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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 1 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 2 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 3 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, 4 ~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 5 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 6 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 7 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 8 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