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
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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,
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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
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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.
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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.
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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.
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"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
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