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2000-286AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF ERICH BIRCH, P C, FOR LEGAL SERVICES PERTAINING TO REPRESENTATION OF THE CITY BEFORE THE TEXAS NATURAL RESOURCE CONSERVATION COMMISSION, iN THE AREAS OF PUBLIC UTILITY REGULATORY LAW AND ADMINISTRATIVE LAW, 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 City Council deems that it is in the pubhc interest to engage the Law Offices of Ench Birch, P C, of Austin, Texas, (the "Firm") to provide professional legal services to the City pertaining to Mr Birch's continued representation of the City and Denton Municipal Electric ("DME") before the Texas Natural Resource Conservation Commission ("TNRCC') in the areas of public utility regulatory law and administrative law, respecting the activities of DME, the representation shall specifically pertain to the City's compliance with the TNRCC electric utility State Implementation Plan ("SIP") rules, as well as any rule-making proceeding or any project relating to electric utility air emissions, as well as to the implementation of the SIP, 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 caimot adequately perform the specialized services and tasks which are for the most part centered in Austin, Texas, w~th its own personnel, and WHEREAS, Mr Birch has previously performed services for the City on the above-referaneed matters in his capacity as an attorney associated with the law firm of Lloyd, Gosselink, Blevlns, Rochelle, Baldwin & Townsend, P C, of Austin, Texas Mr Birch leaves that firm effective August 18, 2000 and thereafter continues his practice of law as the Law Offices of Erich Birch, P C, and WHEREAS, Mr Birch is currently providing services to the City, and will continue doing so regarchng the above-referred to activities currently pending before the TNRCC, and accordingly, flus Agreement should be ratified and confirmed, and should be retroactively approved and made effective as of August 18, 2000 to properly compensate the Fatal for legal sennces performed dunng the weeks before Council action is taken on the Agreement, wlueh services have directly benefited the City, and WHEREAS, Chapter 2254 of the Texas Govemment 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 arid 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 Ifor 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 contmned ~n the foregmng preamble are expressly incorporated by reference into this Ordinance SECTION2 That the City Manager is hereby anthonzed to execute an Agreement for Professmnal Legal Servmes by and between the C~ty and the Law Offices of Erich B~rch, P C, of Austin, Texas, ~n substantmlly the form of the Agreement for Professional Legal Servmes attached hereto and ~ncorporated herewith by reference SECTION 3 That the award of thru Agreement by the City ~s on the basis of the demonstrated competence, knowledge, and qualifications of the F,rm and the ability of the F~rm to ,perform the services needed by the C~ty for a fmr and reasonable price SECTION 4 That the expenditure of funds as provided m the attached Agreement for Profesmonal Legal Services is hereby authorized SECTION 5 That the above and foregoing Agreement for Professional Legal Services m hereby ratffied, confirmed, and retroactwely approved, and shall be effective from and after August 18, 2000 SECTION 6 that except as otherwise prowded m Sectmn 5 above, th~s Ordinance shall become effectwe lmmechately upon ~ts passage and approval EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY By ~~ U APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Dooumonts\Ordinances\00~Erlch Birch PSA L~gal Svcs TNRCC SIP Flnal Ord doc AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § 2000, ~yHISan~bGe~REeEen~eN~awm~ffieanedo~;:edh ~c;~ C~, a~--~T~xaaYs°Pfr~ (heremafler referred to as "Consultant"), w~th Erich B~rch, Shareholder, having full authority to execute tba$ Agreement on behalf of the firm, 7000 North MoPac Expressway, 2''a Floor, Austin, Texas 78731, and the CITY OF DENTON, a Texas Mumc~pal Corporation, 215 East McKmney, Denton, Texas 75201 (hereinafter referred to as the "C~ty"), wath M~chael W Jez, C~ty Manager, hawng full anthonty to execute th~s Agreement on behalf of the C~ty WHEREAS, the C~ty deems ~t necessary and m the pubhc interest to continue to engage legal counsel to prowde professional legal services w~th respect to the C~ty's comphance w~th the TNRCC electric utility State Implement. at,on Plan ("SIP") roles as well as any mlemakmg pmceedang or any project relating to elecmc utahty a~r emissions as well as respectmg the ~mplementataon of the SIP, or otherv~se affecting the City, and WHEREAS, the Consultant ~s wllmg to perform such services m a professional manner as an independent contractor, and has competently and efficiently performed s~rmlar serwces for the C~ty over Re past several years, and the C~ty has selected Consultant on the bas~s of demonstrated competence and qualifications necessary to perform the needed services, and WHEREAS, the C~ty desires to engage the Consultant to render the professmnal services m connection ,therewith, for a fmr and reasonable price, consistent with, and for a fee not bagher than the recommended practices and fees pubhshed by the apphcable professional associations, and such fees do not 'exceed any maxLmum prowded by law, all m accordance w~th the prov~smns of Chapter 2254 of the Texas Government Code (the "Pro£ess~onal Services Procurement Act"), and the Consultant ~s willing to prowde such serwces, NOW, THEREFORE, m consideration of the promises and mutual obhgatmns hereto, the C~ty and Consultant do hereby mutually AGREE as follows, to w~t I. , ~en? nf ~erv~e~. The Consultant shall perform the follo'~ng services m a professional manner worl~ng as an independent contractor not under the dLreet supervision and control of the C~ty Page 1 A Servmes to be provided To represent the City by supporting the TNRCC m its defense of the Dallas-Fort Worth elecmc utility State Implementation Plan ("SIP") in the TXU v TNRCC non- attainment lawsmt Representation will consist of mtervemng m the lawsuit to the extent necessary to preserve the current status of the electnc generating facility roles as apphed to the City of Denton and adws~ng the C~ty on the progress of the lawsmt The support expected under tl~s proposal will involve mimmat and hm~ted activity ~n the lawsuit If more aggressive efforts or adrhtlonal ~nvolvement are reqmred, the parties expect to provide for an amendment to flus agreement to provide for addmonal professional legal services B The Consultant shall perform all the services required by flus Agreement in a timely fastuon, and shall complete them In comphance with schedules established by the City through its D~rector of Electric Utthtles as appropriate to carry out the terms and conditions of ttus Agreement II Term. Ttus Agreement shall be effective as of June l, 2000, and shall terminate either upon the completion of the professional services provided for herem, or on December 31 2000, or upon the exhaustion of all professional fees provided for hereunder, wluchever event shall first occur Ttus Agreement may be sooner terminated in accordance w~th the provisions hereof Time ~s of the essence of ttus Agreement Consultant shall make all reasonable efforts to complete the services set forth hereto as expeditiously as possible during the term of tins Agreement, and to meet the schedules established by the City, through Its Director of Electric Utilities, or her designee IH. Compensatian and Mathnd nfPayment. A The Consultant shall charge the following fees for its professional services prowded to the City hereunder, based upon the following hourly billing rates for the attorneys and support staff revolved m flus matter ~qta ff Hourly R ate Erich Birch, Shareholder $180 00 ConslJltant agrees that all charges for the legal services hereunder, including expenses as set forth in Section III C below, shall not exceed $25,000 00 B The Consultant shall endeavor to have the attorneys and employees listed m Section III A above, reasonably attempt to reduce costs by utallzmg other qualified shareholders, assocmtes, and paralegals wherever feasthle or possible The Consultant , shall bill the City through the subrmssion of itemized mvmces, statements, and other documentation, together with support data ~ndicatang 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, mcludmg a daily, and an entry-by-entry reflection of billable Page 2 time spent on tbas engagement, along with specific description and suppomng docurnentatlon, if available, respectang any reasonable and necessary out-of-pocket ,expenses recurred by Consultant in performing the pmfessaonal servaces provided for under tins Agreement Professmnal fees shall be billed m mammum 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, lncludang but not lmmted to, long-dmtance telephone, telecopaer, reproduction, postage, overmght courier, and transportation and travel All cop~es wall be charged at the rate of fifteen cents ($15) per copy for copies made watlun Consultant's offices, wath as much photocopying as possible bemg done by outside vendors at bulk rates or by the C~ty to reduce costs if bulk copying is necessary or appropriate The parties agree that the charges for outgoing telecopaes fi:om Consultant shall be $ 25 per page and that there will be no charge by Consultant for incoming telecoples D The partaes anticipate that invoices or statements for professional services wall be generated on a monthly basis and that smd anvolces or statements wall be sent to the City by Consultant on or about the 15th day of each month The Caty shall make payment to the Consultant wltlun tbarty (30) days after receapt of an appropriate itemized mvome or statement To the extent that any fees or expenses are dasputed by the Caty, the City shall notify Consultant Wltban tbarty (30) days after its receapt of the mvmce or statement, and shall otherwase pay all undasputed amounts set forth m the invoice or statement w~thln tharty (30) days after ats receipt of the anvmce or statement All reimbursable expenses, mcludlng, but not necessarily hmlted to travel, lodging, and meals, shall be pard at the actual cost, pursuant to the temas, condtuons, and hmltat~ons set forth herein All lnvmces or statements shall be a revaewed by the Director, Denton MUmclpal Electric, or her desagnee, and shall be revaewed and approved by the Assistant City Attomey/Utahtles E It ss understood and agreed that the Consultant shall work under the coordmatmn and general supervaslon of the D~rector of Electric Utlht~es, or her designee F All notmes, invoices, statements, and payments shall be made an writing and may be g~ven by personal delivery or by mml As to notaces- to Michael W Jez, Caty Manager, City of Denton, Texas, 215 East McFhrmey, Denton, Texas 76201 or to bas designee, as to mvolees and statements, to Michael S Copeland, Assistant City Attorney, Utlhty Admlmstrataon Department, at the same address, as to the City, and to Erich Birch, Esq, at 7000 North MoPac Expressway, 2na Floor, Austin, Texas 78731, as to the Consultant When so addressed, the notice, mvolce, statement and/or payment shall be deemed gaven upon the deposat of same m the Umted States Mml, postage ,prepmd In all other instances, notices, invoices, statements, and/or payments shall be deemed IBven at the tune of actual dehvery Changes may be made in the names and addresses of the responsible person or office to wbach notates, invoices, statements and/or payments are to be sent, provaded reasonable notice is gaven Page 3 IV. Prnf~innnl Cnm.n~t~n~y. A Consultant agrees that m the performance of these professional services, Consultant shall be responsible to the level of competency and shall use the same degree of sloll and care presently mamtmned by other practmmg professionals performing the same or smular types of work For the purpose of tins Agreement, the key persons who w~ll be performing most of the work hereunder shall be Erich Birch, Shareholder However, nottung herem shall hm~t Consultant fi:om using other qualified and competent members of the firm to perform the servmes required herein ff such delegation is reasonably appropriate and properly protects the C~ty's interests B Any agreements, ordinances, notices, mstnunents, memoranda, reports, letters, and other legal documents prepared or obtmned under the terms of tins Agreement are msmuuents of sermce and the C~ty shall retain ownersinp and a property Interest therem If tins Agreement ~s terminated at any time for any reason pnor to payment to the Consultant for work under this Agreement, all such documents prepared or obtmned under the terms of the Agreement shall upon termination be delivered to and become the property of the C~ty upon request and without restriction on their use or further compensation to the Consultant V E.qtnblinhment and Ms~ntennnee r~f Records. Full and accurate records shall be ma~ntmned by the Consultant at ~ts place of bus~ness with respect to all matters covered by tins Agreement Such records shall be maintained for a period of at least three years alter receipt of final payment under tins Agreement VI. Audits and Inspection. At any tane dunng normal bus~ness hours and upon reasonable notme to the Consultant, there shall be made avmlable to the City all of the Consultant's records with respect to all matters covered by tins Agreement The Consultant shall permit the City to audit, exanune, and make excepts or transcnpts fi.om such records, end to make audits of contracts, invoices, materials, and other data relattng to all matters covered by tins Agreement VII Aeeamphahment r~fPra.ieet: The Consultant shall commence, can'y on, and complete tins professional engagement w~th all practmable chspatch, ~n a sound, econommal and effiment matter, and,i m accordance w~th the prows~ons hereof and all apphcable laws In accomphshmg the projects, the Consultant shall take such steps as are appropriate to insure that the work revolved ~s properly coordmated with any related work being canued on by the C~ty VIII Indemnity and Ind~?~ndent Cnntraetor Relntmn~hlp.' A Consultant shall perform all sermces as an independent contractor not under the d~rect supervision and control of the City Nothmg here~n shall be construed as creating a relat~onsinp of employer and employee between the part,es The C~ty and Consultant agree to cooperate m the defense of any clatms, action, stat, or proceeding of any land brought by a thud pezty winch may result fi.om or directly or indirectly arise from any Page 4 neghgence and/or errors or omissions on the part of the Consultant or from any breach of the Consultant's obhgatiuns under tins Agreement In the event of any htigation or clam under tins Agreement in winch Consultant is .loaned as a party, Consultant shall provide suitable counsel to defend City and Consultant agmnst such claim, provided the Consultant shall have the nght to proceed with the competent counsel of its own choosing The ConsuRant agrees to defend, indemmfy and hold harmless the City and all oflts officers, agents, servants, and employees against any and all such clams to the extent of coverage by Consultant's professional habIhty pohcy The Consultant agrees to pay all expenses, mcludmg but not limited to attomey's fees, and satisfy ail judgments that may be recurred or rendered aganst the Consultant's professional liability msurance policy Notinng herein constitutes a waver of any rights or remedies the City may have to pursue under either law or equity, lncludang, without lmaltatlon, a cause of action for specific performance or for damages, a loss to the City, resultmg from Consultant's neghgent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved B Consultant shall mamtan and shall be caused to be m force at all times dunng the term of flus Agreement, a legally bmchng policy of professional habthty insurance, listed by Best Rated Careers, with a rating of "A-" or above, ~ssued by an ~nsurance career approved to do busmess m Texas by the State Insurance Commission Such coverage shall cover any clam hereunder occasioned by the Consultant's neghgent professional act and/or error, act, or omission, in an amount not less than $1,000,000 combined smgle limit coverage per occurrence In the event of change or cancellation of the policy by the msurer, the Consultant hereby covenants to lmmedmtely notify the C~ty m wntmg thereof, and m such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furmsinng the same or ingher amount of coverage The Consultant shall provide a copy of the declarataons page of such pohcy to the City through its Director of Electric of Utthtles slmultanenusly with the execution of tins Agreement IX. Termmntmn nf A~reeraent: A In connection w~th the work outlmed in tins Agreement, it is agreed and fully understood by the Consultant that the City may cancel or lndefimtely suspend further work hereunder or tenmnate tins Agreement at any time upon written notice to Consultant, Consultant shall cease all work and labor bang performed under tins Agreement Consultant may ternunate this Agreement by giving the City fifteen (15) days written notice that Consultant is no longer in a position to continue representing the C~ty Consultant shall mvolce the City for all work satisfactorily completed and shall be compensated m accordance with the terms of tins Agreement All reports and other documents, or data, or work related to the pro,lect shall become the property of the City upon termmat~on of ttus Agreement B Thas Agreement may be termmated in whole or m part, m writing, by e~ther party m the event of substantial fmlure by the other party to fulfill its obligations under tins Page 5 Agreement through no fault of the termmatmg party Provided, however, that no such termination may be affected, unless the other party is given [1] written notice (delivered by certified mml, return receipt request) of intent to terminate, and not less than tinrty (30) calendar days to cure the failure, and, [2] an opportunity for consultation w~th the terminating party prior to termination C Notinng contmned hereto or elsewhere in tins Agreement shall mqmre the City to pay for any work winch ~s unsatasfactory or which is not submitted in compliance w~th the terms of tins Agreement X Alto. rnnt~ Di~pnte lt~nh]tmn. The Consultant agrees that, if necessary, it will use 1ts best efforts to resolve any chsputes regarding the Agreement through the use of mediation or other forms of alternate chspute resolution set forth ~n Chapter 154 of the Texas C~vll Practices and Remeches Code (V A T C S ) XI E~t~r~ A?~m~nt.' Tins Agreement represents the entire agreement and understanding between the part,es and any negotiations, proposals, or oral agreements are intended to be integrated herem and to be superseded by tins written Agreement Any supplement or amendment to thru Agreement, m order to be effective, shall be in writing and signed by the City and the Consultant XII. Cnmpltanee w~th I,aw~: The Consultant shall comply with all federal, state, local laws, roles, regulataons, 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, Cao_w~amg_Im.~ For the purpose of determlmng place of agreement and law govermng same, tins Agreement ~s entered into m the City and County of Denton, State of Texas, and shall be construed m accordance with, and governed by the laws of the State of Texas Venue and junsdmt~nn of any stat or cause of action arising under or m connection with tins Agreement shall he exclusively in a court of competent j unschctmn sitting in Denton County, Texas X_IV. I~.qer~mm~tmn Prah~hit~fl: L~ perfonmng the servmes reqmmd hereunder, the Consultant shall not chacnmlnate agmnst any person on the basis of race, color, rehglon, sex, national ongm or ancestry, age, or physmal handicap A Consultant represents that it has or w~ll secure at its own expense all personnel mqmred to perform the services reqmred under tins Agreement Such personnel shall not be employees nor have any contractual relations with the City Consultant shall Inform the City of any conflmt of interest or potential conflict of interest that may arise dunng the term of tins Agreement, tn accordance with Consultant's responslinhtaes under the Texas D~smphnary Rules of Professional Conduct Page 6 B All sermces required hereunder will be performed by the Consultant or under its direct supervision All personnel engaged m work shall be qualified and shall be hcensed, authorized, or pernutted under state and local laws to perform such services XVI Assignalnht~ The Consultant shall not assign any interest in fins Agreement and shall not transfer any interest m fins Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the City thereto XVII. ~av~rahiltty, All agreements and covenants contained herein are severable, and m the event any of them, with the exception of those contmned in sections headed "Scope of Services", "Independent Contractor Relat~onslup", and "Compensation and Method of Payment" hereof, shall be held to be invalid by any court of competent junsdletlon, fins Agreement shall be interpreted as though such invalid agreements or covenants were not contained here~n XVIII. Re~pnn.q~hlht~ far Clmm~ and Taahflity. Approval by the City shall not constitute nor be deemed a release of the respons~blhty 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 Consuhant, ~ts shareholders, associates, employees, officers, or agents in connectmn with fins engagement XIX l~lndffientmn nf Agraamant. No waiver or modification of tins Agreement or of any covenant, condition, or lmutat~on herein conttuned shall be valid unless in writing and duly executed by the party to be charged therewith No evidence of any waiver or modtficatmn shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting tins Agreement, or the nghts or obligations of the parties hereunder, unless such wmver or mothficatlon is m writing, duly executed as aforesmd The parties further agree that the provisions oftlus amcle will not be wmved as hereto set forth XX. I'~a?tinn.q. The captions of ttus Agreement are for informational proposes only and shall not in any way affect the substantive terms or conchtlons of fins Agreement XXI. liintllng lc, fleet: Tbas Agreement shall be binding upon and ~nure to the benefit of the parties hereto and their respective heirs, executors, admnustrators, legal representatives, successors, and assigns, where perrmtted by fins Agreement IN WITNESS ItEREOF, the City of Denton, Texas has executed fins Agreement in four (4) ongmal counterparts by and through its duly authonzed City Manager, and Consultant has executed flus .Agreement by and through its duly anthonzed undersigned Shareholder, dated tins the .~"5 _~'rt dayof ~ ~xY~'t'i ~,/''~ ,2000 Page 7 CITY OF DENTON, TEXAS A Texas Mtm~c~pal Corporation IChchael/{¢V Jez, ~ l~anager ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY LAW OFFICE OF ERICH BIRCH, P C, A Texas Professional Corporation Erich B~rch, Shareholder / ATTEST By 1060\12\agt000809emb I Page 8