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2000-249ORDINANCE NO p~ -a`0 AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT FOR PROFESSIONAL LEGAL AND LOBBYING SERVICES WITH THE LAW OFFICES OF JIM BOYLE FOR SERVICES PERTAINING TO LEGAL AND LEGISLATIVE MATTERS RELATING TO THE CITY OF DENTON, DENTON MUNICIPAL ELECTRIC FOR THE INTERIM PERIOD PRIOR TO THE OPENING OF THE 77TH TEXAS LEGISLATURE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, PROVIDING FOR RETROACTIVE EFFECT OF THE AGREEMENT, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and in the public interest to continue to engage the Law Offices of Jim Boyle, Austin, Texas, to provide professional legal and lobbying services to the City pertaining to certain legal and legislative issues and matters relating to Denton Municipal Electric for the interim period prior to the opening of the 77th Texas Legislature, and WHEREAS, the City has previously engaged the professional legal services of the Law Offices of Jim Boyle on several occasions, and most recently, by an agreement heretofore approved by the City, which expired on December 31, 1999 on similar interim legal and legislative matters that covered the initial post-76th Texas Legislature period of time from August 1, 1999 through December 31, 1999 Thereafter, the Law Offices of Jim Boyle continued voluntarily performing professional legal and lobbying services on the City's behalf, without interruption, which services benefited the City, in advance of the approval by the Council of this Agreement for Professional Services, because of exigent, urgent developments, and unexpected circumstances unfolding in connection with matters and issues expected to be dealt during the remaining interim period before the beginning of the 77th Texas Legislature, involving the City's and Denton Municipal Electric's concerns and interests Only recently has it been possible to reasonably accurately define and quantify an appropriate scope of services and determine an appropriate amount of compensation to be paid for these professional services for the interim legislative period beginning January 1, 2000 and running through December 31, 2000, as are more particularly provided for in the Agreement for Professional Legal Services, and accordingly, the City Council has determined that it is fair and appropriate to approve the Agreement to be effective as of January 1, 2000, and WHEREAS, the City Council has provided in the City Budget for the appropriation of funds to be used for the purchase of the foregoing professional 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 City Manager is hereby authorized to execute an Agreement for Professional Legal Services with the Law Offices of Jim Boyle, Austin, Texas for professional services pertaining to certain legal and legislative matters involving the City of Denton Municipal Utilities for the interim period before the 77t" Texas Legislature as specified 4 hereinabove, in substantially the form of the Agreement for Professional Legal Services attached hereto and incorporated herewith by reference SECTION 2 That the award of this Agreement is on the basis of the demonstrated competence and qualifications of the Law Offices of Jim Boyle and the ability of the Law Offices of Jim Boyle to perform the professional legal services needed by the City for a fair and reasonable price SECTION 3 That the expenditure of funds as provided for in the attached Agreement for Professional Legal Services is hereby authorized SECTION 4 That the Agreement for Professional Legal Services is hereby ratified and retroactively approved, and shall be effective from and after January 1, 2000 SECTION 5 That except as provided in Section 4 heremabove, this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the S~ day of 2000 '4-t~ f EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY By a, t t .4, 1, ~ ftRl~ - APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By S \Our Documents\Ordmances\OOUhm Boyle Pre 77th TX Legis PSA doe STATE OF TEXAS § COUNTY OF DENTON § AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered into this / day of , 2000, by and between the Law Offices of Jim Boyle, 1005 Congress, Suite 550 Austin, Texas 78701, with Jim Boyle, Attorney, having full authority to execute this Agreement, 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", acting by and through its duly-authonzed and empowered City Manager WITNESSETH WHEREAS, it is necessary and appropriate that the City of Denton continue to employ experienced and well-qualified legal counsel to represent it in certain transitional legislative and legal issues following adjournment of the 76th Texas Legislature and preceding the start of the 77`h Texas Legislature in January 2001, as well as significant compliance issues, strategic planning issues, and other legal issues impacting upon and relating to Denton Municipal Electric ("DME") ansmg as a result of the enactment of Senate Bill 7, and otherwise, and WHEREAS, the City has previously engaged the professional legal and lobbying services of the Law Offices of Jim Boyle on several occasions, and most recently, by an agreement entered into and approved by the City, which expired on December 31, 1999 respecting similar interim legal and lobbying matters that covered the period immediately following the adjournment of the 76`h Texas Legislature from August 1, 1999 through December 31, 1999, and thereafter, the Law Offices of Jim Boyle continued voluntarily performing needed professional legal and legislative services on the City's behalf, without interruption, and which services benefited the City These services were performed in advance of the formal approval by the City Council of this Agreement for Professional Legal Services because of urgent developments, and exigent, unexpected circumstances unfolding in connection with matters and issues expected to be dealt with during the remaining interim period preceding the beginning of the 77`h Texas Legislature, involving the City's and Denton Municipal Electric's ("DME") concerns and interests Only recently has it been possible to reasonably quantify an appropriate scope of services and determine an appropriate amount of compensation to be paid for these professional services for the interim legislative period beginning January 1, 2000 and ending on December 31, 2000, and WHEREAS, for the foregoing reasons, the City Council has determined that it is fair and appropriate for the terms and provisions of this Agreement to be ratified, retroactively approved, and effective as of January 1, 2000, 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 ScgRe 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 will provide, without limitation, those services set forth in Exhibit "A" made a part of this Agreement for all purposes, and shall attend legislative hearings, attend committee meetings, contact key legislators and legislative staff as reasonably required to advance the interests of the City and its municipally-owned electric utility, DME 2 To consult with the Mayor, City Manager, Assistant City Manager for Utilities, Director of Electric Utilities, City Attorney, Assistant City Attorney/Utilities, any Legislative Coordinator designated by the City, and any other designated City 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 Assistant City Attomey/Utilities, and their respective staff to efficiently perform the services required and to communicate the City's legislative program as to DME or issues to other interested parties or legislators only to the extent necessary to advance the City's legislative agenda 3 To provide regular status reports to the City and interim reports by telephone and facsimile on time-sensitive matters II Term. The term of this Agreement shall commence effective January 1, 2000 and shall continue for a twelve (12) month period until December 31, 2000, the date of expiration of the term of this Agreement The parties agree that this Agreement is ratified and retroactively approved, and shall be effective as of January 1, 2000 This Agreement may be sooner terminated by either party in accordance with the provisions hereof Time is of the essence respecting this Agreement, and Consultant shall make all reasonable efforts to complete the services set forth herein as expeditiously as possible, as well as to meet the schedules established by the City, through its Director of Electric Utilities III Comm2ensation and Method of Payment A The Consultant shall be paid the sum of $5,000 00 per month as a non-refundable professional retainer fee for each month that this Agreement is in force and effect Due to the unique and specialized nature of the services provided and to be provided hereunder, 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, and is a reasonable method of compensating Consultant for this engagement The retainer fee provided for by this paragraph shall not exceed $60,000 B In addition, the City shall reimburse the Consultant for all out-of-pocket expenses incurred in connection with this Agreement at Consultant's actual cost The parties estimate that these expenses will cost approximately 15% of the total amount of fees provided for by this Agreement, or approximately $9,000 00 For in-house photocopies, however, Consultant shall charge $0 15 per copy For in- house faxes, Consultant shall charge $0 25 per page plus any applicable telephone charge C The parties agree that the aggregate amount of professional fees and expenses as provided in Paragraphs III A and III B of this Agreement shall not exceed $69,00000 D 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 principals, associates, legal assistants, or subconsultants Assistance provided by Consultant's 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 $1,000 00, Consultant will first contact the Director of Electric Utilities for prior approval of any such expense The Consultant shall bill the City through the submission of a monthly invoice and other documentation, including supporting back-up data for all expenses incurred and invoiced E 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 the City's 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 15`h day of each month All invoices and bills shall be reviewed by the Director of Electric Utilities, and reviewed and approved by the Assistant City Attorney/Utilities F It is understood that the Consultant shall work and coordinate his efforts under the general supervision of the Director of Electric Utilities and the Assistant City Attomey/Utilities G 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/Utilities, Utility Administration, 215 East McKinney, Denton, Texas 76201, or to Jim Boyle, Esq , Law Offices of Jim Boyle, 1005 Congress, Suite 550, Austin, Texas 78701 When so addressed, the notice, invoice, and/or payment shall be deemed given to the other party 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 which notices, invoices, and/or payments are to be sent, provided reasonable notice is given to the other party IV Professional Cort eqi tency A 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, Attorney However, nothing herein shall limit Consultant from using other qualified and competent members of his law firm to perform the services required herein, where no harm or detriment will result to the City's interests B Any 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 the City's 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 written 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, transcripts, or copies 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 provided for hereunder with all practicable dispatch, in a sound, economical and efficient manner, and, in accordance with the provisions hereof and of 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 any related work being carved on by the City VIII Indemnity and Independent Contractor Relationship A The Consultant shall perform all services as an independent contractor, not under the direct supervision or 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 at 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 B Consultant shall maintain in full force and effect at all times during the term of this Agreement, a legally binding policy of professional liability insurance, issued by an insurance carver approved to do business in the State of Texas by the State Insurance Board, which carver shall have a rating from A M Best Rated Carvers, of "A-" or higher Such coverage shall cover any claim hereunder occasioned by the Consultant's negligent professional act and/or error or omission, with a policy limit of 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, provide a substitute policy furnishing the same coverage to the City 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, 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 fifteen (15) days written notice to Consultant Upon receipt of such notice, Consultant shall cease all work and labor being performed under this Agreement B 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 expenses incurred, and shall he compensated in accordance with the terms of this Agreement All reports and other documents, or data, or work related to the projects shall become the property of the City upon termination of this Agreement C This Agreement may, in the alternative, 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 D 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, representations, or oral agreements are intended to be integrated herein and to be superseded by this written agreement Any supplement or amendment to this Agreement, in order to be effective, must 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 be hereafter amended, including, but not limited to the Texas Disciplinary Rules of Professional Conduct XII Ggveming_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 and construed in accordance with 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 lie exclusively in a court of competent junsdiction 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 A 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 of, nor shall they 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 anse during the term of this Agreement, in accordance with Consultant's responsibilities under the Texas Disciplinary Rules of Professional Conduct [See Paragraph XV herembelow ] B 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 licensed, or authorized, or permitted under federal, state and local laws to perform such services XV Consent to Relresentation of The City of Greenville Texas The City understands that Consultant expects to possibly enter into an agreement for professional legal services with the City of Greenville, Texas, and that the scope of Consultant's work to be performed for the City of Greenville, Texas may be similar, or possibly the same as Consultant's work for the City of Denton under this Agreement Because of the close ties and relations between the Cities of Denton and Greenville, and their involvement in similar Legislative issues, the City consents to Consultant's engagement as a Consultant by the City of Greenville The City of Denton realizes that although it is likely that the Cities of Denton and Greenville will have compatible positions on legislative issues, it is possible that the Cities of Denton and Greenville will assume conflicting positions on certain legislative issues The City is aware of this potential conflict and consents to Consultant's representation of both Cities even in light of the potential conflict The Consultant agrees to disclose promptly to the Cities of Denton and Greenville any conflicts if they should anse, and obtain consent for continued representation XVI 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 XVII 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", "Compensation and Method of Payment" and "Consent to Representation of the City of Greenville, Texas" 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 XVIII ReMonsibilities 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, agents, or subconsultants XIX 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 ansing 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 paragraph will not be waived as herein set forth XX CQtions 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 XXI 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 executed this Agreement by and through its duly-authonzed City Manager, pd Consultant ha executed this Agreement, in four (4) original counterparts on this the day of _ 2000 "CITY" CITY OF DENTON, TEXAS A Municipal Corporation By ►,G~ Mic ael W Jez, ty Manager ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY A By _ "CONSULTANT" THE LAW OFFICES OF JIM BOYLE B im oyle, 'sq ATTEST By EXHIBIT "A" Scope of Services, The Law Offices of Jim Boyle ("Consultant') shall provide professional legal and legislative services, advice, and assistance to the City and its electric utility, Denton Municipal Electric ("DME") in connection with transitional legislative activities related to the restructuring of the electric utility industry as a result of the enactment of Senate Bill 7 by the 76`h Texas Legislature, activities appropriate for preparation for the 77`h Texas Legislature, as well as related compliance and strategic planning issues Services to be provided by the Consultant during the twelve (12) month term of this Agreement shall reasonably include, without limitation • Commencing, developing, and recommending preliminary legislative proposals of benefit to the City and its electric utility, DME respecting the upcoming 77`h Texas Legislature, during the remaining interim period preceding the commencement of the 77th Texas Legislature • Commence and lead appropriate City Staff in the development of a Strategic Legislative Plan for DME for the 77`h Texas Legislature • Coordinating the interaction and interface of City officials and legislative leaders • Preparing of issue papers and reports for legislators and staff where appropriate • Working with the Texas Public Power Association (TPPA) to further City legislative objectives and concerns respecting DME • Working with the Texas Municipal League ("TML") to further City legislative objectives and concerns vis-i-vis DME • Communicating with key legislators and their staffs • Enlisting reports and other documents for use with the Texas Municipal Power Agency (TMPA) • Assisting the City/DME re the development of strategies, as well as legal compliance and other transitional issues imposed or brought about by SB 7 • Taking actions to prepare for a plan of defense to protect legislative gams achieved by DME in the ;rea of electric and dark fiber issues as a result of the 76th Texas Legislature • Meeting from rime-to-tune with the Denton City Council and/or the Denton Public Utilities Board in Denton, Texas, or elsewhere, to provide guidance and professional advice • Maintaining effective lines of communication to the City regarding the status of legislative issues pertinent to the activities of DME during the interim legislative period, especially relating to the activities of any interim legislative committees and the pre-filing of legislation in the Fall of 2000 wwwwwww S \Our DocumentAContracts\OOVim Boyle Pro 77th TX Legts Intenm Pd 2000 PSA doc