2000-287 ORDINANCE NO ~'/~-~ ~
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 UTILITIES COMMISSION OF TEXAS, 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 Cxty Council deems that it is in the public interest to engage the
law firm of Lloyd, Gossehnk, Blewns, Rochelle, Baldwin & Townsend, P C, of Austin,
Texas, (the "F~rm") to provide professmnal legal services to the City pertannng to
representatmn of the City and Denton Mumclpal Electric ("DME') before the Pubhc
UUht~es Commission of Texas ("PUC") in the areas of pubhc utility regulatory law and
adm~mstrat~ve law, respecUng the aet~vmes of DME, and
WHEREAS, the City staff has reported to the City Council that there ~s a
substantial need for the above-referenced professional legal services, and that hmlted City
staff cannot adequately perform the speexahzed services and tasks which are for the most
part centered ~n Austin, Texas, w~th ~ts own personnel, and
WHEREAS, the C~ty has heretofore engaged the F~rm by several prewous
Agreements for Professional Legal Services to perform s~mflar services to those services
provxded for ~n the Agreement for Professional Legal Services attached hereto Further,
that the Firm has performed and provided legal services benefiting the City under the most
recent Agreement which became effecUve on November l, 1999, on a continuous and
uninterrupted bas~s, in order to safeguard and represent the interests of the C~ty and DME
beforel the PUC, m dealmg with sudden, largely unpredictable events and developments,
and with administrative deadlines that many t~mes reqmre ~mmed~ate attention or response
In June 2000, the funds provided for in the most recent Agreement were exhausted
Nonetheless, the C~ty requested that the Firm provide continuous representation of the C~ty
and DME on amportant PUC assues until such Ume as a new Agreement for Professional
Legal Services could be entered into, providing for continuation of the professional legal
services as well as addlUonal compensation to the F~rm, and until such Agreement could be
approved by the Caty Council Accordingly, it ~s appropriate that the new Agreement for
Professmnal Legal Services by and between the City and the F~rm attached hereto, should
be ratified and confirmed, and should be retroactwely approved and made effective as of
June 1, 2000, in order to properly compensate the F~rm for its work that has d~rectly
benefited the City, and wlueh 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 C~ty may not select a
provider of professional services on the bas~s of eompetit~ve b~ds, but must select the
prowder on the basis of demonstrated competence, knowledge, and quahficat~ons, and for
a fair mad 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, for the Caty and DME respecting this engagement, NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
ECTI~ That the rec~tations set forth and contamed an the foregoing
preamble are expressly incorporated by reference ~nto this Ordmance
SECTION2 That the City Manager is hereby authorized to execute an
Agreement for Profesaional Legal Services by and between the C~ty and the law finn of
Lloyd, Gossehnk, Blevins, Rochelle, Baldwin & Townsend, P C, of Austin, Texas, ~n
substantially the form of the Agreement for Professional Legal Servmes attached hereto
and mcorporated herewith by reference
SECTION 3 That the award of this Agreement by the C~ty is on the bas~s of the
demonstrated competence, knowledge, and quahficat~ons of the Finn and the ablhty of the
Finn to perform the services needed by the City for a fair and reasonable pnee
SECTI~ That the expenditure of funds as prowded in the attached Agreement
for Professmnal Legal Services is hereby authorized
SECTION 5 That the above and foregoing Agreement for Professional Legal
Servmes is hereby ratffied, confirmed, and retroactavely approved, and shall be effective
from and after June 1, 2000
SECTION6 That except as otherwise provided ~n Section 5 above, this
Ordinance shall become effective immediately upon its passage and approval
h ~ of C~/)~/71/~K~ , 2000
PASSED AND APPROVED this t e~_~_~ day
EULINE BROCK, MAYOR
ATTEST
By ~1'~/I'C}/~''~
^s
S XOur Docum~XOrdm~ce~0~loyd Gossehnk et al PSAt2 PUC 2000 ord doc
STATE OF TEXAS §
§
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this ~ day of (vq~,/)~tt~J'/~t~ ,
2000, by and between LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN &
TOWNSEND, P C, a Texas Professional Corporation (hereinafter "Consultant"), with Lambeth
Townsend, Shareholder, having full authority to execute flus Agreement on behalf of the firm, 111
Congress Avenue, Stute 1800, Austin, Texas 78701, and the CITY OF DENTON, a Texas
Mumclpal Corporation, 215 E McKanney, Denton, Texas 75201 (hereinafter "City"), w~th Michael
W Jez, City Manager, having full authority to execute fins Agreement on behalf of the City
W]TNF,~F, TI-I:
WHEREAS, the City deems it necessary and an the public interest to continue to engage legal
counsel to prowde profass~onal legal services with respect to the C~ty's comphance with the Pubhc
Utility Commaaslon ("PUC") eleeme transmission service rules as well as any rulemakmg
proceeding or any project relating to eleeme transmission service as well as respecting the
lmplementaUun of Senate Bill 7, or otherwise affecting the City, and
WHEREAS, the Consultant is willing to perform such serwces an a professional manner as
an independent contractor, and has competently and efficiently performed similar services for the
City over the past several years, and the City has selected Consultant on the basis of demonstrated
competence and quahfieataons necessary to perform the needed services, and
WHEREAS, the City daslres to engage the Consultant to render the professional services an
connecUon therewith, for a fair and reasonable price, consistent with, and for a fee not lugher than
the recommended practices and fees pubhshed by the apphcable professional assocmtlons, and such
fees do 6ot exceed any maximum provided by law, all m accordance with the provisions of Chapter
2254 of the Texas Government Code (the "Professional Services Procurement Act"), and the
Consultant is wflhng to prowde such services,
NOW, THEREFORE, m consideration of the promises and mutual obhgations herein, the
City and Consultant do hereby mutually AGREE as follows, to wit
I ~eap~ af ~ervlee~: The Consultant shall perform the followxng services m a
professional manner working as an independent contractor not under the d~rect supervision and
control 0fthe City
A Services to be provided
1060\12~agt000g09rltl
Page 1
1 Consultant shall represent the City before the PUC concermng the City's
compliance w~th the PUC's Transnnsslon Sermce Rules and concermng any
mlemahng proceeding or project relating to transmission sermce, tmplementlng
Senate Bill 7, or otherwise affectang the City, including, w~thout lamtatlon, the
professional legal sermces w~th regard to submitting pleadings and comments and
attending all uncontested hearings and other proceedings in relation to these
matters, and to consult with the City through its Denton Mumclpal Electric
("DME") staff with regard to all filings, uncontested hearings, and other issues
related to tbas project Provided, however, if the City elects to pamclpate m a
contested case proceechng at the PUC relatang to transnussiun service or any other
matter, the parttes agree that it will be necessary to enter into a separate
professional services agreement, to provide for such additional legal services
2 To consult with the City Manager, Assistant City Manager for Utilities, the
Director of Electric Uttht~es, the City Attorney, the Assistant City Attorney for
Utthtles, and other designated admtmstrat~ve personnel or staff regarding any and
all aspects of the professional services to be performed, lncluchng legal research,
analys~s, and advice with respect to such matters Ttus will include coorchnatmg
act~vlt~as with the Director of Electric Utflit~es, the City Attorney and their
respective staff to efficiently perform thc services required and to preserve thc
Attomey/Chent pnwlege, work product, and all other applicable exceptions to the
chscovery or dasclosure of documents produced by the City and the Consultant
under the Scope of Serwces heremabove
B The Consultant shall perform all the services required by thts Agreement m a timely
fashton, and shall complete them in comphance wath schedules established by the City
through its Director of Electric Utilities as appropriate to carry out the terms and
conditions of this Agreemant
II. Term: Tlus Agreement shall be effective as of June l, 2000, and shall terminate either
upon the completmn of the professional serwces provided for herein, or on December 31 2000, or
upon thc exhaustion of all professional fees provided for hereunder, wtuchever event shall first
occur T~ns Agreement may be sooner terminated in accordance with the provisions hereof Time
is of the I essence of flus Agreement Consultant shall make all reasonable efforts to complete the
serwces set forth herein as expethtmusly as possible dunng the term of this Agreement, and to meet
the schedules established by the City, through its Director of Elecmc Utilities, or her designee
III. f~am?~n~aflan and Methad afPayment;
A The Consultant shall charge the following fees for its professional services provided to the
City hereunder, based upon the following hourly billing rates for thc attorneys and support
staff revolved m flus matter
1060\ 12\agtOOOSOgrltl
Page 2
~f~ T-1on~I~ RRte
La~abeth Townsend, Shareholder $ 200 00
Ge~rgm Crump, Shareholder $190 00
Rtohard Hamala, Associate $180 00
Paralegal $ 80 00
Law Clerk $ 75 00
Consultant agrees that all charges for the legal services hereunder, mcludlng expenses as set
forth m Seetton III C below, shall not exceed $75,000 00
B The Consultant shall endeavor to have the attorneys and employees hsted m Section III A
above, reasonably attempt to reduce costs by utthzmg other qualified shareholders,
associates, and paralegals wherever feasible or possible The Consultant shall bill the C~ty
through the submission of ltenuzed mvoleas, statements, and other documentation, together
with support data mdlcaUng the progress of the work and the services performed on the basis
of monthly statements, showmg hourly rates lnrhcatmg who performed the work, what type
of work was done, and descriptions and/or detmls of all services rendered, including a dmly,
and an entry-by-entry reflection of billable time spent on tins engagement, along with specific
description and supporting documentation, if avmlable, respecting any reasonable and
necessary out-of-pocket expenses meurred by Consultant ~n performing the professional
services provided for under tins Agreement Professional fees shall be billed ~n m~mmum
one-tenth (1/10) hour increments
C Additionally, the City shall either pay chreetly or reimburse the Consultant, as the case may
be, for reasonable and necessary actual out-of-pocket expenses, mcludmg but not limited to,
long-chstanee telephone, telecopler, reproduction, postage, overmght comer, and
transportation and travel All eopxes 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
being 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 telecoples from
Consultant shall be $ 25 per page and that there will be no charge for incoming telecoples
D The parties anticipate that mvo, ces or statements for professional serwces will be generated
ow a monthly basis and that smd mvolcas 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
witlun tturty (30) days after receipt of an appropriate itemized mvmce or statement To the
e:~tent that any fees or expenses are disputed by the City, the City shall notify Consultant
w~thln thirty (30) days after at8 receipt of the mvmee or statement, and shall otherwise pay all
undisputed amounts set forth m the invoice or statement within thirty (30) days after its
receipt of the mvmce or statement All remabursable expenses, including, but not necessarily
hmated to travel, lodging, and meals, shall be pa~d at the actual cost, pursuant to the terms,
e9n~tlons, and hmatat~ons set forth herem All invoices or statements shall be a reviewed by
~e Director, Denton Mumelpal Electric, or her designee, and shall be reviewed and approved
by the Assistant City Attomey/UUhtles
1060\12~agtOOOSOgrltl
Page 3
E It is understood and agreed that the Consultant shall work under the coordination and general
supervision of the Director of Electric Uttht~es, or her designee
F All notmes, invoices, statements, and payments shall be made in writing and may be given by
personal dehvery or by mml As to notices to Michael W Jez, City Manager, City of
Denton, 215 East MclQuney, Denton, Texas 76201 or to ins designee As to invoices,
statements, or payments to Michael S Copeland, Assistant City Attorney, Utlhty Admm
Department, at the same address, 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 notice, invoice, statement and/or payment shall be deemed given upon deposit
of same m the U S Mml, postage prepmd In all other mstances, notices, invoices,
statements, md/or payments shall be deemed given at the time of actual delivery Changes
may be made m the names and addresses of the responsible person or office to winch notices,
invoices, statements and/or payments are to be sent, provided reasonable notice is given
IV, Profaa~ional Iqampatancy:
A 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 dali and care
presently maintained by other practicing professionals performing the same or similar types
of work For the purpose of tins Agreement, the key persons who will be performing most of
tho work hereunder shall be Lambeth Townsend and Georgia Cramp, Shareholders
However, nothing hereto shall hnnt Consultant from using other qualified and competent
members of the firm to perform the services reqmred herein if such delegation is reasonably
appropriate and properly protects the City's interests
B Any agreements, ordinances, notaces, instruments, memoranda, reports, letters, and other
legal documents prepared or obtmned under the terms of tins Agreement are lnsmanents of
service and the City shall retain ownersinp 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
tins Agreement, all such documents prepared or obtatned under the terms of the Agreement
shall upon tenmnatlon be dehvered to and become the property of the City upon request and
without restnctaon on their use or further compensation to the Consultant
V. Estnhllahmant and Mnintananea of Raeords. Full and accurate records shall be
mmntanled by the Consultant at its place of business with respect to all matters covered by this
Agreem¢nt Such records shall be maintained for a period of at least three years after receipt of
final payment under tl~s Agreement
VI. Auditn and lna.naetinn: At any time dunng normal business hours and upon
reasonable notice to the Consultant, there shall be made avmlable to the City all of the Consultant's
records w~th respect to all matters covered by tins Agreement The Consultant shall permit the City
to audit, examine, and make excepts or transcripts from such records, and to make audits of
contracts, invoices, materials, and other data relating to all matters covered by this Agreement
1060\12\agt000809rltl
Page 4
VII. p. eeom.nhahment of Prt~iaet. The Consultant shall commence, carry on, and complete
tbas professional engagement with all practmable dispatch, in a sound, economical and efficient
matter, and, m accordance with the provisions hereof and all apphcable laws In accomphshmg the
projects, the Consultant shall take such steps as are appropnate to insure that the work involved is
properly coordinated voth any related work being camed on by the C~ty
VIII. ]lldernnity~ and lnd~?~nd~nt C~ntraetnr Relatinnsh~p:
A Consultant shall perform all serv~ees as an independent contractor not under the direct
supervision and control of the City Nothing herein shall be construed as crealang a
relattonsbap of employer and employee between the parties The City and Consultant agree
to cooperate m the defense of any clmms, action, suit, or proceeding of any kand brought by a
tlurd party which may result from or directly or indirectly arise f~om any negligence and/or
errors or omissions on the part of the Consultant or from any breach of the Consultant's
obhgat~ons under ttus Agreement In the event of any htlgat~on or clama under this
Agreement m wbaeh Consultant is joined as a party, Consultant shall provide statable counsel
to defend City and Consultant against such claim, prowded the Consultant shall have the
right to proceed vath the competent counsel of ~ts own choosing The Consultant agrees to
defend, indemnify and hold harmless the City and all of its officers, agents, servants, and
employees agmnst any and all such clmms to the extent of coverage by Consultant's
pr0fess~onal habthty policy The Consultant agrees to pay all expenses, including but not
hnuted to attorney's fees, and satisfy all judgments that may be incurred or rendered agmnst
the Consultant's professional habthty insurance pohcy Notlung here~n constitutes a wmver
of any rights or remeches the City may have to pursue under e~ther law or eqmty, including,
without hmitat~on, a cause of action for specffic performance or for damages, a loss to the
C~ty, resulting from Consultant's negligent errors or ounsslons, or breach of contract, and all
such rights and remedies are expressly reserved
B Consultant shall maintain and shall be caused to be in force at all t~mes dunng the term of
this Agreement, a legally binding policy of professional habthty insurance, hsted by Best
Rated Careers, with a rating of"A-" or above, issued by an ~nsurance career approved to do
business m Texas by the State Insurance Commission Such coverage shall cover any clmm
hereunder occasioned by the Consultant's neghgent professional act and/or error, act, or
onmssion, m an amount not less than $1,000,000 combined single limit coverage per
occurrence In the event of change or cancellation of the pohcy by the insurer, the Consultant
hereby covenants to lmme&ately notify the City ~n writing thereof, and ~n such event, the
Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy
furmshmg the same or lugher amount of coverage The Consultant shall provide a copy of
the declarations page of such policy to the City through its Director of Electric of Utihtles
simultaneously with the execution of this Agreement
IX. T~rminat/~n of A~r~ment:
1060\12~ast000809rlt 1
Page 5
A In connection with the work outlined m fi'ns Agreement, it is agreed and fully understood by
the Consultant that the City may cancel or lndefuntely suspend further work hereunder or
terminate flus Agreement at any tune upon wntten notice to Consultant, Consultant shall
cease all work and labor being performed under this Agreement Consultant may tenmnate
this Agreement by giving the City fifteen (15) days written notice that Consultant is no
longer m a poslt~on to continue representing the City Consultant shall mvolee the City for
all work satisfactorily completed and shall be compensated in accordance with the terms of
tfus Agreement All reports and other documents, or data, or work related to the project shall
become the property of the City upon termination of tbas Agreement
B Tlus Agreement may be terminated m whole or in part, in wntang, by either party in the event
of substantaal fmlure 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 opporturnty for consultation with the termlnatmg party prior to
termination
C Notfung contained herein or elsewhere in this Agreement shall require the City to pay for any
work wluch is unsatasfactory or wtuch is not submatted in compliance with the terms of this
Agreement
X. ~lt~n~te l),a?,,ta Ra~olution. The Consultant agrees that, if necessary, it will use its
best efforts to resolve any disputes regar(hng the Agreement through the use of med~ation or other
forms of alternate dispute resolutuon set forth m Chapter 154 of the Texas Civil Practices and
Remeches Code (V A T C S )
XI F, ntlre A~oreement.' TIns Agreement represents the entire agreement and
understanding between the part, es and any negotiations, proposals, or oral agreements are intended
to be integrated herein and to be superseded by this written Agreement Any supplement or
amendment to flus Agreement, in order to be effective, shall be m writing and signed by the City
and the Consultant
XII. C~m.nllanea with 1,awn.' The Consultant shall comply with all federal, state, local
laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now
read or hereafter be amended, meludmg but not limited to the Texas Disciplinary Rules of
Professional Conduct
XIH C~flvernlno~ !,aw. For the purpose of determunng place of agreement and law
governing same, flus Agreement is entered into in 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 junsdactlon of any suit or cause of actaon arising under or m couneetlon with flus Agreement
shall lie exclusively in a court of competent jurisdiction sitting m Denton County, Texas
~ 060~2~ast00os09r~t~
Page 6
XIV. Diaerimtnation Prohibited: In perfonmng the services required hereunder, the
Consultant shall not discriminate against any person on the basis of race, color, rehglon, sex,
national ongm or ancestry, age, or physical handicap
Pernonneh
A Consultant represents that it has or will secure at its own expense all personnel required
to perform the services reqmred under this Agreement Such personnel shall not be
employees nor have any contractual relations with the City Consultant shall mform
the City of any conflict of mterest or potential conflict of interest that may arise dunng
the term of flus Agreement, m accordance w~th Consultant's responsibilities under the
Texas Disciplinary Rules of Professional Conduct
B All services reqmred hereunder will be performed by the Consultant or under its direct
supervision All personnel engaged m work shall be qualified and shall be licensed,
authorized, or permitted under state and local laws to perform such services
XVI. ~ The Consultant shall not assign any interest in this Agreement and
shall not transfer any mterest m tlus Agreement (whether by assignment, novation, or otherwise)
without the prior written consent of the City thereto
XVII. 8everahility: All agreements and covenants contmned herein are severable,
and m the event any of them, with the exception of those contmned in sections headed "Scope of
Services", "Independent Contractor Relatlonstup", and "Compensation and Method of Payment"
hereof, shall be held to be invalid by any court of competent junsdmtlon, tins Agreement shall be
interpreted as though such invalid agreements or covenants were not contmned herein
XVIII. Reaponathilitma far [qlatma and l,mhzhty..' Approval by the City shall not
constitute nor be deemed a release of the responslblhty and liability of the Consultant for the
aecurecy 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
Consultant, its shareholders, associates, employees, officers, or agents in connection with this
engagement
XlX Mfldlfleattan of Agreement. No wmver or modification of thts Agreement or of
any covenant, condition, or hnntation herein contained shall be valid unless in wntmg and duly
executed by the party to be charged therewith No evidence of any wmver or modlficataon shall be
offered or received m evidence m any proceeding arising between the parties hereto out of or
affecting tins Agreement, or the nghts or obhgaUuns of the parties hereunder, unless such wmver or
modification is m writing, duly executed as aforesmd The parties further agree that the provisions
of this article will not be wmved as hereto set forth
XX. Ca?irma'. The captions of fins Agreement are for informational purposes only
and shall not m any way affect the substantuve terms or conrhtlons of flus Agreement
1060\12Xagt000809rltl
Page 7
XXI. Bindlnl Effect: Th~s Agreement shall be blnchng upon and inure to the benefit of the
parties hereto and then; respective he~rs, executors, admnustrators, legal representatives, successors,
and assigns, where penmtted by flus Agreement
IN WITNESS iClEREOF, the City of Denton, Texas has executed flus Agreement in four (4)
ongtnal counterparts by and through its duly authorized City Manager, and Consultant has ex~5~ec/uted
th~s Agreem~t by pnd t ,brough its duly authorized undersigned Shareholder, dated tlus the
day of OZ,/~ff.Z/'2,~d_,t''~ ,2000
CITY OF DENTON, TEXAS
A Texas Mumclpal Corporation
ATTEST
JENNIFER WALTERS, CITY SECRETARY
HERBERT L PROUTY, CITY ATTORNEY
LLOYD, GOSSELINK, ROCHELLE, BLEVINS
ROCHELLE, BALDWIN & TOWNSEND, P C
A Texas Professional Corporation
1060\12kagt000g09rlt I
Page 8
ATTEST
1060\12~gtOOOSO9rltl
Page 9