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2005-115 FILE REFERENCE FORM 2005-115 FILE(S) Date Initials Extension of Contract - Ordinance No. 2006-001 01/03/06 JR ORDINANCE NO. dPtS)..0~-/t/~--' AN ORDINANCE APPROVING A PERSONAL AND PROFESSIONAL SERVICES CONTRACT BETWEEN THE CITY OF DENTON AND HERBERT L. PROUTY; AUTHORIZING THE EXPENDITURE OF FUNDS; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Denton desires to enter into a Personal and Professional Services Contract with Herbert L. Prouty 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 September 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 City Manager, or his designee to execute the Contract on behalf of the City. SECTION 3. The 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 APPROVED this the ~7~ dayof ~ EULINE BROCK, MAYOR ,2005. ATTEST: JENNIFER WALTERS, C4TY SECRETARY " S:\Our Documents\Contraets\05~Prou~y Consulting Agreement.doc Exhibit A PERSONAL SERVICES AND PROFESSIONAL CONSULTING AGREEMENT FOR LEGAL SERVICES STATE OF TEXAS § COUNTY OFDENTON § THIS AGREEMENT is made and entered into as of the day of , 2005, by and between the City of Denton, a Texas Municipal Corporation, with qts principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201 (hereinafter referred to as "City") and Herbert L. Prouty, hereinafter referred to as "Consultant." WHEREAS, City desires to engage the services of Herbert L. Prouty ("Consultant") as a consultant 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, 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 desires to resolve all issues with respect to Consultant's existing employment agreement and any protective class interests Consultant may have; NOW, THEREFORE, in consideration of the promises and mutual undertakings herein contained, the parties agree as follows: SECTION 1. Engagement of Consultant/City's Obligations. l(a). The City hereby engages the p~rsonal and professional services of Consultant to assist the "City Attorney" or "Interim City Attorney" ("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 and assisting outside attorneys with any construction litigation relating to the street problems in various subdivisions throughout the City, to provide assistance during the transition period when municipal legal services and staff attorneys are reduced from seven full time attorneys to five attorneys in accordance with the Legal Department's reorganization plan. l(b). The City agrees to pay Consultant his current monthly salary plus car allowance at the rate of $12,119.08 per month, withou, t any other benefits payable, at the same time employees of the City are paid, with the first payment being September 16, 2005, throughout the term of this Agreement. 1 (c). The City agrees to retain and to pay Consultant as a full time employee of the City through the pay period ending on August 31, 2005 at his current monthly salary with all benefits including without limitations, health insurance, life insurance, long term disability insurance, S:\Our Documents\Contracts\05\Prouty Consulting Agreement.doc retirement under the Texas Municipal Retirement System, deferred compensation at four percent and all other benefits under terms set forth in Consultant's current employment agreement dated April 30, 1995. The City's payroll system will continue to identify the Consultant as an employee of the City through August 31, 2005. 1 (d). On the effective date of Consultant's retirement, the City shall pay ConsuRant all Consultant's unused vacation time up to the maximum amount of 320 accumulated hours, all reduction in force payments required by the City's Reduction in Force (RIF) Policy including all unused sick leave and 80 additional hours but in no event shall the payment be less than 400 hours for accumulated unused vacation time and the RIF hours required for years of service regardless of any changes in the RIF or vacation policy, plus payment of any additional time not previously paid Consultant for time worked as an employee through August 31, 2005 less all deductions for withholding taxes, TMRS contributions, ICMA deferred compensation 457K accounts. As previously directed by Consultant, all Consultant's accumulated unused vacation time shall be paid Consultant and transferred into his ICMA Health Savings Plan Account. The remaining amount shall be paid Consultant through a separate check on the effective date of his retirement. l(e). In November of 2005 Consultant shall receive a longevity check for 123 months of service (through August 31, 2005) at the longevity rate of $4.00 per month, less all applicable taxes and deductions. l(f). The City will cease paying for Consultant's spousal and personal coverage for health insurance as an employee as of September 1, 2005, but Consultant shall be able to obtain coverage under the City's plan with all benefits similar to any other current City retiree or obtain other insurance. 1 (g). The City shall provide Consultant with an office within the Legal Department and all equipment, including without limitations, computers and access to email, Westlaw, law 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. SECTION2. 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 and will work at least forty hours a week during the term of this Agreement. 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 duty under this Agreement. 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. 2(c). In consideration of this Consulting Agreement, the Consultant agrees to and hereby waives and releases any rights he may have under his employment agreement or under any Page 2 of 6 S:\Our Documents\Contracts\05~Prouiy Consulting Agreement.doc protected class legislation or law including without limitation, the Age Discrimination in Employment Act to the extent the Consultant can waive and release these fights under the law. 2(d). In further consideration of this Consultant Agreement, the Consultant agrees to move his effective retirement date up from January 31, 2006 to after 5:00 p.m. on August 31, 2005. SECTION 3. Term. This Agreement for legal services, expressed herein, shall commence on the 1st day of September 2005 and shall end on the 31st day of January 2006, unless sooner terminated for cause or unless extended by mutual agreement of the parties. SECTION 4. Access to Facilities. The City's responsibility under Section 1 of this Agreement to 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: Access to all the City's books and records; Access to City's personnel; Access to all support services such as computer, telephone, and copying within the Legal Department; 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 renewal of this Agreement for an additional six-month period ending July 31, 2006 under such terms and conditions as the City and the Consultant may agree upon. SECTION 6. Billing and Time Records. 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. 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. Page 3 of 6 S:\Our Documents\Contmcts\05~Prouty Consulting Agreement.doc 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 fight arising from employee status during the term of this Consulting Agreement. SECTION 9. Arbitration and Altemate 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. 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 specifying 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. 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 subject matter hereof unless such additional terms and conditions are made effective pursuant to the Amendments subsection of this 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 hereatler be amended. Page 4 of 6 S:\Our Documents\Contracts\05~Prouty Consulting Agreement.doc 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 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. No amendment of this Agreement shall be valid unless in writing and signed by both parties. SECTION 15. Miscellaneous. 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. In accomplishing this engagement, Consultant shall take such steps as are appropriate to coordinate the work involved with related work being carded on by City. City is engaging a Consultant due to his unique experience and Consultant shall provide all services to be performed under the Agreement 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. 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. IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be execute~l~by its duly authorized ~ity Manager; and Consultant has executed this Agreement on this theoK-~/'/'L dayof ('J29X. J.~ ,2005. Page 5 of 6 "' ' ' ' S:\Our Documents\Contracts\05~Prouty Consulting Agreement.doe "CITY" CITY OF DENTON, TEXAS ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: ~.. ~ ~ APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY BY: '~~ ATTEST: M~cha~A. Conduff, City~Ianager "CONSULTANT" HERBERT L. PROUTY Page 6 of 6