1999-131Additional File Exists
Additional File Contains Records Not Public, According to the Public Records Act
Other
FILE(S) Date Initials
First Amendment to Contract - Ordinance No. 2001-086 02/20/2001 ) ~-
Second Amendmem to Contract - Ordinance No. 2002-221 07/16/2002 ! JR
Third Amendmem to Contract - Ordinance No. 2003-004 01/07/2003 Jl/.
Fourth Amendment to Contract - Ordinance No. 2003-153 05/27/2003 J ~.
NOTE First Amendment to Contract - Ordinance No 2001-086.
O ANCENO qq
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
WITH THE LAW FIRM OF DICKSTEIN, SHAPIRO, MORIN & OSHINSKY, LLP,
WASHINGTON, DC PERTAININO TO THE SALE, ASSIGNMENT, OR OTHER
DIVESTiTURE OF ALL OR A PORTION OF THE ELECTRIC UTILITY ASSETS OF THE
CITY OF DENTON, TEXAS, 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 Dlckstein, Shapu'o, Monn & Oshinsky, LLP (the "Dlckstem finn"), Washington,
D C, to provide professional legal serwces to the City pertmmng to the sale, assignment, or other
divestiture of all or a portion of the elecmc utility assets of the City of Denton, Texas, and
WHEREAS, the City, m order to ascertain its legal rights and altematives, conmdenng
the approach of several critical deadlines in the divestiture process, on March 12, 1999,
requested that the Dlckstmn finn provide it with legal advice and services in the highly
speclahzed areas of public utility regulatory law, several key areas of utility transactional law as
it relates to Denton's possible divestiture of all or a portion of its electric utility assets, and other
matters of mgmficant nnportance concennng the proper postunng of Denton Municipal
Electnc's actlmtles conmdenng the current market and the effect of unpendmg electric
deregulation legislation The Dmkstem firm is presently assisting and suppomng City staff, and
have already provided the City with much needed advice and legal support Accordmgly, it is
appropriate that the Agreement for Professional Legal Services with the Dlckstem finn attached
hereto, should be ratified, and should be made retroactively effective as of March 12, 1999 in
order to properly compensate the Dlckstem finn for its work and expenses incurred at the
specific instance and request of the City, which 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
Agreement 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 an Agreement for
Professional Legal Services with the law finn of Dlckstem, Shapiro, Monn & Oshinsky, LLP,
Washington, D C for professional legal services pertmmng to the sale, assignment, or other
divestiture of all or a pomon of the electric utility assets of the City of Denton, Texas, in
substantially the form of the Agreement for Professional Legal Services attached hereto and
incorporated herewith by reference
St~CTION II That the award of this Agreement is on the bas~s of the demonstrated
competence and quahficat~ons of the Dlcksteln firm and the ability of the Dlcksteln firm to
perform the professional legal services needed by the City for a fmr and reasonable price
SECTION III That the expenditure of funds as provided for m the attached Agreement
for Professional Legal Services ~s hereby authorized
SECTION IV That the Agreement for Professional Legal Services is hereby raUfied and
retroacttvely approved, and shall be effectave from and after March 12, 1999
SECTION V That tins ordinance shall become effectave lmmechately upon its passage
and approval
PASSED AND APPROVED thls the ~__~)L. dayof t/'~7~ , 1999
ATTEST'
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
S \Our Documonts\Ordinnnees~99~Dloks~e m Shapiro Alt Ord re PSA DM£ divest doc
STATE OF TEXAS §
COUNTY OF DENTON §
CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this the 6th day of Apnl, 1999, by and
between Dlcksteln Shapiro Morro & Oshmsky L L P, a Limited Liability Partnership, 2101 L
Street NW, Washington, D C 20037, hereinafter referred to as "Legal Advisor", and the City of
Denton, Texas, a Texas Mnnlclpal Corporation, 215 E McKlnney, Denton, Texas 76201,
hereinafter referred to as "City"
WITNESSETH
WHEREAS, the City finds it necessary and appropriate to employ outside legal counsel
to perform professional legal services in several highly specialized areas of law pertaining to the
proposed divestiture of its electric system assets, including without limitation public power
acquisitions and divestitures, public utility regulatory law at the state and federal levels,
significant real estate transactional and merger and acquisition expertise, and public finance
expertise in dealing with complex jmnt power agency and local bond law issues, and
WHEREAS, the Legal Advisor is willing to perform such services in accordance with
this Agreement, in a professional manner as an independent contractor, and Legal Advisor, in
connection with flus engagement has secured the professional services of the law firm of
Strasburger & Price, L L P, of Dallas, Texas, hereinafter referred to as "Subcontractor" in order
to provide Legal Advisor and the City with legal assistance and support regarding selected state
and local matters selected by Legal Advisor and the City, lnmdent to the proposed divestiture,
and
WHEREAS, the Legal Advisor is willing to perform such services in a professional
manner as an independent contractor, and
WHEREAS, the City desires to engage the Legal Advisor to render the professional
services in connection therewith, and the Legal Advisor is willing to provide such services, and
WHEREAS, the City acknowledges that the attomey-chent relationship arising with
Legal Advisor under this Agreement is limited to representation of the City of Denton, Texas,
and no other person or entity, and
NOW, THEREFORE, in consideration of the promises and the mutual obligations
covenants contmned herein, the parties hereto do hereby AGREE as follows
985108 v2 L444021 DOC
I Scone of Services The Legal Adwsor shall perform the following services in a
professional manner worlang as an ~ndependent contractor not under the direct superwslon and
control of the City
A Services to be provided
1 The Legal Advisor shall serve as lead outside legal counsel to the C~ty to prowde
legal services to assist the C~ty m the lawful divestiture of its electric system assets The Legal
Advisor shall, to the extent reasonably possible, and in consultation with the C~ty Attorney and
the other entities hsted m Section A 2 below, coordinate the efforts of the other outside legal
counsel retatned by the C~ty on the electric system divestiture project in order to plan and task
the necessary services in an efficient, cost-effective manner, w~thout unreasonable duphcatlon of
servmes, benefiting the C~ty Significant duties of Legal Adwsor ~n th~s engagement include,
without hmltat~on analyzmg and prepanng numerous complex transaction documents, advising
the C~ty with respect to d~vestlture and d~vest~ture-related issues, counsehng the C~ty w~th
respect to offenng and auction plans, advising the C~ty relating to bid procedures, prowd~ng
legal services necessary for the C~ty to obtatn any required local, state, or federal regulatory
approvals regarding any d~vest~ture transaction or transactions, evaluating the legal effects and
relative strengths or weaknesses respecting bids received by the C~ty during the d~vestlture
process, coordinating and conductmg the closing of any d~vest~tnre transaction or transaction,
providing legal services related to the divestiture process which relate to pertinent pubhc finance
tssues, and shall prowde advice and counsel to the City in connection w~th other legal ~ssues
pertatmng to the City's compliance with all apphcable laws and regulations govermng the
d~vest~ture process It is expressly agreed and understood that m the event that ht~gatlon should
arise ~n connection with, or related to the electric system d~vest~ture process, or otherwise, that
such services are not included within the scope of services of th~s Agreement In the event that
any such htigatlon should occur, it will be necessary for the C~ty and Legal Adwsor to negotiate
a separate Agreement with terms appropriate cons~denng the relevant circumstances
2 The Legal Adwsor shall work with designated C~ty of Denton officmls and
employees, w~th the Reed Consulting Group and R J Covington Consulting, the C~ty's lead
outside consultants on the electric system d~vestlture project, and shall, upon reasonable request,
brief the Mayor, other City Council members, and the Pubhc Ut~htles Board, as requested Legal
Adwsor shall also provide legal advice to the City of Denton, Texas and its Mumc~pal Electric
Utthty, in 1ts negotlatmns w~th other member of the Texas Mummpal Power Agency ("TMPA"),
concerning the d~vestlture of the C~ty's interests ~n TMPA
3 Legal Advisor shall also consult, as requested, w~th the C~ty Manager, the
Assistant City Manager of Utlht~es, the Director of Electric Uttht~es, the C~ty Attorney, any other
designated C~ty staff and designated outside legal counsel of the City, respecting any and all
aspects of the services to be performed under this Agreement Legal Adwsor shall be avmlable
to confer by conference call or otherwise with the D~reetor of Electric Uttht~es, Reed Consulting
Group, and the C~ty's Utthty Attorney on a twine-monthly bas~s in order to d~scuss the current
status of Legal Advisor's work and to discuss appropriate coordination of future activ~t~es of the
City staff, Reed Consulting Group, other members of the electric system divestiture team, and
the Legal Advisor
Contract For Professional Legal Services - Page 2
985108 v2, L44402~ DOC
4 Legal Advisor shall make all reasonable efforts to perform all the professional
services provided for by th~s Agreement in a timely fashion, and shall complete same in
compliance w~th reasonable schedules estabhshed and coordinated by the City through its
Director of Electric Utilities and C~ty Attorney, through discussions with the Legal Advisor, as
appropriate to can'y out the terms and conditions of this Agreement The Legal Advisor's
performance of its obligations hereunder, however, shall be subject to the City, the Director of
Electric Utlhtles, the City attorney and any other outside Legal Advisor of the C~ty cooperating
w~th the Legal Advisor and providing it with adequate and timely support and mformat~on
II T~nu Legal Adwsor and the C~ty agree that the term of this Agreement shall
beg~n effective as of March 12, 1999, as the parties hereto have agreed that this Agreement shall
be retroactively approved, and that the acts taken by the Legal Advisor and the Subcontractor
prior to the City's governing body approwng th~s Agreement are hereby ratified and confirmed
for all purposes This Agreement shall terminate upon the earlier of the completion of the Legal
Advisor's professional services contemplated hereby or the exhaustion of the funds prowded
hereby This Agreement may be terminated sooner in accordance with the provisions hereof
Time is of the essence of this Agreement In the event that this engagement becomes mact~ve for
a period of one year, or if the Legal Advisor has no occasion to perform any legal services in
connection with this matter for a period of one year, this engagement shall be deemed terminated
unless Legal Advisor and C~ty otherwise agree in writing, to the contrary
III Compensation and Method of Payment
A Legal Advisor shall charge the following fees for its and the Subcontractor's
professional services hereunder, based on the following fees for their professional services
hereunder, based on the following hourly billing rates for the attorneys and support staff
revolved ~n this matter
1 Legal Advisor shall charge the City the regularly estabhshed bflhng rates
set forth ~n Exhibit "A' attached hereto and incorporated herewith by
reference as adjusted pursuant to Section III A 3 below
2 Subcontractor shall charge the City the regularly established bflhng rates
set forth m Exhibit "B" attached hereto and incorporated herewith by
reference, as adjusted pursuant to Section III A 3 below, which fees shall
be billed through and collected by Legal Advisor
3 Legal Advisor and Subcontractor each adjust their respective hourly
bflhng rates penod~cally, normally on a once per year basis Legal
Advisor shall provide the C~ty with reasonable prior written notice of any
such changes Any change to such fees shall be for no more than a
reasonable amount, and shall be in accordance w~th the same amount, or a
lower amount than the amount of hourly fees changed for the two firms'
other clients
4 City has requested, and Legal Advisor has agreed, that Legal Advisor's
usual requirement of a cash retainer shall be waived respecting th~s
engagement
5 Legal Advisor and Subcontractor agree that the City is entitled to a five
(5%) percent discount on all fees for professional services rendered by the
two firms
Contract For Professional Legal Services - Page 3
985108 v2 L44402~ DOC
6 Legal Adwsor and Subcontractor shall bill attorney t~me at m~mmum one-
tenth (1) hour increments
B Legal Adwsor will try to reduce costs whenever feasible by utd~z~ng quahfied
partners, assocmtes, paralegals, and support staff The Legal Adwsor shall ball the C~ty through
the submission of ~tem~zed lnvomes, statements, and other documentation, together w~th
supporting data mdmatmg the progress of the work and the servmes performed on the bas~s of
monthly statements showing hourly rates indicating who performed the work, what type of
work was done, and descnptmns and/or detmls of all services rendered, along w~th specific
description and supporting documentation, ff available, respecting any reasonable and necessary
out-of-pocket expenses or d~sbursements recurred Legal Adwsor shall also ~nclude w~th ~ts
~tem~zed invoices and other supporting documentation to the C~ty, such ~tem~zed lnvomes and
other supporting documentation ansmg out of Subcontractor's rendition of legal services
regarding th~s matter At all t~mes dunng the course ofth~s engagement, the C~ty shall pay any
amounts mvotced from Subcontractor through Legal Adwsor, to Legal Advisor, for the benefit
of Subcontractor C~ty intends to pay all undisputed ~tems set forth on any ~tem~zed lnvmce or
statement ~ssued hereunder w~th~n thirty (30) days receipt of same from the Legal Adwsor In
the event that the C~ty d~sputes or protests any ~tem of an itemized ~nvome or statement ~ssued
by Legal Adwsor or Subcontractor under th~s Agreement, ~t will promptly not~fy Legal Adwsor
~n writing, w~tlun thirty (30) days after ~ts receipt of the ~tem~zed ~nvo~ce or statement,
spemfically describing the ~tem(s) protested or d~sputed, and 1ts reason(s) for protesting or
d~sputlng the ~tem(s) Pending resolution of such d~spute, the C~ty may w~tkhold payment
respecting the disputed ~tem(s) only, and shall otherwise t~mely pay the remmmng undisputed
amounts b~lled to ~t
C SubJect to Sectmn D, Legal Adwsor and the City agree that charges for the legal
services contemplated under th~s Agreement, ~ncludlng all professional services rendered by
Legal Adwsor and Subcontractor combined, and ~nclud~ng d~rect out-of-pocket expenses, shall
not exceed Four Hundred and F~fty Thousand Dollars ($ 450,000 00)
D The part,es acknowledge that the amount set forth m Section C constitutes Legal
Adwsor's good froth estimate of the fees and expenses which ~t beheves would be ~nvolved w~th
respect to pmwd~ng the legal services contemplated under the scope of servmes set forth ~n
Section I A based on the information prowded to it by the C~ty and after cons~denng the
mrcumstances currently known w~th respect to the d~vest~ture of the C~ty's electric utd~ty assets
and that the cost of legal servmes may be h~gher or lower than the estimate The C~ty and Legal
Adwsor further recogmze and agree that the transaction(s) contemplated by th~s Agreement
~nvolve numerous complex ~ssues that may result ~n s~gmficant changes to the scope of the
quantity of legal services originally contemplated and depending on the duration of, and the
ultimate complexities evolwng from, the d~vest~ture transaction(s), the legal fees and expenses
for the servmes rendered by the Legal Advisor and the Subcontractor may vary from th~s
estimate
E Legal Adwsor antm~pates that ~t wall make various d~sbursements and recur
various internal costs ~n counect~on w~th th~s engagement In accordance w~th ~ts usual practice,
C~ty and Legal Adwsor agree that d~sbursements to third part,es for local transportation and
travel, postage, messengers, commercial printing servmes, bulk photocopying charges, and
other such m~scellaneous ~tems, shall be billed to the C~ty at actual cost A~r travel by Legal
Contract For Professional Legal Services - Page 4
985108 v2, L44402I DOC
Advisor shall be reimbursed to the extent of the applicable coach a~rfare In the event that a
third party bills for expenses incurred on the City's behalf in excess of $ 2,500 00, Legal
Advisor reserves the right to request that the C~ty be the chent of the particular vendor and pay
such vendor directly
F Legal Advisor shall bill mtemal support services to C~ty either on a d~rect-cost
basis (which includes a reasonable allocation of overhead directly associated with the provision
of service) or m accordance w~th the Legal Advisor's standard rates Dehvery services, express
mml and related couriers, and long-distance telephone expenses are charged at or below the
direct cost of the particular service The followmg support services are charged by the Legal
Advisor on a flat-rate basis Outgoing telecopler services are charged at $1 50 per page, which
also includes all costs for long-distance transnnsslon There is no charge for incoming
telecoples to the Legal Advisor Photocopies shall be charged to City at the rate often cents per
page, if the copies are made at the Legal Advisor's facthtles Computerized legal research is
charged at a 20% discount from the computer compames' standard pubhshed rate schedules
G The part,es anticipate ~nvolces or statements for services will be generated on a
once-monthly basis by Legal Adwsor, and by Subcontractor, once It has begun providing
services and meurnng expenses on the ProJect at the direction of Legal Adwsor Legal Advisor
shall send mvo~ces or statements to City on or about the 15th day of each month The City shall
make payment to the Legal Advisor within thirty (30) days of the receipt of an itemized ~nvolce
or statement, except as prowded m subparagraph III B heremabove All invoices and bills shall
be approved for payment by the C~ty Attorney and the D~rector of Electric Utthtles
H It is understood that the Legal Advisor shall work under the direction and
oversight of the Director for Electric Utthtles or her designee, and the City Attorney
I All notices, bflhng statements and invoices shall be made m writing and may be
given by personal dehvery or by mai1 Not, ecs and invoices sent by mall shall be addressed to
Herbert L Prouty, City Attorney, 215 E McKanney, Denton, Texas 76201, as to the C~ty
Notices sent by marl shall be addressed to Kenneth M Simon, Attorney, D~ckstem Shapiro
Monn & Oshmsky LLP, 2101 L Street NW, Washington, D C 20037, as to the Legal Advisor
When so addressed, the notice, invoice, and/or payment shall be deemed given as of three (3)
days after its deposit m the Umtefl States Mall, postage prepaid In all other instances, notices,
invoices, and/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 whom notices,
invoices, and/or payments are to be sent, prowded reasonable written notice is given
IV Professional Competency
A Legal Advisor agrees that in the performance of Its professional services, Legal
Advisor shall be responsible for the level of competency and shall use the same degree of skill
and care presently maintained by other practicing legal professionals perfornnng the same or
similar types of work For purposes of this Agreement, the key person who will serve as the
City's point of contact, who Is also responsible for coordinating Legal Advisor's and
Subcontractor's work on the divestiture transaction shall be Kenneth M Simon, a Partner of
Legal Advisor However, nothing herein shall restrict Legal Adwsor from using other quahfied
and competent members of its firm, or of the Subcontractor's firm, to perform the services
Contract For Professional Legal Servxces - Page 5
985108 v2 IA4402t DOC
provided for herein, provided that such delegation of work avoids unnecessary duplication of
service or expense, and reasonably serves the City's best interests
B All legal documents as well as any legal opinions prepared or obtained under the
terms of this Agreement are instruments of service and the City shall retain ownership and a
property interest therein If this Agreement is terminated at any time for any reason prior to
payment to the Legal Advisor for work under this Agreement, all such documents prepared or
obtained under the terms of the Agreement shall upon termination be delivered to and become
the property of the City upon request and without restriction on their use or further compensation
to the Legal Advisor
V Establishment and Mamtenance of Records Full and accurate records shall be
maintained by the Legal Advisor at its place of business with respect to all matters covered by
this Agreement Such records shall be maintained for a period of at least three (3) years after
receipt of final payment under this Agreement
VI Audits and Inspection At any time dunng normal business hours and upon
reasonable notice to the Legal Advisor, there shall be made available to the City all of the Legal
Advisor's records with respect to all matters covered by this Agreement The Legal Advisor
shall permit the City to audit, examine, and to make excerpts, copies, 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 Agcomohshment of Pro~ect The Legal Advisor shall commence, carry on, and
complete any and all projects within the scope of this Agreement with all practicable dispatch, in
a sound, economical and efficient manner, and, in accordance with the provisions hereof and all
applicable laws In accomphshing such projects, the Legal Advisor shall take such steps as are
appropriate to ensure that the work involved is properly coordinated with related work being
camed on by the City Legal Advisor shall also take all reasonable steps to protect the
confidentiality of the City's documents, materials, and information that ~s of a sensitive,
competitive, proprietary, or confidential nature, consistent with applicable law concerning
professional ethics and responsibility, realizing the value of such information to the City
VIII ConfliCts of Interest/Consent of Denton The City acknowledges and agrees that
Legal Advisor shall remain free to represent existing or new clients in other matters that are not
substantially related to the representation specified in this Agreement, and which would not
involve any use by Legal Advisor (unless the City consents) of any confidential information the
Legal Advisor has obtained from the City in this representation, even though the interests of any
other clients in such matters may be adverse to the City's interests The Legal Advisor has
requested, and the City agrees not to object to the Legal Advisor continuing or undertakong such
representation of other clients in matters where their interests are adverse to the City, but the
matters are not substantially related to the subject of the present engagement, and do not involve
any use by the Legal Advisor (unless the City consents) of any confidential information that
Legal Advisor has obtained from the City dunng this engagement
Contract For Professional Legal Services - Page 6
985108 v2 L444021 DOC
IX, Irl~lOlllmtv and Independent Contractor Relatlonshin
A The Legal Advisor shall perform all services as an independent contractor not
under the direct supervision and control of the City Nothing herein shall be construed as
creating a relationship of employer and employee between the parties
B The C~ty and Legal Advisor agree to cooperate in the defense of any claims,
action, suit, or proceeding of any ktnd brought by a third party which may result from or directly
or indirectly arise from any negligence and/or errors or omissions on the part of the Legal
Advisor or from any breach of the Legal Advisor's obhgat~ons under this Agreement In the
event of any litigation or claim alleging breach of the Legal Advisor's obligations arising under
th~s Agreement in which Legal Advisor as joined as a party, Legal Advisor shall prowde suitable
counsel to defend the City and Legal Advisor against such claim, provided the Legal Advisor
shall have the right to proceed with the competent counsel of its own choosing The Legal
Advisor agrees to defend, indemnify and hold harmless the City and all of ~ts officers, officials,
agents, servants, and employees agmnst any and all such claims to the extent of coverage by
Legal Advisor's professional liability pohcy The Legal Advisor agrees to pay all expenses,
including but not limited to reasonable attorney' fees, and to satisfy all judgments which may be
recovered by the Legal Advisor's professional liability ~nsurance pohcy Nothing here~n
constitutes a wmver of any rights or remedies the City may have to pursue e~ther at law or in
equity, Including, without lanutatlon, a cause of action for damages or loss to the City, resulting
from Legal Advisor's negligent errors or omissions, or breach of contract, and all such rights and
remedies are hereby expressly reserved
C Legal Advisor shall maintain and shall be caused to be in force at all times dunng
the term of this Agreement, a legally binding policy of professional liability insurance, hsted by
Best Rated Carriers, with a rating of "A-" or above, issued by an insurance earner approved to
do business in Texas by the Texas Department of Insurance Such coverage shall cover any
claim hereunder occasioned by the Legal Advisor's negligent professional act, error or omission,
in an amount not less than Three Mflhnn Dollars ($3,000,000 00) combined s~ngle hmlt coverage
per occurrence In the event of change or cancellation of the policy by the insurer, the Legal
Adwsor hereby covenants to ~mmedlately advise the City thereof, and an such event, the Legal
Advisor shall, prior to the effective date of change or cancellation, deliver a copy of a substitute
policy furnishing the same coverage The Legal Advisor shall provide a copy of such policy as
well as the declarations page of the policy, to the City through its Director of Electric Utilities,
s~multaneously with its execut~un of tlus Agreement
X Termination of Am'cement
A In connection with the work outhned ~n this Agreement, it ~s agreed and
fully understood by the Legal Advisor that the City may cancel or indefinitely suspend further
work hereunder or terminate this Agreement, with or without cause, at any time upon twenty
(20) days written notice to Legal Advisor, and Legal Advisor shall immediately cease all work
being performed under this Agreement Legal Advisor may terminate this Agreement, with or
without cause, by g~vlng the City twenty (20) days written notice that Legal Adwsor is no longer
in a position to continue representing the City Legal Advisor shall invoice the City for all work
Contract For Professional Legal Services - Page 7
985108 v2, L44402~ DOC
completed and shall be compensated in 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 tins Agreement
B Thxs Agreement may be alternatively termxnated, m whole or xn part, in writing,
by e~ther party, xn the event of substanUal failure by the other party to fulfill ~ts obhgat~ons under
thxs Agreement through no fault of the terminating party Prowded, however, that no such
termination may be affected, unless the other party ~s g~ven [1] written not~ce (dehvered by
cemfied marl, return receipt requested) of intent to termxnate, and not less than thmy (30)
calendar days to cure the failure, and [2] an opportumty for consultation w~th the terminating
party prior to terra,natron
C Nothing contained here~n or elsewhere m th~s Agreement shall reqmre the C~ty to
pay for any work which is unsatmfactory, which has been protested by the C~ty m accordance
w~th the prows~ons of Artmle III B heremabove, or which ~s not submitted ~n comphance w~th
the terms of flus Agreement
XI Alternate D~spute Resolution The Legal Advisor and the City agree that, ~f
necessary, they will use their best efforts to resolve any d~sputes that m~ght arise between them
regarding the Agreement through the use of medmt~on or other forms of alternate dispute
resolutmn as are set forth m Chapter 154 of the Texas C~wl Practme and Remedies Code
(VATCS)
XII Ent~r~Aereement Thxs Agreement represents the entire agreement and
understanding between the part,es, and any negotiations, proposals, representations, or oral
agreements are intended to be integrated hereto and to be superseded by th~s written Agreement
Any supplement or amendment to th~s Agreement to be effecUve shall be ~n wrmng and s~gned
by the duly-authonzed officers and officmls of Legal Adwsor and the C~ty
XIII Comphance w~th Laws The Legal Adwsor shall comply w~th all federal,
state, and local laws, rules, regulations, and ordmances apphcable to the work covered hereunder
as they may now read or hereafter be amended
XIV Govem~m, Law For the purpose of determining place of agreement and law
govemang same, thru Agreement ~s entered into in the City and County of Denton, State of
Texas, and shall be governed by the laws of the State of Texas Venue and junsdmtxon of any
stat or cause of action arising under or m connectmn w~th this Agreement shall be exclusively m
a court of competent jtmsdmt~on s~ttlng in Denton County
XV Dl~qrlm~nat~on Prohibited In performing the servmes reqmred hereunder, the
Legal Advmor shall not dlscnmmate agmnst any person on the bas~s of race, color, rehglon, sex,
national ong~n or ancestry, age, or physical handmap
Contract For Professional Legal Services - Page 8
985108 v2 L444021 DOC
XVI Personnel
A The Legal Advisor represents that at has or wall secure at ars own expense all
personnel it reqmres to perform all the services ~t is required to perform under th~s Agreement
Such personnel shall not be employees or have any contractual relataons wath the City Legal
Advisor shall anform the C~ty of any conflict of anterest or potential conflict of anterest that may
arise durang the term of this Agreement, an accordance wath Legal Advisor's responslbahtles
under the Washangton, D C Dlsc~pllnary Rules of Professional Conduct, as the same may now
read or be hereafter amended Subcontractor's responsibilities hereunder are provided for in the
Texas DlSclphnary Rules of Professional Conduct, as the same may now read or be hereafter
amended
B All services requared hereunder will be performed by the Legal Advasor or under
its direct supervision All personnel engaged in work shall be qualified and shall be authorized,
permitted, or hcensed under applacable state and local laws to perform such servaces
XVII Assagnabflitv The Legal Adwsor shall not assagn any interest in this Agreement
and shall not transfer any interest in this Agreement (whether by assignment, novation, or
otherwase) without the prior written consent of the C~ty thereto
XVIII S~verabflltv All agreements and covenants contmned here~n are severable, and
in the event any of them, with the exception of those contained in sections headed "Scope of
Serrates", and "Compensataon and Method of Payment" hereof, shall be held to be lnvahd by
any court of competent jurisdiction, this Agreement shall be interpreted as though such invalid
agreements or covenants were not contaaned herein
XIX R~p0nslblhtlesforClalmsandLaabahtv Approval by the C~ty shall not
constitute nor be deemed a release &the responsibility and habahty of the Legal Advisor for the
accuracy and competency ofats work, nor shall such approval be deemed to be an assumptaon of
such responsibility of the City for any defect m any report or other documents prepared by the
Legal Adwsor, its attorneys and employees
XX Modfficat~on ofAk, reement No wmver or modlfcatlon of this Agreement or of
any covenant, condition, or lamatatlon here~n contained shall be valid unless m wntang and duly
executed by the party to be charged therewith No evidence of any waiver or modification shall
be offered or received ~n evidence m any proceeding ansang between the part,es hereto out of or
affectang this Agreement, or the rights or oblagatlons of the parties hereunder, unless such waiver
or modification as m writing, duly executed as aforesmd The parties further agree that the
provasaons of th~s Artmle shall not be waived as herean set forth
XXI Cautions The captions of this Agreement are for informational purposes only
and shall not m any way affect the substantave terms or conditions of this Agreement
XXII B~ndan~ Effect This Agreement shall be binding upon and inure to the benefit of
the part, es hereto and their respective legal representatives, successors, and assigns where
permitted by this Agreement
Contract For Professional Legal Services - Page 9
985108 v2, L44402~ DOC
IN WITNESS HEREOF, the C~ty of Denton, Texas, has executed th~s Agreement in four
(4) original counterparts by and through ~ts duly-authorized C~ty Manager, and Legal Adwsor
has executed th~s Agreement by and through ~ts duly-authorized undersigned Panner, dated th~s
the 6th day of April, 1999
CITY OF DENTON, TEXAS
A Texas Mumc~pal Corporation
IV~hael ~/J~z, C~ ~nager
ATTEST
JENNIFER WALTERS, CITY SECRETARY
By (~/O~ ~ --
//
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
DICKSTEIN SHAPIRO MORIN & OSHINSKY
LLP, A L~m~ted L~abd~ty Partnership
By K~nneth M S~mojartner
ATTEST
BY 7~~
Contract For Professional Legal Services - Page 10
985108 v2, L44402~ DOC
EXHIB1T A
DSM&O REGULAR. HOURLY
BILLING Ih~.TBS
The hourly rates of the lawyers DSM&O who would be engaged m rh~s
representation range from $140 to $365, and include, ~f required, those listed below
Ken Simon $365
Bill Kmple~y $350
Myron Mmtz $350
Matt Malone}, $345
Rebecca Wright $345
Angclo Arca&panc $ 330
George Boggs $325
Emanuel Faust $325
Lee Alexander $325
Larry E~semtat $315
Allan Goldstem $310
Pat Lynch $295
Mark Perhs $275
John Ap~r $275
Laura Szabo $220
M~chellc Snuth $220
Ion Odcll $205
David P~evescld $160
Adam Vann $140
EXJ-ITR~ B
BILLING E~TE$
The hourly rates of the lawyers S&P who would be engaged m th~s
representation range from $ ! 25 to $ 325, and mclude, ff reqmred, those hsted below
BRI Merh,mtis $325
Frank St Clmre $300
Sm Holhmon $250
Angelo Parker $250
Dave LaBrec $225
Rllben Barrera $200
Karen Wnght $175
Patnck Wrater $150
Pamck Grame $125
Stephame Cooper $125
ORDINANCE NO ~,~/~/-~7~¢
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY
MANAGER TO EXECUTE A FIRST AMENDED CONTRACT FOR PROFESSIONAL
LEGAL SERVICES WITH THE LAg/' FIRM OF DICKSTEIN, SHAPIRO, MORIN &
OSH1NSKY, L L P FOR SERVICES PERTAINING TO THE DENTON MUNICIPAL
ELECTRIC DIVESTITURE, AUTHORIZING THE EXPENDITURE OF FUNDS
THEREFOR, PROVIDING FOR RETROACTIVE APPROVAL OF THE AGREEMENT, AND
PROVIDING AN EFFECTIVE DATE
WHEREAS, the City Council deems it necessary and appropriate and in the public
interest to continue to engage the law firm of Dmksteln, Shapiro, Monn & Oshmsky, L L P
(DSMO), of Washington, D C, to provide professional legal services pertmmng to the Denton
Municipal Electric divestiture, and
WHEREAS, the City has previously retmned the professional legal services of DSMO on
this matter on April 6, 1999, and has operated under a Contract For Professional Legal Services,
in the amount of $450,000 thereafter, and
WHEREAS, the City staffhas reported to the City Council that there is a substantial need
for the herelnabove described professional services by Denton Municipal Electric, and that
limited City staff cannot adequately perform the highly specialized legal services and tasks, with
~ts own personnel, and
WHEREAS, Chapter 2254 of the Texas Government 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 of
professional services on the basis of demonstrated competence, knowledge, and qualifications,
and for a fair and reasonable price, and the City Council hereby finds and concludes that DSMO
is appropriately qualified under the provisions of the law, to be continued as outside legal
counsel for the City, specifically Denton Municipal Electric, respecting this engagement, and
WHEREAS, the City Council has provided in the City budget for the appropriation of
funds to be used for the procurement of the foregoing professional legal services, as set forth in
this First Amendment to 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 First Amendment
to Contract for Professional Legal Services with the law firm of Dlckstein, Shapiro, Monn &
Oshlnsky, L L P, of Washington, D C for professional legal services relating to the Denton
Municipal Electric divestiture, in substantially the form of the First Amendment to Contract for
Professional Legal Services attached hereto and incorporated herewith by reference
SECTION 2 That the award of thru F~rst Amendment to Contract ~s on the bas~s of the
demonstrated competence and quahficat~ons of DSMO, and the abthty of DSMO, to perform the
professional legal servmes needed by the C~ty for a fmr and reasonable price
SECTION 3 That the expenditure of funds as prowded for ~n the attached First
Amendment to Contract for Professional Legal Serwces ~s hereby authorized
SECTION 4 That as to the payment of fees and expenses, the F~rst Amendment to
Contract for Professional Legal Servmes m hereby ratffied and retroactively approved, and shall
be effective from and after January 1, 2001
SECTION 5 That except as prowded ~n Section 4 hermnabove, thru or&nance shall
become effective ~mmedmtely upon ~ts passage and approval
PASSED AND APPROVED th,s the ~t~9~ day of ~ ,2001
EUL1NE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
By ]~~ ~j~
S \Our Documents\Ordmances\01\DSMO F~rst Amend Contract ord doc
2
THE STATE OF TEXAS )
COUNTY OF DENTON )
FIRST AMENDMENT
TO CONTRACT FOR PROFESSIONAL LEGAL SERVICES
THIS FIRST AMENDMENT to that certain Contract for Professional Legal
Servmes, executed April 6, 1999, dated effective March 12, 1999, heretofore entered into
by and between the City of Denton, Texas, a Texas Mumclpal Corporatmn w~th ~ts
offices at 215 East McKmney Street, Denton, Texas 76201 (hereafter referred to as
"CITY"), and the law firm of Dlckstem, Shapiro, Monn & Oshlnsky, a Limited Lmblhty
Partnership, with :ts offices at 2101 L Street NW, Washington, D C 20037 (hereafter
referred to as "LEGAL ADVISOR"), acting herein by and through their respective duly
anthonzed s:gnatones, and
NOW THEREFORE, the City of Denton, Texas and the firm of Dmksteln,
Shapiro, Monn & Oshlnsky (hereafter collectively referred to as thc "PARTIES"), m
cons~derat:on of their mutual promises and covenants, as well as for other good and
valuable conslderat~ons, do hereby AGREE to the following amendments to the terms
and conditions of the Contract For Profcssmnal Legal Scrvmes (hereafter the "Contract"),
effective March 12, 1999, to w:t
I
That the prov:smns of Sectmn III C of the Contract For Professional Legal
Servmes shall instead read an additional THREE HUNDRED THOUSAND DOLLARS
($300,000) effective January 1, 2001, as follows
C Subject to Section D, Legal Adwsor and the C~ty agree that charges for the
legal servmes contemplated under th~s Agreement, ~nclud~ng all
professional services rendered by Legal Advisor and Subcontractor
combined, and including direct out-of-pocket expenses, shall not exceed
SEVEN HUNDRED FIFTY THOUSAND DOLLARS ($750,000)
II
The PARTIES agree, that except as specifically prowded for by th~s F~rst
Amendment to Contract For Professional Legal Services, that all of the terms, covenants,
contht~ons, agreements, rights, responslb~htles, and obhgatmns of the part~es set forth ~n
the Contract, shall remmn ~n full force and effect
1N WITNESS WHEREOF, the C~ty of Denton, Texas and the firm of Dmksteln,
Shapiro, Monn & Osh~nsky, L L P have executed th~s First Amendment To Contract For
Professional Legal Servmes, ~n (4) original counterparts, by and through the!r respective
duly. authorized representatives and officers on th~s the ~9~ day of
,. ,2001
"CITY"
CITY OF DENTON, TEXAS
A Texas Mumc~pal Corporatmn
' ~ichael{~3/ Je,~y Manager
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBER'I L PROUTY, CITY ATTORNEY
"CONSULTANT"
DICKSTEIN, SHAPIRO, MORIN & OSH1NSKY
A L~m~ted Lmbfl~ty Partnership
ATTEST
C \WINDOWS\TEMP~DSMO F~rst Amended Agrmt D~vcst~ture DME doc
2