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1997-278C \DOCS\ORD\BOYLE2 ORD 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 ~ 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 here~n ~ That the expenditure of funds as provided in the attached Agreement is hereby authorized ~ That this ordinance shall become effective immediately upon its passage and approval ATTEST JENNIFER WALTERS, CITY SECRETARY APPR D AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY AGREEMENT FOR PROFESSIONAL LEGAL SERVICES STATE OF TEXAS § COUNTY OF DENTON § THIS AGREEMENT, made and entered rote this qU._.~l day of (~'~r/~, 1997, by and between the Law Office of Jim Boyle, vath J~m Boyle hawng full authomy to execute flus Agreement, 1005 Congress, State 550, Austm, Texas 78701, hereinafter referred to as "Consultant", and the City of Denton, Texas, a Texas Mumclpal Corporation, 215 East McYdnney, Denton, Texas 76201, hereinafter referred to as "Cxty" WITN WHEREAS, the City needs to employ legal counsel to represent the City of Denton in certmn legislative and legal matters mlatang to the City of Denton Mumclpal Utlht~es, and WHEREAS, the Consultant is wfihng to perform such services in a profassxonal manner as an independent contractor, and WHEREAS, the City desires to engage the Consultant to render the services in connection therevath, and the Consultant is valhng to provide such servmes NOW, THEREFORE, in consideration of the promises and mutual obhgat~ons set forth herein, the parties hereto do mutually AGREE as follows I Scone of Servieas: The Consultant shall perform the following services ~n 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 vall provide, w~thout hmltatlon, all those services set forth ~n Exhibit "A" made a part of ttus 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 D~rector of Public Utditles, Director of Electric Utflmes, C~ty Attorney, and designated administrative personnel regarding any and all aspects of the special services to be performed, including legal research and advice vath respect to such matters This vail include coordinating vath the Executive Director for Pubhc Page 1 Utahtaes, the City Attorney, and their staff to efficiently perform the services reqmred and commumcate the C~ty's leg~slatave program or ~ssues to other interested parttes or legislators only to the extent necessary to advance the City's leg~slatave agenda. 3 To prowde monthly written status repons to the City, and more frequently, mtanm reports by telephone and facsimile on tame-sensltave matters B The Consultant shall perform all the services reqmred by tins Agreement ~n a tamely fastuon, and shall complete same ~n comphance w~th any schedules estabhshed by the C~ty through ~ts Executave D~rector for Utdttaes, as appropriate to carry out the terms and cond~taons ofth~s Agreement II. Term: The serv~cos of Consultant shall commence upon the executaon of this Agreement for a term of s~xteen (16) months, from September 1, 1997 untd the exp~rataon of the term of th~s Agreement on December 31, 1998 Tlus Agreement may be sooner terminated by either party m accordan¢e voth the pmwslons hereof Tane ~s of the essence of flus Agreement, and the Consultant shall mal{e all reasonable efforts to complete the services set forth herein as expechtaously as possible and to meet the schedules estabhshed by the City, through ~ts Executave Dtrector for Utahtles IlL Comoensation and Method of Payment: A The Consultant shall be prod the sum of $5,000 per month for each month that th~s Agreement ~s m force and effect The C~ty recogmzes that the payment of a monthly retainer fee for Consultant's sermces m the areas of work covered by flus Agreement, rather than an hourly fee, ~s the usual and customary method of compensataon for such professional servtcos The Consultant agrees that all expenses tncurred by Consultant ~n connection w~th flus engagement shall be borne by Consultant w~th the sole exceptaon of reasonable and necessary out-of-town travel expenses incurred by Consultant while representang the C~ty The total compensation to be prod to Consultant under flus Agreement shall not exceed $80,000, exclusive of out-of-town travel expenses B The Consultant shall utahze h~s best efforts ~n representing the C~ty's interests, and may, from tame-to-tune, as reasonably necessary or appropriate, delegate tasks to be performed wxflun the Scope of Work of thxs Agreement, by utilizing quahfied principals, assomates, legal assistants, or subconsultants The Consultant shall bill the C~ty through the submission of a monthly lnvome and other documentataon, together wtth support data, tncluthng the status reports referenced m Sectaon I A 3 and detads of servmes rendered, along wxth any reasonable and necessary out-of- town travel expenses recurred C Addxtaonally, the C~ty shall exther pay threctly or reimburse the Consultant, as the Page 2 case may be, for reasonable and necessary out-of-town travel expenses Consultant shall be responsable for and pay all other ont-of-pocket expenses ancurred by Consultant m performing th~s engagement D Upon completaon of serwces for a month's work performed hereunder, the C~ty shall make payment to the Consultant wath~n thirty (30) days of the satisfactory completaon of services for the gaven month's work and receapt of an ~nvmce or statement The pames ant~capate mvmces or statements for services wall be generated on a monthly basas and that said mvoaces or statements will be sent to the City on or about the 15th day of each month All reimbursable expenses, whach are hmated to reasonable and necessary out-of-town travel expenses shall be prod at the actual cost, pursuant to the terms and condataons here~nabove set forth All anvoaces and balls shall be approved by the Executave Darector for Ut~ht~es and the C~ty Attorney E, It as understood that the Consultant shall work under the coordmataon and general supervasaon of the Execnt~ve Darector for Utfl~taes and the Caty Attorney F, All notices, mvomes, and payment shall be made an writing and may be g~ven by personal dehvery or by mall Notaces, mvmces, and payments sent by mall shall be addressed to Herbert L Prouty, Caty Attorney, 215 E McKmney, Denton, Texas 76201, or to the Law Offices of Jam Boyle, 1005 Congress, State 550, Austan, Texas 78701 When so addressed, the notace, ~nvolce, and/or payment shall be deemed gavan upon deposit in the Umted States Mall, postage prepaid In all other instances, notates, mvmces, and/or payments shall be deemed gaven at the t~me of actual delivery Changes may be made an the names and addresses of the responsible person or office to whom notaces, mvomes, and/or payments are to be sent, proxaded reasonable notice as given IV. Prolressional Comnetenev: A The Consultant agrees that in the performance of these professxonal serwces, Consultant shall be responsxble to the level of competency and shall use the same degree of skill and care presently malntmned by other practicing professmnals performing the same or slmalar types of work xn the State of Texas For the purpose of thxs Agreement, the key person who wall be performang most of the work hereunder shall be Jam Boyle However, nothing herexn shall hmit Consultant from using other quahfied and competent members of has firm to perform the services reqmred herein, where no harm or demment wall result to the C~ty's interests B Pleadings, motions, orders, notices, anstnunents, d~scovary documents, reports, and other legal documents prepared or obtmned under the terms of thrs Agreement are instruments of servace and the C~ty shall retmn ownership and a property ~nterest therean If this Agreement as terminated at any t~me for any reason prior to payment Page 3 to the Consultant for work under thas Agreement, all such documents prepared or obtained under the terms of the Agreement shall upon termlnataon be dehvered to and become the property of the Caty upon request and wathout restriction on thear use or further compensataon to the Consultant V. Estabhshment and Maintenance of Records: Full and accurate records shall be mmntmned by the Consultant at has place of business w~th respect to all matters covered by thas Agreement Such records shall be mmntamed for a period of at least three years after receapt of final payment under tha$ Agreement VI Aud nd I s etlon' At any tame dunng normal busaness hours and upon reasonable notaee to the Consultant, there shall be made available to the Caty all of the Consultant's records wath respect to all matters covered by thas Agreement The Consultant shall perrmt the Cay to audat, examane, and make excerpts or transcripts from such records, and to make audats of contracts, anvmces, materials, and other data relating to all matters covered by thas Agreement VII. Aeeomnlishment of Project' The Consultant shall commence, carry on, and complete any and all projects wath all praetacable daspateh, an a sound, economacal and efficaent matter, and, an accordance wath the provasaons hereof and all apphcable laws In accomphshmg the projects, the Consultant shall take such steps as are appropriate to insure that the work anvolved as properly coordinated wtth related work being camed on m the Caty VIII. Indemmtv and Indeoendent Contractor Relataonshm' A The Consultant shall perform all servaees as an independent contractor not under the darect supervasaon and control of the Caty Nothing hereto shall be construed as creattng a relattonslup of employer and employee between the partaes The Caty and Consultant agree to cooperate an the defense of any clmms, actaons, suits, or proceeding of any l~nd brought by a third party wtuch may result from or darectly or mchrectly amc from any neghgence and/or errors or omassaons on the part of the Consultant, or from any breach of the Consultant's obhgataons under tins Agreement In the event any lmgatton or clmm as brought under thas Agreement m whmh Caty as jomed as a party, Consultant shall provide statable counsel to defend Caty and Consultant against such claim, provaded however, that the Consultant shall have the right to proceed wath competent counsel of has own choosing The Consultant agrees to defend, mdemmfy and hold harmless the Caty and all of as officers, attorneys, agents, servants, and employees agmnst any and all such clams to the extent of coverage by Consultant's profassaonal habahty pohcy The Consultant agrees to pay all expenses, including but not hm~ted to attorney's fees, and satasfy all judgments wbach may be ancurred or rendered agmnst the Consultant's professaonal habflaty insurance pohcy Nothing hereto constautes a wmver of any rights or remedaas the Caty may have to pursue under eather law or eqmty, ancludmg, wathout hmatataon, a cause of actton for specific performance or for damages, a loss to the Caty, resulting Page 4 from Consultant's neghgent errors or om~ssaons, or breach of contract, and all such rights and remedies are expressly reserved B Consultant shall malntmn and shall be caused to be in force at all tames during the term of thas Agreement, a legally bmdang pohcy of professtonal habfl~ty insurance, assued by an msuranee earner approved to do busaness m the State of Texas by the State Insurance Commassaon, whach career must be rated by Best Rated Careers, w~th a ratang of "A-" or hagher Such coverage shall cover any clmm hereunder oeeasaoned by the Consultant's neghgent professaonal act and/or error or omassaon, in an mount not less than $500,000 combined sangle hmat coverage occurrence In the event of change or cancellataon of the pohcy by the insurer, the Consultant hereby covenants to ~mmedmtely advase the C~ty thereof, and an such event, the Consultant shall, prior to the effectave date of change or cancellation, serve a substatute pohcy furmsbang the same coverage to the C~ty The Consultant shall provade a copy of such pohcy and the declarataons page of the examng pohcy to the C~ty through ats Executave D~rector for Pubhc Utflataes, samultaneously w~th the executaon of th~s Agreement IX. Termlnat~on of Aitreement: A In connectmn w~th the work outhned ~n thas Agreement, at as agreed and fully understood by the Consultant that the C~ty may cancel or ~ndefimtely suspend further work hereunder or terminate thas Agreement at any time upon fifteen (15) days written notme to Consultant Upon receapt of such not~ce, Constfltant shall cease all work and labor being performed under thas Agreement Consultant may termanate tlus Agreement by gawng the Caty fifteen (15) days written not,ce that Consultant ~s no longer m a posataon to continue representang the Caty Consultant shall mvoace the C~ty for all work satasfactonly completed and shall be compensated an accordance wtth the terms ofthas Agreement All reports and other documents, or data, or work related to the project shall become the property of the Caty upon termmataon of thas Agreement B Thas Agreement may be terminated ~n whole or ~n part, ~n writing, by eather party ~n the event of substantml fmlure by the other party to fulfill ats obhgataons under thas Agreement through no fault of the terminating party Promded, however, that no such termmataon may be effected, unless the other party is gaven [1 ] wnttan notace (dehvered by cemfied mini, return receipt request) of intent to termanate, and not less than tharty (30) calendar days to cure the foalure, and, [2] an oppommay for consultataon wath the termmatmg party prior to termmataon C Nothtng contained herem or elsewhere m thas Agreement shall require the C~ty to pay for any work performed by Consultant or by any person performang servaces under flus Agreement at the chrectaon of Consultant, wbach ~s unsattsfactory, or wluch as not Page 5 submttted in eomphance w~th the terms of flus Agreement X. ~ Tlus Agreement represents the entire agreement and understan&ng between the pa_roes 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 effeettve shall be m writing and stgned by the City and the Consultant XI. Comnlianee with Laws: The Consultant shall comply vath all federal, state and local laws, rules, regulattons, and ordmancas apphcable to the work covered hereunder as they may now read or hereafter be amended, mcluchng, but not hmlted to the Texas Dtse~phnary Rules of Professtonal Conduct XII. ~ For the purpose of detemumng place of agreement and law governing same, flus Agreement ts 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 suit or cause of aetton arising under or m connegtlon with tlus Agreement shall be exclustvely m a court of competent j unsdactton stttmg m Denton County, Texas XIII. D[~erlmmagl0n Prohibited: In performmg the services reqmred hereunder, the Consultant shall not chscnmmate against any person on the basts of race, color, rehgton, sex, nataonal origin or ancestry, age, or physteal handicap XIV. Personnel: A Consultant represents that he has or will secure at Ms own expense all personnel reqmred to perform all the servtces reqmred under flus Agreement Such personnel shall not be employees or have any contractual relations with the City Consultant shall tmmedtately mform the Ctty of any confltet of interest or potential enrdhet of interest that may anae during the term of flus Agreement, in accordance with Consultant's respoustbflmes under the Texas Dlsetphnary Rules of Professtonal Conduct B All servtces reqmred hereunder will be performed by the Consultant or under his direct supervtston All personnel engaged tn work hereunder shall be qualified and shall be authorized or permttted under federal, state and local laws to perform such services XV Consent to Representation of the C~tv of Garland. Texas The City understands that Consultant expects to enter into an agreement for professional legal services wtth the City of Garland, Texas, and that the scope of Consultant's work to be performed for the City of Garland, Texas will be stmllar to, or posstbly the same as Consultant's work to be performed for the City of Denton under thts Agreement Because of the close t~es and relations between the City of Denton and the Ctty of Garland, and their mvolvement ~n similar Legislative issues, the City consents to the Page 6 Consultant's engagement as a consultant to the Clty Of Garland, and directs Consultant, where possible, to eoor&nate work performed on behalf of both reties so that the maximum advantage to the cataes may be attained XVI. ~ The Consultant shall not assign any anterest m thas Agreement and shall not transfer any interest m thas Agreement (whether by assagnment, novatmn, or othemase) wathout the prior written consent of the Caty thereto XVII. Severabfiitv: All agreements and covenants contmned herein are severable, and ~n the event any of them, w~th the exceptmn of those contmned in sectaons headed "Scope of Servaces", "Independent Contractor Relattonsh~p", and "Compensation and Method of Payment" hereof, shall be held to be mvahd by any competent court, this Agreement shall be anterpreted as though such ~nvahd agreements or covenants were not contained here~n XVIII ResDonsabilities for Claims and Lmbflitv: Approval by the City shall not constitute nor be deemed a release of the responsabahty and habflaty of the Consultant for the accuracy and competency of has work, nor shall such approval be deemed to be an assumption of such responsabahty of the Caty for any defect m any report or other documents prepared by the Consultant, h~s employees, officers, agents and sub-consultants XIX Modification of A~reement: No wmver or modfficatlon of th~s Agreement or of any covenant, condttlon, or hrmtatlon harem contmned shall be valid unless m writing and duly executed by the party to be charged therewith No evidence of any wmver or modfficat~on shall be offered or received an evadance ~n any proceeding arising between the parties hereto out of or affecting th~s Agreement, or the rights or obhgataons of the parties hereunder, unless such wmver or modfficataon as ~n writing, duly executed as aforesaid, and, the part,es further agree that the provasaons of this section will not be waived as hereto set forth XX Ca_Dfions: The captions of tins Agreement are for ~nformataonal purposes only and shall not m any way affect the substantave terms or condatlons of thas Agreement XXI. ~ Tlus Agreement shall be binding upon and inure to the benefit of the part, es hereto and thear respective hexrs, executors, administrators, legal representatives, successors, and assigns where permatted by this Agreement IN WITNESS WHEREOF, the City of Denton, Texas has caused tins Agreement to be execu~ ats duly anth~onzed, City ,Manager, and Consultant has executed thts Agreement on this the c./-- day of~5~]~.,~ 1997 Page 7 "CITY" CITY OF DENTON TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY "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 m connection with legislat~ve activity related to the restructuring of the electric utility industry Services to be provided by the Law Firm shall include · Prepanng 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 C~ty 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