Loading...
Exhibit 2 - Original Contract,, 12325 Hymeadow Drive Suite 2-100 Austin, Texas 78750 BoJORQUEz· Charlie Rosendahl Management Analyst City of Denton 215 E. McKinney Denton, Texas 76201 PROPOSAL: Ethics Ordinance Mr. Rosendahl: LAWFIRM, PC November 28, 2017 Phone: (512) 250-0411 Fax: (512) 250-0749 T exasMunicipalLawyers.com The City of Denton has expressed an interest in engaging my services to assist in the drafting of an ordinance enacting a Code of Ethics. I am willing to assist you with this endeavor. In terms of process, I recommend you consider the following steps. These items are listed as possibilities, and are subject to modification by the City Council. 1. Meetings: I suggest the City Council consider meeting 5-10 times, for 1-2 hours per gathering. We can decrease the number of meetings by extending the meeting duration, perhaps convening on a Saturday (subject to the convenience of the City Council). 2. Meeting #1: Training: At the first meeting (currently scheduled for December 5'h), I will conduct a training session educating the City Council on: a. Ethics, Generally. b. State Laws Governing Official Conduct. c. Common Characteristics of Municipal Ethics Ordinances. d. The Process for the Remainder of this Project (which is a discussion item). 3. Meeting #2: Ordinance Presentation: I will provide the City Council with Draft "A", which I will have prepared based on various samples and Best Practices. I will walk the City Council through the draft explaining key provisions, and pointing out fundamental decision points. The draft will contain provisions commonly found in ethics regulations of cities comparable to Denton. In the draft will be procedures and guidelines I have found to be effective and efficient for dealing with ethical challenges. The draft will include choices and decision-points for the City Council to address. The City Council's goal will be to customize the draft ordinance to fit Denton's·needs. I recommend against simply taking another city's ordinance and tweaking. It is often harder to fix another entity's ordinance (which may have been revised inconsistently over time) than it is to start with a fresh, cohesive document. 4. Meeting #3: Ordinance Review: At the third meeting, the City Council will discuss Draft "B", which I will have prepared utilizing feedback from the previous meeting. The City Council can ask questions, make suggestions, and express preferences. The City Council will provide me with feedback and give me instructions for what they want to see in the next version. 5. Meeting #4: Ordinance Review & Public Hearing: At our forth meeting, the City Council will deliberate Draft "C ", which I will have prepared utilizing feedback from the previous meeting. The City Council can verify it is consistent with their earlier-stated preferences, and raising any new or additional issues to be addressed. 6. Meetings #5-10: Conclusion of the Drafting Process: The final round of City Council meetings will include a vote to approve my written report. The report will: (a) outline the process that was used to devise the ordinance; (b) summarize the public input that was received; and (c) explain the City Council's rationale regarding decisions made on key components of the ordinance. The Council can utilize these final meetings (as necessary) to further ask questions, modify the draft ordinance, and receive additional public input. During these final meetings the City Council can also schedule to handle these tasks: (a) First Reading: The City Council will conduct the first reading of the Draft "D ", including a public hearing. Members of the committee will be present to make a formal presentation to the City Council and answer questions. (b) Second Reading & Adoption: The City Council can approve Draft "D" or Draft "E'. The City Council can then encourage citizens to apply for appointment to the oversight board created by the ordinance (i.e., "Board of Ethics," or "Ethics Review Commission," etc.). (c) Appointments: The City Council appoints members to the oversight board. The process is complete. Following the conclusion of this process, I can be available to advise the oversight board upon request, or represent them if conflicting complaints arise in the future. My fees and related expenses for this project are estimated to total approximately $20,000.00 for the first 5 meetings (which preparation time, legal drafting and editing, a few phone calls, and periodic emails). Beyond the first 5 meetings, my per-meeting fee is $4,000. We shall establish a Not To Exceed maximum of$40,000 to cover up to 10 City of Denton: Ethics Ordinance Drafting Process & Procedures November 28,2017 Page2of4 meetings (after which, additional City Council approval is necessary in order to proceed). Outside of these packages, my services will be billed at the hourly rate of $245. If the City finds this acceptable, please have Mayor Watts execute our Standard Terms of Engagement. Should the City want to negotiate an alternate arrangement, I am open to discussing other possibilities. Thank you for the opportunity to submit my recommendations. I look forward to assisting Denton with this important endeavor. City of Denton: Ethics Ordinance Drafting Process & Procedures Sincerely, Alan J. Bojorquez Principal Attorney November 28, 2017 Page3 of4 Saturdays: • December 16th, • January 13th, • January 27th. Tuesday Evenings: • Dec 19, • Jan 30, • Feb 6, • Feb 20, • Mar6, • Mar20, • Apr 3, • Apr 17. Wednesday Evenings: • Dec20, • Jan 17, • Jan31, • Feb 7. City of Denton: Ethics Ordinance Drafting Process & Procedures Possible Meetings Dates for Alan Bojorquez November 28, 2017 Page 4 of4 12325 Hymeadow Drive Suite 2-100 Austin, Texas 78750 BoJORQUEZ LAWFIRM •. r.e Phone: (512) 250-0411 Fax: (512) 250-0749 T exasMunicipalLawyers.com CITY OF DENTON STANDARD TERMS OF ENGAGEMENT This document establishes the standard terms of our engagement as the City's attorneys. Unless modified in writing by mutual consent, these terms will be an integral part of our agreement. Therefore, we ask that the City carefully review this document and contact us promptly if the City has any questions. We suggest that the City retain a copy of this document in its file. I. Our Relationship 1. Identity of Client The Bojorquez Law Firm, P.C. ("Firm") will be representing the interests of the City of Denton ("City") as an organization. In the course of this relationship, the City may designate other officials to receive legal services on the City's behalf. 2. Nature of Representation While in the future we may be directed to represent the City on other matters, our present relationship can be described as follows: Provide legal training and consulting services in fUrtherance of the creation of an ordinance enacting a municipal Code of Ethics for the City of Denton. 3. Expectations As the client, it is imperative that the City has a clear understanding of the legal counsel the Firm will provide. Any questions that the City has should be dealt with promptly. We will provide services related only to matters as to which we have been specifically engaged. The Firm will at all times act on the City's behalf to the best of our ability. Any expressions on our part concerning the outcome 6fthe.City's municipal matters are expressions of our best professional judgment, but are not guarantees. Such opinions are necessarily limited by our knowledge of the facts and are based on the state of the law at the time they are expressed. We cannot guarantee the success of any given matter, but we will strive to represent the City's interests professionally and efficiently. 4. Client Responsibilities The City agrees to cooperate fully with the Firm and to provide us promptly with all information known or available to the City relevant to our representation. The City agrees to pay our invoices in accordance with these STANDARD TERMS OF ENGAGEMENT and the corresponding letter of Engagement. 5. Responsibilities of the Bojorquez Law Firm The Firm is committed to meeting the City's legal needs. In doing so, the Firm will: act competently and in a timely manner; protect the City's privileged information and ensure appropriate confidentiality; promote the City's interests; discuss the City's objectives and how they should best be achieved; and provide information about the work to be done, who will do it, when the work is expected to be completed, and the way the services will be provided. 6. Ancillary Services The Firm offers Planning, Municipal Court Consulting, Spanish Translation, and other types of ancillary services. These law-related services would be provided in whole or in part by individuals who are not attorneys. Accordingly, these services are not legal services. As such, communications between the City and the Firm regarding such work may not be subject to the Texas Rules of Disciplinary Conduct governing the attorney-client relationship. 7. Ethical Conflict oflnterest Disclosure The representation of more than one municipal entity may present special ethical considerations under the Texas Rules of Disciplinary Conduct. The Firm may undertake representation of multiple municipal entities if the City agrees in writing after consultation about the risks of joint representation. The City may also consult with legal counsel other than the Firm regarding this representation. A potential conflict of interest could arise with respect to the subject matter of this representation. Based on the information available at this time, the Firm is not aware of any actual conflicts among the City and any other municipal entity. If the City becomes aware of anything that may suggest conflict of interest, please bring it to the Firm's attention immediately. If circumstances arise during the course of this relationship that require or make it desirable that any members of the City whom we represent ("client group") obtain separate representation in this matter, the Firm would be free to continue to represent the remaining members of the client group. By signing these STANDARD TERMS OF ENGAGEMENT and accepting our joint representation, the City agrees that, if it becomes necessary or desirable for the City to retain other counsel, the City will not seek to disqualifY the Firm from continuing to represent the remaining members of the client group. II. Fees, Billing, and Administrative 1. Fees for Legal Services The total estimated billing for 5 meetings is anticipated to be approximately twenty thousand dollars ($20,000.00). Services can include additional meetings at a fee of $4,000 per meeting. A Not To Exceed cap is placed initially at $40,000, after which additional City Council approval will be required to continue services. Any additional work requested that is outside the scope of these Terms will be beyond that range and subject to the rates listed below. The charges for professional services provided by the Firm will typically be based upon the following: (I) the time devoted to the matter; (2) the novelty and difficulty of the questions Standard Terms of Engagement -Ethics Ordinance City of Denton November 28, 2017 Bojorquez Law Firm, PC Page 2 of6 presented; (3) the requisite experience, reputation, and skill requested to deal with those questions; (4) time limitations imposed by the circumstances; (5) and the quality of the results obtained. Fees and costs for particular matters are unpredictable and we have made no commitment concerning maximum fees or costs. Unless otherwise indicated in writing, our fees for legal services are determined on the basis of the hourly rates of the respective attorney that will perform the services. These rates may vary depending on the expertise and experience of the individual. We adjust these rates from time to time, increasing them as the individuals gain experience and expertise and to reflect current economic conditions. We will notify the City in writing if this fee structure is modified. Currently, the standard billing rates for the City are detailed below: Principal Attorney: Attorney Of Counsel: Senior Associate Attorney: Associate Attorney: Junior Associate Attorney: Legal Secretary/Office Assistant: 2. Rate Adjustment Two hundred forty-five dollars ($245.00) per hour One hundred ninety-five dollars ($195.00) per hour One hundred eighty-five dollars ($185 .00) per hour One hundred seventy-five dollars ($175.00) per hour One hundred sixty-five dollars ($165.00) per hour One hundred dollars ($100.00) per hour Billing rates are subject to increase a maximum often percent (10%) annually. No rate increase will exceed ten percent (10%) without first obtaining consent from the designated primary client representative. The City will be notified in writing when a rate adjustment has occurred. 3. Other Charges and Handling Fees All out-of-pocket expenses (such as long distance telephone charges, copying charges, travel expenses, courier expenses, etc.) incurred by the Firm in connection with representing the City will be billed to the City as a separate item on the City's monthly statement. A five percent (5%) handling fee will be assessed on all out-of-pocket expenses incurred on behalf of the City for consulting and engineering fees, appraisal costs, and other professional requirements of a matter. 4. Billing Procedures & Terms of Payment Our billing period begins on the 27th of the month and ends on the 26'h day of the following month. We will render monthly statements to the City for legal services and expenses. We usually mail these statements toward the beginning of the month, followiog the latest date covered in the statement. Each statement is payable within thirty (30) days of its stated date and must be paid in U.S. Dollars. If any statement is not paid within thirty (30) days after its stated date, interest at the rate of six percent (6%) per month eighteen percent (18%) per annum will accrue on the balance due. However, if at any time eighteen percent (18%) per annum exceeds the highest interest rate permitted by applicable law, then the interest rate that will be applied to any overdue amounts will be reduced to the maximum rate permitted under applicable law. If the City has any questions or concerns about any statement that we submit to the City for payment, please contact us at the City's earliest convenience so that we can resolve any problems without delay. If unresolved, overdue invoices may result in Standard Terms of Engagement -Ethics Ordinance City of Denton November 28, 2017 Bojorquez Law Firm, PC Page 3 of6 discontinuation of representation of the City. Typically, such issues can be resolved to the satisfaction of both sides with little inconvenience or formality. 5. Fee Estimates We are often requested to estimate the amount of fees and costs likely to be incurred in connection with a particular matter. The City's primary attorney will do his best to estimate fees and expenses for particular matters when asked to do so. However, an estimate is just that, and the fees and expenses required are ultimately a function of many conditions over which we have little or no control. Unless otherwise agreed in writing with respect to a specific matter, all estimates made by us shall be subject to the City's agreement and understanding that such estimates do not constitute maximum or fixed fee quotations and that the ultimate cost is frequently more or less than the amount estimated. 6. Retainers Generally, there is no retainer for municipal clients. However, with substantial new matters for existing or new clients, the Firm may require a retainer. The retainer amount is not meant to be an estimate or limit of the fees and expenses required to complete the work on this matter, but is intended as the City's good faith deposit against a portion of such fees and expenses. The retainer will be placed in our Trust Account and we will bill our fees and disbursements against the retainer. We will advise the City if additional amounts are necessary to be placed in trust against which to bill future work. If our work is completed, and the City's account is paid-in-full, yet a balance remains in the City's retainer, we will refund the retainer to the City upon request. 7. Retention of Documents Although we will attempt to retain for a reasonable time copies of most documents generated by this Firm, we cannot be held responsible in any way for failure to do so, and we hereby expressly disclaim any such responsibility or liability. The City must ultimately retain all originals and copies the City desires among the City's own files for future reference. 8. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, United States of America. Venue of any case or controversy arising under or pursuant to this Agreement shall be in Williamson County, Texas, United States of America. III. Termination of Services The City has the right to terminate our services at any time upon providing written notice to us. Upon receipt of written notice from the City, we will immediately cease to render additional services to the extent we can do so without jeopardizing the City's legal interests or our ethical obligations. We reserve the right to discontinue work on pending matters or terminate our attorney-client relationship with the City at any time that payment of the City's account becomes delinquent. We also reserve the right to withdraw when obligated by the Texas Rules of Disciplinary Conduct. Additionally, in the event that the City fails to follow our advice and counsel, or otherwise fails to cooperate reasonably with us, we reserve the right to withdraw from representing the City upon short notice, regardless of the then status of the City's matter. No termination shall relieve the City of the obligation to pay fees and expenses incurred prior to such termination. Unless otherwise agreed in writing, representation will cease upon the City's Standard Terms of Engagement-Ethics Ordinance City of Denton November 28, 2017 Bojorquez Law Firm, PC Page 4 of6 payment in full of all fees due, and our Firm's conveyance of the City's files to the destination the City designate. The firm's files (work product), will be retained at the Firm. IV. Internal Revenue Service (IRS) and Texas Workforce Commission (TWC) Status 1. Independent Contractor (I C) For purposes of federal income tax or social security withholdings, the Firm is an IC responsible for payment of its own taxes and not an employee of the City. The Firm, and not the City, is obligated to arrange for the required federal withholdings of the Firm's employees. Below is a summary of the IC versus employee requirements and a general overview of how our services will be provided. 2. The Internal Revenue Service The IRS assesses three (3) factors of the employer/individual relationship: behavioral control, financial control, and relationship of the worker and Firm to determine who is an employee and who is an Independent Contractor. (see IRS Form SS-8). Again, depending on the type of business and the services performed, not all sections of the form may apply and the weight assigned to a specific factor may vary depending on the facts. 3. The Texas Workforce Commission The TWC has adapted the old IRS twenty-factor test, known as the "direction or control" test, to determine who is an employee and who is an IC (see TWC Form C-8). Depending on the type of business and the services performed, not all of the twenty common law factors may apply and the weight assigned to a specific factor may vary depending upon the facts. Below are considerations for the TWC's twenty-fuctor test, which also generally address issues of behavioral control, financial control, and relationship of the worker and Firm. (a) Financial Control In general, an employee is usually paid for their time, whereas an independent contractor is usually paid by the job. An employee usually does not negotiate their pay, whereas an independent contractor usually negotiates their pay to ensure a profit. An employee is not expected to invest in the business they work for so the employer takes care of tax matters and expenses, whereas an independent contract is investing in their independent business so the IC takes care of all expenses and taxes. (b) Relationship of Worker & Business Entity In general, an employee does not usually advertise their services, whereas an IC does. An employee carries business cards that reflect the employer's name, whereas an IC carries business cards that reflect the IC's business name. An employee is primarily reached at the employer's phone number, whereas an IC is primarily reached at their business phone number. (c) Behavioral Control In general, an employer contracting for IC services is normally interested in the end result, not in the details of how the work is done. The employer should have no interest in how the IC allocates his or her time, or who the IC hires to assist (other than requiring proper licensure). Standard Terms of Engagement -Ethics Ordinance City of Denton November 28, 2017 Bojorquez Law Firm, PC Page 5 of6 V. Questions If during the course of our representation the City has any questions about any aspect of our arrangements, please feel entirely free to raise those questions. The Firm wants all of our clients to have a clear and satisfactory understanding about every aspect of our billing and payment policies. Accordingly, we encourage an open and frank discussion of any or all of the matters mentioned in this document. VI. Acceptance of and Consent to the Standard Terms and Engagement Ifthis arrangement is acceptable to the City and the City Council, please sign these Terms and return it to Firm at the City's earliest convenience. We are truly honored that the City is willing to make our Firm part of the City's team. date: by: cipal, Bojorquez Law Firm, PC date: November 28, 2017 Please return a signed copy of the STANDARD TERMS OF ENGAGEMENT via fax (512) 250-0749, or email alan@texasmunicipallawyers.com. Standard Terms of Engagement-Ethics Ordinance City of Denton November 28,2017 Bojorquez Law Firm, PC Page 6 of6