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1999-157 O N CENO 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 LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWIN & TOWNSEND, P C PERTAINING TO REPRESENTATION OF THE CITY BEFORE THE PUBLIC UTILITIES COMMISSION OF TEXAS ("PUC") IN THE AREAS OF PUBLIC UTILITY REGULATORY LAW AND ADMINISTRATIVE LAW, RESPECTING ANY PERTINENT RULEMAKING PROCEEDING OR PROJECT, AND LEGAL ADVICE CONCERNING COMPLIANCE WITH PUC RULES RESPECTING THE ACTIVITIES OF DENTON MUNICIPAL ELECTRIC, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and an the public interest to engage the law firm of Lloyd, Gosselmk, Blewns, Rochelle, Baldwan & Townsend, P C, of Austin, Texas, (the "Firm") to provide professional legal servmes to the Caty pertmmng to representauon of the City and Denton Mumcapal Electric ("DME") before the Pubhc Utfl~taes Commassaon of Texas ("PUC") m the areas of public utflaty regulatory law and adm~mstrauve law, respeeung any pertinent mlemakmg proceeding or project, and legal adwce concerning comphance w~th PUC rules respecting the actlwt~es of DME, and WHEREAS, the City has heretofore engaged the Firm by Agreement approved and dated September 23, 1997 to perform s~mllar professaonal legal services to those provided for an the Agreement for Professaonal Legal Services attached hereto The F~rm has contanuously performed legal services under the prevmus Agreement, and ~n February 1999, the funds prowded for in the earher Agreement were exhausted Nonetheless, the City requested that the F~rm prowde continuous representatton to the City and DME on ~mportant PUC ~ssues until such t~me as a new Agreement for Professional Legal Services could be reached, prova&ng ad&t~onal compensation for the Farm, and such Agreement could be duly approved by the Caty Council Accordingly, it is appropriate that the attached Agreement for Professional Legal Services w~th the Finn should be ratified and confirmed, and should be retroactively approved and made effective as of February 1, 1999 in order to properly compensate the F~rm for its work performed heretofore at the spemfic instance and request of the City, which work has &reefly benefited the City, and WHEREAS, the City Council has provided m the City Budget for the approprmtlon of funds to be used for the purchase of the foregoing professional servaces, as set forth an the attached Agreement for Professmnal Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Caty Manager is hereby authorized to execute an Agreement for Professional Legal Serwces wxth the law firm of Lloyd, Gossehnk, Blevlns, Rochelle, Baldwin, & Townsend, a Texas Professional Corporation, Aumn, Texas for professaonal legal servmes pertmnmg to the here~nabove-descnbed matters involving the C~ty of Denton and DME, ~n substantmlly the form of the Agreement for Professional Legal Services attached hereto and ~ncorporated herewith by reference SECTION II That the award of th~s Agreement ~s on the bas~s of the demonstrated competence and quahficat~ons of the Ftrm, and the abthty of the F~rm to perform the professional legal servaces needed by the C~ty for a fmr and reasonable price SECTION III That the expenditure of funds as prowded for m the attached Agreement for Professional Legal Services is hereby authorized SECTION IV That the Agreement for Professional Legal Services ~s hereby ratified, confirmed, and retroactively approved, and shall be effective from and after February l, 1999 SECTION V That th~s ordinance shall become effective ~mmedmtely upon ~ts passage and approval PASSEr AND APPROVED the day of C~~ ,1999 JA~flLLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Documents\Ordmances\99~LloydOosselmk PUCT 99 DME PSA doc AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF D , TON § THIS AGREEMENT, made and entered into fins //~day of c,j~ , 1999, by and between LLOYD, GOSSELINK, BLEVINS, ROCHELLE, BALDWII~ & TOWNSEND, P C, a Texas Professional Corporation (hereinafter referred to as "CONSULTANT"), with Lambeth Townsend, Shareholder, hawng full anthonty to execute this Agreement on behalf of the firm, 111 Congress Avenue, State 1800, Anstm, Texas 78701, and the CITY OF DENTON, a Texas Mumclpal Corporatmn, 215 East MeI~nney, Denton, Texas 75201 (hereinafter referred to as "CITY"), wth Michael W Jez, City Manager, having full authority to execute fins Agreement on behalf of the C~ty WHEREAS, the City deems it necessary and m the public interest to engage legal counsel to proxade professional legal serwces w~th respect to the City's compliance with the Public Utlhty Commission ("PUC") elecmc transmission service roles as well as any mlemakmg proceeding or any project relating to elecmc t~msmassion service, or otherwise affecting the C~ty and WHEREAS, the Consultant is wflhng 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 wflhng to provide such services NOW, THEREFORE, m cons~deratlon of the pronuses and mutual obhgatlons herein, the C~ty and Consultant do hereby mutually AGREE as follows, to w~t I. ~ The Consultant shall perform the following services ~n a professional manner working as an independent contractor not under the dtrect supervision and control of the City A Serwces to be prowded I Consultant shall represent the C~ty before the PUC concermng the City's compliance with the PUC's Transmission Service Rules and concermng any mlemakang proceeding or project relating to transnusslon service, or otherwise affecting the City, including, w~thout hmatatlon, the professional legal serwces with regard to submitting pleadings and comments and attending all uncontested heanngs and other proceedings m relation to these matters, and to consult w~th the Caty through ets Denton Mumcapal Elecmc ("DIVlE") staff w~th regard to all filings, uncontested hearings, and other ~ssues related to thxs project Provided, however, ff the C~ty elects to pamc~pate m a contested case proceeding at the PUC relating to transmasmon service or any other matter, the pafaes agree that at will be necessary to enter mto a separate professxonal serrates agreement, to provade for such addat~onal legal sermces 2 To consult w~th the C~ty Manager, Assistant City Manager for Utihtles, the D~rector of Electric Uttht~es, the C~ty Attorney, the Aas~stant Caty Attorney for Uttht~es, and other designated adrmmstrat~ve personnel or staff regarding any and all aspects of the professional services to be performed, including legal research, analyses, and admce vath respect to such matters Tlus wall include coordinating actlvd~es w~th the D~rector of Electric Utilities, the City Attorney and their respecttve staff to efficiently perform the servmes reqmred and to preserve the Attomey/Chent privilege, work product, and all other applicable excepttons to the chscovery or dtsclosure of documents produced by the City and the Consultant under the Scope of Sermces heremabove B The Consultant shall perform all the servmes reqmred by t/us Agreement m a timely fasluon, and shall complete same an comphance with schedules establmhed by the Caty through ~ts Director of Electric Utthttes as appropriate to carry out the terms and conditions of thts Agreement II. Term.' This Agreement shall be effective as of February 1, 1999, and shall terminate eather upon the completton of the pmfesmonal serwces pmvaded for here~n, or on March 31, 2000, or upon the exhaustton of all professional fees prowded for hereunder, wtuchever event shall first occur Thts Agreement may be sooner tenmnated m accordance w~th the prov~saons hereof Time is of the essence of tlus Agreement Consultant shall make all reasonable efforts to complete the servaces set forth herein as expexht~ously as possible dunng the term oftlus Agreement, and to meet the schedules estabhshed by the C~ty, through ~ts Darector of Elecmc Utdat~es, or her designee III. Compensation and Method of Payment: A The Consultant shall charge the following fees for ~ts professaonal services provided to the Caty hereunder, based upon the followang hourly bflhng rates for the attorneys and support staffmvolved m tins matter Staff ttmarly_5~ Lambeth Townsend, Shareholder $190 00 Georgm Cramp, Shareholder $180 00 Rtchard Hamala, Assocmte $170 00 Paralegal $ 75 00 Law Clerk $ 75 00 Consultant agrees that all charges for the legal servmes hereunder, mcludang expenses as set forth m Section HI C below, shall not exceed $50,000 00 Page 2 B The Consultant shall endeavor to have the attomeys and employees hsted ~n Section III A above, reasonably attempt to reduce costs by ut~hz~ng other qualffied shareholders, associates, and paralegals wherever feasible or possible The Consultant shall bill the C~ty through the submission of ~tem~zed mvmces, statements, and other docmnentat~on, together with support data mchcatmg the progress of the work and the services performed on the bas~s of monthly statements, showing hourly rates ~ndlcat~ng who performed the work, what type of work was done, and descnptaons and/or details of all services rendered, ~nclud~ng a dmly, and an entry-by-entry reflection of billable tune spent on tbas engagement, along w~th specffic descnptaon and supporting documentation, ~f available, mspect~ng any reasonable and necessary out-of-pocket expenses recurred by Consultant ~n performing the professional services promded for under tbas Agreement Professional fees shall be billed ~n m~mmum one-tenth (1/10) hour ~ncrements C Adchtlonally, the C~ty shall e~ther pay chrectly or reimburse the Consultant, as the case may be, for reasonable and necessary actual out-of-pocket expenses, including but not hm~ted to, long-distance telephone, telecop~er, reproduction, postage, overmght comer, and transportation and travel All cop~es will be charged at the rate of fifteen cents ($15) per copy for cop~es made within Consultant's offices, w~th as much photocopying as possible being done by outside vendors at bulk rates or by the C~ty to reduce costs ~f bulk copying ~s necessary or appropriate The partaes agree that the charges for outgoing telecop~es from Consultant shall be $ 25 per page and that there will be no charge by Consultant for incoming telecop~es D The parttes anticipate that invoices or statements for professional servmes will be generated on a monthly bas~s and that sa~d invoices or statements will be sent to the C~ty by Consultant on or about the 15th day of each month The C~ty shall make payment to the Consultant w~thm tbarty (30) days after receipt of an appropriate ~tem~zed ~nvo~ce or statement To the extent that any fees or expenses are d~sputed by the City, the C~ty shall not~fy Consultant w~thm tbarty (30) days after 1ts receipt of the ~nvmce or statement, and shall otherwise pay all unchsputed mounts set forth m the mvmce or statement w~tban thmy (30) days after ~ts receipt of the mvome or statement All reimbursable expenses, ~ncluchng, but not necessarily hm~ted to travel, lodging, and meals, shall be prod at the actual cost, pursuant to the terms, conditions, and lm~atattons set forth hereto All mvomes or statements shall be approved by the Assxstant C~ty Manager for Utilities, or bas designee, and by the C~ty Attorney E It ~s understood and agreed that the Consultant shall work under the coordination and general supervision of the D~rector of Electric Ut~httes and the C~ty Attorney F All not~ces, mvomes, and payment shall be made m writing and may be given by personal dehvery or by mall Notaces, mvomes, statements, and payments sent by mall shall be addressed respectively, to Herbert L Pmuty, C~ty Attorney, 215 East Mclrdnney, Denton, Texas 76201 as to the C~ty, and to Lambeth Townsend, Lloyd/Gossehnk, 111 Congress Avenue, State 1800, Austin, Texas 78701, as to the Consultant When so addressed, the notice, lnvmce, statement and/or payment shall be deemed g~vcn upon depom of same m the Umted States Mall, postage prepaid In all other ~nstanccs, notices, lnvotces, statements, Page 3 and/or payments shall be deemed g~ven at the time of actual dehvery Changes may be made in the names and addresses of the responsible person or office to which notices, invoices, statements and/or payments are to be sent, provided reasonable notice is given IV Professional Competene_v. A Consultant agrees that in the performance of these professional services, Consultant shall be responsthle to the level of competency and shall use the same degree of skall and care presently maintained by other practicing professionals performing the same or similar types ofwork For the purpose of flus Agreement, the key persons who will be performing most of the work hereunder shall be Lambeth Townsend and Georgia Cramp, Shareholders However, notlung herein shall lnmt Consultant from using other qualified and competent members of the from to perform the services required herein if such delegation is reasonably appropriate and properly protects the City's interests B Any agreements, ordinances, notices, instruments, memoranda, reports, letters, and other legal documents prepared or obtained under the terms of tins Agreement are instruments of servme and the Cat3' shall retain ownerstup and a property interest therein Iftlus Agreement is tertmnated at any tnne for any reason prior to payment to the Consultant for work under tins Agreement, all such documents prepared or obtmned under the terms of the Agreement shall upon termination be delivered to and become the property of the City upon request and without restriction on their use or further compensation to the Consultant V Establishment and Maintenance of Reeords. Full and accurate records shall be mtuntamed by the Consultant 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 years after receipt of final payment under tins Agreement VI. ~ At any tune dunng normal business hours and upon reasonable notice to the Consultant, there shall be made available to the City all of the Consultant's records with respect to all matters covered by flus Agreement The Consultant shall permit the City to audit, examine, and make excepts or transcripts from such records, and to make au(fits of contracts, invoices, materials, and other data relatmg to all matters covered by tins Agreement VII. Accomplishment of Pro_ieet. The Consultant shall commence, carry on, and complete flus professional engagement with all practicable dispatch, in a sound, economical and efficient matter, and, m accordance with the prov~sions hereof and all apphcable laws In accomphshmg 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 earned on by the City VIII. Indemnity_ and Independent Contractor Relationship: A Consultant shall perform all sermces 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 The City and Consultant agree to enoperate m the defense of any clauns, action, stat, or proceeding of any kand brought by a Page 4 thtrd party winch may result from or d~rectly or ~ndirectly arise from any neghgence and/or errors or om~ss~ons on the part of the Consultant or from any breach of the Consultant's obhgat~ons under this Agreement In the event of any litigation or clmm under tbas Agreement m wluch Consultant ~s joined as a party, Consultant shall prowde statable counsel to defend City and Consultant agoanst such claim, provided the Consultant shall have the right to proceed w~th the competent counsel of its own choosing The Consultant agrees to defend, mdemmfy and hold harmless the City and all of its officers, agents, servants, and employees against any and all such clatms to the extent of coverage by Consultant's professional habfl~ty pohcy The Consultant agrees to pay all expenses, ~nclud~ng but not lun~ted to attorney's fees, and satisfy all judgments wluch may be recurred or rendered agmnst the Consultant's professional hab~hty insurance pohcy Notfung here~n constitutes a waiver of any rights or reme&es the C~ty may have to pursue under either law or eqmty, ~ncludmg, w~thout hm~tat~on, a cause of action for specffic performance or for damages, a loss to the C~ty, resulting from Consultant's negbgent errors or om~ss~ons, or breach of contract, and all such rights and remedaes are expressly reserved B Consultant shall maintain and shall be caused to be ~n force at all t~mes dunng the term of tlus Agreement, a legally binding policy of professional habdlty ~nsurance, hsted by Best Rated Careers, w~th a rating of"A-" or above, ~ssued by an ~nsurance earner approved to do busmass m Texas by the State Insurance Commission Such coverage shall cover any clmm hereunder oecastoned by the Consultant's neghgent professional act and/or error, act, or omlss~on, m an amount not less than $1,000,000 combined s~ngle hm~t coverage per occurrence In the event of change or cancellation of the pohcy by the insurer, the Consultant hereby covenants to lmmedaately not~fy the City ~n writing thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute pohcy furmshlng the same or higher amount of coverage The Consultant shall provide a copy of the declarations page of such pohcy to the C~ty through its D~rector of Elecmc of Ut~htles slmultaneonsly w~th the execution of ttus Agreement IX. Termln~tion of Agreement: A In connection with the work outhned in t!us Agreement, xt is agreed and fully understood by the Consultant that the Cxty may cancel or xndefimtely suspend further work hereunder or terminate flus Agreement at any t~me upon written notme to Consultant, Consultant shall cease all work and labor being performed under this Agreement Consultant may terminate tfus Agreement by giving the C~ty fifteen (15) days written notice that Consultant is no longer m a positron to continue represenUng the Cmty Consultant shall invoice the C~ty for all work satisfactorily completed and shall be compensated m accordance w~th the terms of this Agreement All reports and other documents, or data, or work related to the project shall become the property of the C~ty upon termmataon of tlus Agreement B Tbas Agreement may be termllmted m whole or m part, m writing, by e~ther party m the event of substantial failure by the other party to fulfill ~ts obhgat~ons under tlus Agreement through no fault of the terminating party Prowded, however, that no such termination may be affected, unless the other party ~s given [1] written nonce (delivered by certffied mml, return receipt reques0 of intent to tenmnate, and not less than t!urty (30) calendar days to cure the Page 5 failure, and, [2] an opportumty for consultation w~th the tenmnat~ng party prior to termination C Nothing contained hereto or elsewhere m tins Agreement shall reqmre the City to pay for any work winch ~s unsatisfactory or winch is not submatted in comphance w~th the terms of tins Agreement X. Alternate Dispute Resolution: The Consultant agrees that, if necessary, ~t will use ~ts best efforts to resolve any d~sputes regarding the Agreement through the use of methat~on or other forms of alternate d~sputo resolution set forth m Chapter 154 of the Texas C1vll Practices and Remedies Code (V A T C S ) XI. ~ This Agreement represents the entire agreement and understanahng between the part,es and any negotiations, proposals, or oral agreements are ~ntended to be ~ntegrated herein and to be superseded by tins written Agreement Any supplement or amendment to tins Agreement, ~n order to be effective, shall be ~n writing and signed by the C~ty and the Consultant XII. Compliance with Lows: The Consultant shall comply with all federal, state, local laws, roles, regulations, and ordinances apphcable to the work covered hereunder as they may now read or hereai'~er be emended, ~ncludmg but not hm~ted to the Texas D~sclphnary Rules of Professional Conduct XIII. ~ For the purpose of determining place of agreement and law governing same, tins Agreement ~s entered ~nto m the C~ty and County of Denton, State of Texas, and shall be construed in accordance with, and governed by the laws of the State &Texas Venue and jtlrlsdlctlon of any stat or cause of action arising under or m connection w~th tins Agreement shall he exclns~vely in a court of competent junsthctlon s~tt~ng ~n Denton County, Texas XIV. Diserimiuation Prohibited: In performing the serwces required hereunder, the Consultant shall not dlscnmanate against any person on the bas~s of race, color, rehg~on, sex, nataonal ongm or ancestry, age, or physical hand,cap A Consultant represents that ~t has or will secure at ~ts own expense all personnel required to perform the services reqmred under tbs Agreement Such personnel shall not be employees nor have any conlractual relations w~th the City Consultant shall :nform the C~ty of any confl~ct of interest or potential confl~ct of ~nterest that may arise dunng the term of tins Agreement, ~n accordance w~th Consultant's responslb~hUes under the Texas D~sc~plmary Rules of Professional Conduct B All services reqmred hereunder will be performed by the Consultant or under its d~rect supervision All personnel engaged m work shall be qualified and shall be licensed, authorized, or permatted under state and local laws to perform such services P~e6 XVI. ~ The Consultant shall not assign any interest ~n flus Agreement and shall not transfer any interest m this Agreement (whether by assxgnment, novatlun, or otherwise) w~thout the prior written consent of the City thereto XVII. ~ All agreements and covenants eontmned hereto are severable, and m the event any of them, vath the exception of those eontmned ~n sections headed "Scope of Services", "Independent Contractor Relat~onsbap", and "Compensation and Method of Payment" hereof, shall be held to be ~nvahd by any court of competent junschct~on, tins Agreement shall be ~nterpreted as though such mvahd agreements or covenants were not eontamed here~n XVIII. ]iesponsibilities for Claims and L~abiilty: Approval by the City shall not constitute nor be deemed a release of the responslblhty and habthty of the Consultant for the accuracy and competency of its work, nor shall such approval be deemed to be an assumpuon of such responsfluhty of the City for any defect m any report or other documents prepared by the Consultant, its shareholders, associates, employees, officers, or agents ~n eonneeUon with flus engagement XIX. Modiflcatmn of A_~reement: No wmver or mothfieatzon o£flus Agreement or of any covenant, condition, or lnmtaUon hereto eontmned shall be valid unless m wnUng and duly executed by the party to be charged therewith No evidence of any watver or modaficatlon shall be offered or received m evidence in any proceeding arising between the part,es hereto out of or affecting tins Agreement, or the rights or obhgat~ons o£the parties hereunder, unless such wmver or modification is m writing, duly executed as aforesmd The pames further agree that the provisions of flus article will not be wmved as herein set forth XX. ~ The captions of finns Agreement are for reformational purposes only and shall not in any way affect the substantive terms or condmons of flus Agreement XKI. ~ Tins Agreement shall be b~nthng upon and inure to the benefit of the parues hereto and their respacUve he~rs, executors, adm~mstrators, legal representatives, successors, and assigns, where pertmtted by flus Agreement IN WITNESS HEREOF, the C~ty of Denton, Texas has executed fins Agreement in four (4) original counterparts by and through its duly-anthonzed C~ty Manager, and Consultant has executed flus Agreement. b.y.~and through its duly-authorized undersigned Shareholder, dated thru the ///~---/'/ day of ~'/'~%~-~-' ,1999 CITY OF DENTON, TEXAS A Texas Mumclpal Corporatmn Page 7 ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY LLOYD, GOSSELINK, ROCHELLE, BLEVINS ROCHELLE, BALDWlN& TOWNSEND, P C A Texas Professional Corporation Lambeth Townsend, S are o er ATTEST BY ~ ~ S \Out B6cument~ContractsLOg~Lloyd Gossehnk PSA 99PUC DME doc Page 8