2003-251ORDINANCE NO. 2003- oq,~/
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL
SERVICES WITH LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN &
TOWNSEND, P.C., FOR LEGAL SERVICES PERTAINING TO REPRESENTATION
OF THE CITY BEFORE THE PUBLIC UTILITY COMMISSION OF TEXAS, IN THE
AREAS OF PUBLIC UTILITY REGULATORY LAW AND ADMINISTRATIVE LAW,
RESPECTING THE PROTECTION OF THE CITY'S INTERESTS RELATING TO
EFFORTS BY THE PUBLIC UTILITY COMMISSION OF TEXAS TO CHANGE THE
CURRENT DESIGN OF THE ELECTRIC RELIABILITY COUNCIL OF TEXAS
WHOLESALE POWER MARKET IN TEXAS; 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 engage the
law finn of Lloyd, Gosselink, Blevins, Rochelle, Baldwin & Townsend, P.C., of Austin,
Texas (the "Finn") 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 the areas of public utilities
regulatory law and administrative law; relating to efforts by the PUC to change the current
design of the Electric Reliability Council of Texas ("ERCOT") wholesale power market in
Texas; including Project No. 26376 entitled "Rulemaking Proceeding on Wholesale
Market Design Issues in the Electric Reliability Council of Texas," and also including such
other or additional projects or dockets at the PUC in the near future which are related to
said Project 26376; and
WHEREAS, the City staff has reported to the City Council that there is a
substantial need for the above-referanced 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. Further,
that the Finn has performed and provided legal services benefiting the City under the most
recent Agreement on a continuous and uninterrupted basis, in order to safeguard and
represent the interests of the City and DME before the PUC, in dealing with sudden,
largely unpredictable events and developments, and with administrative deadlines that
many times require immediate attention or response. 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
and made effective.as of July 1, 2003, in order to properly compensate the Firm for its
work that has already directly benefited the City, and which work was done at the specific
instance and request of the City; 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 Finn 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: That the recitations set forth and contained in the foregoing
preamble are expressly incorporated by reference into this Ordinance.
SECTION2: That the 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, Baldwin & Townsend, P.C., of Austin, Texas, in
substantially the form of the 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 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 Agreement for Professional Legal
Services is hereby ratified, confirmed, and retroactively approved, and shall be effective
fi:om and after July 1, 2003.
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/q~//L day of _//~/~.6~ ,2003.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By:
2
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Doc uments\Ordin an ces\03LLIoyd Gosselink-Projeet No, 26376-Wholesale Mkt Designs-ERCOT-Ord.doe
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STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this //7'~f't day of ~~ ,
2003, by and between LLOYD, GOSSEL1NK, BLEVINS, ROCHELLE, fBALI~WlN &
TOWNSEND, P.C., a Texas Professional Corporation (hereinafter "Consultant"), with Lambeth
Townsend, Shareholder, having full authority to execute this Agreement on behalf of the firm,
111 Congress Avenue, Suite 1800, Austin, Texas, 78701; and the CITY OF DENTON, a Texas
Municipal Corporation, 215 E. McKinney, Denton, Texas, 75201 (hereinafter "City"), with
Michael Conduff, 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 employ legal
counsel to provide professional legal services with respect to protection of the City's interests
relating to efforts by the Public Utility Commission of Texas ("PUC") to change the current
design of the Electric Reliability Council of Texas ("ERCOT') wholesale power market in
Texas, which efforts are presently being reviewed in Project No. 26376, Rulemaking Proceeding
on Wholesale Market Design Issues in the Electric Reliability Council of Texas, but which may
include numerous additional projects or dockets at the PUC in the near future; 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 in numerous 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:
106019XDenton Agreement Page 1
A. Services to be provided:
Consultant shall represent the City in Project No. 26376, Rulemaking
Proceeding on [4~holesale Market Design Issues in the Electric Reliability
Council of Texas, and in any related additional projects or dockets at the
PUC involving similar issues of changes to the design of the ERCOT
wholesale market, 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 market design issues, and to consult with the City
through its Denton Municipal Electric staff with regard to all filings,
hearings, appeals, and other issues related to market design issues, and to
assist in any subsequent actions in response to the Commission's final
order concerning market design issues.
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 protecting the City's position in ERCOT wholesale market design issues
currently being reviewed by the PUC. 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
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.
II. Term: This Agreement shall be retroactively effective as of July 1, 2003. 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.
106019'~Denton Agreement Page 2
III.
A.
Compensation and Method of Payment:
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
Georgia Crmnp, Shareholder
Melissa E. Ramirez, Associate
Paralegal
Law Clerk
$ 230.00
$ 210.00
$170.00
$ 85.00
$ 75.0O
Consultant agrees that all charges for the legal services hereunder, including
expenses as set forth in Section m. C. below, shall not exceed $45,000.00.
The Consultant shall endeavor to have the attorneys and employees listed in Section
[I/.A. above, reasonably attempt to reduce costs by utilizing other qualified
shareholders, associates, and paralegals wherever feasible or possible. The
Consultant shall bill the City through the submission of itemized invoices,
statements, and other documentation, together with support data indicating the
progress of the work and the services performed on the basis of monthly statements,
showing hourly rates indicating who performed the work, what type of work was
done, and descriptions and/or details of all services rendered, including a daily, and
an entry-by-e~try reflection of billable time spent on this engagement, along with
specific descriptions and supporting documentation, if available, respecting any
reasonable and necessary out-of-pocket expenses incurred by Consultant in
performing the professional services provided for under this Agreement.
Professional fees shall be billed in minimum one-tenth (1/10) hour increments.
Additionally, the City shall either pay directly or reimburse the Consultant, as the
case may be, for reasonable and necessary actual out-of-pocket expenses, including
but not limited to, long-distance telephone, telecopier, reproduction, postage,
overnight courier, and transportation and travel. All copies will be charged at the
rate of fifteen cents ($.15) per copy for copies made within Consultant's offices,
with as much photocopying as possible be'rog 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 telecopies from Consultant shall be $.25
per page and that there will be no charge for incoming telecopies.
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 after receipt of an appropriate
itemized invoice or statement. To the extent that any fees or expenses are disputed
106019~Denton Agreement Page 3
IV.
A.
by the City, the City shall notify Consultant within thirty (30) days after its receipt of
the invoice or statement, and st~all 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.
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.
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, Denton, Texas 76201 or to his
designee. As to invoices, statements, or payments: to Michael S. Copeland,
Assistant City Attorney/Utilities, Utility Administration Department, at the same
address, as to the City; and to Lambeth Townsend, Lloyd/Gosselink, 111 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 which notices, invoices, statements and/or payments
are to be sent, provided reasonable notice is given.
Professional Competency:
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 firm to perform the services required herein if such delegation is
reasonably appropriate and properly protects the City's interests.
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
106019XDenton Agreement Page 4
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 m~fmtained 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 fi:om 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, 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:
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 fi.om or directly or
indirectly arise fi.om any negligence and/or errors or omissions on the part of the
Consultant or fi:om 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 pohcy. - 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 fi:om
Consultant's negligent errors or omissions, or breach of contract, and all such rights
and remedies are expressly reserved.
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,
106019~Denton Agreement Page 5
listed by Best Rated Carriers, with a rating of"A-" or above, issued by an insurance
carder 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 nigher 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 Electhc simultaneously with the execution oftnis Agreement.
IX. Termination of Agreement:
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 tnis Agreement at any time upon written notice
to Consultant, Consultant shall cease all work and labor being performed under tnis
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 tnis
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.
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 mall, 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.
Notning contained herein or elsewhere in this Agreement shall require the City to
pay for any work which is unsatisfactory or wnich is not submitted in compliance
with the terms oftnis 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 thc 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. Entire 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 tnis written Agreement. Any supplement or
106019~Dcnton Agreement Page 6
amendmem to this Agreement, in order to be effective, shall be in writing and signed by the City
and the Consultant.
XII. Compliance with Laws: The Consultant shall comply with all federal, state, local
laws, roles, 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:
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.
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, author/zed, 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.
XVIH. 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
106019~Denton Agreement Page 7
Consultant, its shareholders, associates, employees, officers, or agents in connection with this
engagement.
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. 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 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 City Manager; and Consultant has
executed this Agree_ment by and through its duly authorized undersigned Shareholder; dated this the
/~/~dayof ~iF2~A~Lc , 2003.
CITY OF DENTON, TEXAS
A Texas Municipal Corporation
Michael Conduff, City
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
106019~Denton Agreement Page 8
ATTEST:
LLOYD, GOSSELINK, ROCHELLE, BLEVINS
ROCHELLE, BALDWIN & TOWNSEND, P.C.
A Texas Professional Corporation
By: ~~, -Sh~~
106019XDenton Agreement Page 9