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2000-029 O INANCENO AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW FIRM OF LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, P C PERTAINING TO REPRESENTATION OF THE CITY BEFORE THE PUBLIC UTILITIES COMMISSION OF TEXAS ("PUC") IN THE AREAS OF PUBLIC UTILITY REGULATORY LAW AND ADMINISTRATIVE LAW, RESPECTING ANY PERTINENT RULEMAKING PROCEEDING OR PROJECT, INCLUDING REPRESENTATION PERTAINING TO THE IMPLEMENTATION OF SENATE BILL 7, AND LEGAL ADVICE CONCERNING COMPLIANCE WITH PUC RULES RESPECTING THE ACTIVITIES OF DENTON MUNICIPAL ELECTRIC, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the C~ty Council deems ~t necessary and ~n the pubhc interest to engage the law firm of Lloyd, Gossehnk, Blevms, Rochelle, Baldwin & Townsend, P C, of Austin, Texas, (the "F~rm") to prowde professional legal servmes to the City, pertmmng to representatmn of the C~ty and Denton Mummpal Elecmc ("DME") before the Pubhc Utd~t~es Commlss~on of Texas ("PUC") m the spemahzed areas of pubhc utdity regulatory law and administrative law, respecting any pertinent mlemakmg procee&ng or project, representation pertmnmg to the ~mplementat~on of Senate Bill 7, and legal advice concerning comphance w~th PUC roles respecting the act~mt~es of DME, and WHEREAS, the C~ty has heretofore twine engaged the F~rm to perform similar professmnal legal serwces to those prowded for in the Agreement for Professional Legal Servmes attached hereto The F~rm has continuously and fmthfully performed legal servmes under the premous Agreements since 1997, and m October 1999, the funds provided for ~n the second such Agreement between the C~ty and the F~rm were exhausted, because of the h~gh level of actlwty warranted by numerous PUC projects pertmnmg to the ~mplementataon of the recently enacted electric deregulation legmlat~on, Senate Bill 7 Nonetheless, the C~ty requested that the F~rm promde continuous representation to the C~ty and DME on ~mportant PUC msues untd such t~me as terms for a new Agreement for Professional Legal Servmes could be reached, whmh new agreement w~ll promde for addltmnal compensation for the Finn, and until such t~me such Agreement could be duly approved by the C~ty Council Accorchngly, it ~s approprmte that the attached Agreement for Professional Legal Serwces with the F~rm should be ratified and confirmed, and should be retroactively approved and made effective as of October 1, 1999 ~n order to properly compensate the Firm for ~ts work performed heretofore at the specffic instance and request of the C~ty, whmh work has d~rectly benefited the City, and WHEREAS, the C~ty Coanml has provided m the C~ty Budget for the appropriation of funds to be used for the purchase of the foregmng professaonal serwces, as set forth ~n the attached Agreement for Professional Legal Sermces, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the C~ty Manager ~s hereby authorized to execute an Agreement for Professmnal Legal Semces w~th the law firm of Lloyd, Gossehnk, Blevms, Rochelle, Baldwin, & Townsend, a Texas Professional Corporation, Austin, Texas for professional legal serwces pertmmng to the heremabove-descnbed matters ~nvolwng the C~ty of Denton and DME, ~n substantmlly the form of the Agreement for Professional Legal Services attached hereto and incorporated herewith by reference SECTION 2 That the award of this Agreement ~s on the bas~s of the demonstrated competence and qualfficattons of the F~rm, and the abd~ty of the F~rm to perform the professmnal legal services needed by the C~ty for a fmr and reasonable price SECTION 3 That the expend~tttre of funds as prowded for ~n the attached Agreement for Professional Legal Sermces ~s hereby authorized SECTION 4 That the Agreement for Professional Legal Servmes ~s hereby ratified, confirmed, and retroacttvely approved, and shall be effective from and after October 1, 1999 SECTION 5 That except as otherwise provided m Section 4 hereof, this Orchnance shall become effective ~mmechately upon ~ts passage and approval PASSED AND APPROVED thls the /~-fl/ day of ~'~/.~L~/.,/.~ ,2000 ATTEST JENNIFER WALTERS, CITY SECRETARY ^PPROVED AS TO LmAL FOra HERBERT L ?ROUTY, CITY ATTORNEY 8 \Our Documonts\Ordman¢oaX99\Lloyd Goaselmk PUCT 00 DME PSA doc AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT, made and entered into th~s ~ day of ~57~/l./1~[d ,2000, by and between LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN ~' TOWNSEND, P C, a Texas Professional Corpor~on (hereanafter referred to as "CONSULTANT"), wtth Lambeth Townsend, Shareholder, hawng full authonty to execute th~s Agreement on behalf of the firm, 111 Congress Avenue, State 1800, AusUn, Texas 78701, and the CITY OF DENTON, a Texas Mun~c,pal Corporation, 215 East Mcganney, Denton, Texas 75201 (hercunafter referred to as "CITY"), vath M~chael W Jez, City Manager, hawng full authority to execute this Agreement on behalf of the City WlTNESSETtt WHEREAS, the C~ty deems ~t necessary and m the pubhc interest to engage legal counsel to provide professional legal senaces w~th respect to the C~ty's comphance w~th the Pubhc Utility Commission ("PUC") electric transmission serwce rules as well as any rulemakmg proceechng or any project relating to electric transnuss~on service as well as respecting the implementation of Senate Bill 7, or otherwise affecting the C~ty and WHEREAS, the Consultant is wfihng to perform such serwces m a professional manner as an xndependent contractor, and, WHEREAS, the C~ty desires to engage the Consultant to render the professional senaces m connectmn therevath, and the Consultant is wfihng to provide such senaces NOW, THEREFORE, m cons~deratmn of the promises and mutual obhgat~ons hereto, the C~ty and Consultant do hereby mutually AGREE as follows, to wtt I Scope of Services: The Consultant shall perform the following services m a professional manner worlang as an independent contractor not under the chrect superws~on and control of the C~ty A Sennees to be provided 1 Consultant shall represent the C~ty before the PUC concerning the C~ty's comphance vath the PUC's Transmission Serwce Rules and concerning any rulemahng proceechng or project relating to transmission servme, ~mplementlng Senate Bill 7, or otherwise affecUng the C~ty, mcluchng, w~thout hmatat~on, the professional legal services w~th regard to subm~ng pleaahngs and comments and attenchng all uncontested heanngs and other proceechngs m relation to these matters, and to consult w~th the C~ty through ~ts Denton Munm~pal Electric ("DME") staff w~th regard to all filings, uncontested heanngs, and other ~ssues related to th~s project Proxaded, however, ff the C~ty elects to participate in a contested case procee&ng at the PUC relating to lransnuss~on service or any other matter, the Page 1 parUes agree that it will be necessary to enter into a separate professional ser~ces agreement, to provide for such additional legal services 2 To consult w~th the City Manager, Assistant City Manager for UUhties, the Director of Electric Utilities, the City Attorney, the Assistant City Attorney for Utilities, and other designated adrmmstrative personnel or staff regarding any and all aspects of the professional sennces to be performed, including legal research, analysis, and advice with respect to such matters This will include coordinating acUvmes with the I~rector of Electric Utilities, the City Attorney and their respecUve staff to efficaenfly perform the sennces required and to preserve the Attomey/Chent 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 heremabove B The Consultant shall perform all the senaces reqtured by this Agreement in a timely fashion, and shall complete same in compliance with schedules established by the City through its Director of Eleemc Utilities as appropriate to carry out the terms and condiUons of this Agreement H. Term: This Agreement shall be effective as of October l, 1999, and shall termanate e~ther upon the completion of the professional services provided for here~n, or on December 31 2000, or upon the exhaustion of all professional fees provided for hereunder, whichever event shall first occur This Agreement may be sooner termanated in accordance with the provisions hereof Time is of the essence of this Agreement Consultant shall make all reasonable efforts to complete the sennces set forth hereto as expeditiously as possible dunng the term of this Agreement, and to meet the schedules established by the City, through its D~rector of Electric Utilmes, or her designee III. Compensation and Method of Payment' A The Consultant shall charge the following fees for its professional sennces provided to the City hereunder, based upon the following hourly billing rates for the attorneys and support staff revolved in this matter Staff Hourly Rate Lambeth Townsend, Shareholder $ 200 00 Georgm Crump, Shareholder $190 00 Pochard Hamala, Assoaate $180 00 Paralegal $ 80 00 Law Clerk $ 75 00 Consultant agrees that all charges for the legal sennces hereunder, including expenses as set fo~di m Section 11/ C below, shall not exceed $ 75,000 00 B The Consultant shall endeavor to have the attorneys and employees listed in Section l]l A above, reasonably attempt to reduce costs by utihz~ng other qualified shareholders, associates, and paralegals wherever feasible or possible The Consultant shall bill the City through the subrmssion of itemized invoices, statements, and other documentation, together with support data indicating the progress of the work and the senates performed on the basis of monthly statements, showing hourly rates indicating who performed the work, what type of work was Page 2 done, and descnpttons and/or detmls of all semces rendered, ~ncludlng a dmly, and an entry- by-entry refle~on of billable t~me spent on th~s engagement, along w~th specific desmpnon and suppomng documentauon, if avtulable, respecting any reasonable and necessmy out-of- pocket expenses mcuned by Consultant in peffonmng the professmnal servmes provided for under th~s Agreement Professional fees shall be bdled m n'nmmmn one-tenth (1/10) hour lnerea~n~llts C Adchtmnally, the C~ty shall either pay d~rectly or re,mburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, mcluchng but not hrmted to, long- chstance telephone, telecop~er, reproductmn, p~stage, overnight courier, and transportatton and travel All cop~es wdl be charged at the rotc of fifteen cents ($15) per copy for cop~es made w~thm Consultant's offices, w~th as much photocopying as possible being done by outside vendors at bulk rates or by the Ctty to reduce costs ffbulk copying ~s necessary or appropriate The pames agree that the charges for outgmng telecop~es from Consultant shall be $ 25 per page and that there will be no charge by Consultant for ~ncom~ng telecop~es D The pames antmlpate that ~nvomes or statements for professional serwces w~ll be generated on a monthly bas~s and that smd invoices or statements wdl be sent to the C;ty by Consultant on or about the 15th day of each month The C~ty shall make payment to the Consultant vathm thirty (30) days after rec~pt of an appropriate ~termzed ~nvo~ce or statement To the extent that any fees or expenses are d~sputed by the City, the C~ty shall nott~ Consultant within thirty (30) days after ~ts receipt of the invoice or statement, and shall otherwise pay all anchsputed amounts set forth m the mvome or statement within thirty (30) days after ~ts receipt of the mvmce or statement All reimbursable expenses, including, but not necessarily hmlted to travel, lodging, and meals, shall be pa~d at the actual cost, pursuant to the terms, cond~nons, and hm~tatmns set foah hereto All lnvomes or statements shall be approved by the Assistant C~ty Manager for Unht~es, or h~s designee, and by the C~ty Attorney E It is understood and agreed that the Consultant shall work under the coordmauon and general superws~on of the Ihrector of Electric UUhttes and the C~ty Attorney F All notmes, invoices, and payment shall be made ~n writing and may be g~ven by personal dehvery or by marl Nonces, invoices, statements, and payments sent by mml shall be addressed respe~vely, to Herbert L Prouty, Cfly Attorney, 215 East McKanney, Denton, Texas 76201 as to the City, and to Lambeth Townsend, Lloyd/Gossehnk, 111 Congress Avenue, State 1800, Austin, Texas 78701, as to the Consultant When so addressed, the notme, invoice, statement and/or payment shall be deemed g~ven upon deposit of same ~n the Umted States Mml, postage preptud In all other instances, nonces, ~nvomes, statements, and/or payments shall be deemed g~ven at the nme of actual dehvety Changes may be made m the names and addresses of the responsible person or office to whmh nonces, mvmces, statements and/or payments are to be sent, promded reasonable not~ce ~s g~ven IV. Professional Competency: A Consultant agrees that ~n the performance of these professional serwces, Consultant shall be responsible to the level of competency and shall use the same degree of skdl and care presently mmntmned by other pracncmg professionals perforrmng the same or s~mlar 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 Georgta Crump, Shareholders However, nothing herem shall hm~t Consultant from using other qualffied and competent members of the firm to Page 3 perform the sermces required hereto 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 obtmned under the terms of this Agreement are mstmments of serace and the City shall retain ownership and a property interest theimn If this Agreement is terminated at any 'amc for any reason prior to payment to the Consultant for work under this Agreement, all such documents prepared or obtmned under the terms of the Agreement shall upon temun~on be delivered to and become the property of the City upon request and w~thout restncuon on their use or further compensaUon to the Consultant V. Establishment and Maintenance of Records Full and accurate records shall be mantmned by the Consultant at its place of business vath respect to all matters covered by this Agreement Such records shall be mantmned for a period of at least three years atter reccnpt of final payment under this Agreement VI. Audits and Inspection' At any time dunng normal busmess hours and upon reasonable notice to the Consultant, there shall be made avalable 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 autht, examine, and make excepts or transcripts from such records, and to make audits of contracts, mvolces, materials, and other data relating to all matters covered by this Agreement VII Aecomplislunent of Project: The Consultant shall commence, cany on, and complete this professional engagement with all practicable dispatch, in a sound, economical and efficient matter, and, in accordance w~th the pmvmlons hereof and all applicable laws In accomplishing the projects, the Consultant shall take such steps as are appropriate to insure that the work involved is properly coordinated w~th any related work bemg carried on by the City V1H. Indenmity and Independent Contractor Relationship' A Consultant shall perform all services as an independent contractor not under the direct supemslon and control of the City Nothmg herein shall be construed as creating a relationship of employer and employee between the pames The City and Consultant agree to cooperate m the defense of any clams, action, suit, or proceeding of any kind brought by a third party which may result from or directly or mdlrectly arise from any negligence and/or errors or omissions on the pan of the Consultant or from any breach of the Consultant's obligations under this Agreement In the event of any litigation or clam under this Agreement in which Consultant is joined as a party, Consultant shall proxade statable counsel to defend City and Consultant aganst such clam, 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 clams to the extent of coverage by Consultant's professional habthty pohcy The Consultant agrees to pay all expenses, mcluding but not hmlted to attorney's fees, and satisfy all judgments which may be recurred or rendered against the Consultant's professional liability msurance policy Nothing hereto constitutes a waver of any rights or remeches the City may have to pursue under either law or equity, uicluding, without hn'ntation, a cause of action for specific performance or for damages, a loss to the City, resulUng from Consultant's negligent errors or omms~ons, or breach of contract, and all such rights and remedies are expressly reserved Page 4 B Consultant shall mmntmn and shall be caused to be m force at all times during the term of th~s Agreement, a legally b~nchng pohcy of professional habdlty insurance, hsted by Best Rated Carriers, xanth a rating of"A-" or above, issued by an insurance career approved to do business m Texas by the State Insurance Comnussmn Such coverage shall cover any chum hereunder occasioned by the Consultant's negligent professmnal act and/or error, act, or ormsslon, m an amount not less than $1,000,000 combined s~ngle hm~t coverage per occurrence In the event of change or cancellaUon of the policy by the insurer, the Consultant hereby covenants to ~mmechately not~fy the City in writing thereof, and in such event, the Consultant shall, pr;or to the effecttve date of change or cancellatton, serve a substitute policy fum~shing the same or h~gher amount of coverage The Consultant shall prowde a copy of the declarations page of such pohcy to the C~ty through ~ts Director of Electric of Uulmes simultaneously with the execution of th~s Agreement IX. Termination of Agreement: A In connectmn w~th the work outlined m this Agreement, it is agreed and fully understood by the Consultant that the C~ty may cancel or mdefimtaly suspend fmlher work hereunder or terrmnate this Agreement at any time upon written nottce to Consultant, Consultant shall cease all work and labor being performed under th~s Agreement Consultant may tenTnnate this Agreement by gnang the C~ty fifteen (15) days written not~ce that Consultant ~s no longer in a poslUon to continue representing the City Consultant shall ~nvome the C~ty for all work satisfactorily completed and shall be compensated in accordance with the terms of th~s Agreement All reports and other documents, or data, or work related to the project shall become the property of the C~ty upon terrmnatton of this Agreement B This Agreement may be terrmnated m whole or in part, m writing, by either party in the event of substantaal fmlure by the other party to fulfill its obhgat~ons under this Agreement through no fault of the termmaUng party Provided, however, that no such termmaUon may be affected, unless the other party ~s given [1] written notice (dehvered by cemfied mml, return receipt request) of intent to terminate, and not less than thirty (30) calendar days to cure the fadure, and, [2] an oppomm~ty for consultation vath the terminating party prior to tennmatmn C Nothing contmned herein or elsewhere in this Agreement shall require the City to pay for any work which ~s unsatisfactory or which ~s not submitted ~n compliance with the terms of this Agreement X. Alternate Dispute Resolution' The Consultant agree~ that, if necessary, ~t will use ~ts best effocts to resolve any (hsputes regarchng the Agreement through the use of mechation or other fora of alternate chspute resolutmn set forth m Chapter 154 of the Texas Clv;l Practices and Remedies Code (V A T C S ) XI Entire Agreement: Th~s Agreement represents the entire agreement and understanchng between the pames and any negotiations, proposals, or oral agreements are intended to be integrated herean and to be superseded by th~s written Agreement Any supplement or amendment to this Agreement, m order to be effective, shall be in waling and signed by the C~ty and the Consultant XIL Compliance with Laws. The Consultant shall comply with all federal, state, local laws, rules, regulattons, and orchnances apphcable to the work covered hereunder as they may now read or Page 5 hereatter be amended, ancluchng but not hmated to the Texas I~sclplmaxy Rules of Professmnal Conduct XIII. Governing Law: For the purpose of determnnng place of agreement and law governing same, th~s Agreement is entered anto m the C~ty and County of Denton, State of Texas, and shall be construed in accordance w~th, and governed by the laws of the State of Texas Venue andjunschctlon of any stat or cause of action arising under or m conne~on w~th this Agreement shall lie exclusively m a court of competent junsd~ctmn sa~ng m Denton County, Texas XIV. Discrimination Prohibited: In performing the sennces reqtared hereunder, the Consultant shall not chscnmmate agmnst any person on the basas of race, color, rehglon, sex, national ong~n or ancestry, age, or physical hanchcap XV. Personnel: A Consultant represents that at has or will secure at ats own expense all personnel reqmred to perform the sennces reqtared under thas Agreement Such personnel shall not be employees nor have any contractual relaUons with the C~ty Consultant shall anform the C~ty of any conflict of anterest or potenttal conflact of anterest that may arise dunng the term ofth~s Agreement, m accordance wath Consultantts responslbllmes under the Texas D~scaplmary Rules of Professional Conduct B All semces reqmred hereunder w~ll be performed by the Consultant or under ats d~rect superms~on All personnel engaged m work shall be quahfied and shall be hcensed, authorized, or perrmtted under state and local laws to perform such semces XVI. Assignability. The Consultant shall not assagn any anterest an thas Agreement and shall not transfer any anterest m thas Agreement (whether by assignment, novation, or otherwase) w~thout the prior written consent of the C~ty thereto XVILSeverabillty: All agreements and covenants contatned here~n are severable, and m the event any of them, w~th the exceptmn of those contmned msecttons headed "Scope of Sennces", "Independent Contractor Relatmnshlp", and "Compensa'aon and Method of Payment" hereof, shall be held to be invalid by any court of competent junschctmn, this Agreement shall be anterpreted as though such mvalad agreements or covenants were not contmned hereto XVIII. Responslbffifles for Clahns and Liabth~' Approval by the Caty shall not constitute nor be deemed a release of the respons~bflaty and ltabdaty of the Consultant for the accuracy and competency of ~ts work, nor shall such approval be deemed to be an assumpUon of such msponsabthty of the C~ty for any defect m any report or other documents prepared by the Consultant, ats shareholders, assoc~atas, employees, officers, or agents an connecuon wath th~s engagement XIX. Modffieaflon of Agreement: No wmver or mochficat~on of thas Agreement or of any covenant, condition, or hrmta'aon hereto contmned shall be valad unless mwnttng and duly executed by the party to be charged therewath No ewdence of any wmver or mochficauon shall be offered or reccuved m exqdence an any procee&ng ansang between the part, es hereto out of or affecting this Agreement, or the rights or obhgat~ons of the pames hereunder, unless such wmver or mochficat~on is in wntung, duly executed as aforesmd The partaes fur*her agree that the prov~saons of this amcle wall not be wmved as hereto set forth Page 6 XX. Captions: The captions ofth~s Agreement are for lnformattonal purposes only and shall not in any way affect the substantive tenms or condmons ofth~s Agreement XXI. Binding Effect. This Agreement shall be bmchng upon and inure to the benefit of the parties hereto and their respective hews, executors, administrators, legal representatives, successors, and assigns, where penmtted by this Agreement IN WITNESS HEREOF, the C~ty of Denton, Texas has executed th~s Agreement m four (4) original counterparts by and through as duly-anthonzed C~ty Manager, and Consultant has executed th~s Agr.~ment by ~aad)~through its duly-authorized undersigned Shareholder, dated this the //~ ~. day of (//~]]7~ ,2000 CITY OF DENTON, TEXAS A Texas Municipal Corporation/ ATTEST JENNIFER WALTERS, CITY SECRETARY HERBERT L PROUTY, CITY ATTORNEY By /~Q~ A ~ LLOYD, GOSSELINK, ROCHELLE, BLEVINS ROCHELLE, BALDWIN & TOWNSEND, P C A Texas Professional Corpomtmn Sh /e-holqb- ATTEST Page 7