Loading...
HomeMy WebLinkAbout1997-278C \DOCS\ORD\B0YLE2 ORD ORDINANCE NO ql-el; I AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF JIM BOYLE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE 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 Offices of Jim Boyle regarding various legal and legislative matters related to the City of Denton and the Denton Municipal Electric Utility, a copy of which Agreement is attached hereto and incorporated herein SECTION II That the expenditure of funds as provided in the attached Agreement is hereby authorized SECTION III That this ordinance shall become effective immediately upon its passage and approval (��^ PASSED AND APPROVED this the 9UG day of C ember, 1997 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPR D AS TO LEGAL FORM HERBE,RT L PROUTY, CITY ATTORNEY BY W4 Wx✓� Y AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS COUNTY OF DENTON § n c _• THIS AGREEMENT, made and entered into this 7 d day of V Lt'/IGU , 1997, by and between the Law Office of Jim Boyle, with Jim Boyle having full authority to execute this Agreement, 1005 Congress, Suite 550, Austin, Texas 78701, hereinafter referred to as "Consultant", and the City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as "City" WITNESSETH WHEREAS, the City needs to employ legal counsel to represent the City of Denton in certain legislative and legal matters relating to the City of Denton Municipal Utilities, 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 services in connection therewith, and the Consultant is willing to provide such services NOW, THEREFORE, in consideration of the promises and mutual obligations set forth herein, the parties hereto do mutually AGREE as follows I Scopg 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 1 Consultant will provide, without limitation, all those services set forth in Exhibit "A" made a part of tlus Agreement for all purposes, and shall attend all legislative hearings, contact key legislators and legislative staff as required 2 To consult with the City Manager, Executive Director of Public Utilities, Director of Electric Utilities, City Attorney, and designated administrative personnel regarding any and all aspects of the special services to be performed, including legal research and advice with respect to such matters This will include coordinating with the Executive Director for Public Page 1 Utilities, the City Attorney, and their staff to efficiently perform the services required and communicate the City's legislative program or issues to other interested parties or legislators only to the extent necessary to advance the City's legislative agenda. To provide monthly written status reports to the City, and more frequently, interim reports by telephone and facsimile on time -sensitive matters B The Consultant shall perform all the services required by this Agreement in a timely fashion, and shall complete same in compliance with any schedules established by the City through its Executive Director for Utilities, as appropriate to carry out the terms and conditions of this Agreement II. Term: The services of Consultant shall commence upon the execution of this Agreement for a term of sixteen (16) months, from September 1, 1997 until the expiration of the term of this Agreement on December 31, 1998 This Agreement may be sooner terminated by either party in accordance with the provisions hereof Time is of the essence of this Agreement, and the Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible and to meet the schedules established by the City, through its Executive Director for Utilities III. Compensation and Method of Payment: A The Consultant shall be paid the sum of $5,000 per month for each month that this Agreement is in force and effect The City recognizes that the payment of a monthly retainer fee for Consultant's services in the areas of work covered by this Agreement, rather than an hourly fee, is the usual and customary method of compensation for such professional services The Consultant agrees that all expenses incurred by Consultant in connection with this engagement shall be home by Consultant with the sole exception of reasonable and necessary out-of-town travel expenses incurred by Consultant while representing the City The total compensation to be paid to Consultant under this Agreement shall not exceed $80,000, exclusive of out-of-town travel expenses B The Consultant shall utilize his best efforts in representing the City's interests, and may, from time -to -time, as reasonably necessary or appropriate, delegate tasks to be performed within the Scope of Work of this Agreement, by utilizing qualified principals, associates, legal assistants, or subconsultants The Consultant shall bill the City through the submission of a monthly invoice and other documentation, together with support data, including the status reports referenced in Section I A 3 and details of services rendered, along with any reasonable and necessary out-of- town travel expenses incurred C Additionally, the City shall either pay directly or reimburse the Consultant, as the Page 2 case may be, for reasonable and necessary out-of-town travel expenses Consultant shall be responsible for and pay all other out-of-pocket expenses incurred by Consultant in performing this engagement D Upon completion of services for a month's work performed hereunder, the City shall make payment to the Consultant within thirty (30) days of the satisfactory completion of services for the given month's work and receipt of an invoice or statement The parties anticipate invoices or statements for services will be generated on a monthly basis and that said invoices or statements will be sent to the City on or about the 15th day of each month All reimbursable expenses, which are limited to reasonable and necessary out-of-town travel expenses shall be paid at the actual cost, pursuant to the terms and conditions heremabove set forth All invoices and bills shall be approved by the Executive Director for Utilities and the City Attorney E. It is understood that the Consultant shall work under the coordination and general supervision of the Executive Director for Utilities and the City Attorney F. All notices, invoices, and payment shall be made in writing and may be given by personal delivery or by mail Notices, invoices, and payments sent by mail shall be addressed to Herbert L Prouty, City Attorney, 215 E McKinney, Denton, Texas 76201, or to the Law Offices of Jim Boyle, 1005 Congress, Suite 550, Austin, Texas 78701 When so addressed, the notice, invoice, and/or payment shall be deemed given upon deposit in the United States Mail, 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 in the names and addresses of the responsible person or office to whom notices, invoices, and/or payments are to be sent, provided reasonable notice is given IV. Professional Competency: A The Consultant agrees that in the performance of these professional services, Consultant shall be responsible to the level of competency and shall use the same degree of skill and care presently maintained by other practicing professionals performing the same or similar types of work in the State of Texas For the purpose of this Agreement, the key person who will be performing most of the work hereunder shall be Jim Boyle However, nothing herein shall limit Consultant from using other qualified and competent members of his firm to perform the services required herein, where no harm or detriment will result to the City's interests B Pleadings, motions, orders, notices, instruments, discovery documents, reports, and other legal documents 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 Page 3 to the Consultant 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 Consultant V. Estabhshment and Maintenance of Records: Full and accurate records shall be maintained by the Consultant at his 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 this Agreement VI Audits and Inspection: At any time during 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 this Agreement The Consultant shall permit the City 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. Accomplishment of Project- The Consultant shall commence, carry on, and complete any and all projects with all practicable dispatch, in a sound, economical and efficient matter, and, in accordance with the provisions hereof and all applicable laws In accomplishing the projects, the Consultant shall take such steps as are appropriate to insure that the work involved is properly coordinated with related work being carried on in the City VIII. Indemnft and Independent Contractor Relationshi A The Consultant 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 The City and Consultant agree to cooperate in the defense of any claims, actions, suits, or proceeding of any kind 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 Consultant, or from any breach of the Consultant's obligations under this Agreement In the event any litigation or claim is brought under this Agreement in which City is joined as a party, Consultant shall provide suitable counsel to defend City and Consultant against such claim, provided however, that the Consultant shall have the right to proceed with competent counsel of his own choosing The Consultant agrees to defend, indemnify and hold harmless the City and all of its officers, attorneys, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional liability policy The Consultant agrees to pay all expenses, including but not limited to attorney's fees, and satisfy all judgments which may be incurred or rendered against the Consultant's professional liability insurance policy Nothing herein constitutes a waiver of any rights or remedies the City may have to pursue under either law or equity, including, without limitation, a cause of action for specific performance or for damages, a loss to the City, resulting Page 4 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 in force at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carver approved to do business in the State of Texas by the State Insurance Commission, which carrier must be rated by Best Rated Carriers, with a rating of "A-" or higher Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, in an amount not less than $500,000 combined single limit coverage occurrence In the event of change or cancellation of the policy by the insurer, the Consultant hereby covenants to immediately advise the City thereof, and in such event, the Consultant shall, prior to the effective date of change or cancellation, serve a substitute policy furnishing the same coverage to the City The Consultant shall provide a copy of such policy and the declarations page of the existing policy to the City through its Executive Director for Public Utilities, simultaneously with the execution of this Agreement IX. Termination of Agreement: 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 indefinitely suspend further work hereunder or terminate this Agreement at any time upon fifteen (15) days written notice to Consultant Upon receipt of such notice, Consultant shall cease all work and labor being performed under this Agreement Consultant may terminate this Agreement by giving the City fifteen (15) days written notice 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 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 this Agreement B This Agreement may be terminated in whole or in part, in writing, by either parry in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party Provided, however, that no such termination may be effected, unless the other party is given [1] written notice (delivered by certified mail, 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 C Nothing contained herein or elsewhere in this Agreement shall require the City to pay for any work performed by Consultant or by any person performing services under this Agreement at the direction of Consultant, which is unsatisfactory, or which is not Page 5 submitted in compliance with the terms of this Agreement X. Entia Agreement: Tlus 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 to be effective shall be in writing and signed by the City and the Consultant XI. Compliance with Laws: The Consultant shall comply with all federal, state and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereafter be amended, including, but not limited to the Texas Disciplinary Rules of Professional Conduct XII. Goyelmm' Law: For the purpose of determining place of agreement and law governing same, this Agreement is entered into the City and County of Denton, State of Texas, and shall be governed by the laws of the State of Texas Venue and jurisdiction of any suitor cause of action arising under or in connection with this Agreement shall be exclusively in a court of competent jurisdiction sitting in Denton County, Texas XIII. Discrimmation Prohibited: In performing the services required hereunder, the Consultant shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap XIV. Personnel: A Consultant represents that he has or will secure at lus own expense all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or have any contractual relations with the City Consultant shall immediately inform the City of any conflict of interest or potential conflict of interest that may anse 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 his direct supervision All personnel engaged in work hereunder shall be qualified and shall be authorized or permitted under federal, state and local laws to perform such services XV Consent to Representation of the City of Garland. Texas The City understands that Consultant expects to enter into an agreement for professional legal services with the City of Garland, Texas, and that the scope of Consultant's work to be performed for the City of Garland, Texas will be similar to, or possibly the same as Consultant's work to be performed for the City of Denton under this Agreement Because of the close ties and relations between the City of Denton and the City of Garland, and their involvement in similar Legislative issues, the City consents to the Page 6 Consultant's engagement as a consultant to the City of Garland, and directs Consultant, where possible, to coordinate work performed on behalf of both cities so that the maximum advantage to the cities may be attained XVI. Assig an bility: 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 in sections headed "Scope of Services", "Independent Contractor Relationship", and "Compensation and Method of Payment" hereof, shall be held to be invalid by any competent court, this Agreement shall be interpreted as though such invalid agreements or covenants were not contained herein XVIII Reanonsibilities for Claims and Liability: Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of the Consultant for the accuracy and competency of his work, nor shall such approval be deemed to be an assumption of such responsibility of the City for any defect in any report or other documents prepared by the Consultant, his employees, officers, agents and sub -consultants XIX Modification of Agreement: No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith No evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, unless such waiver or modification is in writing, duly executed as aforesaid, and, the parties further agree that the provisions of this section will not be waived as herein set forth XX Captions: The captions of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement XXI. Binding Effect: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns where permitted by this Agreement IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its duly authorized City Manager, and Consultant has executed this Agreement on this the q t day of K_ OW 1997 Page 7 ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY "CITY" CITY OF DENTON BY t TED BENAVIDES, CITY MANAGER "CONSULTANT" THE LAW OFFICE OF JIM BOYLE Page 8 EXHIBIT "A" Scope Of Services The Law Offices of Jim Boyle (Law Firm) shall provide legal and legislative assistance to the City in connection with legislative activity related to the restructuring of the electric utility industry Services to be provided by the Law Firm shall include • Preparing and recommending legislative proposals of benefit to the City and the Denton Municipal Electric Utility (DMEU) • Developing of a Strategic Legislative Plan with action items and timeline • Coordinating the interaction of City officials and legislative leaders • Preparation of issue papers and reports for legislators and staff • Working with Texas Public Power Association (TPPA) to further City legislative objectives • Analysis of proposals by investor owned utilities, large industrial customers and other stakeholders • Communicating with key legislators and their staffs • Enlisting the support of other municipalities, business groups and other stakeholders for City proposals • Preparing reports and other documents for use with the Texas Municipal Power Agency (TMPA) • Assisting technical expert in providing demonstrative aids and handouts • Encouraging the development of a common legislative effort by TMPA cities