2003-153O INANCE NO. 2003-
AN ORDINANCE OF THE CITY OF DENTON, TEXAS' AUTHORIZING THE CITY
MANAGER TO EXECUTE A FOURTH AMENDED CONTRACT FOR PROFESSIONAL
LEGAL SERVICES WITH THE LAW FIRM OF DICKSTEIN, SHAPIRO, MORIN &
OSHINSKY, L.L.P. FOR SERVICES SUPPORTING DENTON MUNICIPAL ELECTRIC IN
CONTINUED ELECTRIC GENERATION DIVESTITURE ISSUES; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL
OF THE AGREEMENT; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary and appropriate and in the public
interest to continue to engage the law firm of Dickstein, Shapiro, Morin & Oshinsky, L.L.P.
("DSMO"), of Washington, D.C., since April 6, 1999, to provide professional legal services
incident to, and directly pertaining to issues supporting Denton Municipal Electric and relating to
continued activity respecting the electric generation divestiture; and
WHEREAS, the City has heretofore previously amended the original Contract for
Professional Legal Services on three occasions, as expected and unexpected events occurred
which required the involvement of highly specialized professional legal counsel in the area of
electric and regulatory law involving the expenditure of $901,058.40 in funds over a four year
period o~f time, until all the funds provided for therein were expended; and
WHEREAS, in the month of November, 2002, PG&E unexpectedly provided the City
with notice of its intention to transfer all of its interest in the Transition Power Agreement by and
between itself and the City to a third party by the close of December 2002; and later, on
December 2, 2002, provided the City with further written notice that it also desired to sell the
Spencer Generation Plant and related hydroelectric facilities to a third party; City staff had to
react immediately to these notices and the law firm of Dickstein, Shapiro, Morin & Oshinsky, of
Washington, D.C. began work, immediately, as the City requested, and represented its interests,
without hesitation, with regard to these PG&E-related transactions; and
WHEREAS, the scope of work for these transactions was not planned, nor was it
provided for in the three prior professional service contracts entered into between the City and
DSMO, such additional work was estimated to be in the amount of $60,000 additional, totaling
$901,058.40; accordingly, the Third Amendment to Contract For Professional Legal Services
was entered into on January 7, 2003; and
WHEREAS, the City staff has reported to the City Council that the estimate of time and
legal services made in connection with the Third Amendment to Contract For Professional Legal
Services was inadequate, in December 2002, and DSMO continued without hesitation, to render
professional services to the City in order to facilitate the consummation of the PG&E-related
transactions; there is a continued substantial need for the hereinabove described professional
services by Denton Municipal Electric; that the estimated budget has been exhausted, that there
is need for a Fourth Amendment to Contract For Professional Legal Services, and that limited
City staff cannot adequately perform the highly specialized legal services and tasks, with its own
personnel; 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 of
professional services on the basis of demonstrated competence, knowledge, and qualifications,
and for a fair and reasonable price; and the City Council hereby finds and concludes that DSMO
is appropriately qualified under the provisions of the law, to be continued as outside legal
counsel for the City, specifically Denton Municipal Electric, respecting this engagement; and
WHEREAS, the City Council has provided in the City budget for the appropriation of
funds to be used for the procurement of the foregoing professional legal services, as set forth in
this Fourth Amendment to Contract for Professional Legal Services; NOW, THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1: That the City Manager is hereby authorized to execute a Fourth
Amendment to Contract for Professional Legal Services with the law firm of Dickstein, Shapiro,
Morin & Oshinsky, L.L.P., of Washington, D.C. for professional legal services relafmg to and
following up on transactions that are ancillary to the earlier Denton Municipal Electric partial
electric generation divestiture, in the further amount of not to exceed $30,000, in substantially
the form of the Fourth Amendment to Contract for Professional Legal Services attached hereto
and incorporated herewith by reference.
SECTION 2: That the award of this Fourth Amendment to Contract is on the basis of
the cont'mued demonstrated competence and qualifications of DSMO, and the ability of DSMO,
to perform the professional legal services needed by the City for a fair and reasonable price
considering all the circumstances.
SECTION 3: That the expenditure of fimds as provided for in the attached Fourth
Amendment to Contract for Professional Legal Services is hereby authorized.
.SECTION 4 That as to the payment of fees and expenses, the Fourth Amendment to
Contract for Professional Legal Services is hereby ratified and retroactively approved, and shall
be effective from and after January 1, 2003.
SECTION 5:
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the ~'~-~ day of ~t~
EULINE BROCK, MAYOR
That except as provided in Section 4 hereinabove, this ordinance shall
,2003.
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ATTEST:
JENNItZER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Documents\Ordinances\03~DSMO Fourth Amended Contract- 2003 DME ord.doc
THE STATE OF TEXAS
COUNTY OF DENTON
FOURTH AMENDMENT
TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS FOURTH AMENDMENT to that certain Contract for Professional Legal
Services (hereafter the "Contract"), executed April 6, 1999; dated effective as of March
12, 1999, heretofore entered into by and between the City of Denton, Texas, a Texas
Municipal Corporation with its offices at 215 East McKinney Street, Denton, Texas
76201 (hereafter referred to as "CITY"); and the law firm of Dickstein, Shapiro, Mofin &
Oshinsky, a Limited Liability Partnership, with its offices at 2101 L Street NW,
Washington, D.C. 20037 (hereafter referred to as "LEGAL ADVISOR"); acting herein
by and through their respective duly authorized signatories; and
WHEREAS, said Contract was further amended by that certain "First Amendment
to Contract for Professional Legal Services" (hereafter the "First Amended Contract"),
heretofore entered into by and between CITY and LEGAL ADVISOR, executed
February 20, 2001; dated effective as of January 1, 2001; and
WHEREAS, said Contract and the First Amended Contract, heretofore entered
into by and between CITY and LEGAL ADVISOR, executed July 16, 2002, as provided
by Ordinance No. 2002-221, was further amended by that Second Amendment to
Contract For Professional Legal Services ("Second Amended Contract"), dated effective
June 1, 2001; and
WHEREAS, said Contract, First Amended Contract, and Second Amended
Contract, heretofore entered into by and between CITY and LEGAL ADVISOR,
executed January 7, 2003, as provided by Ordinance No. 2003-004, was further amended
by that Third Amendment to Contract For Professional Legal Services ("Third Amended
Contract"), dated effective December 1, 2002; and
WHEREAS, said Contract, First Amended Contract, Second Amended Contract,
and Third Amended Contract are hereby further amended by the Fourth Amendment to
Contract For Professional Legal Services ("Fourth Amended Contract"); to provide for
further necessary legal services for the City of Denton, Texas, in further support of
Denton Municipal Electric; and
NOW THEREFORE, the City of Denton, Texas and the firm of Dickstein,
Shapiro, Morin & Oshinsky (hereafter collectively referred to as the "PARTIES"), in
consideration of their further mutual promises and covenants, as well as for other good
and valuable considerations, do hereby AGREE to the following further amendments to
the terms and conditions of the Contract, the First Amended Contract, the Second
Amended Contract, and the Third Amended Contract, to wit:
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That the provisions of Section III.C. of the Contract, the First Amended Contract,
the Second Amended Contract, and the Third Amended Contract shall instead read and
provide for an additional THIRTY THOUSAND and NO/100 DOLLARS ($30,000.00)
effective January 1, 2003, as follows:
Legal Advisor and the City agree that charges for the legal services
contemplated trader this Agreement, including all professional services
rendered by Legal Advisor and Subcontractor combined, and including
direct out-of-pocket expenses, shall not exceed NINE HUNDRED
THIRTY ONE THOUSAND FIFTY EIGHT AND 40/100 DOLLARS
($931,058.40).
II.
The PARTIES agree, that except as specifically provided for by this Fourth
Amendment to Contract For Professional Legal Services, that all of the terms, covenants,
conditions, agreements, rights, responsibilities, and obligations of the parties set forth in
the Contract, shall remain in full fome and effect.
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IN WITNESS WHEREOF, the City of Denton, Texas and the firm of Dickstein,
Shapiro, Morin & Oshinsky, L.L.P. have executed this Fourth Amendment To Contract
For Professional Legal Services, in (4) original counterparts, by and through their
respective duly authorized representatives and officers on this the ~ day of
~, 2003; however, to be effective and ratified fi:om and after Janum'y 1, 2003.
"CITY"
CITY OF DENTON, TEXAS
,icipal Corporation .
~ger
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
"CONSULTANT"
DICKSTE1N, SHAPIRO, MORIN & OSHINSKY
A Limited Liability Partnership
ATTEST:
By: ~
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