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2002-398ORDINANCE NO. 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 78TM TEXAS LEGISLATIVE SESSION. PERTAINING TO THE CITY OF DENTON/DENTON MUNICIPAL ELECTRIC; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR; 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 78th Texas Legislative Session; and WHEREAS, the City has previously retained and engaged the professional legal services of Boyle on numerous occasions in the last seven 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 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 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 leg/~l 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 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 proposed legislation before the 78th 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 ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED thisthe f0-'~' day of ~'J~ ,2002. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY S:\Our DocumentsXOrdinances\02Uim Boyle-78th Texas Legislature-Legal-Lobbying ord.doc STATE OF TEXAS § COUNTY OF DENTON § AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered into this the /ff~ day of December, 2002, 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 firm, 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 f'mds 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 as well as its electric utility, Denton Municipal Electric ("DME') 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 78th 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 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; 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 written 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. The professional services of Consultant as provided by this Agreement shall commence on January 1, 2003 and shall continue until the expiration of the term of this Agreement, on May 31, 2003. The term of this Agreement is generally tied to the schedule of the 78th 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 $12,000 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 $65,000. B. 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 Services of this Agreement, by utilizing qualified partners, Contract For Professional Legal Services - Page 2 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 monthly 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 contact 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 5~ day of each month, following the frrm'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 Electric 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, the Director of Electric Utilities, and the City Attorney, or his designee. 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 sent by mail shall be addressed to: Michael S. Copeland, Utility Attorney, 215 East McKinney Street, Denton, Texas 76201 [Fax (940) 349-8120]. Notices sent by mail shall be addressed both to Mr. Copeland as well as to: Michael A. Conduff, City Manager, 215 East McKinney Street, Denton, 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. However, nothing herein shall limit Consultant from using other qualified and competent members of its firm to perform the services required herein. Contract For Professional Legal Services - Page 3 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 ail 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 indkectly 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 shah 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 ail of its officers, agents, servants, and employees against any and all such claims to the extent of coverage by Consultant's professional hability policy. The Consultant agrees to pay all expenses, including but not limited to attorneys' fees, and satisfy ail 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, Contract For Professional Legal Services - Page 4 resulting from 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 fitteen (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 tennination 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. 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 Contract For Professional Legal Services - Page 5 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, 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. 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 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. SECTION 14: Discrimination Prohibited. In performing the services required hereunder, the Consultant shall not discriminate aga'mst 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 w'fll 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. 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 Contract For Professional Legal Services - Page 6 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 assigns where permitted by this Agreement. 1N 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 e?ce~cu~ed this Agreement by and through its duly-authorized undersigned proprietor, on this the [//t~]/~ day of December, 2002. "CITY" CITY OF DENTON A Texas Municipal Corporation By: ~ --Michael A. ~ond ,~y Manager Contract For Professional Legal Services - Page 7 ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY ATTEST: By: "CONSULTANT" LAW OFFICES OF JIM BOYLE, PLLC By: yle, Es~ %o Conlract For Professional Legal Services - Page 8 EXHIBIT "A" SCOPE OF SERVICES The Law Offices of Jim Boyle, PLLC, Austin, Texas (the "Firm") 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"), under the Agreement for Professional Legal Services attached hereto, in connection with State legislative activities in the 78th Texas Legislative Session related to: Any legislation related to SB 7 [Electric Restructuring] Any legislation related to the fees to be paid by DME to ERCOT Any legislation related to electric utility issues of importance having a special impact upon DME Any legislation related to environmental issues having a special impact upon DME Denton Water Utilities: Any legislation related to water issues having a special impact upon the City Any legislation related to the wastewater issues having a special impact upon the City Any legislation related to the wastewater reuse issues having a special impact upon the City Any legislation related to the implementation ofSB 1 or SB 2 [vis-fi-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 having a special impact upon the City Services to be provided by the Firm 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 to provide advice and guidance regarding City/DME legislative plans, strategies, and other related issues, upon reasonable advance notice. S:\Our D ooumonts\Cordra~ts\02 Uim Boyle 7gth Legislature Lobbying Svo PSA. doc Conlmct For Professional Legal Services - Page 9