1999-074 ORDINANCE NO qq'-tO~¢
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 FOR SERVICES PERTAINING TO LEGAL
AND LEGISLATIVE MATTERS RESPECTING THE CITY OF DENTON MUNICIPAL
UTILITIES BEFORE THE 76TM 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 ,nterest to engage the
Law Offices of Jim Boyle, Austin, Texas, to provide professional legal services to the City
pertaining to certain legal and leglslaUve matters pending before the 76th Texas Legislature,
respecting the City of Denton Mumclpal Utlhties, and
WHEREAS, the City has previously engaged the professional legal services of the Law
Offices of Jim Boyle by an agreement heretofore approved by the Council, which expired on
December 31, 1998 on similar matters Thereafter, the City has requested the Law Offices of
Jim Boyle to conUnue performing professional legal services on its behalf in advance of the
approval by the Council of this Agreement for Professional Services, because of exigent,
emergency circumstances in connection with matters currently before the 76th Texas Legislature,
involving the City's concerns and interests, and now the scope and extent of the services to be
performed by the Law Offices of Jim Boyle have been identified and quantified, and are
provided for m the Agreement for Professional Legal Services, 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 I That the City Manager is hereby authorized to execute an Agreement for
Professional Legal Services w~th the Law Offices of Jim Boyle for professional legal services
pertmnmg to certmn legal and legislative matters involving the City of Denton Municipal
Utilities before the 76th Texas Leglslature, in substantially the form of the Agreement for
Professional Legal Services attached hereto and incorporated herewith by reference
SECTION II 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 fmr and
reasonable price
SECTION III That the expenchture of funds as provided for in the attached Agreement
for Professional Legal Services is hereby authorized
SECTION IV That the Agreement for Professional Legal Services ~s hereby ratified and
retroactively approved, and shall be effective from and after January 1, 1999
SECTION V. That this ordinance shall become effective ~mmedmtely upon ~ts passage
and approval
PASSED AND APPROVED thls the ~]~d dayof ~f~'-~C.~ , 1999
JAC~
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROYED AS TO LEOAL FORM
HERBEP~T L PROUTY, CITY ATTORNEY
S \Our Documents~Ordmanc~s\99~hm Boyle 76th TX Logls PSA doc
AGREEMENT FOR
PROFESSIONAL LEGAL SERVICES
STATE OF TEXAS §
COUNTY OF DENTON §
THIS AGREEMENT, made and entered into thIs~'~/~ day of ~/.~,.~.,
1999, by and between the Law Office of Jim Boyle, with Jim Boyle having 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
McKmney, Denton, Texas 76201, hereinafter referred to as "City"
WHEREAS, the City needs to employ legal counsel to represent the City of Denton in
certain legislative and legal matters relating to the City of Denton Municipal Utilities including
water issues and electric restructuring bills, and
WHEREAS, because of unexpected time exigencies and emergencies arising pertaining
to the 76a Texas Legislature, the City has requested consultant to continue representing the
C~ty In advance of the approval of a current written contract between Consultant and City, and
Consultant has agreed to proceed on this basis during the interim period
WHEREAS, the Consultant is wlllang 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 wllhng to provide such services, and
NOW, THEREFORE, in consideration of the promises and mutual obhgat~ons set forth
herein, the part,es hereto do mutually AGREE as follows
I ~The Consultant shall perform the following services in a
professional manner working as an ~ndependent contractor not under the direct supervision and
control of the City
A Serwces to be provaded
1 Consultant will provide, without hm~tation, all those serwces set forth ~n
Exhibit "A" made a part of this Agreement for all purposes, and shall
attend legaslat~ve hearings, contact key legislators and legislative staff as
reasonably required
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2 To consult w~th the Mayor, City Manager, Assistant City Manager for
Utflmes, Dtrector of Electric Utilities, City Attorney, and designated
administrative personnel regarding any and all aspects of the special
servmes to be performed, mcludtng legal research and advice with
respect to such matters This will include coordinating with the Assistant
Ctty Manager for Utllmes, Dtrector of Electric Utlhtaes, the City
Attorney, and their staff to efficiently perform the services reqmred and
commumcate the City's legislative program or issues to other interested
parties or legislators only to the extent necessary to advance the City's
legtslattve agenda
3 To provide regular status reports to the City and tntenm reports by
telephone and facsimile on tlme-sensmve matters
B The Consultant shall perform all the servtces required by th~s Agreemem m a
timely fashion, and shall complete same tn comphance wtth any schedules
estabhshed by the City through its Assistant Ctty Manager for Utilities, as
appropriate to carry out the terms and conditions of this Agreement
II Term, The servtces of Consultant shall commence January I, 1999 and continue until
the exptratlon of the term of th~s Agreement on May 31, 1999 This Agreement may be
sooner termtnated by e~ther party m accordance wtth the provisions hereof Time ts of the
essence for thts Agreement, and the Consultant shall make all reasonable efforts to complete
the services set froth here~n as expedtttously as possible and to meet the schedules estabhshed
by the City, through tts Asststant City Manager for Utflmes
III Compensatton and Method of Payment
A The Consultant shall be paid the sum of $13,000 per month for each of the five
months that this Agreement is in force and effect Due to the unique and
specialtzed nature of servtces provtded, the City recognizes and agrees that the
payment of a monthly retatner fee, rather than an hourly fee, for Consultant's
services tn the area of work covered by th~s Agreement ts the usual and
customary method of compensatton for such professtonal serwces In addmon,
the City shall reimburse the Consultant for all out-of-pocket expenses tncurred
tn connectton w~th thts agreement at Consultant's cost For m-house photo
coptes, consultant shall charge $0 15 per copy For m-house faxes, Consultant
shall charge $0 25 per page plus telephone charge Fees and expenses for the
contract shall not exceed $78,000
B The Consultant shall utilize hts best efforts tn represenUng the City's interests,
and may, from tlme-to-t~me, as reasonably necessary or approprmte, delegate
tasks to be performed w~thm the Scope of Work of this Agreement, by utflmng
quahfled principals, associates, legal assistants, or subconsultants Assistance
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provided by Consultant's staff is mcluded in the monthly fee Assistance
promded 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 wdl first contact Director of Electric Utlhtles for approval
The Consultant shall bill the City through the submission of a monthly invoice
and other documentation, including support data for all expenses ~ncurred and
invoiced
C Upon completion of services for a month's work performed hereunder, the Cay
shall make payment to the Consultant within thirty (30) days of the satisfactory
completion of services for the g~ven month's work and receipt of an invoice or
statement The part~es anticipate invoices or statements for services will be
generated on a monthly basis and that said invoices or statements will be sent to
the City on or about the 15~ day of each month All invoices and bills shall be
approved by the Director for Elecmc Uttlmes and the City Attorney
D It is understood that the Consultant shall work under the coordtnauon and
general supervision of the Director for Electric Unhtles and the City Attorney
E All nouces, ~nvolces, and payment shall be made tn wrlnng and may be given
by personal dehvery or by mall Notices, invoices, and payments sent by mad
shall be addressed to Herbert L Prouty, City Attorney, 215 E McKlnney,
Denton, Texas 76201, or to the Law Offices of J~m Boyle, 1005 Congress, State
550, Austin, Texas 78701 When so addressed, the notice, invoice, and/or
payment shall be deemed given upon deposit in the Umted States Mall, postage
prepmd In all other instances, nouces, invoices, and/or payments shall be
deemed g~ven at the t~me of actual dehvery Changes may be made tn the
names and addresses of the responsible person or office to whom notices,
~nvo~ces, and/or payments are to be sent, provided reasonable notice ts given
IV Professional Competency.
A The Consultant agrees that tn 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 th~s Agreement, the key person who will be
performmg most of the work hereunder shall be Jim Boyle However, nothing
hereto shall hmlt Consultant from usmg 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
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B 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 mterest therein If this Agreement is terminated at any time for any
reason prior to payment to the Consultant for work under this Agreement, all
such documents prepared or obtained under the terms of the Agreement shall
upon termination be dehvered 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
mmntained by the Consultant at his place of busmess with respect to all matters covered by th~s
Agreement Such records shall be maintained for a period of at least three years after receipt
of final payment under th~s Agreement
VI A I e t n 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 Consultants 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 Acc0mohshment of Prolect. The Consultant shall commence, carry on, and complete
any and all projects with all pracucable dispatch, in a sound, economical and efficient manner,
and, ~n accordance with the prowslons hereof and all apphcable laws In accomphshmg the
projects, the Consultant shall take such steps as are appropriate to insure that the work
~nvolved ts properly coordinated with related work being carried on in the City
VIII Indemnity and Indeaendent Contractor Relatlonshm.
A The Consultant shall perform all services as an independent contractor not under
the direct supervision and control of the City Nothing herein shall be construed
as creating a relationship of employer and employee between the parries 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 obhgauons
under this Agreement In the event any litigation or claim ts brought under th~s
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 h~s
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,
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~ncludlng but not hm~ted to attorney's fees, and satisfy all judgements which
may he incurred or rendered against the Consultant's professional habllity
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
hmltatlon, 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 and shall be caused to be in force at all nines 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 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, serve a substitute policy furmshmg the same coverage to
the City The Consultant shall provide a copy of such policy and the
declarauons page of the existing policy to the City through its Assistant City
Manager for Utilities, slmultaneonsly with the execution of this Agreement
IX Termination of Agreement.
A In connection with the work outlined m th~s Agreement, it is agreed and fully
understood by the Consultant that the City may cancel or lndefimtely suspend
further work hereunder or terminate this Agreement at any time upon fifteen
(15) days written notice to Consultant Upon receipt of such not,ce, Consultant
shall cease all work and labor being performed under this Agreement
Consultant may terminate this Agreement by g~wng the City fifteen (15) days
written notice that Consultant is no longer ~n a poslt~on to continue representing
the City Consultant shall invoice the City for all work satisfactorily completed
and shall be compensated ~n 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 C~ty upon termination of th~s Agreement
B This Agreement may be terminated in whole or m part, m wrmng, 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 [i] 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
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C 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 whmh is not submitted in compliance with the terms of this
Agreement
X ]F, ll~tr~g~rP~,~ 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 m writing and signed by the City and
Consultant
XI C0mphance w~th Laws. The Consultant shall comply with all federal, state and local
laws, rules, regulations, and ordinances apphcable to the work covered hereunder as they may
now read or hereafter be amended, including, but not limited to the Texas Dlsclphnary Rules
of Professional Conduct
XII ~ 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
actmn arising under or in connection with this Agreement shall be exclusively tn a court of
competent jurlsdlcnon sitting in Denton County, Texas
XIII Discrimination Prohibited. In performing the sermces reqmred hereunder, the
Consultant shall not discriminate against any person on the basis of race, color, religion, sex,
national ongm or ancestry, age, or physical 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 this Agreement Such
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 Consultant's responsibilities under the Texas Disciplinary Rules
of Professional Conduct See XV below
B All services required hereunder will be performed by the Consultant or under
his direct supermsmn 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 Consent to Representation of The City of Greenville. Texas. The City understands that
Consultant expects to enter into an agreement for professional legal services with the City of
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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 th~s Agreement Because of the close ues and relations between the C~taes of
Denton and Greenville, and their involvement in similar Legislative issues, the City consents to
Consultant's engagement as a Consultant to the City of Greenwlle The City of Denton
realizes that although ~t ~s likely that the Cities of Denton and Greenville will have compatible
positions on legislative issues, it is possthle that the Cities of Denton and Greenville will
assume confl~ctmg poslt~ons on certain legislative issues The C~ty is aware of this potential
conflict and consents to Consultant's representation of both C~ties even In light of the potenual
conflict The Consultant agrees to disclose promptly to the Cities of Denton and Greenville
any conflicts ff they should ar~se, and obtain consent for continued representation
XVI ~ The Consultant shall not assign any Interest in th~s Agreement and shall
not transfer any interest ~n th~s Agreement (whether by assignment, novation, or otherwise)
without the prior written consent of the City thereto
XVII ~All agreements and covenants contained herein are severable, and in the
event any of them, w~th the exception of those contained ~n secuons 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
lnvahd by any competent court, th~s Agreement shall be interpreted as though such invalid
agreements or covenants were not contained herean
XVIII Responsibfliues for Claims and Llaballty. Approval by the City shall not consutute 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 assumpuon of such
responsthfllty of the City for any defect m any report or other documents prepared by the
Consultant, his employees, officers, agents and sub-consultants
XIX Modlflcauon of A~,reement No waiver or modfficauon of th~s Agreement or of any
covenant, condition, or hmltat~on herein contained shall be valid unless ~n writing and duly
executed by the party to be charged therewith No evidence of any waiver or modlflcatxon
shall be offered or received ~n evidence ~n any proceeding arising between the parues hereto
out of or affecting th~s Agreement, or the rights or obhgatlons of the parues hereunder, unless
such waiver or modlf~cation is m writing, duly executed as aforesaid, and, the parues further
agree that the prows~ons of th~s secuon will not be waived as here~n set forth
XX ~ The captions of this Agreement are for reformational purposes only and shall
not in any way affect the substantive terms or condlUons of this Agreement
XXI ~ This Agreement shall be binding upon and inure to the benefit of the
parues hereto and their respective heirs, executors, admimstrators, legal representatives,
successors, and assigns where permitted by this Agreement
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IN WITNESS WHEREOF, the City of Denton, Texas has caused this Agreement to be
executed by its duly authorized Cay Manag~ and Consultant has executed in four original
counterparts this Agreement on thts the t,-~ day of~, 1999
"CITY"
CITY OF DENTON
MI~q,[EI~ W JEZ, (~ ]~ANAGER
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
"CONSULTANT"
THE LAW OFFICES OF JIM BOYLE
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EXHIBIT "A"
Scope of Services
The Law Offices of Jim Boyle (Law Firm) shall provide legal and legislative assistance
to the City m connecuon with legislative activity related to the restrucmnng of the electric
utility industry and various water issues Services to be provided by the Law Firm shall
include
· Preparing and recommending legislative proposals of benefit to the City, Denton Municipal
Electric Utility (DMEU), and the City of Denton Water Utility
· Developing of a Strategic Legislative Plan
· Coordinating the ~nteractlon of City officials and leglslauve leaders
· Preparing of issue papers and reports for legislators and staff
· Working with Texas Pubhc Power Association (TPPA) to further City legislative
objectives
· Analyzing Bills for potential impact on DMEU and the City of Denton Water Utility
· Commumcatmg with key legislators and their staffs
· Enhstmg reports and other documents for use with the Texas Municipal Power Agency
(TMPA)
· Assisting techmcal expert in providing demonstrative aids and handouts