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
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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
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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