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1999-075 ORDINANCE NO d5/¢ -t~)/~,~ AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH TIlE LAW FIRM OF LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, P C PERTAINING TO REPRESENTATION OF THE CITY IN LITIGATION AND THE PROVISION OF RELATED LEGAL SERVICES RESPECTING THE CITY OF DENTON MUNICIPAL UTILITIES' PROVISION OF WATER AND WASTEWATER SERVICE TO CUSTOMERS WITHIN ITS CITY LIMITS AND ITS EXTRATERRITORIAL JURISDICTION, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and in the public interest to engage the law firm of Lloyd, Oossehnk, Blewns, Rochelle, Baldwm & Townsend, P C, of Austin, Texas, (the "Firm") to provide professional legal services to the City pertaining to representation of the City in litagaUon and the provision of related legal services respecting the City of Denton Municipal Utllmes' provision of water and wastewater service to customers w~tlun its city limits and its extratemtonal junsdmtlon, revolving the preservation of, and the defense of the City's legal rights and interests as a Home-Rule City, as a utility service provider, and othenmse, against any person or entity unlawfully interfering with the City in its pursmts, and WHEREAS, the City, in order to ascertmn its legal rights and alternatives, in early February 1999, requested that the Finn investigate the facts and circumstances involved in this matter and advise the City staff and the Council respecting the same Accordingly, it is appropriate the Contract for Professional Legal Services vath the Firm should be ratified, and should be made retroactively effective as of February 1, 1999 in order to properly compensate the Firm for its work performed heretofore at the specific instance and request of the City, wtuch work has directly benefited the City, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the foregoing professional services, as set forth in the Contract for Professional Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I, That the City Manager is hereby authorized to execute a Contract for Professional Legal Services w~th the law firm of Lloyd, Gossehnk, Blevms, Rochelle, Baldwin, & Townsend, a Texas Professional Corporation, Aumn, Texas for professional legal services pertmnmg to the heremabove-descnbed matters involving the City of Denton Mumclpal Utilities, in substantially the form of the Contract for Professional Legal Services attached hereto and lncorpora~ted herewath by reference SECTION II That the award of ti'us Agreement as on the basas of the demonstrated competence and quallfiCataons of the Farm, and the abthty of the Farm to perform the professaonal legal servaces needed by the Cay for a fmr and reasonable price SECTION III That the expenditure of funds as provaded for an the attached Contract for Pmfessaonal Legal Servacas is hereby authorized SECTION IV That the Contract for Professaonal Legal Servmes as hereby ratafied and retroactavely approved, and shall be effeetave from and after February 1, 1999 SECTION V That thas ordinance shall become effectave ammedmtely upon ats passage and approval PASSED AND APPROVED thas the ~~ dayof .~_~ ,1999 JACK~d~LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By S \Our Documents\Ordmances\99~LloydOosseltnk W-WW Lit PSA doc CONTRACT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT, made and entered into this the 2nd day of March, 1999, by and between LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, a Texas Professional Corporation (hereinafter referred to as "CONSULTANT"), with Georgia N Crump, Shareholder, having full authority to execute this Agreement on behalf of the firm, 111 Congress Avenue, Suite 1800, Austin, Texas 78701, and the CITY OF DENTON, a Texas Municipal Corporation, 215 East McKlnney, Denton, Texas 75201 (hereinafter referred to as "CITY"), with Michael W Jez, City Manager, having full authority to execute this Agreement on behalf of the City WITNESSETH WHEREAS, the City deems it necessary and in the pubhc interest to employ outside legal counsel to provide specialized professional legal services in the areas of state and local public utlhty regulatory law, water and wastewater utility service issues, legislative issues, administrative law, and htlgatlon pertaining to the contemplated htigatlon to be commenced by the City of Denton, as well as other related legal services and representation related to Denton Municipal Utlhties' provision of water and wastewater service to customers within its City hmlts and its extraterritorial jurisdiction, and to preserve and defend the City's legal rights and interests as a Home-Rule City, as a utlhty service provider, and otherwise, against any person or entity unlawfully interfering with the City in its pursuits, and WHEREAS, the Consultant is willing to perform such services in a professional manner as an independent contractor, and WHEREAS, the City desires to engage the Consultant to render the professional services in connection therewith, and the Consultant is willing to provide such services, NOW, THEREFORE, In consideration of the promises and mutual obhgatlons herein, the parties hereto do hereby mutually AGREE as follows, to wit Scope of Services The Consultant shall perform the following services in a professional manner working as an independent contractor not under the direct supervision and control of the City A Services to be provided Consultant shall provide legal advice, support and representation respecting the intrusion of Denton County Fresh Water Supply District No IA and Denton County Fresh Water Supply District No 5 into the corporate boundaries, extraterritorial jurisdiction, and certificated water and sewer service areas of the City without notice and without the consent of the City The representation may include filing, prosecuting, and settling actions on Page I behalf of the C~ty ~n district court and at the Texas Natural Resoumes Conservation Commission, attending any meetings and conferences as requested by the Ctty in relation to th~s matter and consulting with and adws~ng the City regarding all pertinent issues related to th~s matter 2 To consult w~th the City Manager, the Deputy C~ty Manager, the Assistant C~ty Manager for Uttht~es, the Director of Planning and Commumty Development, the Assistant Director of Water Utthtres, the C~ty Attorney, the Assistant City Attorney for Utlht~es, and other designated administrative personnel or staff regarding any and all aspects of the professional servtces to be performed, including legal research, analysis, and advme w~th respect to such matters Th~s wall ~nclude coordinating actlv~ttes w~th the Assistant City Manager for Uttht~es and the C~ty Attomey and their staff, to efficiently perform the serwces reqmred and to preserve the Attomey/Chent privilege, work product, and all other apphcable excepttons to the d~scovery or d~sclosure of documents produced by the City and the Consultant under the Scope of Servmes hereunder 3 The Ctty and the Consultant agree that the scope of services respectmg the engagement, the subject of this Agreement, shall include any professional legal serwces ~nmdent or related to any hUgatlon between the C~ty and any other party, before any court or before the Texas Natural Resource Conversation Commission pertaining to the above-described engagement B The Consultant shall perform all the servmes required by th~s Agreement ~n a t~mely fashion, and shall complete same ~n compliance with schedules established by the C~ty through its Asststant C~ty Manager for Utilities and the City Attorney, as approprmte to carry out the terms and conditions ofth~s Agreement II Term Th~s Agreement shall be for a term of one (1) year, beg~nmng effective February 1, 1999 and shall terminate on January 31, 2000, or upon the completion of the professtonal servmes provtded for here~n, or upon the exhaumon of all professional fees prowded for hereunder, whichever event shall first occur Thts Agreement may be sooner terminated ~n accordance w~th the provisions hereof As ht~gat~on ns contemplated under the terms of th~s engagement, Consultant and the City reasonably expect that they wdl enter into further amendment(s) to th~s Agreement, so long as such contemplated ht~gatton ~s pending and not fully disposed of Time is of the essence of th~s Agreement, and the Consultant shall make all reasonable efforts to complete the serwces set forth herein as exped~ttously as possible dunng the term of this Agreement, and to meet the schedules estabhshed by the C~ty, through ~ts Assistant City Manager for Uttl~t~es, or hts destgnee and the C~ty Attorney III. Compensation and Method of Payment A The Consultant shall charge the followtng fees for ~ts professional services prowded to the City hereunder, based upon the following hourly bllhng rates for the attorneys and support stall revolved ~n th~s matter Staff Hourly Rate Georgta Crump, Shareholder $180 00 Page 2 Rtchard Hamala, Assocmte $170 00 Associate Attorneys $135 00 - $170 00 Paralegals $65 00 - $90 00 Consultant agrees that all charges for the legal servtces hereunder, tncludtng expenses as set forth tn Sectton III C below, shall not exceed $100,000 00 B The Consultant shall endeavor to have the attorneys and employees listed tn Sectton Ili A above, reasonably attempt to reduce costs by utdlztng other quahfied shareholders, assocmtes, and pamlegals wherever feastble or posstble The Consultant shall btll the Ctty through the submtsston of ttem~zed tnvmces, statements, and other documentatton, together wtth support data tndlcatmg the progress of the work and the services performed on the basis of monthly statements, showing hourly rates mdtcattng who performed the work, what type of work was done, and descnpttons and/or details of all servtces rendered, tncludlng a datly, and an entry-by-entry reflectton of billable time spent on thts engagement, along wtth specffic descnptton and supporttng documentation, if available, respectmg any reasonable and necessary out-of-pocket expenses tncurred by Consultant m performtng the professtonal serwces promded for under thts Agreement Professional fees shall be balled m mtmmum one-tenth (1/10)-hour increments C Addtttonally, the Ctty shall either pay dtrectly or retmburse the Consultants, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not hmtted to, long-dtstance telephone, telecopter, repmductton, postage, overmght courier, and travel All coptes wtll be charged at the rate of ten cents ($10) per copy for copies made wtthm Consultant's offices, wtth as much photocopymg as posstble being done by outside vendors at bulk rates or by the C~ty to reduce costs tf bulk copytng ts necessary or appropriate The parttes agree that the charges for outgotng telecoples from Consultant shall be $ 25 per page and that there wtll be no charge by Consultant for incoming telecoptes D The parttes anttctpate that invoices or statements for professional servtces wtll be generated on a monthly basts and that satd tnvotces or statements wdl be sent to the Ctty by Consultant on or about the 15th day of each month The Ctty shall make payment to the Consultant wtthm thtrty (30) days after recetpt of an appropriate ltemtzed lnvotce or statement To the extent that any fees or expenses are dtsputed by the Ctty, the Ctty shall nottfy Consultant wtthtn thirty (30) days after tts receipt of the invoice or statement, and shall otherwise pay all undtsputed amounts set forth tn the invoice or statement within thtrty (30) days after tts receipt of the tnvome or statement All reimbursable expenses, lncludmg, but not necessarily hmtted to travel, lodgtng, and meals, shall be paid at the actual cost, pursuant to the terms, condtuons, and hmttattons set forth heretn All tnvolces or statements shall be approved by the Asststant Ctty Manager for Utthttes, or hts designee, and the Ctty Attorney E It ts understood that the Consultant shall work under the coordmatton and general supervtston of the Asststant Ctty Manager for Utthtles, or hts designee, and the City Attorney F All nottces, ~nvotces, and payment shall be made tn writing and may be given by personal dehvery or by marl Notices, tnvmces, statements, and payments sent by mad shall be addressed respecttvely, to Herbert L Prouty, City Attorney, 215 East McKtnney, Denton, Texas 76201, and to GeorgtaN Crump, Lloyd, Gossehnk, Blemns, Rochelle, Baldwtn& Townsend, P C, 111 Congress Avenue, Suite 1800, Austin, Texas 78701 When so Page 3 addressed, the notice, invoice, statement and/or payment shall be deemed given upon deposit of same m the Umted States Marl, postage prepmd In all other instances, nottces, mvotces, statements, and/or payments shall be deemed given at the t~me of actual dehvery Changes may be made ~n the names and addresses of the responstble person or office to which not,ecs, invoices, statements and/or payments are to be sent, provtded reasonable notice is g~ven IV Professional Competency' A The Consultant agrees that ~n the performance of these professional services, Consultant shall be responsible to the level of competency and shall use the same degree of skdl and care presently maintained by other pracUcmg professionals performing the same or slmdar types of work For the purpose of th~s Agreement, the key persons who wall be performing most of the work hereunder shall be Georgm Crump and R~chard Hamala However, nothing herein shall hm~t Consultant from using other quahfied and competent members of their firm to perform the services required here~n ff such delegauon is reasonably appropriate and properly protects the City's ~nterests B Any agreements, ordinances, noUces, ~nstruments, memoranda, reports, letters, and other legal documents prepared or obtained under the terms of this Agreement are instruments of service and the C~ty shall retain ownership and a property mterest therein If this Agreement is terminated at any t~me for any reason prior to payment to the Consultant for work under th~s Agreement, all such documents prepared or obtained under the terms of the Agreement shall upon termination be dehvered to and become the property of the C~ty upon request and without restnctmn on their use or further compensation to the Consultant V Estabhshment and Maintenance of Records Consultant shall ma~ntmn full and accurate records at ~ts place of business w~th respect to all matters covered by th~s Agreement Such records shall be maintained for a period of at least three years after receipt of final payment under th~s Agreement VI Audats and Insneet~on At any t~me during normal business hours and upon reasonable not,ce to the Consultant, there shall be made avadable to the C~ty all of the Consultant's records w~th respect to all matters covered by this Agreement The Consultant shall permit the C~ty to audit, examine, and make excerpts or transcripts from such records, and to make audits of contracts, invoices, materials, and other data relating to all matters covered by this Agreement VII Aceomnhshment of Pro,eot Consultant shall commence, carry on, and complete th~s professional engagement w~th all practicable d~spatch, in a sound, economical and efficient manner, and, in accordance with the prows~ons hereof and all applicable laws In accomphsh~ng 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 being carried on by the C~ty VIII Inflemnlty and Independent Contractor Relationship A The Consultant shall perform all serwces as an independent contractor not under the d~rect superws~on and control of the Ctty Nothing hcrcm shall be construed as creating a relationship of employer and employee between thc part,es The C~ty and Consultant agree to cooperate m the defense of any claims, action, stat, or proceeding of any kind brought by a third party which may result from or d~rectly or indirectly arise from any neghgcnce and/or Page 4 errors or omissions on the part of the Consultant or from any breach of the Consultant's obligations under this Agreement In the event of any litigation or claim under th~s Agreement m which Consultant is joined as a party, Consultant shall provide suitable counsel to defend C~ty and Consultant against such claim, provided the Consultant shall have the right to proceed with the competent counsel of ~ts own choosing The Consultant agrees to defend, ~ndemmfy and hold harmless the C~ty and all of its officers, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional habdlty policy The Consultant agrees to pay all expenses, ~nclud~ng but not hm~ted to attorney's fees, and satisfy all judgments which may be incurred or rendered against the Consultant's professional hablhty ~nsurance pohcy Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under rather law or equity, including, without hmltatlon, a cause of action for specific performance or for damages, a loss to the City, resulting from Consultant's negligent errors or omissions, or breach of contract, and all such rights and remedies are expressly reserved B Consultant shall maintain and shall be caused to be ~n force at all t~mes during the term of this Agreement, a legally binding pohcy of professmnal hablhty insurance, hsted by A M Best Rated Carriers, with a rating of "A-" or above, issued by an insurance carrier approved to do business in Texas by the State insurance Commission Such coverage shall cover any claim hereunder occasioned by the Consultant's neghgent professmnal act and/or error, act, or omlssmn, in an amount not less than $1,000,000 combined single hm~t coverage per occurrence In the event of change or cancellation of the pohcy by the insurer, Consultant hereby covenants to ~mmed~ately notify the C~ty in writing thereof, and in such event, Consultant shall, prior to the effective date of change or cancellation, provide a substitute pohcy furmsh~ng the same or higher amount of coverage Consultant shall prowde a copy of such pohcy to the City through its City Attorney simultaneously with the execution of this Agreement IX, Termination of A;,reement. A In connection with the work outlined in this Agreement, it is agreed and fully understood by the Consultant that the City may cancel or ~ndefinltely suspend further work hereunder or terminate this Agreement at any time upon written 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 not~ce that Consultant is no longer in a position to continue representing the City Consultant shall invoice the City for all work satisfactorily completed and shall be compensated m accordance with the terms of this Agreement All reports and other documents, or data, or work related to the project shall become the property of the City upon termination of this Agreement B This Agreement may be terminated ~n whole or m part, in writing, by either party in the event of substantial failure by the other party to fulfill its obhgatlons under this Agreement through no fault of the terminating party Provided however, that no such termination may be affected, unless the other party is given [1] written notice (delivered by certified mall, return receipt request) of intent to terminate, and not less than thirty (30) calendar days to cure the failure, and, [2] an opportunity for consultation with the terminating party prior to termination Page 5 C Nothing contained herein or elsewhere in this Agreement shall require the City to pay for any work which is unsatisfactory or which is not submitted m comphance with the terms of this Agreement X Alternate Dispute Resolution The Consultant agrees that, if necessary, It will use its best efforts to resolve any disputes regarding the Agreement through the use of mediation or other forms of alternate dispute resolution set forth m Chapter 154 of the Texas Clvd Practices and Remedies Code (V A T C S ) XI Entire A~reement This Agreement represents the entire agreement and understanding between the parties and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written Agreement Any supplement or amendment to this Agreement, m order to be effective shall be m writing and signed by the City and the Consultant XII Compliance with Laws: 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, including but not hmlted to the Texas Disciplinary Rules of Professional Conduct XIII Governing, Law For the purpose of determining place of agreement and law governing same, this Agreement is entered into in the City and County of Denton, State of Texas, and shall be construed in accordance with, and governed by the laws of the State of Texas Venue and jurisdiction of any suit or cause of action arising under or in connection with this Agreement shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas XIV. Discrimination Prohibited In performing the services required hereunder, the Consultant shall not discriminate against any person on the basis of race, color, rehg~on, sex, national origin or ancestry, age, or physical handicap XV. Personnel. A Consultant represents that it has or will secure at its own expense all personnel required to perform the services under this Agreement Such personnel shall not be employees nor have any contractual relations with the City Consultant shall inform the City of any conflict of interest or potential conflict of interest that may arise during the term of this Agreement, in accordance with Consultant's responsibilities under the Texas Disciplinary Rules of Professional Conduct B All services required hereunder will be performed by the Consultant or under ~ts direct supervision All personnel engaged in work shall be qualified and shall be licensed, authorized, or permitted under state and local laws to perform such services XVI Assl~nablhtV The Consultant shall not assign any interest in this Agreement and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the City thereto XVII Severabdity All agreements and covenants contained herein are severable, and in the event any of them, with the exception of those contained m sections headed "Scope of Servmes," Page 6 "Independent Contractor Relationsh~p," and "Compensation and Method of Payment" hereof, shall be held to be ~nvahd by any court of competent jurisdiction, th~s Agreement shall be ~nterpreted as though such invalid agreements or covenants were not contained herein XVIII. Responsibilities for Clmms and Lmbfi~ty Approval by City shall not consUtute nor be deemed a release of the responsibility and habfl~ty of Consultant for the accuracy and competency of ~ts work, nor shall such approval be deemed to be an assumption of such responsibility of the C~ty for any defect ~n any report or other documents prepared by Consultant, ~ts shareholders, assoemtes, employees, officers, or agents in connection with this engagement XIX Modification of Agreement No wmver or mod~ficaUon of this Agreement or of any covenant, condmon, or hmltat~on hereto contained shall be valid unless In writing and duly executed by the party to be charged therewith No ewdence of any waiver or modification shall be offered or received ~n evidence in any proceeding arising between the pames hereto out of or affecting this Agreement, or the rights or obhgat~ons of the part,es hereunder, unless such waiver or modification ~s in writing, duly executed as aforesmd The part~es further agree that the prows~ons ofth~s article will not be wmved as herein set forth XX Captions The capUons of th~s Agreement are for ~nformaUonal purposes only and shall not ~n any way affect the substantive terms or conditions of th~s Agreement XXI. Binding Effect Th~s Agreement shall be binding upon and inure to the benefit of the part,es hereto and their respective he~rs, executors, admlmstrators, legal representatives, successors, and assigns, where permitted by this Agreement IN WITNESS HEREOF, the C~ty of Denton, Texas has executed th~s Agreement ~n four (4) original counterparts, by and through its duly authorized City Manger, and Consultant has executed this Agreement by and through its duly authorized undersigned Shareholder, dated th~s the 2n~l day of March, 1999, to be effective as of February 1, 1999 CITY OF DENTON, TEXAS A Texas Mumclpal Corporation// · t' /M~ch~lW j~t~, Manager ATTEST JENNIFER WALTERS, CITY SECRETARY £/ AP~OVED AS TO LEGAL FORIvl HERBERT L PROUTY, CITY ATTORNEY Page 7 LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, P C A Texas Professtonal Corporation By ,_~ (M4~ ~?~ ,.~, ........~ Georgm ~ ~2rump, Shareh~der ATTEST Page 8