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HomeMy WebLinkAbout2000-441ORDINANCE NOC?�(,J��� AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL SERVICES WITH THE LAW OFFICES OF JIM BOYLE, PLLC FOR SERVICES PERTAINING TO LOBBYING ACTIVITY AND LEGISLATIVE MATTERS RELATED TO DENTON MUNICIPAL UTILITIES FOR THE TERM OF THE 77TH TEXAS LEGISLATURE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, 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 Offices of Jim Boyle, PLLC ("Boyle"), of Austin, Texas, to provide professional legal services pertaining to lobbying activity and legislative matters and issues relating to Denton Municipal Utilities for the term of the 77`h Texas Legislature, and WHEREAS, the City has previously retained the professional legal services of Boyle on several occasions Most recently, the City has engaged Boyle by an agreement for professional legal services heretofore approved by the City, which will expire on December 31, 2000 respecting legal services, interim legislative matters, and lobbying services that pertain to Denton Municipal Electric, covering the final one year of the interim period following the completion of the 76`h Texas Legislature, from January 1, 2000 through December 31, 2000, and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the heremabove described professional services by Denton Municipal Utilities during the term of the 77`h Texas Legislature, and that limited City staff cannot adequately perform the specialized services and tasks, which are for the most part centered in Austin, Texas, with its 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 Boyle is appropriately qualified under the provisions of the law to be retained as outside legal counsel for the City, specifically Denton Municipal Utilities, 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 the Agreement for Professional Legal Services, NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the City Manager is hereby authorized to execute an Agreement for Professional Legal Services with the Law Offices of Jim Boyle, PLLC, of Austin, Texas for professional legal services pertaining to lobbying activity and legislative matters related to Denton Municipal Utilities for the term of the 77t11 Texas Legislature as specified heremabove, in substantially the form of the Agreement for Professional Legal Services attached hereto and incorporated herewith by reference SECTION 2 That the award of this Agreement is on the basis of the demonstrated competence and qualifications of the Law Offices of Jim Boyle, PLLC, and the ability of the Law Offices of Jim Boyle, PLLC, to perform the professional legal services needed by the City for a fair and reasonable price SECTION 3 That the expenditure of funds as provided for in the attached Agreement for Professional Legal Services is hereby authorized SECTION 4 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this tka—ft-_ day of A?Xg ' 2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY vy"I rov"KA I — =4 STA APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY I r By S \Our Documents\0rdinances\00Vim Boyle 77th Texas Legts PSA DMU ord doe STATE OF TEXAS § COUNTY OF DENTON § AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered into this AOL-_ day of 2000, by and between the Law Offices of Jim Boyle, PLLC, with Jim Boyle having full authority to execute this Agreement, 1005 Congress, Suite 550, Austin, Texas 78701, hereinafter referred to as the "Consultant", and the City of Denton, Texas, a Texas Municipal Corporation, 215 East McKinney, Denton, Texas 76201, hereinafter referred to as the "City " WITNESSETH WHEREAS, the City has determined that it needs to retain legal counsel to represent its interests in connection with certain legislative and legal matters relating to the City of Denton Municipal Utilities, including without limitation, legislation related to the Public Utility Regulatory Act ("PURA") and the Gas Utility Regulatory Act ("GURA"), and WHEREAS, because of anticipated and expected exigencies pertaining to the upcoming 77th Texas Legislature involving Denton Municipal Utilities, the City has requested Consultant to continue his representation of the City in accordance with the areas of emphasis and focus that are generally identified and are set forth in Exhibit "A", the "Scope of Services" attached hereto, and WHEREAS, the City desires to retain and engage Consultant to render the services provided for in this Agreement, and Consultant is willing to perform such services for the City in a professional manner, as an independent contractor, and NOW, THEREFORE, in consideration of the promises and mutual obligations set forth herein, and for good and valuable consideration, the City and Consultant do hereby mutually AGREE as follows I Scone of Services 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," incorporated by reference herewith and made a part of this Agreement for all purposes, and Consultant shall attend legislative hearings, contact key legislators and legislative staff, and perform other related lobbying activities as are reasonably required by the City 1 2 To consult with the Mayor, the City Manager, the Assistant City Manager for Utilities, the Director of Electric Utilities, the City Attorney, and any other designated City 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 Assistant City Manager for Utilities, the Director of Electric 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 3 To provide regular status reports to the City and interim reports by telephone and facsimile on time -sensitive matters B Consultant shall perform all the services required by this Agreement in a timely fashion, and shall complete them in compliance with any schedules established by the City through its Assistant City Manager for Utilities, as appropriate to cant' out the terms and provisions of this Agreement II Term The professional services of Consultant as provided by this Agreement shall commence on January 1, 2001 and shall continue until the expiration of the term of this Agreement on May 31, 2001 This Agreement may be sooner terminated by either party in accordance with the provisions hereof Time is of the essence for this Agreement, and 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, as set forth in Paragraph I B above III C_oo=ensation and Method of Payment A Consultant shall be paid as a retainer fee the sum of $7,000 per month for each month that this Agreement is in force and effect Due to the unique and specialized nature of the services provided, the City recognizes and agrees that the payment of a monthly retainer fee, rather than an hourly fee, for Consultant's services in the area of work covered by this Agreement is the usual and customary method of compensation for such professional services In addition, the City shall reimburse Consultant for all out-of-pocket expenses incurred in connection with this agreement at Consultant's cost For in-house photocopies, Consultant shall charge $0 15 per copy For in-house faxes, Consultant shall charge $0 25 per page plus telephone charge City and Consultant agree that the fees and out-of- pocket expenses payable under this Agreement by the City shall not exceed $41,000 00 B 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 Services of this Agreement, by utilizing qualified principals, associates, legal assistants, or sub -consultants Assistance 2 provided by Consultant's staff is included in the monthly fee Assistance provided by individuals who do not work for Consultant is not included in the monthly retainer fee and any such fees shall be submitted to the City as a reimbursable out- of-pocket expense incurred To the extent any such expense will exceed $500 00, Consultant will first contact the City's Assistant City Manager for Utilities or the City's Director of Electric Utilities for approval to expend such an amount Consultant shall bill the City through the submission of a monthly invoice and other documentation, including reasonable supporting data or information identifying those out-of-pocket expenses incurred by Consultant and invoiced to the City C Upon completion of services for a month's work performed hereunder, the City shall make payment to 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 15`h day of each month All invoices and bills issued by Consultant under this Agreement shall be approved by the Director of Electric Utilities and the City Attorney, or lus designee D It is understood that Consultant shall work under the coordination and general supervision of the Assistant City Manager for Utilities, the Director of Electric Utilities, or the City Attorney, or his designee E 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 Michael W Jez, City Manager, 215 East McKinney Street, Denton, Texas 76201, and to Jim Boyle, Esq , Law Offices of Jim Boyle, PLLC, 1005 Congress, Suite 550, Austin, Texas 78701 Consultant shall also send a copy of any notice required or contemplated under this Agreement to the City Attorney of the City of Denton, Texas, at 215 East McKinney Street, Denton, Texas 76201 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 Comgetencv A 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 3 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, memoranda, 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 therem If this Agreement is terminated at any time for any reason prior to payment to 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 Consultant V Establishment and Maintenance of Records Full and accurate records shall be maintained by 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 Consultant, there shall be made available to the City all of Consultant's records with respect to all matters covered by this Agreement 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 Consultant shall commence, carry on, and complete any and all projects provided for under 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 accomplishing the projects, Consultant shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being earned on by the City VIII Indemnity and Independent Contractor Relationship A 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 anse from any negligence and/or errors or omissions on the part of Consultant, or from any breach of 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 the City and Consultant against such claim, provided however, that Consultant shall have the nght to proceed with competent counsel of his own choosing 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 0 extent of coverage by Consultant's professional liability insurance policy Consultant agrees to pay all expenses, including, but not limited to attorney's fees, and to satisfy any and all judgments which may be incurred or rendered against 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 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 Board, which carver must be rated by Best Rated Carvers, 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 00 combined single limit coverage per occurrence In the event of changes to or cancellation of the policy by the insurer, Consultant hereby covenants to immediately advise the City thereof, and in such event, Consultant shall, prior to the effective date of change or cancellation, provide a substitute policy furnishing the same coverage to the City Consultant shall provide a copy of such policy and the declarations page of the existing policy to the City through its Assistant City Manager for 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 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 party 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 requested) of intent to terminate, and not less than thirty (30) calendar days to cure the failure, and, [2] an opportunity for consultation with the tenrimating party prior to termination W 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 submitted in compliance with the terms of this Agreement X Entire Agreement This Agreement represents the entire agreement and understanding between the parties and any negotiations, proposals, or oral agreements are intended to be integrated herein and to be superseded by this written agreement Any modification of, supplement to, or amendment to this Agreement to be effective, shall be in writing and signed by the City and Consultant XI Compliance with Laws 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 Governing Law For the purpose of determining place of agreement and law governing same, this Agreement is entered into in the City and County of Denton, State of Texas, and shall be governed by and construed in accordance with the laws of the State of Texas Venue and jurisdiction of any suit or cause of action ansing under or in connection with this Agreement shall lie exclusively in a court of competent jurisdiction sitting in Denton County, Texas XIII Discrimination Prohibited In performing the services required hereunder, 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 his 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 applicable federal, state, or local laws to perform such services XV Assignability 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 R XVI Severability 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 XVII Responsibilities for Claims and Liability Approval of work by the City shall not constitute nor be deemed a release of the responsibility and liability of 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 Consultant, his employees, officers, agents and sub -consultants XVIII 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 ansmg 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 paragraph shall not be waived as herein set forth XIX CaRtions 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 XX 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 executed this Agreement by and through its duly authorized City Mana er, and Consultant has exe uted this Agreement in four original counterparts on this the A day of %G�7,1� 2000 11611 v" CITY OF DENTON, TEXAS ATTEST JENNIFER WALTERS, CITY SECRETARY By4, 7 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By "CONSULTANT" THE LAW OFFICES OF JIM BOYLE, PLLC ATTEST Ilm EXHIBIT "A" SCOPE OF SERVICES The Law Offices of Jim Boyle, PLLC (the "Law Firm") shall provide legal and legislative services, advice, and assistance to the City/Denton Municipal Utilities ("DMU") in connection with legislative activities primarily related to the restructuring of the electric utility industry, any potential changes to SB 7, possible participation or involvement in the Sunset review process pertaining to the Texas Railroad Commission as it relates to the regulation of natural gas, as well an any other electric utility legislative issues of importance Then secondarily, the Law Firm shall provide legal and legislative services, advice, and assistance to the City/DMU directing its attention to various water and wastewater utility legislative issues, pertaining to the following areas including regional water supply issues, wastewater re -use issues, legislation pertaining to fresh water supply districts and regional water districts, issues pertaining to the implementation of and/or the amendment of SB 1, and other key issues in that area The professional services to be provided by the Law Firm to the City/DMU shall include the following • Preparing and recommending legislative proposals of benefit to the City of Denton/Denton Municipal Utilities ("DMU") • The development of a Strategic Legislative Plan • Coordmating the interaction of City of Denton officials and legislative leaders • Preparing of issue papers and reports for legislators and staff • Working with Texas Public Power Association ("TPPA") to further City/DMU legislative objectives • Working with Texas Municipal League ("TML") to further City/DMU legislative objectives • Analyzing proposed legislative bills for their potential impact on the City/DMU • Communicating with key legislators and their staffs • Assisting any technical expert(s) in providing demonstrative aids and handouts • Meeting with the Denton City Council and/or the Denton Public Utilities Board in Denton, Texas, from tune -to - time, to provide professional advice and guidance regarding City/DMU legislative plans, strategy, and other related issues S \Our Documents\Contracts\OOVun Boyle 77tb Texas Legis PSA DMU doc E