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2006-001 FILE REFERENCE FORM 2006-001 FILE(S) Date Initials First Amendment to Extension Agreement - original is attached 07/07/06 JR Second Amendment to Extension Agreement - original is attached 10/09/06 JR S:',Onr{)ocUnlcnts\O'din;mcc1<l5IPrOlllyColl,"lungCOIIlIacIExI"',sion.doc ORDINANCE NO. 070()~ - 00/ AN ORDINANCE APPROVING AN EXTENSION OF PERSONAL AND PROFESSIONAL SERVICES CONSULTING CONTRACT BETWEEN THE CITY OF DENTON AND HERBERT L. PROUTY, LLP; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to enter into an Extension of Personal and Professional Services Consulting Contract with Herbert L. Prouty, LLP to provide legal services to the City, in substantially the same form as the contract attached hereto and made a part hereof as Exhibit "A", to take effect on February 1,2005 (the "Contract"); and WHEREAS, the City Council finds that the Contract is in the public interest; NOW, THEREFORE; THE COUNCIL OF THE CITY OF DENTON, TEXAS HEREBY ORDAINS: SECTION 1. The recitals and findings contained in the preamble of this ordinance are incorporated into the body of this ordinance. SECTION 2. The City Council hereby approves the Contract and authorizes the Interim City Manager, or his designee to eX:ecute the Contract on behalf of the City. SECTION 3. The Interim City Manager, or his designee is authorized to make the expenditures provided for in the Contract. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVW """he 3Ni d'y of ff '" I A fl AU c~A~ EULINE BROCK, MAYOR ,2006. ATTEST: JENNIFER WALTERS, CITY SECRETARY BY ffm~i rOo Q;/{A 4 -' APPRO ED ~S; LEGAL FORM: EDWIN M. SNYD CITY A RNEY BY: S:\Our Documents\Contracts\06\Prouty Extension Agrcement.doc - -~~---- --- - Exhibit A EXTENSION OF PERSONAL AND PROFESSIONAL SERVICES CONSULTING AGREEMENT FOR LEGAL SERVICES STATE OF TEXAS ~ . COUNTY OF DENTON ~ THIS EXTENSION AGREEMENT is made and entered into to be effective on February I, 2005, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201 (hereinafter referred to as "City") and Herbert L. Prouty, LLP, hereinafter referred to as "Consultant." WHEREAS, on the 5th day of April, 2005 the City engaged the services of Herbert L. Prouty {"Consultant") as a consultant by entering into a Personal Services and Professional Consulting Agreement for Legal Services {"Consultant Contract") to provide legal services to assist with meeting the legal services' workload with the reduction in force of the Legal Department ("legal services") from a seven lawyer to four lawyer office; and WHEREAS, the Consultant Contract expires on January 31, 2006 but provides it may be extended for a period of six months; and WHEREAS, Consultant has served as the City's City Attorney for ten years and is familiar with all aspects of the Legal Department and the organization and operations of the City and the City desires to engage his unique personal services; and WHEREAS, the City Attorney desires to extend this Consulting Contract for an additional six months through July 31,2006 under the terms and conditions hereinafter stated. NOW, THEREFORE, in consideration of the promises and mutual undertakings herein contained, the parties agree as follows: SECTION I. Engagement of Consultant/City's Obligations. I(a). The City hereby exercises its option to extend the Consultant Contract and engages the personal and professional services of Consultant for an additional six month period from February I, 2006 to July 31, 2006 in accordance with Section 5 of the Consultant Contract to assist the City Attorney to perform all functions and duties of the Legal Department as may be assigned to him by the City Attorney including, without limitation, handling ongoing utility matters involving Atmos Energy, Charter Communications, and CoServ, handling Denton Municipal Airport and Transportation matters, and to provide assistance with municipal legal servIces. I(b). The City agrees to pay Consultant at the rate of $6,000.00 per month together with any expenses incurred by Consultant in the performance of these legal services. I (c). The City shall provide Consultant access to an office within the Legal department and all equipment, including without limitations, computers and access to email, Westiaw, law S:\Our Docllments\Contracts\05\Prouty Extension Agreement.doc books, and Consultant's identification card during the term of this Agreement to facilitate Consultant's services herein and access to all City facilities as set forth in Section 4 hereof But nothing herein shall prevent Consultant from performing the legal services contracted for hereunder from his home office or any other suitable business location or from using his own computer or other equipment to perform such services. SECTION 2. Engagement of Consultant/Consultant Obligations. 2(a). Consultant shall perform the services herein with diligence and in accordance with the professional standards customarily obtained for such services in the State of Texas. 2(b). Consultant shall perform all legal services assigned to him by the City Attorney. Consultant will devote no more than twenty hours per week to any legal services assigned to him under this Contract. Provided, however, Consultant shall have the right, during the term of this Agreement, to teach, consult and to perform other work and other non-City connected business so long as the non-City connected business does not conflict with Consultant's duties under this Agreement as determined by the City Attorney. The City agrees that any teaching for the University of Texas at Dallas, the University of North Texas, the Texas Women's University or any similar higher educational institution will not constitute a conflict under this Agreement. SECTION 3. Term. This Extension of the Consultant Contract for legal services, expressed herein, shall commence on the I st day of February 2006 and shall end on the 31 ,t day of July 2006, unless sooner terminated for cause or unless extended by mutual agreement of the parties. SECTION 4. Access to Facilities. The City shall provide office space and access shall be complete in order to facilitate the satisfactory performance of Consultant's services and shall include, without limitations, the following: A. Access to all the City's books and records; B. Access to City's personnel; C. Access to all support services such as computer, telephone, and copying within the Legal Department; D. Retention of the keys, the Consultant's identification card, and all other personal items in an office space to be designated by the City Attorney until the end of this Agreement. SECTION 5. Renewal. The City may request extensions of this Agreement for additional periods under such terms and conditions as the City and the Consultant may agree upon. SECTION 6. Billing and Time Records. Page 2 of5 S:\Our Documcnts\Contracts\05\Prouty Extension Agreement.doc At the City's request through its City Attorney, the Consultant shall keep and submit time records detailing the work that Consultant has done and accomplished during the term of this Consulting Agreement. Such billing shall be submitted and Consultant shall be paid on a monthly basis. SECTION 7. Other Support Papers, Documents and Property. All documents prepared or furnished by the Consultant for delivery to City Attorney become the property of the City upon the termination of the Agreement, and full and final payment of all undisputed amounts owed Consultant hereunder. The Consultant is entitled to retain copies of all such documents. SECTION 8. Independent Contractor. Consultant is to provide services to the City as an independent contractor, not as an employee of the City. Consultant shall not have or claim any right arising from employee status during the term of this Consulting Agreement. SECTION 9. Arbitration and Alternate Dispute Resolution. The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval. SECTION 10. Termination of Agreement. A. This Agreement may be terminated whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement. No such termination will be affected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons speci fying the non-performance, 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. B. If the Agreement is terminated for cause prior to completion of the services provided hereunder, Consultant shall immediately cease all services and shall be paid for services in accordance with his Agreement up to the actual date of termination. SECTION 11. Entire Agreement. This Agreement, including all Exhibits and Amendments annexed hereto and made a part hereof, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other oral or written representations, understandings or agreements relating to the subject matter hereof. Neither party shall be bound by the provisions of any pre- printed or other written terms and conditions subsequent to the date of this Agreement relating to the Page 3 of5 S:\Our Documcnts\Contracts\05\Prouty Extension Agreement.doc subject matter hereof unless such additional terms and conditions are made effective pursuant to the Amendments subsection ofthis section. SECTION 12. Compliance with Laws. The Consultant shall comply with all 'federal, state, local laws, rules, regulations, and ordinances applicable to the professional services performed pursuant to this Agreement, as they may now read or may hereafter be amended. SECTION 13. 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. SECTION 14. Modification or Amendment A. 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 and 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; and, the parties further agree that the provisions of this section will not be waived unless as herein set forth. B. No amendment of this Agreement shall be valid unless in writing and signed by both parties. SECTION 15. Miscellaneous. A. Venue of any suit or cause of action under this Agreement shall lie exclusively in Denton County, Texas. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. B. In accomplishing this engagement, Consultant shall take such steps as are appropriate to coordinate the work involved with related work being carried on by City. C. City is engaging a Consultant due to his unique experience and Consultant shall provide all services to be performed under the Agreement D. The headings of this Agreement are for informational purposes only and shall not in any way affect the substantive terms or conditions of this Agreement. E. Each party represents that it is authorized to enter into this Agreement and that the individual executing this Agreement on behalf of the party, is authorized to enter into this Agreement. Page 4 of5 -,.,., - S:\OUf Documents\Contracts\05\Prouty Extension Agreement.doc IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by. its4rly autho. d Interim City Manager; and Consultant has executed this Agreement on this the 3 day of i\M. , 2006. "CITY" CITY OF DENTON, TEXAS BY: Howard Martin, Interi ATTEST: JENNIFER WALTERS, ITY SECRETARY BY: APPROVED AS TO LEGAL FORM: EDWIN M. SNYD , ITY AT EY "CONSULTANT" BY: BY: ATTEST: r~~1?JP/?J'~ Page50f5 S:\Our Documents\Contracts\06\Prouty First Extension Agreement.doc FIRST AMENDMENT TO EXTENSION OF PERSONAL AND PROFESSIONAL SERVICES CONSULTING AGREEMENT FOR LEGAL SERVICES STATE OF TEXAS ~ COUNTY OF DENTON ~ THIS FIRST AMENDMENT to the Extension of Personal and Professional Services Consulting Agreement for Legal Services (hereinafter referred to as "Extension Agreement") which was made and entered into to be effective on February I, 2005, by and between the City of Denton, a Texas Municipal Corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201 (hereinafter referred to as "City") and Herbert L. Prouty, LLP, hereinafter referred to as "Consultant." Whereas the Extension Agreement expires on July 31, 2006; and Whereas, the parties desire to extend the Extension Agreement another three months through October 31, 2006 to allow Consultant to complete certain ongoing projects and to help with the transition of a new Assistant City Attorney who will be assuming the tasks now performed by Consultant. NOW, THEREFORE, in consideration of the promises and mutual undertakings herein contained, the parties agree as follows: SECTION I. The current Extension Agreement is hereby amended by amending Section lea) "Engagement of Consultant/City's Obligation" extending the term of the Extension Agreement for an additional three-month period from August I, 2006 through October 31, 2006, for the same monthly compensation of $6,000 per month and in accordance with all the other terms and conditions of the existing Extension Agreement. SECTION 2. Save and except as amended hereby, all the remaining clauses, sentences, paragraphs, sections and subsections of the Extension Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed by its_ Q\lly' authoriz Inte' m City Manager; and Consultant has executed this Agreement on this the '7f1-/ day of , 2006. "CITY" S:\Our Documents\Contracts\06\Prouty First Extension Agreement.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY~II\\llr [ l)n Q~ 4-> BY: ATTEST: "CONSULTANT" HERBERT L. PROUTY, LLP By~4 erbert L. Prouty Page 2 of2 S:\Our Documents\Contracts\06\Prouty Second Extension Agreement.doc SECOND AMENDMENT TO EXTENSION OF PERSONAL AND PROFESSIONAL SERVICES CONSULTING AGREEMENT FOR LEGAL SERVICES STATE OF TEXAS ~ COUNTY OF DENTON ~ THIS SECOND AMENDMENT to the Extension of Personal and Professional Services Consulting Agreement for Legal Services (hereinafter referred to as "Extension Agreement") which was made and entered into to be effective on February 1,2006, by and between the City of Denton, a Texas Mnnicipal Corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201 (hereinafter referred to as "City") and Herbert L. Prouty, LLP, hereinafter referred to as "Consultant." Whereas the Extension Agreement as amended expires on October 31, 2006; and Whereas, the parties desire to extend the Extension Agreement another two weeks through November 14, 2006 to allow Consultant to complete certain ongoing projects and to help with the transition of a new Assistant City Attorney who will be assuming the tasks now performed by Consultant. NOW, THEREFORE, in consideration of the promises and mutual undertakings herein contained, the parties agree as follows: SECTION I. The current Extension Agreement is hereby amended by amending Section I(a) "Engagement of Consultant/City's Obligation" extending the term of the Extension Agreement for an additional two-week period from November I, 2006 through November 14, 2006, for the additional compensation of $3,000 and in accordance with all the other terms and conditions of the existing Extension Agreement. SECTION 2. Save and except as amended hereby, all the remaining clauses, sentences, paragraphs, sections and subsections of the Extension Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be executed bY)Y;61ujry' authori~~anager; and Consultant has executed this Agreement on this the ~ day of , 2006. "CITY" CITY OF DENTON, TEXAS By:fbDM /fv\~: HOWARD MARTIN INTERIM CITY MANAGER S:\Qur Documents\Contracts\06\Prouty Second Extension Agreement.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: APPROVED AS TO L GAL FORM: EDWIN M. S E CITY ATTORNEY BY: ATTEST: ~~G "CONSULTANT" HERBERT L. PROUTY, LLP BY UkJJ(~ Herbert L. Prouty Page 2 of2