNESSETH:
WHEREAS, the City deems it necessary and in the public interest to continue to employ legal
counsel to provide professional legal services with respect to protection of the City's interests in its
application to change City's rates for wholesale transmission service ("TCOS Rates") which has
been filed with the Public Utility Commission of Texas ("PUC" or "Commission"); and said TCOS
case has proceeded to a public hearing by an administrative law judge, and is now a contested
matter pending final resolution of the case by the PUC; and
WHEREAS, in Paragraph I.A.I. of the Agreement for Professional Legal Services
entered into by the City and the Firm, effective October I, 2004, the following language was
expressly contained in said Agreement: "If a contested case hearing is required, a new agreement
for professional services will be required as to the compensation in this Agreement does not
compensate a contestcd case hearing and appeals therefrom." The TCOS case is still pending,
and it has progressed to a contested hearing with evidence taken before an Administrative Law
Judge, who has issued findings offact and conclusions oflaw based upon that hearing that to this
point, are favorable to the City; however, PUC StafTpersists in opposing the position of the City;
which will probably result in a hcaring before the PUC itself; and
WHEREAS, the Consultant is willing to continue to perform such services in a protèssional
manner as an independent contractor; and has competently and efficiently performed similar
services for the City in City's 1996 application to establish City's TCOS Rates, which was PUC
Docket No. 15767, in City's 2002 application to establish City's TCOS Rates, which was PUC
Docket No. 26672, in this TCOS case before the PUC, as well as other matters over the past several
years; and thc 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 perfonn the following services in a
professional manner working as an independent contractor not under the direct supervision and
control of the City:
A.
B.
Services to be provided:
I.
Consultant shall represent the City in City's application to change rates for
wholesale transmission service before the Public Utility Commission, including
without limitation, the professional and legal services attendant to preparing and
submitting the application, responding to all discovery relating to the
application, and attending all prehcaring conferences, settlement negotiations in
relationship to the application, and other necessary hearings, and to consult with
the City through its Denton Municipal Electric staff with regard to all filings,
hearings, appeals, and other issues related to the application, and to assist in any
subsequent actions in response to the Commission's final order concerning the
application. Consultant requires that a new, further professional services
agreement be entered into with the City as this TCOS case has proceeded into a
contested case hearing before the PUC and possible appeals therefrom.
2.
To consult with the City Manager, the Assistant City Manager for Utilities, the
Director of Denton Municipal Electric, the City Attorney, the Assistant City
Attorney for Utilities, 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 the proceeding
concerning City's application to change rates for wholesale transmission
service. 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.
The Consultant shall perform all the services required by this Agreement in a timely
fàshion, 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.
II. Term: This Agreement shall be retroactively effective as of February 21,2005. The
Agreement shall terminate either upon the completion of the professional services provided for
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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 wjth 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.
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
Hourlv Rate
Lambeth Townsend, Shareholder
Thomas L. Brocato, Associate
Melissa E. Ramirez, Associate
Paralegal
Law Clerk
$250.00
$210.00
$180.00
$90.00
$75.00
Consultant agrees that all charges for the further legal services hereunder, including expenses
as set forth in Section III C. below, shall not exceed $84,000. The total amount authorized for the
original Agreement for Professional Legal Services for this TCOS case plus this First Amendment
is $149,000.
B.
The Consultant shall endeavor to have the attorneys and employees listed in Section III.A.
above, reasonably attempt to reduce costs by utilizing other qualified shareholders, associates,
and paralegals wherever feasible or possible. The Consultant shall bill the City through the
submission of itemized invoices. statements, and other documentation, together with support
data indicating the progress of the work and the services performed on the basis of monthly
statements, showing hourly rates indicating who performed the work, what type of work was
done, and descriptions and/or details of all services rendered, including a daily, and an entry-
by-entry reflection of billable time spent on this engagement, along with specific descriptions
and supporting documentation, if available, respecting any reasonable and necessary out-of-
pocket expenses incurred by Consultant in performing the professional services provided for
under this Agreement. Professional fees shall be billed in minimum one-tenth (Ill 0) hour
increments.
C.
Additionally, the City shall either pay directly or reimburse the Consultant, as the case may
be, for reasonable and necessary actual out-of-pocket expenses, including but not limited to,
rebuttal expert witness service fees and expenses, long-distance telephone, telecopier,
reproduction, postage, overnight courier, and transportation and travel. All copies will be
charged at the rate of fifteen cents ($.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 ifbulk copying is necessary or appropriate. The parties agree that
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the charges for outgoing telecopies 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 statemcnts váll be sent to the City by Consultant
on or about the 15th day of eaeh month. The City shall make payment to the Consultant
within thirty (30) days after receipt of an appropriate itemized invoice or statement. To the
extent that any fees or expenses are disputed 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 Electric, or her designee; and shall be reviewed and
approved by the Assistant City Attorney/Utilities.
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 Michael Conduff, City Manager, City of
Denton, 215 East McKinney Street, 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, Esq.,
Lloyd/Gosselink, I]] Congress Avenue, Suite 1800, 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 whieh notices, invoices, statements and/or payments are to be sent, provided
reasonable notice is given.
IV.
Professional Competency:
A.
Consultant agrees that in the performance of these professional services, Consultant shall be
responsible to the level of eompetency 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, Shareholders, and Thomas L. Brocato and
Melissa E. Ramirez, Associates. However, nothing herein shall limit Consultant from using
other qualified and competent members of the firm 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
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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 Rccords: 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 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 trom such records, and to make audits of
contracts, invoices, materials, and other data relating to all matters covered by this Agreement.
VII. Accomplishment of Proiect: The Consultant shall commence, carryon, and
complete this professional cngagement 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 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
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Carriers, with a rating of "A-" or above, issued by an 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, 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
furnishing 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 A!!reement:
A.
In connection with the work outlined in this Agreement, it is agreed and fully understood by
the Consultant that the City may cancel or 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 (I 5) 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.
ß.
This Agreement may be tcnninated 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 [I] 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 cfforts to resolve any disputes regarding the Agreement through the use of mediation or
other forms of altemate dispute resolution set forth in Chapter 154 of the Texas Civil Practices and
Remedies Code (V.A.T.c.S.).
XI. Entire A!!rccmcnt: 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
amendment to this Agreement, in order to be effective, shall be in writing and signed by the City
and the Consultant.
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XII. Compliance 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. Governing 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 perfonn 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
tenn 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. Assignabilitv: 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 Liabilitv: 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 shareholders, associates, employees, officers, or agents in connection with this
engagement.
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XIX. Modification of A!!reemcnt: 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. Captions: The captions of this Agreement are for informational purposes only
and shall not in any way affect the substantive tenns or conditions of this Agreement.
XXI. Hindin!! 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 pennitted by this Agreement.
IN WITNESS HEREOF, the City of Denton, Texas has executed this First Amendment to
Professional Legal Services Agreement in four (4) original counterparts by and through its duly
authorized City Manager; and Consultant .has executed this 'leement by and through its duly
authorized undersigned Shareholder; dated this.Ji!L. day of If.I'Lt/ ,2005.
"CITY"
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
B~ ~ \:JoJ:b, "
APPRO 00 AS~O LEGAL FORM:
EDWIN M. SNYDER, INTERIM CITY ATTORNEY
By 1tWÁ Cff ~
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ATTEST:
By:
~~
LLOYD GOSSELINK BLEVINS
ROCHELLE & TOWNSEND, P.C.
A Texas Professional Corporation
By:
S:IOUR DOCUMENTSICommctslo51L1oyd Oossclink-F;cst Amend-TCOS Casc-DME-20o5 doc
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