2002-108ORDINANC 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 SERVICES PERTAINING TO THE
TRAVIS COUNTY LITIGATION INITIATED BY THE CITY OF SAN ANTONIO, TEXAS
AND BY RELIANT ENERGY, INC. RELATING TO DENTON MUNICIPAL ELECTRIC
AND NUMEROUS OTHER ELECTRIC TRANSMISSION PROVIDERS IN THE STATE OF
TEXAS; AS WELL AS FOR A RELATED PUBLIC UTILITIES COMMISSION
PROCEEDING RESPECTING COLLEGE STATION, TEXAS; AUTHORIZING THE
EXPENDITURE OF FUNDS THEREFOR; PROVIDING FOR RETROACTIVE 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 pertaining to representation of the City as a Defendant in two lawsuits
recently brought by the City of San Antonio, Texas (GN#200100; City of San Antonio, Texas, et
al vs. Brazos Power Cooperative) and by Reliant Energy, Inc. (GN#200090; Reliant Energy, Inc.
vs. Big Country Electric Cooperative, et al) in the District Court of Travis County, Texas; and
regarding related Public Utilities Commission proceedings concerning College Station, Texas
(PUC Docket No. 25197); regarding electric transmission accounting and rate matters, involving
conflicting Public Utilities Comm/ssion of Texas ("PUC") rulings and final rulings of the Texas
Supreme Court relating to Denton Municipal Electric ("DME") as well as nearly every other
electric utility in the Electric Reliability Council of Texas ("ERCOT"); and
WHEREAS, the City has previously retained 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 Council, and signed by the City Manager,
regarding legislative issues and lobbying; 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 DME; and
WHEREAS, the City staff has 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 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 counsel for
the City, specifically 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 services pertaining to the two civil suits pending before the District Courts in
and for Travis County, Texas, and the related PUC proceeding, 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 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 as to the payment of fees and expenses, and authority to represent the
City, the Agreement for Professional Legal Services is hereby ratified and retroactively
approved, and shall be effective fi-om and after January 5, 2002.
SECTION 6: That except as provided in Section 5 hereinabove, this ordinance shall
become effective immediately upon its passage and approval.
PASSED AND APPROVED this the /~f/~ dayof ff?~ ,2002.
EUL1NE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
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APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
By: '~ ~
S:\Our Documents\Ordinances\02~Jim Boyle PSA-Travis Co Litigation-DME ord.doc
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STATE OF TEXAS
COUNTY OF DENTON
AGREEMENT FOR PROFESSIONAL LEGAL SERVICES
THIS AGREEMENT, made and entered into this //~ ~'~-/~ day of d~/.~-~ ,
2002, by and between the Law Office of Jim Boyle, PLLC, with Jim Boyle havin~ full authority
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."
WlTNESSETH
WHEREAS, the City needs to employ legal counsel to represent the City of Denton,
Texas in complaints filed by the City of San Antonio, Texas (GN#200100, City of San Antonio,
Texas, et al. vs. Brazos Power Cooperative) and by Reliant Energy, Inc. (GN#200090, Reliant
Energy, Inc.vs. Big Country Electric Cooperative, et al) in the District Court of Travis Connty,
Texas; together with Public Utilities Commission Proceeding No. 25197 relating to the City of
College Station, Texas; regarding electric transmission accounting and rate matters relating to
the legal fights of Denton Municipal Electric as well as eve~ other electric utility in the Electric
Reliability Council of Texas ("ERCOT") which lawsuits were recently commenced several
weeks ago; and
WHEREAS, because of the time exigencies arising, the delays involved, and the need to
frame an immediate answer to the suits, and the time necessary to reach a mutually agreeable
Agreement, the City has requested Consultant to represent the City in advance of the formal
approval of a written contract between Consultant and City, and Consultant has agreed to
proceed on this basis during the brief interim period following the filing of the two suits several
weeks ago; 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, the defense of both lawsuits
and the PUC proceeding referred to above; to bring any appropriate
counterclaims, third-party actions, cross-claims, claims for setoff, or other
actions against the appropriate parties; to file answers to the lawsuits; to
file any and all pleadings, memorandums of law, briefs, or other legal
documents which are necessary or appropriate regarding the two above
referred to lawsuits. Consultant will attend all meetings, depositions,
heatings, and other events that he deems necessary to represent the City's
legal position in the two above referred to lawsuits.
To consult with the City Manager, Assistant City Manager for Utilities,
Director of Electric Utilities, Assistant City Attorney for Utilities, and
designated administrative personnel regarding any and all aspects of the
special services to be performed hereunder, including legal research and
advice with respect to such matters, to the extent necessary to represent
the City in the two above referred to lawsuits.
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To provide regular monthly status reports to the Director of Electric
Utilities and interim reports by telephone and facsimile on time-sensitive
matters. To provide for status reports on the litigation to the City Council,
in person, if requested by the Director of Electric Utilities.
The Consultant shall perform all the services required by this Agreement in a
timely fashion, and shall complete same in compliance with any schedules
established by the City through its Assistant City Manager for Utilities, as
appropriate to carry out the terms and conditions of this Agreement.
II. Term: The services of Consultant shall commence effective on January 5, 2002 and shall
continue until the first to occur of the following events: exhaustion of the funds provided for by
this Agreement; or the completion of the litigation the subject of this Agreement; or June 30,
2003. 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 froth 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:
Ao
For and in consideration of the professional services to be performed by
Consultant herein, the City agrees to pay, based upon the hourly rate shown in
Article III.B. hereinbelow, including reimbursement for out-of-pocket expenses
incurred in connection with this Agreement, an amount not to exceed $65,000.
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The following hourly billing rates shall apply to Consultant's firm, which rates
shall be billed in one-tenth (1/10) hour increments:
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Jim Boyle $195.00
Kathleen Sanford $195.00
Rick Guzman $180.00
Jamie Slaughter $170.00
In addition, the City shall reimburse the Consultant for all out-of-pocket expenses
incurred in connection with this Agreement, other than photocopies and faxes, at
Consultant's cost. For in-house photocopies, Consultant shall charge $0.15 per
page. For faxes, Consultant shall charge $0.25 per page plus any long distance
telephone charge.
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 qualified
associates, legal assistants, paralegals or sub-consultants. Assistance provided by
Consultant's non-professional staff is included in the monthly fee. Assistance
provided by individuals who do not work for the Consultant is not included in the
monthly fee and any such fees will be submitted to the City as a reimbursable
expense incurred. To the extent any such expense will exceed $500, Consultant
will first contact the City's Director of Electric Utilities for approval. Consultant
shall bill the City through the submission of a monthly invoice and other
documentation, including support 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 to and approved by City's Assistant City Attorney for Utilities.
It is understood that the Consultant shall work under the coordination and general
supervision of the Director of Electric Utilities and the Assistant City Attorney for
Utilities.
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, Assistant City Attorney for Utilities, 215
East McKinney, Denton, Texas 76201; or to the Jim Boyle, Law Offices of Jim
Boyle, PLLC, 1005 Congress, Suite 550, Austin, Texas 78701. Notices addressed
to the City by Consultant shall also be sent to the City Manager of the City of
Denton as well, at 215 East McKinney Street, Denton, Texas 76201. 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 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 Consukant 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 Project: 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. Indenmity 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
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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 part, 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 force at all times during the
term of this Agreement, a legally binding policy of professional liability
insurance, issued by an insurance carrier approved to do business in the State of
Texas by the State Insurance Commission, which carrier must be rated by Best
Rated Carriers, 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 occurrence. In the event of change or cancellation of the policy by the
insurer, the Consukant 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 Assistant City Manager for Utilities,
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 ilfteen (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
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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 mall, 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.
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 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
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.
Specialized consultants are not considered routine personnel. 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
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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 assigrnnent, 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
responsibility of the City for any defect in any report or other documents prepared by the
Consultant, his employees, officers, agents and sub-consultants.
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 and ratified by its duly authorized and empowered City Manager; and Consultant
has executed_/~s Agreement ia. four.(4~) original counterparts by its duly authorized officer on
this the /~ ~ day of fJ2g4M~ ,2002.
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"CITY"
CITY OF DENTON, TEXAS
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
HERBERT L. PROUTY, CITY ATTORNEY
"CONSULTANT"
LAW OFFICES OF JIM BOYLE, PLLC
ATTEST:
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