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
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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
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