2004-041ORDINANCE NO. 2004- ~7¢/
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 INTERIM MATTERS PRECEDING THE 79TM
REGULAR TEXAS LEGISLATIVE SESSION PERTAINING TO THE CITY OF
DENTON/DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF
FUNDS THEREFOR; PROVIDING FOR RETROACTIVE APPROVAL THEREOF; 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")
regarding interim matters pertaining to the year preceding the 79th Regular Texas Legislative
Session; and
WHEREAS, the City has previously retained and engaged the professional legal services
of Boyle on numerous occasions in the last eight (8) years, and has operated under 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 Public Utility Commission of Texas, the Texas Railroad Commission 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 staff has reported to the City Council that them 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 2254 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 I. That the recitations in the preamble are true 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 the
interim one-year period preceding the 79th Regular 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 this Agreement is ratified, confirmed and effective, and retroactively
approved t~om and after January 1, 2004.
SECTION6: That all other provisions of this ordinance shall become effective
immediately upon its passage and approval.
PASSED AND APPROVED this the ~ day of, ~t~Z~J~ ,2004.
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
HERBERT L. PROUTY, CITY ATTORNEY
2
STATE OF TEXAS
COUNTY OF DENTON
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
I
Tins a m NT, made and entered into this of
2004, by and between the Law Office of Jim Boyle, PLLC, with Jim Boyle having full auth~6rity
to execute this Agreement, 1005 Congress, Suite 550, Austin, Texas 78701, hereinafter referred
to as "Consultant", and the City of Denton, Texas, a Texas Municipal Corporation, 215 East
McKinney, Denton, Texas 76201, hereinafter referred to as "City."
WITNESSETH
WHEREAS, the City needs to employ legal counsel to represent the City of Denton,
Texas in certain interim legislative and legal matters relating to Denton Municipal Electric
before the beginning of the 79th Texas Legislature commencing in January 2005; and
WHEREAS, because of the increased level of activities associated with this Agreement,
Monte Akers ("Akers"), of the law firm of Bovey, Akers & Bojorquez, LLP, Austin, Texas, will
also be working with Consultant, as a Subconsultant, to insure thorough coverage of the
objectives of this Agreement; and shall be compensated for his services by the Consultant; and
WHEREAS, the City hereby consents to the employment of Akers as Subconsultant to
the Consultant, and understands that Consultant will prepare all billing under this Agreement;
and
WHEREAS, the Consultant is willing to perform such services in a professional manner
as an independent contractor; and
WHEREAS, the City desires to engage the Consultant to render the services in
connection therewith, and the Consultant is willing to provide such services; and
NOW, THEREFORE, in consideration of the promises and mutual obligations set forth
herein, the parties hereto do mutually AGREE as follows:
I. 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:
Consultant will provide, without limitation, all those services set forth in
Exhibit "A," "Scope of Services" incorporated herewith and made a part
of this Agreement for all purposes;
To consult with the Mayor, City Manager, Assistant City Manager for
Utilities, Director of Electric Utilities, City Attorney, Utility Attorney and
designated administrative personnel regarding any and all aspects of the
special services to be performed, including legal research and advice with
respect to such matters. This will include coordinating with the Assistant
City Manager for Utilities, Director of Electric Utilities, the City Attomey,
and their staff to efficiently perform the services required and
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.
To provide regular monthly status reports to the City regarding interim
legislative issues; and interim reports by telephone and facsimile if there
are time-sensitive matters.
II. Term: The services of Consultant shall commence January 1, 2004 and continue until the
expiration of the term of this Agreement on December 31, 2004. This Agreement may be sooner
terminated by either party in accordance with the provisions hereof. Time is of the essence for
this Agreement, and the Consultant shall make all reasonable efforts to complete the services set
forth herein as expeditiously as possible and to meet the schedules established by the City,
through its Assistant City Manager for Utilities.
III. Compensation and Method of Payment:
The Consultant shall be paid the lump-sum of $8,000 per month fees for each
month that this Agreement is in force and effect. Due to the unique and
specialized nature of services provided for in the Scope of Services, 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. It is understood that any and all fees of the Subconsultant
shall also be included within this $8,000 per month.
In addition, the City shall reimburse the Consultant for all reasonable out-of-
pocket expenses incurred in connection with this Agreement at Consultant's cost.
For in-house photocopies, Consultant shall charge $0.15 per copy. For in-house
faxes, Consultant shall charge $0.25 per page plus telephone charge. Expenses
for this Agreement appearing on Consultant's fee bills, shall not exceed $7,500.
The total amount of this Agreement shall not exceed $103,500.
The Consultant shall utilize his best efforts in representing the City's interests, and
may, from time-to-time, as reasonably necessary or appropriate, delegate tasks to
be performed within the Scope of Work of this Agreement, by utilizing
Subconsultant, qualified associates, legal assistants, and paralegals. Assistance
provided by Consultant's staff is included in the monthly fee. Consultant shall bill
2
the City through the submission of a monthly invoice and other documentation,
including supporting data for all expenses incurred and invoiced.
Upon completion of services for a month's work performed hereunder, the City
shall make payment to the 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 invoices or statements for services will be
generated on a monthly basis and that said invoices or statements shall be sent to
the City on or about the 15th day of each month. All invoices and bills shall be
sent directly to, processed by and approved by the City's Utility Attorney and
approved for payment by the Director, Denton Municipal Electric.
It is understood that the Consultant shall work under the coordination and general
supervision of the Director, Denton Municipal Electric.
All notices, invoices, and payment shall be made in writing and may be given by
personal delivery or by mail. Notices, invoices, and payments sent by mail shall
be addressed to: Michael S. Copeland, Utility Attorney, 215 East McKinney
Street, Denton, Texas 76201; or to the Jim Boyle, Law Offices of Jim Boyle,
PLLC, 1005 Congress, Suite 550, Austin, Texas 78701. When so addressed, the
notice, invoice, and/or payment shall be deemed given upon deposit in the United
States Mail, postage prepaid. In all other instances, notices, invoices, and/or
payments 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 notice is
given.
IV. Professional Competency:
The Consultant agrees that in the performance of these professional services,
Consultant shall be responsible to 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. However, nothing herein shall limit
Consultant from using Subconsultant or other qualified and competent members
of his firm to perform the services required herein, where no harm or detriment
will result to the City's interests.
Pleadings, motions, orders, notices, instruments, discovery documents, reports,
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.
V. Establishment and Maintenance of Records: Full and accurate records shall be
maintained by the Consultant at his place of business with respect to all matters covered by this
Agreement. Such records shall be maintained for a period of at least three years after receipt of
final payment under this Agreement.
VI. 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. The 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.
VII. Accomplishment of Proiect: The 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 insure that the work involved is
properly coordinated with related work being carried on in the City.
VIII. Indemnity and Independent Contractor Relationship:
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, actions, suits,
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 any litigation or claim is brought under this Agreement in which City
is joined as a party, Consultant shall provide suitable counsel to defend City and
Consultant against such claim; provided however, that the Consultant shall have
the right to proceed with competent counsel of his own choosing. The Consultant
agrees to defend, indemnify and hold harmless the City and all of its officers,
attorneys, agents, servants, and employees against any and all such claims to the
extent of coverage by Consultant's professional liability policy. The Consultant
agrees to pay all expenses, including but not limited to attorney's fees, and satisfy
all judgments that 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 from Consultant's negligent errors or
omissions, or breach of contract, and all such rights and remedies are expressly
reserved.
Consultant shall maintain and shall be caused to be in fome at all times during the
term of this Agreement, a legally binding policy of professional liability
insurance, issued by an insurance carder approved to do business in the State of
Texas by the State Insurance Commission, which carder must be rated by Best
Rated Carders, with a rating of "A-" or higher. 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 combined single limit
coverage per occurrence. In the event of change or cancellation of the policy by
the insurer, the Consultant hereby covenants to immediately advise the City
thereof; and in such event, the Consultant shall, prior to the effective date of
change or cancellation, serve a substitute policy furnishing the same coverage to
the City. The Consultant shall provide a copy of such policy and the declarations
page of the existing policy to the City through its Utility Attorney, simultaneously
with the execution of this Agreement.
IX. Termination of Agreement:
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 fifteen (15)
days written notice to Consultant. Upon receipt of such notice, 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. Consultant
shall invoice the City for all work satisfactorily completed 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.
This Agreement may 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 effected, 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.
Co
Nothing contained herein or elsewhere in this Agreement shall require the City to
pay for any work performed by Consultant or by any person performing services
under this Agreement at the direction of Consultant, which is unsatisfactory, or
which is not submitted in compliance with the terms of this Agreement.
X. Entire A~eement: 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 he 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
Consultant.
XI. Compliance with Laws: The Consultant shall comply with all federal, state and local
laws, rules, 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.
XII. Governing Law: For the purpose of determining place of agreement and law governing
same, this Agreement is 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 action
arising under or in connection with this Agreement shall be exclusively in a court of competent
jurisdiction sitting in Denton County, Texas.
XIII. 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.
XIV. Personnel:
Consultant represents that he has or will secure at his own expense all routine
personnel required to perform all the services required under this Agreement.
Routine personnel shall not be employees or have any contractual relations with
the City. Consultant shall immediately 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.
All services required hereunder will be performed by the Consultant or under his
direct supervision. All personnel engaged in work hereunder shall be qualified
and shall be authorized or permitted under federal, state and local laws to perform
such services.
XV. 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.
XVI. 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 competent court, this Agreement shall be interpreted as though
such invalid agreements or covenants were not contained herein.
XVII. 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 his work; nor shall such approval be deemed to be an assumption of such
6
responsibility of the City for any defect in any report or other documents prepared by the
Consultant, his Subconsultant, his employees, officers, and agents.
XVIII. Modification of Agreement: 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. 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.
XIX. 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.
XX. 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 assigns where permitted by this Agreement.
IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement
to be executed by its duly authorized City Manager; and Consultant has executed in four original
counterparts this Agreement on this the / 7P~L day of ,_74~,,~4~t4~t¢d/ZP-,, 2004.
"CITY"
CITY OF DENTON, TEXAS
Michael A. Conduff, JL~t~anager
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By:
7
ATTEST:
"CONSULTANT"
LAW OFFICES OFJIM BOYLE, PLLC
By: //~o7- //V6 r-e~L(~7
S:5Our Documenls\Contracts\04~lim Boyle Interim Legislative PSA-2004-DME.do¢
8
EXHIBIT "A"
SCOPE OF SERVICES
Jim Boyle of the Law Offices of Jim Boyle, PLLC ("Consultant") shall provide legal
and legislative services for the benefit of Denton Municipal Electric CDME") during
the interim period before the start of the 79'h Regular Session of the Texas Legislature.
In connection with the provision of the services listed below, Monte Akers of Bovey,
Akers & Bojorquez, LLP will be working with the Consultant to insure thorough
coverage of the objectives of this agreement. Consultant will compensate Mr. Akers
for his services in connection with this Agreement. Consultant shall be responsible for:
Attempting to initiate changes or amendments to the Public Utility
Regulatory Act ("PURA") which would benefit DME while PURA and
the Public Utility Commission undergo sunset review before the Sunset
Advisory Commission.
Provide input for the Interim Reports of the House Regulated Industries
Committee on the following issues being studied by that Committee.
· The process of economic dispatch and determine possible methods to
improve the competitive electric utilities market and reduce costs and
pollution caused by inefficient power plants.
· The reliability of electric utility service and review authority and
structure of the Electric Reliability Council of Texas.
· The benefits and challenges associated with alternative forms of
energy generation technologies, such as wind and hydrogen fuel
cells, and what if any state government involvement should be
considered. (Joint Interim Charge with Energy Resoumes
Committee.)
Provide input to the Joint Committee on Electric Restructuring and the
Senate Economic Development Committee. The interim charges for
these two committees have yet to be announced.
Work with area legislators on issues of concern with regard to
municipally-owned electric utilities.
Implement programs to educate legislative leaders about potential
problems with nodal markets for municipally-owned utilities and electric
cooperatives in the DFW area.
6. Other tasks as assigned by the City or DME.
S:\Our Documen~s\Contracts~04\Jim Boyle Interim Legislative PSA-Exhibit A-2004-DME.doc