Loading...
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