2005-022ORDINANCE NO. 2005-
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 PROFESSIONAL LEGAL AND
LOBBYING SERVICES RELATED TO THE 79TM TEXAS LEGISLATIVE SESSION.
PERTAINING TO THE CITY OF DENTON, TEXAS/DENTON MUNICIPAL ELECTRIC;
AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; PROVIIDING FOR
RETROACTIVE EFFECT AND APPROVAL OF THE AGREEMENT; AND PROVIDING
AN EFFECTIVE DATE.
WHEREAS, the City Council deems it necessary and appropriate and in the public
interest to engage the Law Offices of Jim Boyle, PLLC ("Boyle"), of Austin, Texas, to provide
professional legal services and lobbying services pertaining to representation of the City of
Denton, Texas ("City") and its municipal electric utility, Denton Municipal Electric ("DME")
during the 79th Texas Legislative Session; and
WHEREAS, the City has previously retained and engaged the professional legal services
of Boyle on numerous occasions in the last nine (9) years, and has operated trader numerous
other Agreements For Professional Legal Services, approved by the City Council, and signed by
the City Manager, regarding legislative issues and lobbying services; Denton Municipal Electric
issues at the PUC and in the courts; and other engagements which have demonstrated Boyle's
considerable expertise of relevant issues concerning the City as well as DME; and
WHEREAS, the City staffhas reported to the City Council that there is a substantial need
for the hereinabove described professional services by Denton Municipal Electric, and that
limited City staff cannot adequately perform the specialized legal and lobbying services and
tasks, which are wholly centered in Austin, Texas, with its own personnel; and
WHEREAS, Chapter 2234 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 and
lobbying counsel for the City and for Denton Municipal Electric, 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 recitations in the preamble are tree and correct and are
incorporated herewith as a part of this Ordinance.
SECTION 2: 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 and lobbying services pertaining to the interests of the City and of DME in
proposed legislation before the 79th Texas Legislative Session as hereinabove described, in
substantially the form of the Agreement for Professional Legal Services attached hereto and
incorporated herewith by reference.
SECTION 3: 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 and lobbying services needed
by the City for a fair and reasonable price.
SECTION 4: That the expenditure of funds as provided for in the attached Agreement
for Professional Legal Services is hereby authorized.
SECTION 5. That the above and foregoing Agreement for Professional Legal Services
is hereby ratified, confirmed, and retroactively approved, and shall be effective fi.om and after
January 1, 2005.
SECTION 6 That except as otherwise provided in Section 5 above, this ordinance shall
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the /~7'/t( day of January, 2005.
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
S:\Our Documents\Ordinances\05Uim Boyle-79th Texas Legislature-Legal-Lobbying Ordinance.doc
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STATE OF TEXAS §
COUNTY OF DENTON §
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this the/~'L day of January, 2005, but
effective as of January 1, 2005, by and between the Law Offices of Jim Boyle, PLLC, 1005
Congress, Suite 550, Austin, Texas 78701, acting by and through Jim Boyle, Esq. having full
authority to execute this Agreement on behalf of the finn, hereinafter referred to as "Consultant";
and the City of Denton, Texas, a municipal corporation, 215 East McKinney Street, Denton,
Texas 76201, acting by and through its duly authorized City Manager, hereinafter referred to as
"City."
WITNESSETH
WHEREAS, the City finds it necessary to employ experienced outside legal counsel to
perform professional legal services and State lobbying services in a highly specialized area of
law, public utility law; and wishes to retain Consultant to represent the City of Denton, Texas,
specifically its electric utility and its water utilities, in accordance with the emphasis and focus
that is generally identified and is more particularly set forth in Exhibit "A' (the "Scope of
Services") attached hereto, before the 79th Texas Legislative Session; and
WHEREAS, the Consultant is willing to perform such services in a professional manner
as an independent contractor; and the City desires to engage the Consultant to render the
professional services in connection therewith, and the Consultant is willing to provide such
services; and the Consultant will also be working with Monte Akers, Esq. of the law finn of
Bovey, Akers & Bojorquez, L.L.P., Austin, Texas to provide additional coverage of the
objectives of this Agreement; 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:
SECTION 1: Scope of Services. The 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 shall 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.
(2)
Consultant shall consult with the Mayor, the City Manager, the Assistant City
Manager for Utilities, the Director of Electric Utilities, the City Attorney, and the
Utility Attorney as needed; and any other designated City administrative
personnel, regarding any and all aspects of the special services to be performed,
including legal research and legal 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 the Utility Attorney and their staff, to
efficiently perform the services required and to 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)
Consultant shall provide regular weekly status reports to the City; and interim
reports to the'City by telephone and/or facsimile on matters that are time-
sensitive.
Consultant shall perform all the services required by this Agreement in a timely
fashion, and shall complete them in reasonable compliance with any schedules
established by the City through its Assistant City Manager for Utilities, as
appropriate, to carry out the terms and provisions of this Agreement.
SECTION 2: Term. This Agreement has been retroactively approved and shall
be effective from and after January 1, 2005. The professional services of Consult~/nt as provided
by this Agreement shall commence on January 1, 2005 and shall continue until the expiration of
the term of this Agreement, on May 31, 2005. The term of this Agreement is generally tied to
the schedule of the 79th Texas Legislative Session. This Agreement may additionally be sooner
terminated by either party in accordance with the provisions hereof. Time is of the essence of
this Agreement, and the Consultant shall make all reasonable efforts to complete the services set
forth herein as expeditiously as possible during the term of this Agreement, and to meet the
schedules established by the City, through its Assistant City Manager for Utilities, or as the
progress of this matter may require.
SECTION 3: Compensation and Method of Payment.
A. Consultant shall be paid a lump sum retainer fee for the sum of $13,000 per
month, for each of the five (5) months that this Agreement is in full 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 actual cost. For in-house photocopies, Consultant shall
charge $.15 per copy. For in-house faxes, Consultant shall charge $.25 per page plus
telephone charges. City and the Consultant agree that the lump-sum monthly fees and the
out-of-pocket expenses payable to Consultant under this Agreement shall not exceed the
sum of $68,000.
Contract For Professional Legal Services - Page 2
B. The Consultant shall utilize his best efforts in representing the City's imerests,
and may, fi.om time-to-time, as reasonably necessary or appropriate, delegate tasks to be
performed within the Scope of Services of this Agreement, by utilizing qualified partners,
associates, paralegals, law clerks, and other legislative support personnel employed by
Consultant. Assistance provided by Consultant's staff is included in the above monthly
lump-sum fee. Assistance provided by individuals who do not work for Consultant is not
included in the momhly lump-sum fee. Any such fees shall be submitted to the City as a
reimbursable out-of-pocket expense incurred. To the extent that any such expense will
exceed $500.00, Consultant will first comaet the City's Assistant City Manager for
Utilities or the Director of Electric Utilities, for advance approval to expend such an
amount. Consultant shall bill the City through the submission of a monthly invoice,
statements, 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 that 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 5th day
of each month, following the firm's rendering services to the City for the preceding
month. All invoices and bills issued by the Consultant shall be approved by the Director
of Elect'dc Utilities and the Utility Attorney.
D. It is understood that the Consultant shall work under the coordination and general
supervision of the Assistant City Manager for Utilities and the Director of Electric
Utilities.
E. It is understood that all notices, billing statements and invoices shall be made in
writing and may be given by personal delivery, by telecopy, or by U.S. Mail. Billing
statements and invoices scm by mail shall be addressed to: Michael S. Copeland, Utility
Attorney, 215 East McKinney Street, Denton, Texas 76201 [Fax (940) 349-8120].
Notices scm by mail shall be addressed both to Mr. Copeland as well as to: Michael A.
Conduff, City Manager, 215 East McKinney Street, Demon, Texas 76201 [Fax (940)
349-8596.] When so addressed, the notice, invoice, and/or payment 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 written notice is given.
SECTION 4: Professional Competency.
A. Consultant agrees that in the performance of these professional services,
Consultant shall be responsible for 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,
Contract For Professional Legal Services - Page 3
Esq. However, nothing herein shall limit Consultant from using other qualified and
competent members of his law firm, or the services of Monte Akers, Esq. of the law fn-m
of Bovey, Akers & Bojorquez, L.L.P., Austin, Texas to perform the services required
herein.
B. All legal opinions 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 therein. If this Agreement is terminated at any time for any reason prior
to payment to the 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 the Consultant.
SECTION 5: Establishment and Maintenance of Records. Full and accurate records
shall be maintained by the Consultant at its place of business with respect to all matters covered
by this Agreement. Such records shall be maintained for a period of at least three (3) years after
receipt of final payment under this Agreement.
SECTION 6: Audits and Inspection. At any time during normal business hours and
upon reasonable notice to the Consultant, there shall be made available to the City all of the
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.
SECTION 7: Accomplishment of Project. Consultant shall commence, carry on, and
complete any and all projects 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, the Consultant shall take such steps as are appropriate to ensure that the work
involved is properly coordinated with related work being carried on by the City.
SECTION 8: Indemnity and Independent Contractor Relationship·
A. The 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, action, suit, or proceeding of
any kind brought by a third party which may result from or directly or indirectly arise
from any negligence and/or errors or omissions on the part of the Consultant or from any
breach of the Consultant's obligations under this Agreement. In the event of any
litigation or claim under this Agreement in which Consultant is joined as a party,
Consultant shall provide suitable counsel to defend the City and Consultant against such
claim, provided the Consultant shall have the right to proceed with the competent counsel
of its own choosing. The Consultant agrees to defend, indemnify and hold harmless the
· City and all of its officers, agents, servants, and employees against any and all such
claims to the extent of coverage by Consultant's professional liability policy. The
Contract For Professional Legal Services - Page 4
Consultant agrees to pay all expenses, including but not limited to attorneys' fees, and
satisfy all judgments which may be incurred or rendered against the 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 fi.om 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, listed
by Best Rated Carriers, with a rating of "A-" or above, issued by an insurance carrier
approved to do business in Texas by the Texas Board of Insurance. 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 annual aggregate, per
claim. In the event of change or cancellation of the policy by the insurer, the Consultant
hereby covenants to forewith advise the City thereof; and in such event, the Consultant
shall, prior to the effective date of change or cancellation, serve substitute policies
furnishing the same coverage. The Consultant shall provide a copy of such policy or the
declarations page of the policy; which ever is reasonably satisfactory, to the City through
its Assistant City Manager/Utilities, simultaneously with the execution of this
Agreement.
SECTION 9: Termination of Agreement.
A. In connection with the work outlined in this Agreement, it is agreed and fully
understood by the Consultant that the City may cancel or indefinitely suspend further
work hereunder or terminate this Agreement at any time upon written notice to
Consultant, 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 and state the reason(s) therefore. Consultant shall invoice the City for all work
satisfactorily completed through the date of the notice, 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 also alternatively 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 affected, 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 terminating party prior to termination.
Contract For Professional Legal Services - Page 5
C. Nothing contained herein or elsewhere in this Agreement shall require the City to
pay for any work which is unsatisfactory or which is not submitted in compliance with
the terms of this Agreement.
SECTION 10: Alternate Dispute Resolution. The Consultant agrees that, if necessary, it
will use its best efforts to resolve any disputes regarding the Agreement through the use of
mediation or other forms of alternate dispute resolution set forth in Chapter 154 of the Texas
Civil Practice and Remedies Code (V.A.T.C.S.).
SECTION 11: 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
supplement or amendment to this Agreement to be effective shall be in writing and signed by the
City and the Consultant.
SECTION 12: Compliance with Laws. The Consultant shall comply with all federal,
state, and local laws, roles, 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.
SECTION 13: 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 the laws of the State if Texas. Venue and jurisdiction of any
suit or cause of action arising under or in connection with this Agreement shall be exclusively in
a court of competent jurisdiction sitting in Denton County.
SECTION 14: Discrimination Prohibited. In performing the services required hereunder,
the Consultant shall not discriminate against any person on the basis of race, color, religion, sex,
national origin or ancestry, age, or physical handicap.
SECTION 15: Personnel.
A. The Consultant represents that it has or will secure at its 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 inform the City of any conflict of interest or potential conflict of interest
that may arise 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 its
direct supervision. All personnel engaged in work shall be qualified and shall be
authorized or permitted under state and local laws to perform such services.
SECTION 16:Assignability. The 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.
Contract For Professional Legal Services - Page 6
SECTION 17: Required Legal Disclosure. State law requires Consultant to advise you
that the State Bar of Texas investigates and prosecutes professional misconduct committed by
Texas Attorneys. Although not every complaint against or dispute with a lawyer involves
professional misconduct, the State Bar's Office of General Counsel will provide you with
information about how to file a complaint. For more information, call 1-800-932-1900. This is a
toll-free call.
SECTION18: 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 court of competent jurisdiction, this
Agreement shall be interpreted as though such invalid agreements or covenants were not
contained herein.
SECTION 19: Responsibilities for Claims and Liability. Approval by the City shall
not constitute nor be deemed a release of the responsibility and liability of the Consultant for the
accuracy and competency of its 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 the
Consultant, its employees, officers, agents and consultants.
SECTION 20: Modification of Agreement. No waiver or modifcation 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 as aforesaid; and, the
parties further agree that the provisions of this section will not be waived as herein set forth.
SECTION 21: Captions. 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.
SECTION 22: 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 assighs where permitted by this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas, has executed this Agreement in
four (4) original counterparts by and through its duly-authorized City Manager; and Consultant
has executed this Agreement by and through its duly-authorized undersigned proprietor, on this
the /t~ day of January, 2005.
Contract For Professional Legal Services - Page 7
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
ATTEST:
CITY OF DENTON
A Texas Municipal Corporation
Michael A. Conduff, C~t~(~anager
"CONSULTANT"
LAW OFFICES OF JIM BOYLE, PLLC
BY:~oyl~,e, ~~
By: ~/c}/~ ~ f~CC~g r~'
Contract For Professional Legal Services - Page 8
EXHIBIT "A"
SCOPE OF SERVICES
The Law Offices of Jim Boyle, PLLC, Austin, Texas (the "Consultant") shall provide legal and
legislative services, advice, and assistance to the City of Denton, Texas ("City") as well as its
electric utility, Denton Municipal Electric ("DME") and its water utilities, under the Agreement
for Professional Legal Services (the "Agreement") attached hereto; with Monte Akers, Esq. of
the law firm of Bovey, Akers & Bojorquez, L.L.P., Austin, Texas to insure thorough coverage of
the objectives of the Agreement, in connection with State legislative activities in the 79t~ Texas
Legislative Session related to:
DME:
· Any legislation related to implementation of a new wholesale market design based on
locational marginal pricing theory (oiten referred to as LMP or a "nodal" design), which
could significantly increase the price to consumers of electricity in the DFW area over
those same costs in other areas of the state.
· Any legislation related to efforts to extend the university discount beyond year 2007, or
to expand its applicability to other entities.
· Any legislation related to imposition of limits on a municipal utility's ability to utilize its
facilities to support new technologies, such as delivery of broadband services over
electric distribution lines.
· Any legislation related to imposition of limits on a municipal utility's ability to charge for
such things.as attachments to its poles by other utilities.
· Any legislation to weaken the ability of municipal utilities to maintain the confidentiality
of issues; such as the terms of individual wholesale power purchase contracts.
Denton Water Utilities:
· Any legislation related to water issues or water conservation issues having a special
impact upon the City.
· Any legislation related to the wastewater issues or wastewater reuse issues having a
special impact upon the City.
. · Any legislation related to the implementation of SB 2, vis-a-vis the City.
· Any legislation related to drainage or storm water issues having a special impact upon the
City.
· Any legislation related to environmental issues dealing with utilities, having a special
impact upon the City.
· Any legislation related to water rights permitting (particularly as it relates to water reuse
and environmental return flows).
Contract For Professional Legal Services - Page 9
Services to be provided by the Finn include:
· Preparing and recommending legislative proposals of benefit to the City/DME
· Development of a strategic legislative plan for the City/DME
* Preparation of issue papers and reports for legislators and staff
· Analyzing proposed legislative bills for potential impact upon the City/DME
· Communicating with key legislators and their staffs
· Meeting with the Denton City Council and/or the Denton Public Utilities Board in
Denton, Texas, as requested, to provide advice, recommendations, and guidance
regarding City/DME legislative plans, strategies, and other related issues, upon
reasonable advance notice.
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