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2000-441AN 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 LOBBYING ACTIVITY AND LEGISLATIVE MATTERS RELATED TO DENTON MUNICIPAL UTILITIES FOR THE TERM OF THE 77TM TEXAS LEGISLATURE, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City Council deems it necessary and appropriate and m the public interest to continue to engage the Law Offices of Jim Boyle, PLLC ("Boyle"), of Austin, Texas, to provide professional legal services pertaining to lobbying activity and legislative matters and Issues relating to Denton Municipal Utilities for the term of the 77th Texas Legislature, and WHEREAS, the C~ty has previously retained the professional legal services of Boyle on several occasxons Most recently, the City has engaged Boyle by an agreement for professional legal services heretofore approved by the City, which will expire on December 31, 2000 respecting legal servmes, interim legislative matters, and lobbying services that pertain to Denton Municipal Electric, covenng the final one year of the interim period following the completion of the 76th Texas Legislature, from January 1, 2000 through December 31, 2000, and WHEREAS, the City staffhas reported to the C~ty Council that there is a substantial need for the heremabove described professional services by Denton Municipal Utilities dunng the term of the 77th Texas Legislature, and that limited City staff cannot adequately perform the specialized services and tasks, which are for the most part 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 prowdes that a c~ty may not select a provider of professmnal services on the basis of competlt~ve b~ds, but must select the provider of professional services on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable pnce, and the City Council hereby finds and concludes that Boyle IS appropnately qualified under the prowsmns of the law to be retained as outside legal counsel for the C~ty, specifically Denton Municipal Utilities, respecting this engagement, and WHEREAS, the Clty Council has provided in the city budget for the appropnation of funds to be used for the procurement of the foregoing professional legal services, as set forth an 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 w~th the Law Offices of Jim Boyle, PLLC, of Austin, Texas for professional legal services pertalmng to lobbying activity and legislative matters related to Denton Mumctpal Utilities for the term of the 77th Texas Legislature as specified herelnabove, In substantmlly the form of the Agreement for Professional Legal Serwces attached hereto and Incorporated herewith by reference SECTION 2 That the award of tins Agreement is on the basis of the demonstrated competence and quahficat~ons of the Law Offices of Jim Boyle, PLLC, and the ablhty 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 3 That the expenditure of funds as provided for in the attached Agreement for Professional Legal Services Is hereby authorized SECTION 4 That ttus ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this th~ day of'~ ,2000 EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY S \Our Documents\Ordlnancos\00XJlm Boyle 77th Texas Legls PSA DMU ord doc 2 STATE OF TEXAS COUNTY OF DENTON AGREEMENT FOR PROFESSIONAL LEGAL SERVICES THIS AGREEMENT, made and entered ~nto th~s ~, _,~ day of~ 2000, by and between the Law Offices of J~m Boyle, PLLC, w~th Jam Boyle !5awng full authority to execute ttus Agreement, 1005 Congress, State 550, Austan, Texas 78701, hereanafter referred to as the "Consultant", and the C~ty of Denton, Texas, a Texas Mumcapal Corporatmn, 215 East McK~nney, Denton, Texas 76201, hereinafter referred to as the "C~ty" WITNESSETH WHEREAS, the C~ty has determaned that at needs to retmn legal counsel to represent tts interests an connection with certain legmlat~ve and legal matters relating to the C~ty of Denton Mumclpal Utfiatms, including wtthout hm~tat~on, leg~slatmn related to the Pubhc Utility Regulatory Act ("PURA") and the Gas Utthty Regulatory Act ("GURA"), and WHEREAS, because of antmlpated and expected exigencies pertmmng to the upcomang 77th Texas Legislature tnvolvlng Denton Mumc~pal Utlht~es, the Caty has requested Consultant to continue his representatmn of the C~ty m accordance wath the areas of emphas~s and focus that are generally ~dentffied and are set forth an Exfubtt "A", the "Scope of Services" attached hereto, and WHEREAS, the C~ty desires to retmn and engage Consultant to render the servmes prowded for ~n thts Agreement, and Consultant is willing to perform such services for the Caty an a professaonal manner, as an independent contractor, and NOW, THEREFORE, ~n consideration of the promases and mutual obhgatmns set forth herren, and for good and valuable constderatton, the Caty and Consultant do hereby mutually AGREE as follows I ~ Consultant shall perform the followang services ~n a professional manner working as an independent contractor, not under the direct superv~saon and control of the C~ty A Services to be provxded Consultant will provide, w~thout llm~tat~on, all those servmes set forth in Exhab~t "A," incorporated by reference herewath and made a part of tfus Agreement for all purposes, and Consultant shall attend leglslat~ve heanngs, contact key legislators and legaslatave staff, and perform other related lobbying actlvat~es as are reasonably reqmred by the City 1 2 To consult w~th the Mayor, the C~ty Manager, the Assistant C~ty Manager for Utd~tles, the Director of Electric Ut~htles, the City Attorney, and any other designated C~ty admlmstrat~ve personnel, regardmg any and all aspects of the spemal services to be performed, ~nclud~ng legal research and adwce w~th respect to such matters This will ~nclude coordinating with the Assistant City Manager for Uttht~es, the D~rector of Electric Ut~ht~es, the C~ty Attorney, and their staff to efficiently perform the servmes required and communicate the C~ty's legislative program or ~ssues to other ~nterested part~es or legislators only to the extent necessary to advance the City's legislative agenda To prowde regular status reports to the City and ~ntenm reports by telephone and facsxmde on t~me-sens~t~ve matters B Consultant shall perform all the services required by th~s Agreement in a timely fashion, and shall complete them in comphance with any schedules established by the City through its Assistant City Manager for Ut~htles, as appropriate to carry out the terms and provisions of th~s Agreement II Term The professional services of Consultant as provided by this Agreement shall commence on January 1, 2001 and shall continue until the expiration of the term of this Agreement on May 31, 2001 Th~s Agreement may be sooner terminated by either party in accordance with the prowslons hereof Time ~s of the essence for this Agreement, and Consultant shall make all reasonable efforts to complete the services set forth herem as expeditiously as possible and to meet the schedules estabhshed by the C~ty, as set forth in Paragraph I B above III Compensation and Method of Payment A Consultant shall be prod as a retamer fee the sum of $7,000 per month for each month that th~s Agreement is in force and effect Due to the umque and specmhzed nature of the services provided, the C~ty recogmzes and agrees that the payment of a monthly retmner 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 ad&t~on, the City shall reimburse Consultant for all out-of-pocket expenses recurred in connectmn with thru agreement at Consultant's cost For ~n-house photocopies, Consultant shall charge $0 15 per copy For ~n-house faxes, Consultant shall charge $0 25 per page plus telephone charge C~ty and Consultant agree that the fees and out-of- pocket expenses payable under this Agreement by the City shall not exceed $41,000 00 B Consultant shall utilize lus best efforts in representing the City's interests, and may, from t~me-to-t~me, as reasonably necessary or appropriate, delegate tasks to be performed w~thm the Scope of Services of this Agreement, by utilizing qualified pnnmpals, associates, legal assistants, or sub-consultants Assistance 2 IV provided by Consultant's staff is included m the monthly fee Assistance provided by individuals who do not work for Consultant is not included in the monthly retainer fee and any such fees shall be submitted to the Caty as a reimbursable out- of-pocket expense mcurred To the extent any such expense will exceed $500 00, Consultant will first contact the City's Assistant City Manager for Utlhtles or the C~ty's Director of Electric Utilities for approval to expend such an mount Consultant shall bill the City through the submission of a monthly invoice and other documentation, mcludmg 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 pames anticipate invoices or statements for services will be generated on a monthly basis and that said invoices or statements will be sent to the Caty on or about the 15th day of each month All lnvmces and bills issued by Consultant under this Agreement shall be approved by the Director of Electric Utthtles and the City Attorney, or lus designee D It is understood that Consultant shall work under the coordination and general supervision of the Assistant City Manager for Utlhtles, the Director of Electric Utilities, or the City Attorney, or his designee E All notices, invoices, and payment shall be made in writing and may be given by personal delivery or by mail Notates, invoices, and payments sent by mall shall be addressed to Maehael W Jez, City Manager, 215 East McKanney Street, Denton, Texas 76201, and to Jim Boyle, Esq, Law Offices of Jim Boyle, PLLC, 1005 Congress, State 550, Austin, Texas 78701 Consultant shall also send a copy of any notice required or contemplated under this Agreement to the City Attorney of the City of Denton, Texas, at 215 East McKanney Street, Denton, Texas 76201 When so addressed, the notice, invoice, and/or payment shall be deemed gaven upon deposit in the Umted States Mall, postage prepaid In all other instances, notaees, invoices, and/or payments shall be deemed g~ven at the time of actual dehvery Changes may be made an the names and addresses of the responsible person or office to whom notices, ~nvolces, and/or payments are to be sent, provided reasonable notice is given Professional Competency A 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 performang most of the work hereunder shall be Jim Boyle However, nothing herean shall hmlt 3 Consultant from using other qualified and competent members of Ins firm to perform the services reqmred hereto, where no harm or detriment will result to the Ctty's tnterests B Pleadings, mottons, orders, notmes, instruments, discovery documents, reports, memoranda, and other legal documents prepared or obtmned under the terms of tins Agreement are mstmments of servme and the C~ty shall retain ownersinp and a property interest theretn If this Agreement is terminated at any time for any reason prior to payment to Consultant for work under this Agreement, all such documents prepared or obtained under the terms of the Agreement shall upon termination be dehvered to and become the property of the City upon request and without restnctton on thetr use or further compensation to Consultant V Estab!mhment and Mmntenance of Records Full and accurate records shall be malntatned by Consultant at Ins place of business with respect to all matters covered by th~s Agreement Such records shall be mmntalned for a period of at least three years after receipt of final payment under tins Agreement VI ~tton At any t~me dunng normal business hours and upon reasonable notme to Consultant, there shall be made avmlable to the Ctty all of Consultant's records w~th respect to all matters covered by tins Agreement Consultant shall perunt the Ctty to audtt, examtne, and make excerpts or transcripts from such records, and to make audtts of contracts, tnvmces, materials, and other data relatmg to all matters covered by thts Agreement VII Accomvh,~hment of Prolect Consultant shall commence, carry on, and complete any and all projects prowded for under tins Agreement w~th all practtcable chspatch, tn a sound, economical, and efficient manner, and, tn accordance wtth the provtstons hereof and all appbcable laws In accomphshlng the projects, Consultant shall take such steps as are appropriate to ensure that the work mvolved ts properly coordtnated wtth related work betng camed on by the C~ty VIII Indemmtv and Independent Contractor Relat~onshtp A Consultant shall perform all services as an ~ndependent contractor not under the d~rect supervlmon and control of the C~ty Nothmg heretn shall be construed as creatmg a relattonsinp of employer and employee between the parttes The City and Consultant agree to cooperate in the defense of any clmms, actions, suits, or proceeding of any kind brought by a third party winch may result from or directly or indirectly arise from any neghgence and/or errors or omlsstons on the part of Consultant, or from any breach of Consultant's obligations under tins Agreement In the event any htlgat~on or clmm is brought under thts Agreement tn winch City ts joined as a party, Consultant shall provtde suitable counsel to defend the C~ty and Consultant against such clatm, provided however, that Consultant shall have the right to proceed w~th competent counsel of ins own choosing Consultant agrees to defend, mdemmfy and hold harmless the City and all of tts officers, attorneys, agents, servants, and employees against any and all such clmms to the 4 IX extent of coverage by Consultant's professional hablhty Insurance pohcy Consultant agrees to pay all expenses, including, but not hmlted to attorney's fees, and to satasfy any and all judgments winch may be incurred or rendered against Consultant's professional llabflaty insurance pohcy Nothing hereto constitutes a wmver of any rights or remedies the City may have to pursue under either law or eqmty, ancludmg, without hm~tataon, a cause of action for specific performance or for damages, a loss to the Cxty, resulung from Consultant's neghgent errors or omasslons, 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 dunng the term of tins Agreement, a legally banding pohcy of professaonal habthty ~nsurance, issued by an insurance earner approved to do bus~ness in the State of Texas by the State Insurance Board, winch career must be rated by Best Rated Careers, with a rating of "A-" or hagher Such coverage shall cover any clmm hereunder occasaoned by the Consultant's neghgent professional act and/or error or omission, an an amount not less than $500,000 00 combined single lmalt coverage per occurrence In the event of changes to or cancellation of the pohcy by the insurer, Consultant hereby covenants to immediately advise the Caty thereof, and m such event, Consultant shall, prior to the effective date of change or cancellataon, promde a substitute pohcy furmshlng the same coverage to the Caty Consultant shall provade a copy of such pohcy and the declarations page of the ex~strng policy to the C~ty through ats Assmtant City Manager for Utflatles, samultaneously w~th the execution of tins Agreement Termination of A~reement A In cormect~on wath the work outhned ~n this Agreement, it is agreed and fully understood by Consultant that the City may cancel or indefinitely suspend further work hereunder or terminate tins Agreement at any tame upon fifteen (15) days written notme to Consultant Upon receipt of such notice, Consultant shall cease all work and labor being performed under thas Agreement Consultant may terminate tins Agreement by gawng the City fifteen (15) days written notme that Consultant as no longer m a positron to continue representmg the City Consultant shall ~nvmce the C~ty for all work satasfactonly completed and shall be compensated m accordance wath the terms of thas Agreement All reports and other documents, or data, or work related to the project shall become the property of the C~ty upon termmatmn of this Agreement B Tins Agreement may be terminated an whole or in part, ~n writing, by either party m the event of substantml fmlure by the other party to fulfill its obhgatlons under ttus Agreement through no fault of the terminating party Promded, however, that no such terrmnataon may be effected, unless the other party as gaven [1] written notme (dehvered by cemfied marl, return receipt requested) of intent to termanate, and not less than tlurty (30) calendar days to cure the failure, and, [2] an opportunxty for consultation wath the terminating party prior to termanatxon C Nothing contained herein or elsewhere in tbas 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 tbas Agreement X Entire Aareement This Agreement represents the entire agreement and understanding between the parties and any negotiations, proposals, or oral agreements are intended to be integrated herem and to be superseded by this written agreement Any modification of, supplement to, or amendment to this Agreement to be effective, shall be in writing and signed by the City and Consultant XI Com~hance with Laws 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 Govemln~ Law For the purpose of determimng place of agreement and law governing same, this Agreement is entered ~nto in 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 junschctlon of any suit or cause of action arising under or ~n connection w~th this Agreement shall lie exclusively in a court of competent jurisdiction s~ttmg in Denton County, Texas XIII Dl8cnmmatlon Prohibited In performing the services required hereunder, Consultant shall not dlscnmmate agmnst any person on the basis of race, color, religion, sex, national ongm or ancestry, age, or phymcal handicap XIV Personnel A Consultant represents that he has or will secure at his own expense all personnel required to perform all the services required under tbas Agreement Such personnel shall not be employees or have any contractual relations with the City Consultant shall lmmedmtely inform the City of any conflict of interest or potential conflict of interest that may arise dunng 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 bas direct superv~mun All personnel engaged in work hereunder shall be qualified and shall be authorized or permitted under applicable federal, state, or local laws to perform such services XV Ass~nabahtv Consultant shall not assign any interest in this Agreement and shall not transfer any interest in tbas Agreement (whether by assignment, novation, or otherwise) w~thout the prior written consent of the City thereto 6 XVI Severablllty All agreements and covenants contmned here,n are severable, and in the event any of them, with the exceptmn of those cuntmned ~n sections headed "Scope of Servmes", "Independent Contractor Relatlonslup", and "Compensatmn and Method of Payment" hereof, shall be held to be mvahd by any competent court, th,s Agreement shall be interpreted as though such invalid agreements or covenants were not contmned hereto XVII Re~ponslbdlt,es for Clmms and LlablllW Approval of work by the C~ty shall not constitute nor be deemed a release of the respons~b~hty and habd,ty of Consultant for the accuracy and competency ofhts work, nor shall such approval be deemed to be an assumptmn of such responslbd~ty of the City for any defect m any report or other documents prepared by Consultant, his employees, officers, agents and sub-consultants XVIII Mod,ficatlon of Aareement No watver or modification of th~s Agreement or of any covenant, condition, or hmltatlon herein contained shall be vahd unless ,n writing and duly executed by the party to be charged therewith No evidence of any wmver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affect,ng this Agreement, or the rights or obhgatlons of the parties hereunder, unless such wmver or modtficatlon is in writing, duly executed as aforesmd, and, the part, es further agree that the prowslons of this paragraph shall not be watved as herein set forth XIX Captions The captions of this Agreement are for ,nformat~onal purposes only and shall not m any way affect the substantive terms or conditions oftfus Agreement XX Blr~dlng Effect Thxs Agreement shall be binding upon and ,nure to the benefit of the part,es hereto and their respective he,rs, executors, adm,mstrators, legal representat,ves, successors, and assigns where permitted by thxs Agreement 1N WITNESS WHEREOF, the C~ty of Denton, Texas has executed th, s Agreement by and through ~ts duly authorized C,ty M_an_ager, and Cons~ta. nt .h~as.e. xe~u~d th~s Agreement ,n four original counterparts on th~s the OT~{:J~-' day of ~ ,2000 "CITY" CITY OF DENTON, TEXAS '~(./l(41chael ~1~ Je~_~ tg[anager ATTEST JENNIFER WALTERS, CITY SECRETARY 7 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By ATTEST "CONSULTANT" THE LAW OFFICES OF JIM BOYLE, PLLC Boyl* By EXHIBIT "A" SCOPE OF SERVICES The Law Offices of Jim Boyle, PLLC (the "Law Firm") shall provide legal and legislative services, advice, and assistance to the C~ty/Denton Mumcxpal Utilities ("DMU") m connection with legislative acttwt~es primarily related to the restrucmnng of the electric utility ~ndustry, any potential changes to SB 7, possible participation or involvement ~n the Sunset review process pertmmng to the Texas Rmlroad Comm~ssmn as ~t relates to the regulation of natural gas, as well an any other electric utlhty legislative issues of importance Then secondarily, the Law Firm shall prowde legal and legislative services, adwce, and assistance to the C~ty/DMU d~rect~ng its attention to various water and wastewater utility legislative issues, pertaining to the following areas including regional water supply ~ssues, wastewater re-use ~ssues, leg~slatmn pertaining to fresh water supply districts and regional water d~stncts, issues pertmmng to the implementation of and/or the amendment of SB 1, and other key issues m that area The professional services to be provided by the Law F~rm to the C~ty/DMU shall include the follow~ng · Preparing and recommending legislative proposals of benefit to the C~ty of Denton/Denton Municipal UtlhO. es ("DMU") · The development of a Strategic Legislative Plan · Coordmatmg the mteractmn of City of Denton officials and legislative leaders · Preparing of issue papers and reports for legislators and staff · Working w~th Texas Pubhc Power Association ("TPPA") to further Clty/DMU legislative objecnves · Working with Texas Mumclpal League ("TML") to further City/DMU legislative objectives · Analyzing proposed legislative bills for thenr potential impact on the Clty/DMU · Commumcatmg with key legislators and their staffs · Assisting any technical expert(s) m providing demonstrative aids and handouts · Meeting with the Denton City Council and/or the Denton Public Utthues Board m Denton, Texas, from mne-to- tnne, to provide professmnal advice and guidance regarding Clty/DMU legislative plans, strategy, and other related issues s \Our Documents\Contracts\00U~m Boyle 77th Texas Lesls PSA DMU doc